E. L. Bruce Co.

National Labor Relations Board - Board Decisions

May 14, 1947

73 N.L.R.B. 992 (N.L.R.B. 1947)

In the Matter of E. L. BRUCE COMPANY (LITTLE ROCK. PLANT) and
INTERNATIONAL WOODWORKERS OF AMERICA, C. I. O.
Case No. 15-C-1045.-Decided May 14,1947
Mr. John H. Garver, for the Board.
Canale, Glankler , Loch & Little, by Mr. Hamilton E . Little, of Mem-
phis, Tenn., and Armistead , Rector d' Armistead , by Mr. H. M. Arini-
stead, Jr., of Little Rock , Ark., for the Respondent.
Messrs . George Bentley and Lloyd C. Welch, of Memphis, Tenn., for
the I. W. A.
Taylor, Higgins, Koenig cC Windham, by Mr. Fred G. Koenig, Sr.,
and Mr. J. C. Barrett , of Birmingham , Ala., and Messrs . C. F. Menden-
hall and P. S. Biddy, of Little Rock, Ark., for the Carpenters Union.
Mr. Milton E. Harris, of counsel to the Board.
DECISION
AND
ORDER
On July 9, 1946, Trial Examiner Robert M. Gates issued his Inter-
mediate Report in the above-entitled proceeding, finding that the re-
spondent had engaged in and was engaging in certain unfair labor
practices affecting commerce and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the respond-
ent and the Carpenters Union each duly filed exceptions to the Inter-
mediate Report and a supporting brief; the I. W. A. filed a brief in
support of the Intermediate Report. On January 21, 1947, the Board
at Washington, D. C., heard oral argument, in which the respondent,
the Carpenters Union, and the I. W. A. participated.
The Board has considered the rulings of the Trial Examiner at the
hearing, and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the modifications set forth below.
73 N. L. R. B, No. 18S.
992
E. L. BRUCE COMPANY 993
The Trial Examiner found, and we agree, that the Rutland Court
doctrine is here controlling,, and that therefore the respondent, by
acceding to the demand of the Carpenters Union to invoke the existing
union-shop agreement against the complainants, discriminatorily dis
charged them in violation of Section 8 (1) and (3) of the Act. It is
clear, as the Trial Examiner found, that the timely efforts of the com-
plainants to supplant the Carpenters' Union with the I. W. A. as
the bargaining representative of the employees was an operative reason
for their expulsion by the Carpenters Union.2 We are also convinced
by the record and find that the respondent, despite its contrary con-
tention, knew of this discriminatory motivation on the part of the
Carpenters Union when that organization obtained the discharge of
the complainants.3 Thus, shortly before acceding to the discharge
demand, O'Connor, assistant to the respondent's president, conferred
with a committee of the Carpenters Union Local, at the Local's re-
quest, and during the conference asked if the discharges were being
requested because of the complainants' I. W. A. activity which had
just come to his attention. The Local's representatives, without deny-
ing that I. W. A. activity was the cause, answered only that the com-
plainants were expelled for being in bad standing, a reply which
O'Connor characterized at the hearing as "iion-committal" and dealing
in "generalities." O'Connor then terminated the conference by indi-
cating that the respondent might not comply with the discharge
demand and stating that its decision would be forthcoming within
a week. O'Connor immediately communicated-with the International
Union and asked what their "demand" was in the matter, in view
of the recent I. W. A. activity. The International replied merely
that it would investigate the expulsions and advise the respondent
through the Local. When the respondent thereafter received a second
letter from the Local, repeating its prior discharge demand but not
disclaiming that the complainants' I. W. A. activity was the cause,
O'Connor discharged the complainants without further investigation,
although he admitted with commendable candor at the hearing that,
because of the facts set forth above and the "non-committal" answers
'We find no merit in the contention of the respondent and the Carpenters Union that
the Rutland Court doctrine is contrary to law and-should not be followed in the instant
case. See Local No. 2080, Lumber & Sawmill Workers Union, etc. v. N. L. R. B., 158 F, (2d)
365 (C. C. A. 9), rehearing den'd (den'd December 28, 1946), 19 L R. R. M. 2176.
2 The respondent contends that the complainants were expelled by the Carpenters Union
not only for their activity on behalf of the I. W. A., but also for reasons unrelated to such
activity. This contention is without merit, for we are convinced and find that their advo-
cacy of the I. W. A. was a major factor in causing their expulsion, as a Carpenters Union
representative explicitly admitted to the respondent shortly after the discharges.
