Leslie County Lumber Co.

National Labor Relations Board - Board Decisions

Oct 5, 1943

52 N.L.R.B. 1147 (N.L.R.B. 1943)

5
In the Matter Of HENRY WHITING, DOING BUSINESS AS LESLIE COUNTY
LUMBER COMPANY and WHITING LOCAL No. 101, UNITED CONSTRUC-
TION WORKERS, AFFILIATED WITH DISTRICT 50, UNITED MINE WORK-
ERS OF AMERICA
Case No. C-19685.-Decided October 5,194,3
DECISION
AND
ORDER
On July 25, 1943, the Trial Examiner issued his Intermediate
Report 1 in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist from the unfair labor
practices found and take certain affirmative action, as set forth in the
copy of the Intermediate Report annexed hereto, and that the com-
plaint, as amended, be, dismissed as to the remaining allegations.
None of the parties filed exceptions or briefs or requested oral argu-
ment before the Board. The Board has considered the rulings made
by the Trial Examiner at the hearing and finds that no prejudicial`
error was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
It is noted that the Trial Examiner found, and we agree , that the
respondent, desiring to make its employees abandon the Union,
terminated the operations of its logging crew on April 10, 1943, and
thereby forced a halt in the operations of its mill department and
a sharp curtailment of available work in its yard department. While
it is clear that the respondent thereby discriminated against all of
its employees who were deprived of an opportunity to work during
the period of the lock-out, the case was tried, and the Trial Exam-
iner's findings are based, upon the theory that it was necessary to
determine whether each employee individually was "locked-out," and
that factors, such as the employee's membership in the Union and
availability for work during the period of the shut-down, were
1 On August 6, 1943, the Trial Examiner issued an "Erratum," which corrected an omis-
sion from the recommendations of the Intermediate Report.
52 N. L. R. B., No. 189.
1147
1148 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
material to such a determination. Ordinarily in cases of this kind,
we would hold such factors to be irrelevant to a finding of a lock-out.
However, in view of the circumstances of this case, and the signifi-
cant failure of the parties to file exceptions to the Intermediate Re-
port, we see no reason for disturbing the Trial Examiner's findings.
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, Henry Whiting, doing busi-
ness as Leslie County Lumber Company, Whiting, Kentucky, and
his agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Whiting Local No. 101, United
Construction Workers, affiliated with District 50, United Mine Work-
ers of America, or in any other labor organization of his employees,
by discriminating in the hiring of applicants for employment, or by
discharging or refusing to reinstate any of his employees, or by dis-
criminating in any other manner in regard to their hire or tenure of
employment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
his 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 or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer Logan Pennington and Cecil Adams immediate and full
reinstatement to their former or substantially equivalent positions,
and offer Warner Day employment in the position which he was denied
or one substantially equivalent thereto, without prejudice to their
seniority or other rights and privileges, and make them whole for any
loss of pay they have suffered by reason of the respondent's discrimi-
nation against them, by payment to each of them of a sum of money
equal to that which he normally would have earned as wages from the
date of the respondent's discrimination to the date of the respondent's
offer of reinstatement or offer of employment, less his net earnings
during said period;
(b) Make whole each of the employees listed in Appendix A of the
Intermediate Report for any loss of earning he has suffered by reason
of the respondent's discrimination against him, by payment to him
of a sum of money equal to that which he normally would have earned
LESLIE COUNTY LUMBER COMPANY 1149
as wages during the period he was locked out, less his net earnings
during said period;
(c) Post immediately in conspicuous places throughout the plant
at Whiting, Kentucky, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to his employees
stating: (1) that the respondent will not engage in the conduct from
which he is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a) and (b) of this Order; and (3) that
the respondent's employees are free to become and remain members of
Whiting Local No. 101, United Construction Workers, affiliated with
District 50, United Mine Workers of America, and that the respond-
ent will not discriminate against any employee because of his mem-
bership or activity in that organization;
(d) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it al-
leges the discriminatory discharge of Farmer Boggs and the employees
listed in Appendix B of the Intermediate Report, be, and it hereby is,
dismissed.
INTERMEDIATE REPORT
Mr. Benjamin B. Cook, for the Board.
Mr. Cleon K. Calvert, of Pineville, Ky., and Mr. Mitchell C. Begley, of Hyden,
Ky., for the respondent.
Mr. William L Rose and Mr. Fred P. Locke, of Harlan, Ky., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed April 5, 1943, by Whiting Local No. 101,
United Construction Workers, affiliated with District 50, United Mine Workers
of America, herein called the Union, the National Labor Relations Board, herein
called the Board, by its Regional Director for the Ninth Region (Cincinnati,
Ohio), issued its complaint dated April 9, 1943, against Henry Whiting, doing
business as Leslie County Lumber Company, herein called the respondent, alleg-
ing that the respondent had engaged in and was engaging in unfair labor prac-
tices 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, accompanied by notice of hearing, were
duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) Since on or about January 28, 1943, interfered with,
restrained. and coerced his employees in the exercise of the rights guaranteed in
Section 7 of the Act, by various acts, including thereatening his employees with
discharge if they became or remained members of the Union, questioning his em-
ployees regarding their membership in or their intention to join or continue mem-
bership in the Union, threatening to shut down his mill unless his employees
withdrew from the Union, stating that he would raise the wages of those employ-
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees who withdrew from the Union, vilifying the Union, its organizers and mem-
bers, and stating in the presence of his employees that if the Union was successful
in organizing them, he would cease his negotiations for the purchase of addi-
tional timber rights and thus cause the curtailment of his operations; and (2)
between February 4, 1943, and March 3, 1943, discharged or laid off Warner
Day, Farmer Boggs, Logan Pennington and Cecil Adams, employees, and there-
after failed and refused to reinstate them, because of their union membership and
activities.
In his answer to the complaint, filed on April 22, 1943, the respondent denied that
he was engaged in commerce within the meaning of the Act, denied that he had
engaged in the unfair labor practices alleged, and alleged that the four em-
ployees named in the complaint were discharged because of inefficiency, insub-
ordination and absenteeism, and not because of any union activity on their part.
Pursuant to notice,, a hearing was held on April 22 and 23, 1943, at Harlan,
Kentucky, before Ralph A. Newman, the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The hearing was closed on April 23, 1943.
On May 19, 1943, the Board, by Benjamin E. Cook, Attorney, Ninth Region, moved
to reopen the record, to incorporate into the record a second amended charge,
filed with the Regional Office of the Ninth Region of the National Labor Relations
Board on May 18, 1943, and that the complaint be amended by alleging that on or
about April 10, 1943, the respondent locked out his employees for the purpose of
discouraging membership in the Union. On May 20, 1943, an order was made by
the Chief Trial Examiner directing the Board to set forth, among other things,
the names of the employees claimed to have been locked out by the respondent.
Upon receiving the information requested, the Chief Trial Examiner on June 9,
1943, granted the said motion to the extent of reopening the hearing, and referred
the said motion in all other respects to the Trial Examiner. On June 9, 1943, the
Trial Examiner granted the said motion to incorporate the second amended
charge in the record and to amend the complaint by adding an allegation that the
respondent on or about April 10, 1943, locked out 74 named employees for the
purpose of discouraging membership in the Union, and set down the above entitled
proceeding for further hearing on June 21, 1943. On June 21, 1943, the respond-
ent filed its answer to the complaint as amended, denying its allegations and again
alleging that the respondent was not engaged in interstate commerce. Pursuant
to notice, a further hearing was held on June 21 and 22, 1943, at Whiting,
Kentucky, before the undersigned Trial Examiner. At both hearings the Board
and the respondent were represented by counsel and the Union by its representa-
tive and, in the first hearing, by counsel, and participated in the hearings. Full
opportunity to be heard, to examine and cross-examine witnesses and to introduce
evidence bearing on the issues was afforded all parties. At the close of both
hearings the Trial Examiner granted, without objection, motions by Board's
counsel and by counsel for the respondent to conform the pleadings to the proof
as to formal matters. At the close of the case Board's counsel moved to dismiss
the complaint as to certain employees named in the complaint as amended. The
said motion was granted with respect to three employees 1 • who had requested
Board's counsel to strike their names from the complaint. Decision upon the
rest of the motion was reserved. The motion is now decided in accordance with
the following report? At the close of the case respondent's counsel moved to
dismiss the complaint as to Orville Farley, an employee. Decision upon the said
motion was reserved. The motion is hereby granted. At the close of each hearing
K. C. Cornett , Marion Templeton and J . V. Estep. (612)
2 The subsequent findings approve the dismissal of the complaint as to all employees in
whose cases the Board requested the dismissal except "Bill" Shell.
