Greensboro Lumber Co.

National Labor Relations Board - Board Decisions

Apr 27, 1936

1 N.L.R.B. 629 (N.L.R.B. 1936)

In the Matter of GREENSBORO LUMBER COMPANY and LUMBER AND
SAWMILL WORKERS LOCAL UNION No. 2688, UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA
Case No. C-17.-Decided April 27, 19.36
Lumber Industry-Interference, Restraint or Coercion: expressed opposition
to labor organization, threats of retaliatory action ; questioning employees re-
garding union affiliation and activity ; effort to secure identity of union mem-
bers; intimidation; vilifying union and union leaders-Diserainination: alloca-
tion of work-Collective Bargaining: refusal to negotiate with representatives ;
refusal to recognize representatives as bargaining agency representing em-
ployees
Mr. Mortimer Kollender for the Board.
Cabaniss & Johnston, by Mr. J. H. Cabaniss, of Birmingham, Ala.,
for respondent.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
STATEMENT OF CASE
On November 21, 1935, Lumber and Sawmill Workers Local Union
No. 2688, United Brotherhood of Carpenters and Joiners of America,
hereinafter referred to as Local 2688, by Gerald Harris, represen-
tative, filed a charge with the Regional Director for the Tenth Re-
gion, against the Greensboro Lumber Company, Greensboro, Ala-
bama, hereinafter referred to as the respondent, charging the re-
spondent with violations of Section 8, subdivisions (1), (3) and (5)
of the National Labor Relations Act, approved July 5, 1935, herein-
after referred to as the Act. A complaint and notice of hearing
signed by Charles N. Feidelson, duly designated agent of the Na-
tional Labor Relations Board, were issued on November 30, 1935
and served December 2, 1935, by registered mail, upon the respondent
and upon Local 2688. The complaint charged the respondent with
violations of Section 8, subdivisions (1), (3) and (5) of the Act.
An answer was filed on behalf of the respondent which denied the
applicability of the Act to the respondent's business in that the
acts alleged in the complaint do not affect commerce, in that the
applicability of the Act to the respondent's business would violate
the Tenth Amendment to the Constitution, and in that the case was
629
630 NATIONAL LABOR RELATIONS BOARD
governed by Sections 3447 et seq. of the Code of the State of Alabama.
On the basis of the evidence and the findings of fact made below,
the respondent's objections are hereby overruled. The respondent
also denied the acts of lock-out, discrimination, failure to bargain
and other acts charged in the c omplaint.
Pursuant to the notice of hearing, a hearing was held December
12, 1935, at Tuscaloosa, Alabama, before Walter Wilbur, duly desig-
nated to act as Trial Examiner, at which hearing full opportunity to
be heard, to examine and cross-examine witnesses and to introduce
evidence bearing on the issues was afforded to all parties. The
and other acts charged in the complaint.
By order of the National Labor Relations Board, dated December
19, 1935, the proceeding was transferred to and continued before the
Board in accordance with Article II, Section 35 of National Labor
Relations Board Rules and Regulations-Series 1.
On April 11, 1936, after reviewing the record and finding that
the allegations of the complaint did not conform to the evidence
offered and received at the hearing, the National Labor Relations
Board, acting pursuant to Section 10 (b) of the Act and Article II,
Section 7 of National Labor Relations Board Rules and Regula-
tions-Series 1, issued and duly served an amended complaint and
afforded the respondent an opportunity to file an answer thereto. At
the request of the respondent the answer filed to the original com-
plaint was considered filed to the amended complaint.
Upon the evidence adduced at the hearing and from the entire
record, including the transcript of the hearing, exhibits introduced
and stipulations filed, the Board makes the following :
FINDINGS OF FACT
1. The respondent, a corporation organized under and existing by
virtue of the laws of the State of Alabama, owns and operates a
sawmill and a concentration yard, hereinafter collectively referred
to as the plant, in Greensboro, Hale County, Alabama, for the pur-
poses of sawing and selling yellow pine lumber. The respondent
employs about 30 men in the plant when operating one shift, and
about 50 men when operating two shifts.
2. Ninety-eight per cent of the lumber sawed and sold by the
respondent is purchased by the respondent as timber within the State
of Alabama. The timber purchased by the respondent is cut and
transported by the respondent to the plant in Greensboro, where it is
dried, cut and stacked for sale and shipment.
3. The respondent in the year from January 1 to December 31,
1935, sold 18,295,384 feet of lumber at a sale price of $442,713.98.