a In deciding the case on this ground, we find it unnecessary to pass on any of the other
grounds advanced by the Trial Examiner in applying the Rutland Court doctrine.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to'his questions, he still believed the demand of the Carpenters Union
was related to the complainants' I. W. A. activity.4
ORDER
Upon-the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, E. L. Bruce Company, Mem-
phis, Tennessee, and its officers, agents, successors, and assigns shall:
1. Cease and desist from discouraging membership in International
Woodworkers of America, affiliated with the C. I. 0., or in any other
labor organization of its employees, or encouraging membership in
United Brotherhood of Carpenters and Joiners of America, affiliated
with the A. F. of L., or in any other labor organization of its employ-
ees, by discharging or refusing to reinstate any of its employees, or
by discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of their employment, for
engaging in activities directed toward the designation of a new collec-
tive bargaining representative at an appropriate time.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer Norman O. Bates, Levi Jackson, Otha Bradley, Morris
Williams, Ollie Henderson, and William Bledsoe immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges; a
(b) Make whole the employees named above in paragraph 2 (a) of
this Order for any loss of pay they have suffered by reason of the
respondent's discrimination against them, by payment to each of them
of a sum of money equal to the amount which he normally would have
earned as wages during the period from the date of his discharge to.
the date of the respondent's offer of reinstatement, less his net earnings
during such period;
The respondent contends that O'Connor ' s admission merely reflected his subjective
belief or conjecture , which is not equivalent to "actual knowledge ," and that the respondent
should not he penalized by O'Connor ' s "commendable candor " as a witness in this connec-
tion while the Tual Examiner relies heavily on O'Connor's admission , we find it unnec-
easary to give it contiolling significance , for the record contains evidence of objective
circumstances , i e , the unresponsive replies by the Carpenters Union to O'Connor ' s pointed
question as to whether the complainant's were expelled for their I W A activity, which
give rise to an inference of knowledge by the respondent, O'Connor's candid expression of
his subjective views, actually based on circumstances appealing in the record , merely con-
firm the reasonableness of our inference of knowledge
I In accordance with our consistent interpretation of the term , the expression "formerly
or substantially equivalent positions " is intended to mean "former position wherever pos-
sible, but if such position is no longer in existence , then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York . an Juan„
Puerto Rico Branch , 65 N L R B 827
E. L. BRUCE COMPANY 995
(c) Post at all its plants covered by the said contract copies of the
notice attached hereto, marked "Appendix A." 6 Copies of said notice,
to be furnished by the Regional Director for the Fifteenth Region,
shall, after being duly signed by the respondent's representative, be
posted by it immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
AND IT Is FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent violated Section S (1) of the Act other than by
the discharges herein, be, and it hereby is, dismissed.
MR. JAMES J. REYNOLDS, JR., dissenting
For the reasons stated in my dissenting opinion in Matter of Lewis
Meier & Company,' I would dismiss the complaint herein, without
prejudice to a further consideration of the case by the Board at a
later date after the Carpenters Union has properly been made a
party respondent.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and priv-
ileges previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination.
Norman O. Bates
Levi Jackson
Otha Bradley
Morris Williams
Ollie Henderson
William Bledsoe
In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted in the notice, before the words "A Decision and Order," the words : "A
Decree of the United States Circuit Court of Appeals enforcing * * *"
773 N.L.R B 520
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We will not discourage membership in International Wood-
workers of America, affiliated with the C. I. 0., or any other
labor organization, or encourage membership in United Brother-
hood of Carpenters and Joiners of America, affiliated with the
A. F. of L., or any other labor organization, by discharging or
refusing to reinstate any of our employees or by discriminating
in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of their employment, by engaging
in activities directed toward the designation of a new collective
bargaining representative at any appropriate time.
E. L. BRUCE COMPANY,
Employer.
By ----------------------------
(Representative ) ( Title)
Dated --------------------
NoTE.-Anyof the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. John H. Garver, for the Board. ,
Mr. Hamilton E. Little, of Memphis , Tenn ., and Mr. H. M. Armistead, Jr, of
Little Rock , Ark., for respondent.
Mr. Lloyd C. Welch, of Memphis, Tenn., for International Woodworkers of
America, CIO.
Mr. Fred G. Koenig. of Birmingham , Ala, Mr. Charles S Mendenhall , of Little
Rock, Ark, 111r. J. C. Barrett , of Birmingham , Ala., Mr. P. S. Biddy, of Little
Rock, Ark., for United Brotherhood of Carpenters and Joiners of America,
AF of L.
STATEMENT OF THE CASE
Upon a charge duly filed by the International Woodworkers of America, C I 0,
hereinafter called the IWA, the National Labor Relations Board, herein called
the Board , by its Regional Director for the Fifteenth Region (New Orleans,
Louisiana ), issued its complaint dated April 4, 1946, against E L. Bruce Com-
pany, herein called the respondent , alleging that respondent had engaged in and
is engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (1) and ( 3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and
notices of hearing were duly served upon the respondent , the IWA and the United
Brotherhood of Carpenters and Joiners of America, AF of L, herein called the
Carpenters.