LESLIE COUNTY LUMB'ER COMPANY 1151
all parties waived oral argument. Opportunity to file briefs was afforded all
parties at the close of each hearing. Briefs were filed by respondent's counsel
after the close of, the first hearing. No other briefs have been filed.
Upon the record thus made, and from his observation of the witnesses, the
Trial Examiner, in addition to the above, makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is engaged in the cutting of timber and in the milling, sale,
and distribution of lumber and related products. He owns and operates a
sawmill, lumber yard, and company store, all located in Whiting, Leslie County,
Kentucky, and a logging camp also located in Leslie County about 2 miles from
the sawmill. Operations at the present location began in 1940. From Septem-
ber, 1941 until October, 1942 the mill, equipment and property were leased by
the respondent to the It. T. Heaton Lumber Company of Andrews, North Caro-
lina. The lease was terminated in September, 1942 and since October, 1942 the
respondent has operated the mill, equipment , and other property.
Sawmill equipment and machinery of the value of approximately $1,000 was
purchased by the respondent, and shipped to him during 1940, from the points
without the State of Kentucky. From September, 1942 the respondent's gross
sales have amounted to approximately $23,000. Since October, 1942, when the
respondent resumed operation of the plant, lumber valued, after the deduction
of 10 percent handling charges, at $21,575.89 and comprising approximately
80 percent of the lumber produced by the respondent has been sold and de-
livered to the Fletcher Lumber Company, which is located in Gaynor, Kentucky.
The remainder of the respondent's output is sold to local mines in Kentucky.
Of the lumber sold by the respondent to the Fletcher Lumber Company, approxi-
mately 70 percent is resold by the Fletcher Lumber Company and shipped by
it to points outside the State of Kentucky. The Fletcher Lumber Company
pays the respondent, for the lumber sold by him to the Company, the amount of
the resale price, less 10 percent. The contract between the respondent and the
Fletcher Lumber Company had about 6 months to run from April 22, 1943, the
date of the commencement of the hearing. The activities of the respondent
clearly affect the flow of commerce across state boundaries!
II. THE ORGANIZATIONS INVOLVED
Whiting Local No. 101, United Construction Workers, affiliated with District
50, United Mine Workers of America, is a labor organization admitting to
membership employees of the respondent.
8 See N. L. R. B. V. Cleveland-Cliffs Iron Co., 133 F. (2d), 295, (C. C. A. 6) where the
Court held that the Board has jurisdiction of an iron company at its lumber camps although
its lumbering operations were confined to one State, where the principal purchasers proc-
essed and converted the lumber into other products which entered Into interstate commerce,
since labor relations at the lumber camps had a close and substantial relationship to the
flow of goods in interstate commerce. "The close and intimate effect which brings the
subject within reach of federal power may be due to activities in relation to productive
industry, although that industry when separately viewed is local," Santa Cruz Fruit Packing
Company v. IV; L. R. B., 303 U. S. 453. "It was not any the less interstate commerce because
the transportation did not begin or end with the transfer of title of the merchandise trans-
ported," N. L. B. B. v. Fainblatt, 306 U. S. 601. The intervention of a private agency over
whom the employer has no control is of no moment, Consumers Power Co. v. N. L. R. B.,
113 F. (2d) 38 (C. C. A. 6).
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint and coercion
In the early part of February, 1943, Edward Day, an uncle of one of the
alleged dischargees, who had been asked by some of the employees to assist
them in organizing a union, spoke to Vance Coffey, the plant superintendent,
on the general subject of unions. On that occasion Coffey asked Day if he
was organizing, and on being informed that he was, said, according to Day's
testimony, which is credited, "I am going to fire every man that signs one of
your cards and get me a new man."'
About the middle of February, 1943, Coffey told a group of eight or nine
employees in the sawmill that he had an opportunity to buy a tract of timber
from Ford, and would do so if the men would "drop" the Union, but that
otherwise he was going to shut down, because he couldn't "pay the price." 6
That same day Mill Foreman Millard Long asked all the sawmill employees
to sign, in a book, indicating whether they were for or against the Union,
stating to them that he wanted to report to Whiting (the respondent) as to
who were going to remain in the Union and who were planning to drop out."
On February 22 Long asked Farmer Boggs, an employee, if he had joined the
Union.
Some time in February, Coffey told some of the employees that if they would
"drop" the Union they would get a raise.' Foreman John Causey ' also told
some of the men that they could get a raise if they "dropped" the Union
' Coffey, later called as a witness by the respondent, testified that he could not recall his
exact conversation with Day, but stated that he would not say whether or not he had told
Day that he was going to fire any man who joined the Union. When asked by the respond-
ent's counsel , "Did you ever say to anybody over there that you intended to fire every
man over there who joined the Union?" Coffey replied: "No, sir, none of the men. If
I said it at all, I was talking to somebody else. I never said it to none of the men
around there ." Immediately thereafter, in response to a leading question, "You never said
it to anybody, did you?" he replied "No, Sir." In view of the equivocal nature of Coffey's
testimony, Day's version of the conversation in question is credited.
6 The foregoing finding is based upon the testimony of Cova Lewis, an employee, corrob-
orated by Levi Boggs, another employee. Coffey testified that he "imagined" that be
had stated to the Board 's attorney, a few days before the hearing "If the hands fool
with the Union, I won't buy Ford's timber. I can find enough men who won't fool with
the Union to finish cutting the timber we already got." Coffey admitted that his views
were in accordance with such a statement. At the subsequent hearing on June 22, he
admitted having said that if the Union demanded the wages he expected that it would
demand, the plant would have to shut down. Since the statement attributed to Coffey
by Lewis and Boggs, both straightforward witnesses , corresponds exactly to Coffey's
admitted views on the subject, their testimony as to the making of the statement by Coffey
is credited.
6 The foregoing finding is based upon the testimony of Cova Lewis, corroborated by
Logan Pennington and J. V. Estep, employees. Whiting had shortly before this investiga-
tion by Long sent a telegram to Coffey, which the latter interpreted as requiring,' him to
find out if the men would remain in the Union before a decision could be made about
buying the Ford timber. Long, who was no longer in the respondent's employ at the time
of the hearing, did not testify. Coffey admitted that either he or an employee who had
secured his permission to address the woods crew, bad told Long to see what the men
wanted to do about the Union. As the man referred to by Coffey was only an ordinary
employee it follows that he would hardly have so instructed Foreman Long on his own
initiative and that he must have received authorization from Coffey to so instruct Foreman
Long. The Trial Examiner therefore finds that the foregoing instruction ; to Long was
given by Coffey personally or in accordance with his instructions.
7 The foregoing finding is based upon the uncontradicted testimony of Ttobert Boggs, an
employee.
8 Causey gave orders to seven men.
6 The foregoing statement by Causey was testified to by Cecil Ade.ms, an employee.
Causey, after denying having made the statement, subsequently admitted having made it.