Of this amount, 223,097 feet or 1.2% was sold to purchasers within
DECISIONS AND ORDERS 631
the State of Alabama. The shipments of the respondent during said,
period were as follows :
Feet
To points in Alabama-------------------------------------------- 223,097
To points in Indiana--------------------------------------------- 527,175
To points in Ohio------------------------------------------------ 3,294,791
To points in Illinois--------------------------------------------- 1,509,606
To points in Michigan -------------------------------------------- 8,749,522
To points in Pennsylvania--------------------------------------- 955,431
To points in New York------------------------------------------- 237,645
To points in Kentucky------------------------------------------- 286,909
To points in Nebraska------------------------------------------- 164,535
To points in Minnesota------------------------------------------ 77,715
To points in West Virginia--------------------------------------- 38,073
To points in Tennessee------------------------------------------ 21;877
To points in Missouri-------------------------------------------- 1,380,975
To points in Kansas--------------------------------------------- 469,892
To points in Iowa----------------------------------------------- 189,894
To points in Wisconsin------------------------------------------- 168,247
Total------------------------------------------------------ 18,295,384
The respondent sells approximately 60% of its products through
permanently employed salesmen paid on a commission basis, located
in Detroit, Michigan; Cleveland, Youngstown, and Columbus, Ohio;
St. Louis, Missouri, and Chicago, Illinois, the balance being sold on
orders sent direct to the plant. The respondent sells about 15% of
its lumber f. o. b. Greensboro, and the rest f. o. b. destination.
4. All of the aforesaid constitutes a continuous flow of trade, traffic
and commerce among the several States.
5. Lumber and Sawmill Workers Local Union No. 2688, a local of
the United Brotherhood of Carpenters and Joiners of America, affili-
ated with the American Federation of Labor, is a labor organization
which was organized among the employees in the plant in the month
of October, 1935, a charter being granted and a chapter installed on
October 27, 1935.
The attitude of the respondent was, from the beginning, antagonis-
tic to the formation of Local 2688. On October 27, 1935, E. B. May,
Secretary and Treasurer of the respondent and in active charge of
operations, sent for Emanuel Bell, an employee, and told Bell that he
understood a union was being organized in the plant and that Bell
was the ring leader; that he (May) wanted it stopped; and that any-
one who joined the union would be fired immediately. Bell reported
this conversation to the members of Local 2688. On October 28, May
called Bell into his office and asked him whether or not a meeting of
employees had been held the night before for the purpose of organiz-
ing. Bell falsely denied that such a meeting had been held because
"he had me scared." About November 4, 1935, May met Theodore
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632 NATIONAL LABOR RELATIONS BOARD
Bell, another employee, on the street and questioned him as to whether
or not a union meeting had been held the night before. May chided
Theodore Bell for not having told the management previously about
the union organization, and also said that if Theodore Bell took part
in it, "it will cause trouble."
6. On November 7, 1935, Gerald Harris, organizer for the United
Brotherhood of Carpenters and Joiners of America, having been des-
ignated by the members of Local 2688 as their representative, called
on May and told May that he had been chosen by a majority of the
respondent's employees as their representative and that the purpose of
his visit was to engage in collective bargaining. May questioned the
correctness of Harris' statement that he represented a majority and
asked Harris which of his employees belonged to Local 2688. Harris
replied that it would be better if May did not know the names because
if any of the members were subsequently discharged, the respondent
might be accused of discrimination. May thereupon ordered W. E.
Ross, foreman, to shut down the plant, line up the employees outside
the office, and bring them in one at a time. Harris remonstrated
against such a procedure and advised May that it would be a violation
of the Act and that charges would be filed against him if he per-
sisted. He also informed May that an orderly procedure existed
whereby information could be obtained, if desired by the respondent,,
as to how many of its employees desired Local 2688 to represent them,,
and that was by an election under the Act. Notwithstanding this,
May replied that he was able to take the consequences of anything he
did, had Ross bring in the employees one at a time, and asked each of
them whether they belonged "to this man's organization" or some
other similar expression. That this procedure constituted flagrant
intimidation and coercion of the respondent's employees is obvious.
After ascertaining that a majority of the employees then at work
belonged to Local 2688, May still refused to bargain collectively with
Harris. The attitude of the respondent concerning Harris' request,,
as expressed through May, is shown by the latter's testimony that,
"Of course we refused to bargain with them."