With respect to unfair labor practices , the complaint alleged in substance that
the respondent on or about May 7, 1945, discharged , and thereafter refused to
E. L. BRUCE COI\1PANY 997
reinstate, Norman Bates, Levi Jackson, O. Bradley, Morris Williams, Ollie
Henderson, and William Bledsoe, for the reason that they joined or assisted
the IWA or engaged in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection The complaint also alleged that
respondent from on or about April 1945, in effect, urged its employees to refrain
from becoming members of the TWA and to become or remain members of the
Carpenters. However, no evidence was adduced at the hearing tending to sup-
port this latter allegation. Accordingly, it will be recommended that it be dis-
missed.
On April 17, 1946, respondent filed an answer admitting substantially the
facts alleged in the complaint relating to the interstate character of its busi-
ness ; it also admitted that the six named employees and one additional em-
ployee, Willie Anderson, had been discharged on the date alleged, but denied
having engaged in unfair labor practices since the discharges were required
under the terms of a union shop contract with the Carpenters. Pursuant to
notice, a bearing was held in Little Rock, Arkansas, on May 7 and 8, 1946, before
the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner.
The Board, the respondent and the Carpenters were represented by counsel
and the IWA by a representative, all of whom participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. At the begin-
ning of the hearing, the Carpenters filed a motion to intervene which was granted.
At the close of the hearing, respondent and the intervenor both moved to dis-
miss. The motions were denied. The Board attorney's motion to conform the
pleadings to the proof with respect to formal matters was granted. At the
close of the hearing, all parties, with the exception of the IWA, presented oral
argument. No briefs have been filed. After the hearing, respondent presented
a motion to correct the transcript The motion is hereby granted.
Upon the entire record in the case, and from his observation of the wit-
nesses, the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The E L., Bruce Company is a Delaware corporation Its principal office is
at Memphis, Tennessee . It operates plants at Memphis and Nashville, Ten-
nessee ; Laurel and Bruce, Mississippi ; Read City , Michigan ; Cairo, Illinois ;
and Little Rock , Arkansas , the last named plant being the one where the inci-
dents hereinafter related occurred . At this plant respondent purchases logs
and rough lumber for the production of hardwood flooring, finished lumber
and related lumber products . A substantial amount of the raw material is
purchased and transported in interstate commerce. The finished products amount
to approximately $1,000,000, annually , at this time , and in excess of 70 percent
of the finished products sold and distributed is transported in interstate com-
merce through States other than the State of Arkansas.
II THE ORGANIZATIONS INVOLVED
The International Woodworkers of America is a labor organization affiliated
with the Congress of Industrial Organizations , admitting to membership em-
ployees of respondent.
United Brotherhood of Carpenters and Joiners , Lumber and Sawmill Branch
Local Unions, 2846 , 3124, 2523 , 2825, 2964 , 2639, and 2598 , are labor organizations
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliated with the Amei scan Federation of Labor, admitting to membership em-
ployees of respondent.
TIT. THE UNFAIR LABOR PRACTICES
A. The discharges
There is no substantial dispute as to the facts in this case, and those filets
present a clear and narrow question, which is, in substance, whether or not
respondent engaged in an unfair labor practice in discharging certain employees
upon the demand of the Carpenters with whom respondent had a valid union shop
contract then in effect which required that all employees be members of the
Carpenters and in good standing The contract was entered into on May 27, 1944,
and contains many of the usual provisions relating to wages, hours and working
conditions, including the check off of union clues by respondent. It covers all of
respondent's plants, there being a separate Carpenters local union in each plant.
The expiration date of the contract was May 31, 1945, but there is provision for
automatic annual renewal in the absence of notice from either party, 30 days
prior to the expiration date, of a desire to amend, change or terminate the contract.
This contract is the latest of a succession of contracts, the more recent ones
having covered all plants, the earlier ones having been for individual plants as
the Carpenters achieved organization therein. Local Union 2846 of the Carpen-
ters represents the employees in respondent's Little Rock plant. None of the
men named in the complaint as having been discharged in violation of the Act-
appeared as a witness at the hearing or otherwise gave evidence in the case. As a
result, perhaps, the record does not contain evidence on the full background
of the case Nevertheless, there is sufficient evidence to resolve the issues
presented.
Some employees of respondent became interested in changing their representa-
tives for collective bargaining from Local 2846 of the Carpenters, to the TWA, find
instituted a campaign to accomplish this. P. S. Biddy, president of Local 2846,
testified that there was considerable dissension and unrest in the plant, and that
he first heard of the activity for the TWA about the first part of April 1945. He
further testified that upon the demand of some members he appointed a committee
to investigate this activity. The committee had interviews with a number of the
employees , including some or all of those subsequently discharged upon the de-
mand of the Carpenters, as well as employees who had been solicited to apply for
membership in the IWA. At about this time, or perhaps before the committee was
appointed, Lloyd C. Welch, Special Representative of IWA, had sent a letter to
respondent's Little Rock plant, dated April -18, 1946, stating that a substantial
number of respondent's employees had applied for membership in the IWA, and
requesting respondent not to enter into contract negotiations with the Carpenters
until this Board should hold an election. On April 20, Welch filled out a Board
form of petition in a representation case which was turned over to a Board
representative, David Kruger, then in Little Rock. Kruger and Welch shortly
thereafter conferred with Frank H. O'Connor, assistant to the president of
respondent, and responsible for handling labor relations. O'Connor maintains his
office in Memphis in the general offices of "respondent, but happened to be in
Little Rock that day. Also present at the meeting was B. W. Ferrell, manager
of the Little Rock plant. The question of an election was discussed but no decision
was reached , O'Connor stating respondent' s position thusly, "we were presently
under contractual relations and all we could ' say was that we could not give up
our contractual obligations under the laws of the United States " The petition
E. L. BRUCE COMPANY 999
was later formally filed in the New Orleans office of the Board, and withdrawn
about 8 months later. The Board's office notified respondent by letter dated April
25, 1945, that the petition had been filed.