LESLIE COUNTY LUMBER 'COMPANTY 1153
On February 23, 1943 Fred Locke, the Field Representative of the United Con-
struction Workers, District 50, United Mine Workers of America, called on Coffey
at the plant to discuss the reinstatement of Warner Day, an employee who had
been denied employment earlier in the month.10 On that occasion Coffey stated
to Locke that he would shut down before he would work with organized labor,
and that he would, in Locke's words, "fire the whole damned crew and hire a new
one." ,
Again, on April 1, 1943, Locke discussed unions, at the plant, with Coffey, who
stated that he was not going to have anything to do with the Union. On the
following day, at a conference at the office of the respondent's attorney, Coffey
again stated that before he would have anything to do with the Union he would
close the plant down and start up with a new crew 11 Coffey also stated to Locke
that the lumbermen in Harlan County had a gentlemen's agreement that they
would not have anything to do with the Union, and that if he reinstated any of
the employees who had recently been discharged, he would not have any control
over the men at his plant.
Coffey admitted having made the following statement to the Board's attorney
shortly before the hearing :
I told the men that it was their business if they wanted to join the Union ;
I just wanted to know how many would join so I could decide whether or
not to buy more timber. I just won't fool with no union. I might be wrong
but if I find T am wrong, it won't change my mind I just won't fool with
no union. I have handled men for about 25 years ; and I don't need no
guardians to tell me what to do.
He also admitted that he had asked the Board's attorney if it would be against
the law for the respondent and two other lumber companies to have a gentlemen's
agreement not to "fool" with the Union and to hire a new, crew, and if the Union
won the election, to close down and then start up with a new crew.
About the time of certain of the discriminatory discharges hereinafter dis-
cussed, which occurred between February 4 and March 3, 1943, Mill Foreman
Long told some of the employees that he had gotten rid of two of his "hardest
boiled" union men and that if he could get rid of one more, he believed he could
"buck the Union out." Shortly before the first hearing Long told eight employees
that he didn't want to "fool" with the Union any more, and that before he would
allow his men to "fool" with it he would fire every one of them.l2 -
About the end of March, 1943, Isaac Madden, the woods crew foreman, asked
the men in his crew to sign a statement indicating who had signed up for the
Union." -
On April 2 Coffey again stated to the Board's attorney that before he would
have anything to do with the Union he would close the plant down and start up
with a new crew.
1° The circumstances in connection with the refusal to employ Day will be discussed herein-
after
11 Locke testified that the respondent's general counsel, Mitchell Begley, was present at
the conference . Begley , who was present throughout the hearing , did not testify.
L Testimony of Felix North, an employee , which in this point is credited , corroborated
by Cecil Adams, another employee
11 Testimony of Foreman Madden Madden , when asked his purpose in passing around
the paper for signature , stated as his only reason "There just wasn ' t anything up there to
establish a union " His real reason is disclosed in the testimony of Homer Bievins, an
employee, which is credited , that Madden stated to the men that it would be better to drop
out of the Union than to have the plant shut down. Madden testified that he did not
"think" he had made such a statement His denial is not credited
1154 DECISIONS OF NATIONAL LABOR RElATIONiS BOARD
On April 10, 8 days after the foregoing statement of Coffey, the condition appre-
hended by him, that the Union would obtain a majority, came to pass, when
about 33 of the employees were formally initiated into the Union. By that date
73 employees in all out of a total of approximately 100 on the respondent's pay
roll had become members. Within 3 hours from the close of the meeting the
action foreshadowed by Coffey's expressions of intention took place, and without
warning the decision was reached to close down two departments of the plant.
The lockout, as is hereinafter found, was discriminatory. The circumstances
surrounding the closing will be discussed in detail later in connection with the
discriminatory discharges resulting therefrom.
The Trial Examiner finds that by the statements of Coffey and foremen as
hereinbefore set forth, by the taking of the polls to determine who of the em-
ployees would remain in the Union and by the lockout the respondent has
interfered with, restrained, and coerced his employees in the exercise of the
rights guaranteed in Section 7 of the Act.
B. The respondent 's discrimination with respect to hire and tenure of
employment
1. The discriminatory refusal to employ Warner Day
From a time soon after the plant commenced operations in October, 1940 until
March, 1943, Warner Day worked as a wbod-cutter for his father, who had a
contract with the respondent to cut timber. On January 31, 1943, the particular
tract of timber having become exhausted, Warner Day asked Foreman Parker
Coffey 1¢ for a job. Foreman Coffey told him to report next day to Foreman Keffie
Burkhart to see if the latter could use him on the road. Day reported to
Burkhart the following morning, and told him that Foreman Coffey had said he
might work for Burkhart. Burkhart told Day that he did not need him and that
he did not hire hands, and that Day would have to wait until Foreman Coffey
came. After a while Burkhart told Day that he might work, to keep warm, until
Coffey should arrive. Coffey did not appear that day, and at the end of the day's
work Day was told to come back the following morning and that, if it was
satisfactory to Coffey, he might continue to work. Day did not report for 2 days
thereafter, but on February 4, the third day following, he again reported to
Burkhart, who told him that he could not use him
The day that Warner Day worked, he told Burkhart that he was a member
of the Union 15 The next morning, February 2, Burkhart consulted with Foreman
Parker Coffey, and they decided not to take Day on. That same day another
man, Grant Baker, was hired, took Day's place on the road crew for a few
days, and was thereafter employed on the woods crew."
14 Foreman Coffey was a cousin of Plant Superintendent Vance Coffey.
1S Day had joined the Union on January 27, 1943. Burkhart denied that Day told him
that he had become a union member. Day's account of how that statement came to be
made was that in the course of a conversation in which the statement had been made that
defense workers could not belong to unions, he, having himself worked in a defense plant,
exhibited his membership card in another union. Day's manner of testifying was markedly
ingenuous. He made no attempt to disguise the provisional nature of the arrangement for
his employment. The Trial Examiner credits- his testimony, and discredits Burkhart's
denial that he knew of Day's union membership.
16 The significance of hiring other persons to do the same type of work, on the same day
as the discharge in question, is commented upon in Matter of Gluck Bros., Inc, 49 N. L. It. B.
724, and in Matter of Columbia Products Corp, 48 N. L R. B 1452; ef. the employer's
statement in the latter case, to an employee, the day following the discharge, " Some day
she would say she was sorry" with the similar statement made to Day in the present case,
to the effect that the latter would "know better next time."
LESLIE COUNTY LUMBER COMPANY 1155
After Warner Day was refused employment, his father, Charles Day, asked
Foreman Coffey the reason, and was told that Warner could handle the job,
but that Coffey had more men than he needed. Burkhart also told Charles
Day that Warner's work was satisfactory.
Although the arrangement for Day's employment on February 1 was pro-
visional only, the Trial Examiner is unable to find any credible explanation
for the undenied hiring of another man the following day to take his place,
other than that some unusual reason induced the respondent to decline to
give employment to Day, who had worked for over 2 years cutting timber for
the respondent, although he was employed by a contractor and not by the
respondent directly, and whose experience during that period had been in pre-
cisely the kind of work, wood cutting, for which Grant Baker was used com-
mencing within a few days of his employment. The reason could well have
been no other than the fact of Day's known union allegiance, at a time when
the dispute between management and the Union was approaching its climax,
and only a few weeks after the occasion, early in February, when Plant Super-
intendent Vance Coffey had told Edward Day, Warner's uncle, that he would
discharge every union member. The Trial Examiner is convinced, and finds, that
Warner Day, although never permanently employed and therefore never dis-
charged, was refused employment on February 4, 1943, because of his mem-
bership in the Union.14
2. The discriminatory discharge of Logan Pennington
Logan Pennington worked for the respondent from some time in January
1943 until the date of his discharge, March 2, 1943, On March 1 Pennington
was involved in an argument with E. L. Starliper, a sawyer,18 about the proper
placing of an iron dog, which Pennington had adjusted under a log on which
Starliper was sawing. The dog had been bent by the weight of the log. Starliper
remonstrated with Pennington, and Pennington accused Starliper of having
been responsible. The next day Pennington was discharged by Mill Foreman
Long. On the occasion of the discharge Long told Pennington that his work
had been especially good The discharge occurred shortly after Long had taken
the poll, during the latter part of February, of employees who belonged to the
Union, on which occasion he had learned that Pennington was a member.