7. The attitude of the respondent is shown in acts other than those
of May. On November 5, 1935, during working hours, Joe DeWitt,
a boss in the yards, questioned Jacob Johnson, a member of Local
2688, about his union affiliation. Upon Johnson's denying he was a
member of Local 2688, DeWitt called him a "damned liar." Johnson
testified that he denied he was a member of Local 2688 because he was
"scared." On November 8, DeWitt again talked with Johnson during
working hours. According to Johnson's testimony, DeWitt told him
that if he "fooled around" with Harris, "Harris (will) be up here
sitting in the hotel smoking a cigar, and (you will) be down here.
stopping bullets."
DECISIONS AND ORDERS 633
8. The complaint alleges that on or about November 11, 1935, the
respondent locked out Ben Hopkins, Emanuel Bell, Jacob Johnson,
Young Green, Mathew Webster, Percy Keith, Ernest May, Cleveland
McDuffy, Theodore Bell, John Lomas, Ish Brown, Fate Ellis, Willie
James Sadler, Henry Jackson, William Jackson, Arthur Stevenson,
John Edd Reese, Emanuel Hopes, Wesley Ward, Jacob Winston,
George King and Henry Washington and at all times since that date
has refused to permit the aforesaid union employees to work in the
plant with the exception that Henry Washington, Theodore Bell,
Emanuel Hopes and Ernest May have been permitted to work in
the plant for not more than two or three days.
Normally, the employees work ten hours on Saturdays. The evi-
dence shows that at 3 o'clock on Saturday, November 9, the mill
closed down and most of the employees were told there was no more
work to be done at present. The mill did not resume operations until
November 22, 1935. During this period none of the above-named
persons were employed by the respondent. On November 22 the
respondent began operation of the mill using one shift. Henry
Washington, Theodore Bell, Emanuel Hopes and Ernest May having
been previously employed on that shift returned to work on Novem-
ber 22.
On December 2, John Lomas was reemployed and on December
7. five days before the hearing, all the other persons alleged to have
been discharged, with the exception of Arthur Stevenson (or Stevens)
and Wesley Ward, were told to report back for work on December 9.
On account of inclement weather the employees so notified did not
resume work until December 10.
9. The closing down of the mill two days after the demand of Har-
ris that the respondent deal with him in matters of collective bar-
gaining is a very suspicious circumstance. Although May testified
that the usual seasonal slack in orders occurs about November 1 or
before, and extends through the winter months, it is to be noted that
a double shift had been working during the whole of the month of
October and again beginning on December 10. It may be therefore
that the shut-down on November 9 was for the purpose of discourag-
ing union activities. However, the only evidence as to the reason
for the shut-down is May's testimony that the respondent at that time
had orders for only five to ten carloads of lumber, and that the lum-
ber necessary to fill these orders was not available or in condition to
be cut. We therefore refrain from finding that the shut-down of
the mill on November 9 constituted a lock-out of the employees
named. .
10. The amended complaint alleges that the respondent discrim-
inated in regard to' hire 'and tenure of employment to discourage
634 NATIONAL LABOR RELATIONS BOARD
membership in a labor organization by the employment of non-union
employees exclusively to work in the yard during the period from
November 9 to 22, 1935, and by the employment of the night shift
to work in the plant during the daytime in the period from Novem-
ber 22 to December 9, 1935.
The testimony offered and received at the hearing shows that
eight to ten persons who were not members of Local 2688 were em-
ployed to stack green lumber in the yard during the period from
November 9 to 22. At least one of these persons, Jim Watsford,
had previously been employed in the mill as a trimmer and was not
by trade a lumber stacker. No evidence was introduced to explain
why no member of Local 2688 was employed to do this work. The
evidence shows that at least several members of Local 2688 were
lumber stackers and had been working as such at the time of the
shut-down.
In addition, Emanuel Bell, financial secretary of Local 2688 who
was employed in driving a -truck which hauled lumber in the yard,
and his helper, Jacob Johnson, a member of Local 2688, were told
on November 9 that there was no further work for them at present.
Bell testified that the truck was operated at least a portion of the
period between November 9 and November 22 and that one of the
persons engaged in operating the truck was an employee hired after
Bell was laid off.
The only reasonable explanation of the employment of lumber
stackers who were not members of Local 2688 and the failure to
employ lumber stackers who were members of Local 2688 and the
substitution of other employees on a truck formerly operated by two
union employees is that it was an attempt to discourage union mem-
bership and activity by discriminating against members of Local
2688 in the allocation of work.
11. On November 20, Harris requested the respondent to meet with
him to discuss the discrimination which had occurred by reason of
these acts, but May again refused to recognize Harris as the repre-
sentative of his employees and to discuss these matters with him.