'Thereafter, about April 28, 1945, the Carpenters' investigating committee made a
report, finding that seven employees, including the six named in the complaint
and an additional one named in respondent's answer, had become members of the
IWA or had openly advocated changing affiliation to that organization. The
procedure followed within the Carpenters local is not brought out in the record,
but it is sufficient to state that the report resulted in expelling the named employees
from membership. This was followed by a letter dated April 28, 1945, signed by
Biddy, as president of the local, to the management of respondent's Little Rock
plant, demanding the discharge of the seven employees, as they were no longer
members of the Carpenters, and citing Article 5 of the existing contract which
would require that such action be taken.
The letter was delivered to Ferrell on that date, and was the subject of a brief
conference on the following day, April 29, 1945. Present at the conference were
Frank H. O'Connor, who was in town again on that day, Ferrell, and several
representatives of the Carpenters including Biddy, some members of the investi-
gating committee mentioned above, and Charles F. Mendenhall, General Represen-
tative of the Carpenters. The meeting had been requested by the Carpenters.
O'Connor asked why the Carpenters wanted the employees discharged and was
told they were in bad standing. He informed them of the request for representa-
tion by the IWA, and asked if the discharges were being requested because the
employees in question had become members of the IWA. The Carpenters' repre-
sentatives repeated that it was because the employees were in bad standing.
After O'Connor expressed doubts as to whether respondent would comply with the
request for the discharges, due to the representation case which had been filed
with the Board, Biddy stated, according to O'Connor, "that if the men were not
discharged he didn't know how lie could keep the employees in the plant working,
and that our failure to discharge them would be in violation of the contract."
Due to pressures of business and ill health, as well as a desire to discuss the
matter with the international office of the Carpenters, O'Connor stated that
respondent's decision would be forthcoming within a week.
In testifying in this case, O'Connor stated that the Carpenters' representatives
did not state that the seven employees were expelled from that union because
of membership or interest in the IWA, but as for himself, he stated "there wasn't
much doubt in my mind. I presumed that was the reason." He returned to
Memphis and about a day after the meeting he called the international office
of the Carpenters in Indianapolis, Indiana, and spoke over the telephone with
one of the general officers, relating that there had been a request for discharges
and that the IWA had filed a petition with the Board, and asked the position of
the parent organization, in view of the fact that the international union was a
party to the contract. O'Connor was informed that the matter would be examined,
and that the views of the international office would be reflected through a com-
munication from the general representative in Little Rock or the local union.
On May 7, 1945, the Carpenters again addressed a letter to respondent, signed
by Biddy and delivered by him as he went to work that morning. The letter is
almost identical to the letter of April 28, and again requested the discharge of the
same seven named employees as being no longer members of Local 2846 of the
Carpenters. After receiving the letter Ferrell called O'Connor in Memphis and
the latter authorized the discharge of the men. Accordingly, the men involved
were discharged that day. Their "Notice of Separation" or termination slips
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bore as the reason "Disqualified by Local Union 2846 U B of C & J" The names
of the employees, their job classification, and their date of employment follow :
Norman 0 Bates, rip sawyer, dimension dept, Jan. 17, 1939.
Levi Jackson, stock sawyer, diminsion dept, April 1938.
Otho Bradley, band sawyer, dimension dept., July 22, 1942.
Morris Williams, tractor driver, lumber yard, July 10, 1941.
Ollie Henderson, watchman, August 1937.
William Bledsoe, fireman, sawmill, 1937.
Willie Anderson, sander feeder, pre-finish dept, Nov. 8, 1943.