Superintendent Coffey stated in a casual conversation with the Board's at-
torney shortly prior to the hearing that Pennington was discharged because
he cursed the sawyer. The respondent's answer alleges, in paragraph 3, that
all the discharges were for inefficiency, insubordination and absenteeism. Testi-
mony was offered by the respondent to prove Pennington's inefficiency. Al-
though the respondent should not necessarily be held strictly to the grounds
stated in a casual conversation such as that in which Coffey's explanation of
the discharge had been advanced, or to the general allegations of the answer,
nevertheless the contradictory nature of the grounds advanced to justify Pen-
nington's discharge cast suspicion upon the good faith of any of the alleged
grounds. It has already. been found that about the time of the individual
discharges Mill Foreman Long had said that he had gotten rid of two of his
"hardest boiled" union men and that if he could get rid of one more, he.
believed he could "buck the Union out." The reference could not have included
Day, who did not work tinder Long 19 Boggs and Adams were discharged on
11 See N. L R B. v. Weumbec Mills, 114 F. (2d) 226 (C. C. A. 1) ; Phelps Dodge Corp. v..
N. L R B, 313 U.S 177.
18 Starliper had refused to join the Union.
19 Day's temporary work had been on-the road crew.
549875-44-vol. 52-74
1156 DECISIONS OF NAT'ION'AL LABOR RELATIONS BOARD
February 22 and March 3 respectively. There is no evidence that any union
men-employed in Long's department, 'other than Boggs, Adams and Pennington,
were discharged prior to the lock-out. Since Pennington was discharged on
March 2, he must necessarily have been referred to as one of the two "hardest
boiled" union men already discharged. In all the circumstances the Trial
Examiner finds that the immediate alleged provocation for Pennington's dis-
charge, the altercation with the sawyer, was not the actual reason, and that
the discharge was due entirely to Pennington's membership in the Union.
3. The discrimatory discharge of Cecil Adams
Cecil Adams was employed at the plant from July, 1941 until his discharge
on March 3, 1943, the day following the discharge of Pennington. Adams, an
active union supporter, one day towards the end of February was carrying
with him 40 to 50 membership cards. Superintendent Coffey asked him what he
had the cards in his pocket for, and then told him that, in Adams' words, "You
better get shed of them things if you want to stay on this job "
On March 1, 1943, Adams had 'a fight in the bunk house, during the lunch
hour, with Charles Witt, another employee. The fight resulted from an argu-
ment over the Union, which Witt opposed. Adams did not report for work
the following day, but' did so on March 3, when he was discharged by Super-
intendent Coffey for fighting. There had been no complaint about his work, but
Coffey, whose testimony on this point is credited, stated that Adams had a
quarrelsome nature. 20 Although Coffey did not ask Adams for his version
of the cause of the fight his failure to do so is of less than usual significance
because he had received an account of it from several eye-witnesses. Witt, the
other participant in the fight, was not discharged or, so far as the record reveals,
even questioned. On the occasion of another fight between the storekeeper
and Foreman Long, neither was discharged Coffey admitted that Adams worked
reasonably well, and that he had no complaint about his work Moreover,
the proximity of the time of the discharge to Coffey's threat a few days before
and to Long's reference to having gotten rid of two of his hardest boiled
men and wanting to get rid of one more cannot be ignored, nor the fact that
the discharge occurred the day after the discriminatory discharge of Penningtori,°
and would obviously have occurred the same day had not Adams remained
away from work the day following the quarrel.
It is clear, and the Trial Examiner finds, that the fight was not the real
reason for Adams' discharge, but that he was discharged because of his union
membership and activities.
4. The alleged discriminatory discharge of Farmer Boggs
Farmer Boggs was employed by the respondent from about October 20, 1942,
until his discharge on February 22, 1943. About a week before his discharge
an agreement had been reached between the mill hands and Mill Foreman
Long to the effect that employees in the mill might quit at 5 p. in in order that
they might get home before dark.21 At 1 o'clock on February 22, Long asked
Boggs if he had joined the Union, and was told that he had. Boggs was a
fireman, and one of his duties was to blow the whistle at closing. Just before
5 o'clock Long told Boggs to blow the whistle that day at 5: 30 or 6 a Boggs
20 His opinion was corroborated by Ora Maggard, an employee.
21 It was necessary for some of the mill hands to cross a mountain to reach their homes,
about 3 miles away.
22 Coffey testified that Boggs was told to blow the whistle at 5 :30. Boggs? testified that
he was told to blow it at 6. The Trial Examiner believes it unnecessary to attempt to
resolve the conflict in the testimony on this point.
LESLIE COUNTY LUMBER COMPANY 1157
nevertheless blew the whistle at 5, and all of the mill hands left the mill.
Boggs reminded Long of the agreement, and that the mill hands had no lights
to get home by. Long then discharged Boggs, saying, in Boggs' words, "I
don't give a - damn. I am running the job,/ and not the mill hands." 22
Although Long gave no explanation to Boggs as to why he wanted the whistle
blown that day later than 5 o'clock, Coffey's testimony that he had told Long'
to run the mill later than 5 o'clock that day in order to get out some material
to be loaded the next morning and that was required for a United States Navy
order is uncontradicted, and is therefore credited.
A few days before the discharge Boggs had told Foreman Long that he was
going to quit towards the end of March unless he got a raise.29 Boggs admitted
that lie blew the whistle, not to let the men know that it was 5 o'clock, but because
that was the agreement, and because the mill hands had all told him to blow
the whistle at 5 o'clock that evening. His reference to the latter request of
the mill hands indicates, and the Trial Examiner finds, that the men had dis-
cussed the 'question of blowing the whistle at 5 in defiance of Long's instruc-
tions, and that the men, including Boggs, had decided on a course of insubor-
dination with regard to blowing the whistle. Boggs also admitted that prior to
the agreement the mill hands had occasionally worked later than 5 o'clock.
He also admitted that Long in asking him not to blow the whistle at 5 was
referring only to the particular day, rather than announcing a permanent
departure from the agreement. He further admitted that if he had not blown
the whistle the mill hands would have left at 5 o'clock anyway.
The foregoing circumstances disclose such extreme insubordination on the
part of Boggs as to nullify the inference which might otherwise arise that the
discharge was connected with his membership in the Union, concerning which
he had been interrogated that very afternoon. It is a reasonable inference that
Boggs' admitted intention to leave the respondent's employ in a short time
rendered him unusually indifferent to the requirements of discipline in, the
operation of an industry which was of importance in, the prosecution of the
war. In any event Boggs' insubordination, however motivated, was so flagrant
that it is a reasonable inference that, whatever may have been the respondent's
attitude towards his union affiliations, 'Long's act in immediately discharging
him was the spontaneous reaction to the blowing of the whistle in defiance of
orders. The Trial Examiner accordingly finds that Boggs' membership in the
Union was not the motivating cause of his discharge.
5. The lockout
The plant ordinarily maintains five crews ; a woods force which cuts timber and
saws logs, a mill force which saws the:logs'into lumber, a yard force which stacks
and loads the lumber, a road force which constructs and maintains roads, and a
trucking crew which hauls the lumber. There are generally about 100 employees
on the pay roll, of whom an average of from 60 to 75 are working at any given
time. Forty or fifty men were working on April 9, 1943. Coffey testified that he
supposed that the men who worked since January were members of the Union,
and 73 of the employees were in fact members on April 10.
23 Boggs testified that Long had offered his job to someone else earlier on the same day
before Boggs blew the whistle . Boggs stated that the offer had been made to "one man in
the house right now " The subject was not pursued by the Board's attorney . In view of
the Board ' s failure to present any testimony as to the identity of the person referred to,
and to elicit further particulars as to the time and circumstances of the alleged offer, Boggs'
testimony on this point is not credited.