12. On November 22, the respondent began operation of the mill
using one shift which worked during the daytime. Instead, how-
ever, of employing those persons who were members of the day shift
at the time the mill had ceased operations on November 9, the re-
spondent gave employment to those persons who had worked on the
night shift during the month of October. Four persons in that shift,
i. e. Henry Washington, Theodore Bell, Emanuel Hopes and Ernest
May, who were members of Local 2688, were employed. It is not
clear from the testimony whether there were any other former night
shift employees who were members of Local 2688.
DECISIONS AND ORDERS 635
The night shift, as a group, had never, prior to this time, been em-
ployed to work during the day. May testified that the night shift
was employed because it was considered by the management to be
"loyal" in that only four or five of the employees on the night shift
were members of Local 2688, whereas the majority of the day shift
employees were members of Local 2688, and that the management
wished to be "loyal" to those who were "loyal" to it. When the
balance of the employees returned to work on December 10, they
resumed their former positions on the day shift, and the employees
who had been working since November 22 were again put to work as
a night shift.
The employment of the night shift to work in the daytime was by
this admission of the respondent because of union affiliation and
activity and was clearly for the purpose of discouraging such affilia-
tion and activity.
13. Of the two members of Local 2688 not returned to work on
December 10, the respondent stated at the hearing that Arthur
Stevens (or Stevenson) did not report to work because of illness and
that the respondent proposes to take him back as soon as he is able
to work. As to his case, we will therefore dismiss without prejudice.
The respondent also stated that it considered Wesley Ward to have
been discharged and that it does not propose to reemploy him. The
only evidence on the reason for the discharge occurs in the testimony
of Wesley Ward, and is to the-effect that on November 8, at 12 o'clock
noon, Ward requested the permission of DeWitt to leave his work
because of illness; that DeWitt did not seem to want to let him off
but that he went home; that on Saturday, November 9, he went to
work and again requested permission to leave because of illness; that
DeWitt was very angry and told another employee that if Ward was
not going to work, to put another man in his place. Ward on the
next working day, applied for work and was told by DeWitt and by
Ross that he had been discharged because he had left his job without
permission. In cross-examination, it was developed that although
Ward had not left the plant until after 12 o'clock noon on November
8, he had returned driving an automobile at 4 o'clock of the same day
to secure his money. In the light of this testimony, the Board does
not feel justified in finding that the discharge of Ward was because
of Ward's union affiliation.
14. Although the record clearly indicates the refusal of the re-
spondent to carry on negotiations with Harris on November 7 and
November 20 in respect to rates of pay, wages, hours of employment
and other conditions of employment, we cannot decide on the evi-
dence what the appropriate unit should be, nor exactly how many
of the employees in an appropriate unit were members of Local 2688.
636 NATIONAL LABOR RELATIONS BOARD
The complaint contains no allegation as to which employees of the
respondent should be considered in determining the proper unit. It
was testified on behalf of Local 2688 that all employees engaged in
operations at the plant and all truck drivers engaged in the trans-
portation of logs or lumber, except supervisory employees, are eligible
for membership in Local 2688, but the witness did not know whether
clerical employees are eligible.
Accepting this testimony on behalf of Local 2688, a further question
arises. The record indicates that a day shift was regularly employed
except for occasional shut-downs due to weather conditions, lack of
orders or lack of lumber of the kind or condition necessary to fill
orders then on hand. A night shift was employed only when the
volume of business justified it. It is not clearly established what
portion of the time a night shift was employed; whether the persons
employed when a night shift is used are to be considered regular
employees; and whether night shift employees should be considered
part of the appropriate unit.
Under these circumstances we are unable to decide which employees
of the respondent constitute a unit appropriate for the purposes of
collective bargaining.
15. The secretary of Local 2688 testified at the hearing that on or
about November 8, 1935, 22 employees of the respondent were mem-
bers of Local 2688. The testimony concerning who these members are
varies considerably from the list of persons alleged in the complaint
to be members of Local 2688. Apparently the complaint includes as
members at least 2 persons not named by the witness. One of these,
Jacob Johnson, was a witness at the hearing and testified he was a
member of Local 2688 on November 8, 1935. If the day shift is an
appropriate unit, on the basis of the respondent's figures that approxi-
mately 30 persons are employed on the day shift, it is apparent that
a majority of the members of the day shift are members of Local 2688.
On the basis of the respondent's estimate that approximately 50 per-
sons are employed when both shifts are operated, if the appropriate
unit includes employees on both shifts, more exact information would
be necessary to determine whether the members of Local 2688 consti-
tute a majority of the employees on both shifts. .