The union dues of all of the employees were up to date, through the operation
of the check-off system under the contract, though the deduction had not been
made for the month of May, 1945, since it was early in the month, and just
entering the pay period in which it was customary to deduct the dues. None of
the employees were called in for interviews or questioning as to the reason or
reasons lie had been "disqualified" or expelled from membership by the Car-
penters. O 'Connor testified that respondent, first, "wanted to live up to our
contract with the Carpenters, and we wanted to live up to the laws of the land,
and second, we were engaged at the time m manufacturing pretty critically
needed materials and we were in a time when there was a tremendous labor
shortage. When these men were discharged they couldn't be very well replaced,
and we were extremely reluctant to discharge or lose any employees at that
time." Under the same date, May 7, 1945, Welch addressed a letter to the Little
Rock,plant, advising that the IWA claimed to represent a majority of the em-
ployees in the plant, protesting the discharge of three of the employees, Bates,
Jackson and Bradley, and requesting their reinstatement without loss of com-
pensation as well as any other employees "disqualified" by the Carpenters
The following day, May 8, 1945, Bates sent a letter to the Little Rock plant
stating in part, "Evidently the union informed you of the reason for requesting
my discharge. I know of no legal reason why I am still not a member in good
standing of Local 2846 of the Carpenter and Joiners, and I will appreciate it very
kindly if you will give me the reason for my discharge." This was answered under
date of May 15 by O'Connor advising him to take the matter up with the
Carpenters. Both of the above letters were received in the mail in due course
and turned over to O'Connor.
The IWA filed a Charge with the New Orleans office of the Board which in
turn communicated with respondent on May 16, 1945, following which O'Connor
went from Memphis to Little Rock to make an investigation. He and Ferrell
again met with Biddy, Mendenhall, and some of the members of the Carpenters'
investigating committee. During this conference the Carpenters' representatives
admitted that membership in the IWA was one of the major factors in causing it
to expell the employees. As set forth in more detail hereafter Biddy and one
of the members of the Carpenters' committee placed the time of this meeting as
being 2 or 3 days after the first meeting following the letter of April 28, or at
least before the discharges on May 7, but the undersigned believes that this was
erroneous, and so finds , and accepts as credible the testimony of O'Connor as to
when it took place.
B. Conclusion
No contention was made that the contract in effect at the time of the discharges
was not a valid binding contract, nor that any of its provisions were contrary
to prohibitions of the Act. Accordingly, respondent would be required under
the terms of the contract to discharge any employee who ceased to be a member
E. L. BRUCE COMPANY 1001
auf the Caipenters, in the absence of overriding considerations. It is therefore
necessary to consider whether or not the facts presented above support the con-
tentions of the complaint.
The Board relied on the theory set forth in the Rutland Court case (44
N. L. It. B. 587), in which it was held to be discriminatory under the Act to
discharge employees who were seeking to change their union affiliation and
collective bargaining representative near the expiration date of a closed-shop
contract, the discharge having been demanded by the Union holding the contract
and the employer having knowledge that the reason for the demand of the
Union was the activity of the employees in seeking to change their union affilia-
tion. The Board adhered to this theory in the Poi tland Lumber Mills case (64
N L R. L' 159). and Cliffs Dow Chemical Co. (64 N. L. R. B. 1419), but reached
a contrary result in other cases which it distinguished on the ground that the
employer had no knowledge of the reason for the demand for discharge, or that
the employees sought to change the bargaining agent at a time which was not
reasonably close to the expiration of the contract. (See Diamond T. Motor Car
Co., 64 N. L. R. B 1225, and Southwestern Portland Cement Co, 65 N. L. R. B. 1 )
The notice to respondent of the claim of the IWA to having a substantial num-
ber of membership applications and a desire to participate in a Board election
before renewal of the contract, was dated April 18, 1915 There was further no-
tice as to the filing of the petition with the Board about 2 days later in a meet-
ing of O'Connor with the representatives of the Board and the IWA, followed
by the letter from the Regional Director of the Board which was dated April 25,
1945, and received by respondent within a few days thereafter. Under well es-
tablished Board policy it must be found that the filing of the petition was timely
and within a reasonable time before the renewal date of the contract. It follows
that the activity of the employees looking toward a change in their representative
for collective bargaining at the end of the contract period was reasonable and
permissible under Board decisions. The employees in question did not resign
from the Carpenters nor did they revoke the authorization for respondent to
check off their union dues Instead they were expelled by the Carpenters from
the organization. Admittedly, one of the main reasons for their expulsion was the
activity of the employees in support of the IWA, or "dual unionism"; in addition,
the employees were considered by the Carpenters to be causing dissension within
the Carpenters' organization and within the plant The latter reason appears
to be so closely related to the former reason that it cannot be distinguished in
reality.