24 Boggs admitted making the foregoing statement to Long.-
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 6 a meeting was planned for Saturday, April 10, at 10 a. in. for the
purpose of formally initiating into the Union those who had signified their desire
to join. The proposed meeting was discussed among the woods crew and Isaac
Madden, its foreman, who on April 9 told Superintendent Coffey about the
meeting which was to be held on" the following day. The meeting, which was
attended by 33 men, started at 10 a. m. on April 10 and lasted until after noon,
and the men did not return to work. About 3 o'clock in the afternoon Superin-
tendent Coffey sent a truck to gather up the tools of the woods crew. As a
result, many of the woods crew considered that the timber cutting had been
discontinued by the respondent and that tl^ey,had been laid off, although five mem-
bers of the crew reported for work the following Monday morning. Coffey, as
he was paying off Robert Boggs, an employee, on Saturday, April 10, told him,
according to Boggs' testimony, which is credited, in answer to a question, that
the mill would not start up until he got some men with "some sense." n On the
same day Coffey told Cova Lewis, another employee, that there would be no more
work until Coffey saw what the Union was going to do and told Dale Caldwell,
another employee, that the plant would not start up until he saw what the Union
did." On April 19 the tools were taken back to the woods and Foreman Madden,
on Coffey's instructions, recalled the woods crew to work. Work In the woods
was recommenced on April 20, and the mill, which had closed down on the morn-
ing of April 10, reopened on April 27. The yard crew functioned from April 12
until April 27 with a reduced staff. All the members of the yard crew who were
laid off commencing April 12 and until, work was resumed on April 27, were
Union members. None of those of the yard crew who continued to work during
that period, was a member of the Union.
Although the respondent claims that the plant would have been obliged to close
down in any event within 3 or 4 days after April 10 for lack of logs, he contends
that the closing down on April 10 was due to the fact that the logging crew quit
work on that day for an indefinite period, and that the cessation of logging opera-
tions in turn required the closing down of the mill for lack of logs. Several cir-
cumstances refute the contention that the closing of the mill on April 10 resulted
from a work stoppage on the part,of the employees.
Coffey himself admitted that no concerted demand was made then or later for
a wage increase, although individual requests had been made from time to
time. Coffey admitted having told "more than one" of the employees, that "If
you boys join this Union and make a demand on us for what the wages that I
think you are going- to ask, we just can't pay it. . . . We will have to shut down.
We can't pay it and won't try to." Prior to any concerted demand for an in-
crease in wages, however, the plant closed admittedly to forestall any request to
bargain.n It is incredible that the employees would have resorted to the drastic
step of quitting work for an indefinite period without acquainting management
with any reason for the quitting or without making any concerted request for
alteration of their wages or working conditions. It is equally impossible to credit
the good faith of Coffey's interpretation of the cessation of work on Saturday,
April 10 as indicative of an intention on the part of the employees not to return
to work thereafter. There was no rule in the plant that the men must work
se Cf. Matter of Hobbs, Wall & Company, 30 N. L . R. B. 1027 , 1037 ; "The respondent com-
municated this hostility to the employees . by its statement that it 'hopes that It may
continue to operate when sanity comes into the method of conducting your union affairs.' "
Coffey testified he did not remember the conversation with Caldwell. Caldwell 's testimony
as to the conversation is credited.
2e Coffey asserted merely that he "could not remember " the foregoing conversation. His
denial is not credited
27 Whether such a closing down to avoid a request for an increase in wages constituted
an anticipatory breach of Section 8 (5) of the Act is not in Issue , since no violation of that
section is alleged.
LESLIE COUNTY LUMBER COMPANY 1159
Saturdays. Coffey moreover had knowledge that the purpose of the work stoppage
was to enable the men to attend the Union meeting of the 10th, which consumed
.all of the morning and part of the afternoon, and took place some 3 miles away
from the scene of the logging operations. Felix Blevins, Foreman Madden's as-
sistant, who was not a member of the Union, admitted that he had heard no
mention of a strike and that he had heard only that there would be no work on
the day of the meeting. Not a single employee, of the many-who testified, stated
that he regarded the work stoppage of April 10 as anything but a temporary one
for the day only and for the purpose of enabling the men to attend the meeting.RB
Five members of the woods crew reported for work Monday morning, April 12,
but were not put to work. Two of these, Lee Joseph and Jack Childers, also came
back looking for work on the 2 days following. The reason why the others did
not report for work on the 12th was, as was testified to at the hearing, that their
tools had been collected, by Coffey's orders, on the afternoon of the 10th and
brought back to camp, an unusual procedure, as was admitted by Foreman Mad-
,den. That Coffey's claimed interpretation of the stoppage of April 10 as a strike
did not in fact reflect his real opinion is moreover demonstrated by his subsequent
direction to Madden to call the woods crew back to work on April 20.29 Such a
-direction would have been meaningless had the men quit rather than been laid
off, as nothing occurred in the meantime which could have conveyed to Coffey the
impression of any change of heart on their part. Even if Coffey had actually
believed that the men had decided not to resume work on Monday, April 12, more-
over, the presence that morning of five members of the woods crew could hardly
have failed to indicate the error of such an assumption. The foregoing facts,
weighed in conjunction with Coffey's statements, over an extended period, that
the plant would have to shut down unless the employees abandoned the Union ;
with Foreman Madden's similar prediction made to Homer Blevins ; with the
taking of the poll of Union sympathizers by Madden a week or two before the
shut-down, and with Coffey's statements to Caldwell and Lewis the day of the
shut-down that the mill would not reopen until Coffey got some inen with "some
sense," and that there would be no more work until Coffey saw what the Union
would do, clearly require the conclusion, and the Trial Examiner finds, that the re-
spondent's cessation of operations on April 10, 1943, constituted a lockout and was
not caused by any work-stoppage on the part of the employees.90
There remains the question of the lockout's duration. Coffey testified that
the plant would have had to close anyway within 3 or 4 days after April 10
because of lack of available timber. Upon this point it is significant that at
the hearings which preceded the amendment of the complaint in respect to the
lockout, and at a time therefore when the issues of the lockout had not been
raised, Coffey stated that the reason the respondent had not up to that time
purchased the Ford timber rights was that he could not secure men to work
that tract. The timber on the tract subsequently acquired between the close
of the earlier hearing and the resumption of the hearings on June 21, was not
actually worked, however, until about a week before the latter date. In the
meantime other timber must necessarily have been found, unless Coffey's
calculation of a 3 to 4 day supply existing on April 10 was grossly erroneous.
It is so improbable as to defy belief that Coffey would have failed to indicate
to the employees, prior to April 10, an immediately impending closing of the
plant due to a lumber shortage. It is also improbable that management, in the
exercise of even ordinary business caution, and at a time when the respondent
was heavily indebted to the Fletcher Lumber Company for advances, the only
70 A typical statement is that of Lee Joseph, an employee : "We was ready to go back
any time, and we'd like to know when they was a-aimin' to go back to work."
3A Madden's testimony.
0 Cf. Matter of Cape County Milling Company , 49 N. L. R. B. 226.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security for which, as testified to by Edward Fletcher, a partner in that firm,
was the lumber at the respondent's yard, would have failed to take steps to
assure, in a country abounding in timber, the maintenance of a continuing
supply. It is of course true, as the respondent argues, that the mill could not
operate without logs. However, since the respondent, by locking out the woods
crew, caused the shutting down of the mill, the inability of the mill crew to
work is attributable to the respondent's unfair labor practice in locking out the
woods crew. The same excuse was advanced, and rejected by the Board, in
Tatter of Hobbs, Wall & Company." It is obvious that the respondent could at
any time during the period from April 10 to April 27 have secured an adequate
supply of timber, as he in fact did by the latter date, to assure the continuance
of milling operations until the Ford tract, purchased shortly after April 23,
might be utilized. The Trial Examiner accordingly finds that the shut-down
was motivated, during its entire period from April 10 through April 25, by the
respondent's desire to force the employees to withdraw from the Union and not
during any of that period by a lack of available timber necessary for the con-
tinuance of the respondent's milling operations.