Under the circumstances, we feel unable to decide the question of
whether the respondent refused to bargain collectively within the
meaning of Section 8, subdivision (5) of the Act. However, the
Board is anxious to effectuate for these employees their right to bar-
gain collectively, and will entertain a petition for an investigation
and certification of representatives pursuant to Article III, Section 1
of its Rules and Regulations-Series 1.
. 16. By the acts set forth in findings of fact 5, 6, 7, 10 and 12, the
respondent interfered with, restrained and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
DECISIONS AND ORDERS 637
17. By the acts set forth in findings of fact 10 and 12, the respond-
ent discriminated in regard to hire and tenure of employment and
did thereby discourage membership in Local 2688.
18. The aforesaid acts of the respondent tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
Upon the basis of the foregoing, the Board makes the following
conclusions of law :
1. Local 2688 is a labor organization, within the meaning of Section
2, subdivision (5) of the Act.
2. The respondent, on or about November 11, 1935, did not discharge
Ben. Hopkins, Emanuel Bell, Jacob Johnson, Young Green, Mathew
Webster, Percy Keith, Ernest May, Cleveland McDuffy, Theodore
Bell, Arthur Stevens (or Stevenson), John Lomas, Ish Brown, Fate
Ellis, Willie James Sadler, Henry Jackson, William Jackson, John
Edd Reese, Emanuel Hopes, Jacob Winston, George King and Henry
Washington, and did not fail and refuse to reinstate said employees,
and did not engage in unfair labor practices, within the meaning of
Section 8, subdivision (3) of the Act, as alleged in paragraph 5 of the
amended complaint.
3. The respondent, by its discharge of Wesley Ward on or about
November 11, 1935, did not engage in unfair labor practices, within
the meaning of Section 8, subdivision (3) of the Act, as alleged in
paragraph 5 of the amended complaint.
4. The respondent did not refuse to bargain collectively with Local
2688, within the meaning of Section 8, subdivision (5) of the Act,
as alleged in paragraph 9 of the amended complaint.
5. The respondent, by the acts set forth in findings of fact 10 and
12 has discriminated in regard to hire and tenure of employment,
and has thereby discouraged membership in a labor organization,
and did thereby engage in and is thereby engaging in unfair labor
practices, within the meaning of Section 8, subdivision (3) of the
Act, as alleged in paragraph 7 of the amended complaint.
6. The respondent, by the acts set forth in findings of fact 5, 6,
7, 10 and 12 has interfered with, restrained and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act, and
did thereby engage in and is thereby engaging in unfair labor prac-
tices, within the meaning of Section 8, subdivision (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
638 NATIONAL LABOR RELATIONS BOARD
ORDER
On the basis of the above findings of fact and conclusions of law,
and pursuant to the authority granted in Section 10, subdivision (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that:
1. The respondent, Greensboro Lumber Company, and its officers
and agents shall:
(a) Cease and desist from, by words, threats, acts or in any other
manner whatsoever, interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purpose of collective bargaining and other mutual
aid and protection, as guaranteed in Section 7 of the National Labor
Relations Act.
(b) Cease and desist from, in any manner whatsoever, discrimi-
nating in regard to hire or tenure of employment or any term or
condition of employment, and thereby discouraging membership in
Lumber and Sawmill Workers Local Union No. 2688, United Broth-
erhood of Carpenters and Joiners of America, or in any other labor
organization.
(c) Take the following affirmative action, which the Board finds
will effectuate the policies of the National Labor Relations Act:
Post notices in conspicuous places in its plant stating that the re-
spondent will cease and desist in the manner aforesaid, and further
stating that such notices will remain posted for a period of thirty
,consecutive days from the date of posting.
2. And further orders that the complaint be dismissed as to the
following allegations :
(a) That the respondent on or about November 11, 1935, locked
out Ben Hopkins, Emanuel Bell, Jacob Johnson, Young Green,
Mathew Webster, Percy Keith, Ernest May, Cleveland McDuffy,
Theodore Bell, Arthur Stevens (or Stevenson), John Lomas, Ish
Brown, Fate Ellis, Willie James Sadler, Henry Jackson, William
Jackson, Wesley Ward, John Edd Reese, Emanuel Hopes, Jacob
Winston, George King and Henry Washington, and failed and re-
fused to reinstate said employees, providing however that, with re-
spect to Arthur Stevens (or Stevenson), the allegation is dismissed
without prejudice; and
(b) That the respondent refused to bargain collectively with
Local 2688.