The complaint alleged that respondent discharged the employees because they
joined or assisted the IWA. This would assume some information on the part
of the respondent as to the reason the employees were no longer members of the
Carpenters or their activity in support of IWA. Both Biddy and C. W. Smith,
who was a shop steward at the time in question and was a member of the com-
mittee appointed to investigate the causes for dissension and the activity in sup-
port of the IWA, testified that a second meeting was held with O'Connor, after
the meeting on April 29, 1945, following the delivery of the first letter demand-
ing the discharges, but before the delivery of the second letter resulted in the
discharges . Biddy placed this as taking place about 2 days after the first meet-
ing, and Smith as 3 or 4 days to a week While in the first meeting the Carpen-
ters' representatives told O'Connor that the reason for the request was that the
employees were In bad standing with , and had violated their "obligation" to, the
Carpenters , both agreed that at the second meeting the representatives of the
Carpenters stated that reasons for the expulsion were, in Biddy's words , "Violat-
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the Constitution and By-Laws . . [of the Carpenters], and affiliating:
and support and soliciting membership into other organization, naming the CIO "
Presumably it is the latter that was considered to be a violation of the "obli-
gation," a pledge given at the time of admission to membership, though such a
conclusion might be open to argument It will be recalled O'Connor gave sim-
ilar testimony with respect to the meeting he had with the representatives of the
Carpenters following notification of the filing of the charge in this case He de-
nied meeting with the representatives during the interval between the meeting
on April 29, 1945, and his trip to Little Rock after receiving the letter from the
Board office dated May 16, 1945. This would mean, necessarily, that such dis-
cussion of the IWA took place after the discharges. O'Connor's account of his
movements had an air of accuracy not present in the testimony of Biddy and
Smith Accordingly, the undersigned credits his testimony. and finds that the
Carpenters did not disclose the full reason for expelling the employees from the
organization until after the discharges had been accomplished.
As found earlier in this report. O'Connor did ask the Carpenters at the first
meeting on April 29, if the reason for dropping the employees from the Union was
because of activity for the IWA. and was informed it was because they had vio-
lated the "obligation," or that they were not in good standing with the Union.
It will be recalled that he had little doubt in his mind as to the real reason and
"presumed" it was due to interest in the IWA. When asked as to the basis for
the presumption O'Connor testified :
On the fact as I recall the letter from the CIO [the IWA] and the letter
[visit] from Mr. Kruger, and further, the fact that when I first met with
the A F. of L committee, according to my recollection the only statement
they made to me was that the men were in bad standing, and in dealing with,
men, etc, certain facts in our own mind,add up to certain things.
Q You were satisfied yourself that that's what it was?
A. In my mind, yes.
In the Rutland Court and Portland Lumber Hills cases, supra. the Board con-
sidered the question of knowledge on the part of the employee as to the reasons
for the demanded discharges, such knowledge being based upon informations
transmitted by the union holding the contract or the employees involved Here,
however, is presented the question as to whether belief amounts to effective
knowledge of the underlying reasons for the request by the Carpenters, the belief
subsequently having been found to be correct. -
Although the respondent may not in some instances inquire into the internal
affairs of the Carpenters , where, as here, the respondent had a reasonable basis
for a belief that the expulsions were founded upon dual unionism ,' it may not
passively remain in this state, disregarding the rights of its employees under the
Act. Indeed , the respondent 's affirmative duty, if it was not satisfied as to the
facts, was to determine , within reasonable limits, the truth or falsity of its
belief. Having failed to make this determination , the respondent acted at its
peril . This determination it might have made either by pressing its inquiry
with the Carpenters or by seeking the information from the employees whose
1 O'Connor's belief that the expulsions by the Carpenters was founded upon the desire of
the employees to change their bargaining representative, was based , among other things,
upon the IWA's request for recognition , the evasive and general response of "bad standing'
when he specifically inquired if the demand for discharge was because of the employees'
IWA activities , and as O ' Connor himself explained it, "in dealing with men . . . certain
facts in [ his] own mind add up to certain things" In addition , he testified that he was
satisfied at that time that his conclusions were correct.
E. L. BRUCE COMPANY ' 1003
discharge was sought by the Carpenters. It did neither. In any event, the key
to its inaction in this respect is to be found in O'Connor's testimony that at the
time of the discharges he was satisfied that his conclusions as to the reason why
the employees had been expelled from the Carpenters were correct. Having
reached such a mental conclusion actual knowledge was immaterial insofar as it
affected the respondent's position as is clearly shown in the fact that after the
discharges had been effected and after the respondent had been advised by the
Carpenters that dual unionism was in fact the basis for the expulsion, the
respondent took no action to remedy its wrongful conduct, but, rather, took the
position that it would not reinstate the employees unless they were first re-
established as members in good standing in the Carpenters. In view of the
entire circumstances, the undersigned is convinced and finds that there is no
substantial difference between the respondent's reasonable presumptions, beliefs,
and conclusions concerning the cause of the employees' expulsion from the
Carpenters, and actual knowledge, and therefore that the doctrine enunciated in
the Rutland Court and Portland Lumber Company cases applies to the instant
situation.
Respondent contends that when the Carpenters saw fit to expell the members
involved in this matter, and requested their discharge pursuant to the terms
of the contract, there was nothing the respondent company could do but perform
according to the terms of the contract, even though reluctant to do so because of
the labor shortage, the possibility of a charge of unfair labor practices being
filed with the Board, and, in addition, the possibility of an interruption of pro-
duction, or strike. Respondent took the position that it had no alternative but
to discharge the employees, that until the Board in a proper proceeding termi-
nated the contract in order to permit the employees to re-select their collective
bargaining agent, that the contract necessarily remains in effect, and respondent
is required to comply with it. Upon inquiry respondent advised Welch of the
IWA that the employees should take up the matter with the Carpenters. It
further states that it is ready and willing to re-employ the men if they are
reinstated in the Carpenters It argues that the recourse of the employees is
within the union organization and the courts.