(a) The woods crew
The evidence reveals the following 15 employees as constituting, during April,
1943, the woods crew, the operations of which were discontinued by the respondent
from April 12 through April 19, both dates inclusive :
Jack Childers Leo Madden Harmon Turner
Hubert Hardy Bill Shell Cooper Joseph
Lee Joseph Cova Turner Worley Johnson
John C. Lewis Homer Blevins Clem Joseph
Noah Madden Felix Blevins Giles Johnson
All except Felix Blevins were Union members
The Board's attorney has moved that the complaint be dismissed as to five
of the foregoing employees : Bill Shell, Harmon Turner, Cooper Joseph, Worley
Johnson and Giles Johnson. The evidence supports the position of the Board's
attorney with reference to Turner, Joseph, and Worley Johnson, none of whom
worked in the respondent's plant at any time during April, 1943 and with
reference to Giles Johnson, who is not shown to have been ready and willing
to work during the lockout period, and the motion is accordingly granted as to
those four employees. Shell, however, worked on April 9 and 20, the days
immediately preceding and following the lockout of the woods crew. It is
a reasonable inference/that he would have worked during the intervening
period had the lockout not occurred, and,the motion is therefore denied with
'respect to Shell. -
Four members of the woods crew, Jack Childers, Noah Madden, Leo Madden,
and Cova Turner, each worked April 9 and resumed work between the 20th
and the 26th of that month. The Trial Examiner finds that those four employees
were locked out from April 12 to 19, both dates inclusive. Hubert Hardy, Lee
Joseph, John C. Lewis, Clem Joseph and Homer Blevins did not work April 9.
The latter five employees testified, however, that they would have reported for
work on April 12 had it not been for the lock-out. Three of them, Hardy, Lee
Joseph,32 and Lewis, had worked during the period from March,22 to April 8,
though not regularly, and resumed work on April 20, the first working day
after the end of the lockout of the woods crew. Homer Blevins, although he
did not work during the 2 weeks prior to the lockout, resumed work on the 27th
B1 30 N. L' R. B 1027, 1033.
ffi Lee Joseph testified that the reason why he did not work April 9 was because of a fire
at his uncle's farm. His testimony ' is credited.
LESLIE COUNTY LUMBER COMPANY 1161
of April. The evidence satisfactorily establishes-that Hardy, Lee Joseph, Lewis
and Homer Blevins were locked out, and the Trial Examiner so finds.
Clem Joseph quit work a week before the lockout, and has not worked since,
although the evidence discloses that since April 20 work was available to any
of the woods crew who reapplied. The evidence therefore fails to establish, in
spite of Joseph's testimony that he would have reported for work on April 12
had it not been for the lockout, the fact that he would have done so.
Felix Blevins, although he had worked on April 9, has never resumed work.
He testified merely that he "might have worked" until the 15th. The evidence
is insufficient to support a finding that he was denied employment by reason
of the lockout.
In summary it is found that Bill Shell, Jack Childers, Noah Madden, Leo
Madden, Cova Turner, Hubert Hardy, Lee Joseph, John C. Lewis, and Homer
Blevins were locked out from April 12 to 19, both dates inclusive. The evidence
and findings may be expressed diagrammatically as follows:
WOODS CREW
[Lock-out period, April 12 to 19]
0
Employee
Worked last preceding
commencement of Resumed Testimony Findmg
lock-out work
Jack Childers------ April 9---------------- April 22_ ---------------------------- Locked out.
Hubert Hardy_-__- Sometime between April 20__ ___ Planned to return Apr. 12 Locked out.
Lee Joseph -_______
Mar 22-Mar 31.
Sometime between Apr. 20_______ Would have worked Apr Locked out.
John C Lewis.....
Mar. 22-Apr. 8.
Sometime between April 20------
12, did not work Apr 9
because of a fire
Would have worked Apr. Locked out.
Mar 22-Apr. 8 12
Noah Madden __-__ April 9---------------- April 20______ Would have worked------- Locked out.
Leo Madden______- April 9-- -------------- April 20_____- Would have worked------- Locked out.
Bill Shell___________ April 9---------------- April 20______ ---------- ------------------ Locked out.
Cova Turner_______ April 9--------------- April 26------ Would have worked ------- Locked out
Homer Blevms_____ Did not work Mar. 22- April 27-- ___ Would have worked Re- Locked out.
Apr. 9 ported for work on Apr
12
Felix Blevms_____ _ April 9-------------- Never________ "Might have worked" 3 Not locked out.
Harmon Turner ---- Did not work--------- Mar. 22-May
Apr 12-15 Reported for
work on Apr 12.
Would not have worked Not locked out'
4
Cooper Joseph_____ Did not work Mar 22- Apr 20_______ Not locked out'
Worley Johnson____
Apr 20
Did not work ------___ Mar. 22-May Not locked out.'4
Clem Joseph_______ Apr. 2 (about)---_____ Never________ Had made arrangements Not locked out.
Giles Johnson______ Irregularly during pe- Apr 20_______
to resume work Apr 122
---------------------------- Not locked out.'riod Mar. 22-Apr 8
i Dismissal granted on motion of Board's attorney.
2 Testimony discredited
3 Testimony regarded as too indefinite Moreover, Felix Blevins was not a Union member, and was
assistant "boss " He does not therefore, come within the Board's policy as expressed in matter of Biles-
Coleman Lumber Company, 4 N. L R B 679, 681.
(b) The mill crew
The evidence reveals the following 13 employees as constituting during April,
1943, the mill crew, the operations of which were discontinued by the respondent
from April 12 to April 26, both dates inclusive :
Robert Boggs Delbert Joseph Felix North
E. D. Boggs A. B. Maupin Orville Farley
Levi Boggs W. M. Moody Charles Witt
Steve Causey C. F. Starliper
J. V. Estep George Turner
1162 DECISIONS OF NATIONAL LABOR RELATIONiS BOARD
The Board's attorney has moved that the complaint be dismissed as to three
of the foregoing employees, Causey, Estep, and Witt. The evidence supports
the position of the Board's attorney with reference to those three employees.
The evidence does not reveal that Causey was a Union member. Estep's and
Witt's sympathies, according to the testimony, were opposed to the Union. The
motion is accordingly granted as to all three.
Five others, E. D. Boggs, A. B. Maupin, W. M. Moody, C. F. Starliper, and
George Turner, are not named in the complaint nor were their cases litigated
at the hearing. Of the other five members of the mill crew, three, Levi Boggs,
Joseph, and North, worked on April 9 and on April 26 or 27. It is therefore
found that they were locked out from April 12 to 25, both dates inclusive.
Although one of the, remaining two employees in the mill crew, Robert Boggs,
is not listed in the respondent's records as having worked on April 9, he did
work, according to the respondent's records, at some time during the preceding
2 weeks."o The respondent's records also show that Boggs resumed work on
April 27. Boggs' testimony, which is credited, is that he reported at the mill
on April 12. The evidence supports the conclusion that he was locked out from
April 12 to 25, both dates inclusive, and the Trial Examiner so finds. The
remaining employee in the group, Orville Farley, s. did not work at the plant
during the 2 weeks preceding the lockout, nor on the first day when operations
were recommenced in the mill, although he resumed work the next day, April 28,
and worked for some part of each day during the following week. The evidence
fails to establish that he would have worked from April 12 to April 25 had It
not been for the lock-out, and for that reason the complaint is, on the motion of
the respondent's counsel, dismissed as to him.
In summary, it is found that Levi Boggs, Delbert Joseph, Felix North, and
Robert Boggs were locked out from April 12 to April 25, both dates inclusive.
The evidence and findings may be expressed diagramatically as follows:
MILL CREW
[Lockout period, April 12 to 25]
Employee
Worked last preceding
commencement of Resumed Testimony Finding
lockout Work
Robert Boggs------ Mar. 22-Apr 8________ Apr. 26_______ Imagines he would have Locked out.
E. D. Boggs -_______ Mar. 22-Apr. 8________ Apr. 26-___-__
worked.
------------------------- --
No finding i
Levi Boggs_________ Apr. 9----------------- Apr. 26-______ Reported for work on Locked out.
Steve Causey_____- Apr. 9--------- ------- Apr. 26
Apr. 12
---------------------------- Not locked out.
J V Estep----_--__ Apr 9---------------- Apr. 262_ ---- ------------------ Not locked out.
Delbert Joseph_____ Apr. 9----------------- Apr. 26_______ Reported for work on Locked out.
A. B Maupm_____. Apr 9----------------- Apr.12______-
Apr 12 and would have
worked.
---------------------------- No finding.'
W. M Moody_____ Apr. 9----------------- Apr. 26-______ ---------- - --------•------ No finding'
E. L Starhper_____ Apr. 9----------------- Apr. 26------- ------------- -------------- No finding
George Turner_____ Apr. 9----------------- Apr 26 ------ ---------------------------- No flndme1
Felix North. _______ Apr 9--------------- - Apr 27_______ ------------------------- Locked out.
Orville Farley______ Did not work Mar. Apr 28-______ Would have reported for Not locked out.
22-Apr. 9. work 3
Charles Witt -____-_ Irreeularly Mar. 22- Never2_-____ ---------------------------- Not locked out
Apr. S.
Not named in the complaint as amended.
2 Dismissal granted on motion of Board's attorney.
3 Testimony discredited, and dismissal granted on motion of respondent's attorney.
23 Robert Boges testified that he had in fact worked at the mill on April 9. The Trial Examiner deems
it unnecessary to attempt to resolve the conflict in the evidence on this point.
33 Referred to in the complaint as amended as "Arvil" Farley
LESLIE COUNTY LUMBER COMPANY 1163
(c) The yard crew
The evidence reveals the following 15 employees as constituting during April
1943 the yard crew, the operations of which were interrupted as to the members
of the Union , who were not employed from April 12 through April 25:
Ray Maggard Ora Maggard Corbin Williams
Sam Proffit Morgan Gross Dewey Gross
Dale Caldwell Cova Lewis Elmer Maggard
John Causey Boyd Causey Nick Boggs,
Jerry Caldwell Nick Williams Willie B. Boggs
The Board's attorney has moved that the complaint be dismissed as to eight
of the foregoing employees, Morgan Gross, John Causey, Jerry Caldwell, Ora
Maggard, Boyd Causey, Dewey Gross, Nick Williams and Corbin Williams.
The, evidence supports the position of the Board's attorney with reference to
those eight employees. Two of them worked during the lockout, and others
did not resume work for at least a week thereafter. The only worker in this
group not falling within either of the foregoing categories, John Causey,
testified that he voluntarily stopped work for 4 days to gather his corn. He
was not a member of the Union. The motion is accordingly granted as to the
eight employees named. Three others, Elmer Maggard, Ray Maggard and Sam
Proffit,, are not mentioned in the complaint, nor were their cases litigated at
the hearing.
As to Nick Boggs, Willie B. Boggs, and Cova Lewis, all Union members, each
worked up to the day of the lockout and resumed work the second day follow-
ing its termination. Each testified that he would have worked during the lock-
out period. The Trial Examiner finds that all three employees were locked out
from April 12 to 25, both dates inclusive.
Dale Caldwell, the remaining member of the group, although he did not work
April 9, worked regularly during the previous 2 weeks, but did not work there-
after until May 5. His testimony, which is credited, was that he would
probably have worked from April 12 to 15. The Trial Examiner accordingly
finds that he was denied employment by reason of the lockout.
In summary, it is found that Willie B. Boggs, Nick Boggs and Cova Lewis
were locked out from April 12 to April 25, both dates inclusive, and that Dale
Caldwell was locked out from April 12 to 15, both dates inclusive. The evidence
and findings may be expressed diagrammatically as follows :
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
YARD CREW
[Lockout period as to Union members, April 12 to 25]
Employee:
Worked last preceding
commencement of
lockout
Resumed
work Testimony Finding
Ray Maggard------ Apr 9----------------- Apr. 14-- ---- ---------------------------- No finding.'Sam Proffit ________ Did not work Mar 27- Apr. 29- ------ _________________________'__ No finding.'
Apr 9.
Dale Caldwell--- _ Worked Mar 22-Apr May 5_______ Would probably have , Locked out.
8. worked from Apr. 12 to
15.
John Causey------- Worked Mar. 22-Apr. Apr 272_____ ________________________ Not locked out.
8
Jerry Caldwell----- Worked Mar. 22-Apr. Never 2------ _ Not locked out.
8.
Ora Maggard Apr. 9_________________ Apr. 132 ----- ---------------------------- Not locked out.
Morgan Gross______ Apr. 9_________________ Apr 142_____ ------------- --------------- Not locked out.
Cava Lewis________ Apr. 9_________________ Apr 27_______ Would have worked Apr Locked out.
12 25.
Boyd Causey______ Did not work Mar. 22- Never 2_ _______________________ Not locked out.
Apr. 9.
Nick Williams----- Did not work Mar 22- Never 2------ _ Not locked out.
Apr 9
'orbin Williams--- Did not work Mar. 22- Never 2------ ____________________________ Not locked out.
Dewey Gross -------
Apr. 9
Worked Mar. 22-Apr Never 2------ _ Not locked out.
7
ElmerMaggard____ Worked Mar. 22-Apr. Never________ ---------------------------- No finding.'
7.
Nick Boggs ________ Apr. 9_________________ Apr. 27_______ Would have worked dur- Locked out.
ing lockout period.
Willie B. Boggs____ Apr. 9_________________ Apr. 27_______ Would have worked dur- Locked out.
mg lockout period.
i Not named in the complaint as amended.
2 Dismissal granted on motion of Board 's attorney.
(d) Miscellaneous employees
Since none of the members of the road crew or trucking crew was locked out,
it is unnecessary to comment in detail , on their cases . Of the remaining three
employees mentioned in the complaint other than those in whose cases the' Board's
i attorney has moved that the complaint be dismissed, one, Willie Joseph, was a
member of the road crew. The complaint is dismissed as to him. As to the
two others, Arthur Boggs and Boyd Boggs, the evidence does not specifically reveal
them as members of the woods or mill crews or to have been Union members of
the yard crew. However, Boyd Boggs did not work during the 2 weeks preceding
April 10, nor during the week following the resumption of operations at the
end of the lockout. The evidence therefore fails to establish that his failure to
work from April 12 to 25 was due to the lockout, and the complaint is also dis-
missed as to him. Arthur Boggs worked on April 9 and from April 27 to May 4.
The Trial Examiner therefore finds that he was denied employment during the
interval because of the lockout.
As to those of the employees in whose cases the Board's attorney has moved
to dismiss the complaint, none, with the exception of Bill Shell, whose case has
already been considered in connection with the lockout of the woods crew, has
been shown to have been affected by the lockout. The reasons why they were
not so affected comprise one or more of the following : that they were not employed
in April 1943, that they were not refused employment by the respondent during
the lockout period or that they worked in operations which were not shut down.
With respect to the employees listed in Appendix A, the Trial Examiner finds, on
the basis of the foregoing facts, that they were discriminatorily locked out, and
that the respondent has thereby violated Section 8 (3) of the Act.
LESLIE COUNTY LUMBER COMPANY 1165
IV. THE EFFECT OF THE UNFAIR LABOR FRACTICE& UPON COMMERCE
The activities of the respondent set forth in Section III above , occurring in con-
nection with the operations of the respondent described in.Section I above, have
a close, intimate and substantial relation to trade, traffic and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has interfered with, restrained and
coerced his employees in the exercise of the rights guaranteed in Section 7 of
,he Act, the Trial Examiner will recommend that ,the respondent cease and desist
herefrom and take certain affirmative action which the Trial Examiner finds will
effectuate the policies of the Act.