The Carpenters' contention is that there are two contracts involved, (1) the
contract between the individual member and the union organization, and (2)
the contract between respondent and the Carpenters. As to the first of these,
the Carpenters state that the men in question broke their contract with it in
violating their "obligation," thus justifying the expulsion, and the remedy,
if any, lies through a series of appeals within the Carpenters' international or-
ganization, then if unsuccessful, proceeding through court action However,
the undersigned does not consider that whatever contract there may have been
between the individuals and the Union is in issue in this case. The concern here
is with the right of employees freely to choose their representatives and other-
wise enjoy their rights under the Act. Obviously this right is not pullified or
impaired by a private contractual relationship between the employees and the
Carpenters, should there in fact be any conflict It is thus immaterial as to
whether or not the employees exhausted their right of appeal within the union
organization.
There was no contention advanced by the Board that the contract between
respondent and the Carpenters was not valid and in effect at the time of the
discharges The issue presented in the arguments of respondent and of the
Carpenters with respect to this have been discussed above.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously noted the complaint alleged that respondent engaged in acts
designed to coerce employees from membership in the IWA and to maintain
membership in the Carpenters in violation of Section S (1). Other than the
discharges considered above, there was no evidence presented, or suggestion
made, that respondent had engaged in such conduct. It follows that the com-
plaint should be dismissed in this respect.
It is found that the respondent, by its discharge of Norman O. Bates, Levi
Jackson, 0 Bradley, Morris Williams, Ollie Henderson, and William Bledsoe,
discriminated in regard to hire and tenure of employment, thereby discourag-
ing membership in the IWA and encouraging membership in the Carpenters, and
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring
in connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as have been found to be unfair
labor practices tend to lead to labor disputes burdening and obstructing corm-
merce and the free flow of commerce.
V. THE RI'MEDY
Having found that the respondent has engaged in an unfair labor practice,
it will be recommended that it cease and desist therefrom, and take certain
action necessary to effectuate the policies of the Act.
It has been found that the respondent discriminatorily discharged Norman
0 Bates. Levi Jackson. 0 Bradley, Morris Williams, Ollie Henderson, and
William Bledsoe. It will he recommended that the respondent reinstate them to
their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges, if necessary dismissing July peroon hued
since the date of the discharge It will also be recommended that the respond-
ent pay to Norman 0 Bates. Lei Jackson, 0 Bradley, Morris Williams, Ollie
Henderson. and William Bled',oe an amount of money equal to that which each
would normally have earned as wages from the date of his dischargo to the
date of the offer of reinstatement, less his net earnings, during said period
Due to the fact that a similar situation may arise again, either in connection
with the reinstatement of the employees named in this case or in connection with
a demand by the Carpenters to discharge any employee who has been expelled
from that organization because of his activities designed to persuade the em-
ployees to change their collective bargaining representative at an appropriate
time, it will be recommended that the respondent be required to cease and desist
fiom using, utilizing or administering the union shop provision in the current or
any future contract in a manner illegal under the Act as found herein
Further, in view of the fact (1) that the discharges took place under color of
the respondent's union shop contract with the international union and its affih-
2 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere S"e Matter
of Crossett Lumber Company , 8 N. L R. B 440 . Monies received for work performed upon,
Federal State, county, municipal, or other work-relief projects shall be consid"rerl aca
earnings See Republic .Steel Corpomatien v. X. L R. B , 311 U 8 7
E. L. BRUCE COMPANY 1005
ated locals,' (2) that said contract, as well as preceding contracts between the
parties, were negotiated on a company-wide basis, as distinguished from a single-
plant basis, (3) that the internationl union and its affiliated locals became parties
to this proceeding and participated in the hearing by virtue of their motion to
intervene, and (4) that the international union lent its weight and support to the
respondent and the Little Rock Union, Local 2846, in effecting the discharges,
it is clear that all essential parties were before the undersigned, and that the
undersigned should make such recommendations, consistent with the extent of
the employer's operations and the company-wide scope of the contract, as will
effectuate the purposes of the Act. Accordingly, it will be recommended that the
cease and desist and notice provisions be applicable to all of respondent's plants.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CoNCLusIo cs of LAw
1. International Woodworkers of America, affiliated with the Congress of In-
dustrial Organizations, and the United Brotherhood of Carpenters & Joiners of
America. Lumber and Sawmill Blanch, Local Unions, 2846, 3124, 2523, 2825, 2964,
2639, and 2598 , affiliated with the American Federation of Labor, are labor or-
ganizations within the meaning of Section 2 (5) of the Act
2 By discriminating in regard to the hire and tenure of employment of Nor-
man 0 Bates, Levi Jackson, O. Bradley, Morris Williams, Ollie Henderson, and
William Bledsoe, thereby discouraging membership in International Wood-
woikers of America, affiliated with the Congress of Industrial Organizations,
the respondent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (3) of the Act
3. By said acts the respondent has interfered with, restrained, and coerced
its employees in the exercise of the lights guaranteed in Section 7 of the Act
and has engaged in and is engaging in unfair labor practices, within the meaning
of Section 8 (1) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends-that the E L Bruce Company, of Memphis, Tennessee,
its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging meinbeiship in International Woodworkers of America,
affiliated with the CIO, or any other labor organization of its employees, by
discharging or refusing to reinstate and of its employees. or by discriminating
in any other manner in regard to their hire or tenure of employment, or any
term or condition of employment ;
(b) Engaging in any like or related act or conduct interfering with, restrain-
ing, or coercing its eniplo^ees in the exercise of the right to self-organization.
to form labor organizations, to join or assist International Woodworkers of
]
While the existing contract is susceptible to the interpretation that it is a collective
labor agreement between the respondent and the various locals named therein, it is clear
from the admissions in the motion to intervene which was filed by the international union
and the locals, in respondent's answei, as well as from the earlier contracts and the day
to clay dealings of the pai ties, that the} interpreted and applied the contract as one between
the respondent, on the one hand, and the international, union and its named locals, on the
other.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, affiliated with the C. I. 0., or any other labor organization , to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
(c) Using, utilizing, or administering the union shop provision, contained in
Article 5 of its contract with the United Brotherhood of Carpenters and Joiners,
Lumber and Sawmill Branch, Local Unions 2846, 3124, 2523, 2825, 2964, 2639,
and 2598, affiliated with the American Federation of Labor, or any contract
executed in the future, in such manner as to discourage membership in the
International Woodworkers of America, affiliated with the Congress of Industrial
Organizations , or any other labor organization of its employees, by discharging
any of its employees because they have exercised their rights under the National
Labor Relations Act to persuade fellow employees to change their collective
bargaining representative at an appropriate time
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Norman O. Bates, Levi Jackson, 0 Bradley, Morris Williams,
Ollie Henderson, and William Bledsoe immediate and full reinstatement to
their former or substantially equivalent positions without prejudice to their
seniority and other rights and privileges ;
(b) Make Norman O. Bates, Levi'Jackson, O. Bradley, Morris Williams, Ollie
Henderson, and William Bledsoe whole for any loss of pay they may have
suffered by reason of the discrimination against them, by payment to each of
a sum of money equal to an amount determined in the manner set forth in the
section above entitled "The remedy" ;
(c) Post at its plants copies of the notice attached hereto marked "Appendix
A." Copies of said notice, to be furnished by the Regional Director for the
Fifteenth Region, after being duly signed by the respondent's representative,
shall be posted by the respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the respondent to insure that said notices are not
.altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Fifteenth Region in writing, within
ten (10) days from the receipt of this Intermediate Report, what steps the
respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is further recommended that the complaint, insofar as it alleges independent
violations of Section 8 (1) of the Act, be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building , Washington 25, D. C., an original and four copies of a
statement in writing , setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections ) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
E. L. BRUCE COMPANY 1007
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
the order transferring the case to the Board. Any party desiring to submit a
brief in support of the Intermediate Report shall do so within fifteen (15) days
from the date of the entry of the order transferring the case to the Board, by
filing with the Board, an original and four copies thereof, and by immediately
serving a copy thereof upon each of the other parties and the Regional Director.
ROBERT M. GATES,
Trial Examiner.
Dated July 9, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employes that :
We will not interfere with, restrain, or coerce our employees in the exer-
cise of their right to self-organization, to form labor organizations, to join
or assist International Woodworkers of America, C. I. 0., or any other labor
organization, by using, utilizing or administering the union shop provision,
contained in Article 5 of our contract with the United Brotherhood of Car-
penters and Joiners affiliated with the American Federation of Labor, Lum-
ber and Sawmill Branch, Local Unions 2846, 3124, 2523, 2825, 2964, 2639, and
2598, or any contract executed in the future, in such manner as to discourage
membership in the International Woodworkers of America, affiliated with the
Congress of Industrial Organizations, or any other labor organization of
our employees, by discharging any of our employees because they have
exercised their rights under the National Labor Relations Act to persuade
fellow employees to change their collective bargaining representative at an
appropriate time.
We will offer to the employees named.below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Norman 0. Bates Morris Williams
Levi Jackson Ollie Henderson
Otha Bradley William Bledsoe
E. L. BRUCE COMPANY,
Employer.
Dated -------------------- By ---------------------------------------
(Representative) (Title)
NoTE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered,-defaced, or covered by any other material.
739926-47-vol. 73-65.