It has been found that the respondent discriminated as to the hire and tenure
Af employment of Warner Day, Cecil Adams and Logan Pennington and the
employees listed in Appendix A because they assisted the Union. In order to
effectuate the policies-of the Act it will be recommended that the respondent offer
to Cecil Adams and Logan Pennington immediate reinstatement to their former
or substantially equivalent positions, and to Warner Day employment in the
position or substantially equivalent position he would have received had he
not been refused employment, and without prejudice to their seniority and other
rights and privileges, and that the 'respondent make Warner Day, Cecil Adams,
and Logan Pennington whole for any loss of pay they have suffered by reason
of the respondent's discrimination, by payment to each of them of a sum of money
equal to the amount he normally would have earned from the date of the re-
spondent's discrimination against him, to the date of the offer of reinstatement
in the case of Cecil Adams and Logan Pennington, and to the date of the offer
of employment in the case of Warner Day, less their net earnings 3' during that
period, and that the respondent make whole each of the employees listed in Ap-
pendix A for any loss of pay they may have suffered by reason of being locked
out during the periods indicated in Appendix A, by payment to them of the sums
of money they normally would have earned during the period of the lockout, less
their net earnings '5 during that period.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Whiting Local No. 101, United Construction Workers, affiliated with District
50, United Mine Workers of America, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By interfering with, restraining and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices , within the meaning of Section 8 (1)
of the Act.
85 By "net earnings " Is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work elsewhere than for
the respondent , which would not have been incurred but for his unlawful discharge and the
consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber
Company and United Brotherhod of Carpenters and Joiners of America, Lumber and Saw-
mill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon
'Federal , State, county, municipal , or other work-relief projects shall be considered as earn-
ings. See Republic Steel Corporation v. N. L. R. B, 311 U. S. 7.
1
1166 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discriminating in regard to the hire and tenure of employment of War-
ner Day, Cecil Adams, Logan Pennington and the employees listed in Appendix
A, thereby discouraging membership in Whiting Local No. 101, United Con-
struction Workers, affiliated with District 50, United Mine Workers of America,
the respondent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (3) 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
Trial Examiner recommends that the respondent, Henry Whiting, doing business
as the Leslie County Lumber Company, and his agents, successors and assigns
shall:
1. Cease and desist from :
(a) Discouraging membership in Whiting Local No. 101, United Construction
Workers, affiliated with District 50, United Mine Workers of America, or any
other labor organization of his employees by refusing to reinstate or to accept
as an employee any of his employees or in any other manner discriminating in
regard to their hire and tenure of employment or any term or condition of their
employment, because of their membership in or activity on behalf of any such
labor organization ;
(b) In any other manner interfering with, restraining, or coercing his em-
ployees in the exercise of the right to self organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, or to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Offer Logan Pennington and Cecil Adams immediate and full reinstate-
ment to their former or substantially equivalent positions, and offer to Warner
Day employment in the' position,in"which'-he should have been employed, without
prejudice to their seniority or other rights and privileges, and make them
whole for any loss of earnings they may have suffered by reason of the respond-
ent's discrimination against them, by payment to them of a sum of money
equal to that which they would normally have earned as wages from the date
of the respondent's refusal to reemploy them, or, in the case of Warner Day,
of such offer of employment, less their net earnings 8B during said period ; and
make whole each of the employees listed in Appendix A of the Intermediate
Report for any loss of earnings they may have suffered by reason of the respond-
ent's discrimination against them by payment to them of a sum of money equal
to that which they would normally have earned as wages during the period of
'the lockout, less their net earnings during said period ;
(b) Immediately post notices to his employees in conspicuous places throughout
his plant in Whiting, Kentucky, and maintain such notices for a period of at
least sixty (60) days from the date of posting, stating: (1) that the respondent
will not engage in the conduct from which it is recommended that he cease
and, desist in paragraphs 1 (a) and (b) of these recommendations; (2) that,
he will take the affirmative action set forth in paragraphs 2 (a) and (b)
of these recommendations; and (3) that his employees are free to become or
remain members of Whiting Local No. 101, United Construction Workers,
86 See footnote 35, supra.
i
LESLIE COUNTY LUMBER COMPANY 1167
affiliated with District 50, United Mine Workers of America, or any other
union, and that he will not discriminate against any employee because of
membership in or activity on behalf of said labor organization ;
(c) Notify the Regional Director for-the Ninth-Region, (Cincinnati,' Ohio) in
writing within ten (10) days from the date of the receipt of this Intermediate
Report what steps the respondent has taken to comply therewith.
It is further recommended that the complaint be dismissed with respect
to the allegations of discriminatory discharge of the employees listed in Appendix
B, and of Farmer Boggs.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that he has complied with the foregoing recommendations, the
National Labor Relations Board issue„.an order requiring the respondent to
take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-any party may within
fifteen (15) days from the date 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 proceedings (including rulings upon
all motions or objections) as be relies upon, together with the original and
four copies of a brief in support thereof. 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 (10) days from the date
of the order transferring the case to the Board.
RALPH A. NEWMAN
Trial Examiner
Dated July 26, 1943.
APPENDIX A
EMPLOYEES FOUND TO HAVE BEEN LOCKED OUT
Employee: Period of lockout
Bill Shell_______________________________ April 12-19 (both dates inclusive)
Jack Childers__________________________ April 12-19 (both dates inclusive)
Noah Madden__________________________ April 12-19 (both dates inclusive)
Leo Madden____________________________ April 12-19 (both dates inclusive)
Cova Turner___________________________ April 12-19 (both dates inclusive)
Hubert Hardy ------------------------- April 12-19 (both dates inclusive)
Lee Joseph_____________________________ April 12-19 (both dates inclusive)
John C. Lewis-------------------------- April 12-19 (both dates inclusive)
Homer Blevins_________________________ April 12-19 (both dates inclusive)
Levi Boggs_____________________________ April 12-25 (both dates inclusive)
Delbert Joseph__________________________ April 12-25 (both dates inclusive)
Felix North____________________________ April 12-25 (both dates inclusive)
Cova Lewis (Causey, Ky.)-------------- April 12-25 (both dates inclusive)
Dale Caldwell__________________________ April 12-25 (both dates inclusive)
Nick Boggs_____________________________ April 12-25 (both dates inclusive)
Willie B. Boggs________________________ April 12-25 (both dates inclusive)
Arthur Boggs -------------------------- April 12-25 (both dates inclusive)
Robert Boggs___________________________ April 12-25 (both dates inclusive?
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
EMPLOYEES NOT FOUND TO HAVE BEEN LOCKED OUT
Willie Boggs, Jr. Harry Feltner John Turner
Ozial Baker Chrisley Gross Harmon Turner
Grant Baker Morgan Gross Jim Turner
Emra Baker Dewey Gross Marion Templeton
Taylor Baker John L. Gross Charles Witt
Jim Baker Willard Gross Nick Williams
Rufus Baker Farniston Gross Corbin Williams
Jim Badgett Cooper Joseph Wilson Cornett
Jerry Caldwell John Joseph Elihu Causey, Jr.
John N. Cornett Arnold Joseph John Causey
K. L. Cornett Worley Johnson Steve Causey
Noah Lewis Giles Johnson Boyd Causey
Henry Lewis Jim Lewis Dewey Causey
Joseph Cooper Cova C. Lewis Alex Lewis
John Day (Bigfork, Ky.) Clem Joseph
J. V. Estep Bennett Lewis Arthur Lewis
Felix Blevins W. H. Day Henry Day
Ora Maggard Delbert Joseph Henry Pennington
Willie Joseph Boyd Boggs Orville (Arvil) Farley