LeTourneau Co. of Georgia

National Labor Relations Board - Board Decisions

Feb 12, 1944

54 N.L.R.B. 1253 (N.L.R.B. 1944)

In the Matter of LETOURNEAU COMPANY OF GEORGIA and UNITED
STEELWORKERS OF AMERICA, C. I. O.
Case No. 10-C-131.-Decided February 12, 1944
° Mr. Paul S. Kuelthau, for the Board.
Wheeler, Robinson, and Thurmond, by Mr. Alonzo C. Wheeler, and
Mr. Emory F. Robinson, of Gainesville, Ga.; and Mr. Clifton W. Bran-
non, and Mr. C. M. McClure, of Toccoa, Ga., for the respondent.
Mr. Archie W. Graham, of Atlanta, Ga., and Mr. Eugene Cotton of
Washington, D. C., for the Union.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a first amended charge duly filed on October 13, 1943, by
United Steelworkers of America, CIO, herein called the Union, the
National Labor Relations Board, herein called the Board, by its Act-
ing Regional Director for the Tenth Region (Atlanta, Georgia), issued
its complaint dated October 15, 1943, against LeTourneau Company of
Georgia, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and-notice of hearing thereon
were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended
at the hearing, alleged in substance that the respondent: (1) on or
about April 8, 1943, suspended Grady Ferguson for 2 days, and on or
about July 16, 1943, suspended L. Wayman Ayers for a similar period,
for the reasons that Ferguson and Ayers had distributed Union litera-
ture outside the plant premises, joined and assisted the Union and
engaged in concerted activities; (2) on or about August 11, 1943, by
Foreman LaBranch of the machine shop, prohibited Union literature
from being brought into its plant by employees of the machine shop,
54 N. L . R B, No. 189.
1253
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although it permitted other literature to be brought into its plant;1
(3) interpreted and enforced outside the plant fence, a rule against
distribution of literature; 2 and (4) by suspending Ferguson and Ayers
violated Section 8 (3) of the Act, and by said suspensions and all the
foregoing conduct interfered with, restrained, and coerced its em-
ployees 'in the exercise of the rights guaranteed in Section 7 of the
Act. On October 26, 1943, the respondent filed its answer admitting
that it had suspended Ferguson and,Ayers, but denying that it had
engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held on October 28, 1943, at
Toccoa, Georgia, before Wliliam Feld.esmau, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel, the Union by its Field Rep-
resentative, and all participated in the hearing. Full opportunity
to be heard, to examine, and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues was afforded all parties.
The respondent moved at the hearing to dismiss the complaint.
Ruling on this motion was reserved, and,the motion was subsequently
granted by the Trial Examiner in his Intermediate Report. For
reasons set forth below, we think the motion to dismiss should have
been denied, and we hereby reverse this ruling of the Trial Examiner.
The other rulings of the Trial Examiner on motions and on objec-
tions to the admission of evidence are free from prejudicial error
and are hereby affirmed.
The Trial Examiner thereafter filed his Intermediate Report dated
November 11, 1943, copies of which were duly served upon the parties.
He found that the respondent had not engaged in unfair labor prac-
tices affecting commerce and accordingly recommended that the com-
plaint be dismissed. On November 30, 1943, the Union, and on De-
cember 1, 1943, the Board's attorney, filed exceptions to the Interme-
diate Report and a brief in support thereof. On December 17, 1943,
the respondent filed a brief. The Union requested permission to
present oral argument before the Board. On December 16, 1943, pur-
suant to notice served upon all the parties, a hearing for the pur-
pose of oral argument was held before the Board at Washington,
D. C. The respondent and the Union appeared and participated.
The Board has considered the briefs and exceptions and, to the
extent that they are consistent with the findings set forth below, the
exceptions filed by the attorney for the Board and by the Union
are sustained.
Upon the entire record in the case, the Board makes the following :
I On motion of the respondent made at the hearing, this allegation was stricken from
the complaint , without objection , for failure of proof.
2 On motion of the Board made at the hearing , the complaint was amended by adding
this allegation.
LETOURNEAU COMPANY OF GEORGIA
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
1255
LeTourneau Company of Georgia, a Georgia corporation created
in 1938, owns and operates a plant near Toccoa, Georgia, where it
is engaged in the manufacture and sale of earth moving machinery,
specialty machines, shells, and other products essential to the war
effort. During the year 1942 the respondent purchased $3,932,420.55
worth of raw materials, almost all of which were shipped to its plant
from points outside the State of Georgia. During the same period
the respondent sold finished products having a value of $6,746,525.10,
of which more than 80 percent was shipped from its plant to points
outside the State of Georgia.
II. THE ORGANIZATION INVOLVED
United Steelworkers of America is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to mem-
bership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The suspension of Grady Ferguson and L. Wayman Ayers
1. The geographical lay-out of the plant premises
The respondent's plant is located 3 miles northeast of Toccoa, Geor-
gia. Approximately 6,000 acres of the surrounding land are owned
by the respondent or its subsidiary corporation, the Louise Farming
Company. The respondent's properties include the adjacent town of
Turnapull, which is located along the south side of U. S. Highway No.
13, and consists of a store and some 50 houses occupied by a number of
the employees of the respondent. The majority of the respondent's
employees live in scattered communities or on farms within a 20-mile
radius of the plant. The plant itself extends along the north side of
U. S. Highway, No. 13 and is divided into two sections by a roadway
which intersects the highway. One section comprises the office build-
ings , cafeteria, and the main plant, while the other consists of the steel
foundry, storage yard, machinist school, and warehouse. Enclosing
each of the two sections is a 6-foot fence. Along the front of the plant,
this fence roughly parallels the highway for a total distance of approx-
imately 1000 feet, and is set back from the highway at distances which
vary from 30 to 100 feet. The land between the fence and the high-
way is owned by the respondent. The main entrance to the plant is a
gate adjoining the office building which serves as a section of the fence.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Virtually all the respondent's employees enter and leave the plant
through this gate,' including those employed in the foundry section,
who traverse the yard of the main plant to pass through a side gate
opening on the intersecting road and standing opposite a gate leading
into the foundry section. The main gate and the office are set back 100
feet from the highway, and the intervening space is paved with solid
concrete extending along the highway for a distance of 150 feet. This
concrete area and a connected gravel plot, hereinafter jointly referred
to as the North lot, provide parking space for approximately 60 per-
cent of the, respondent's 2100 employees who travel to and from
work in automobiles. A space is also reserved on this lot for busses
which carry other employees to and from work. On the opposite side
of the highway is an improved sand and gravel parking lot, herein-
after referred to as the South lot, which is utilized for parking by ap-
proximately 30 percent of the employees. The side of this latter lot
is leased by the respondent from its subsidiary. Both lots are main-
tained, kept clean, and guarded by the respondent's plant-protection
force.
2. The rule against the distribution of literature on plant premises
There seems to be no question but that in April and July 1943 when
the alleged unfair labor practices occurred, the respondent had in force
a rule against the distribution of literature, although from July 1941
to May 1943 the rule appeared in many different forms, some limited
only to proscribing posting. The earliest record of the rule is disclosed
in a list of instructions given to the respondent's supervisory force on
or about October 11, 1940. Therein it was noted that "the posting of
handbills, placards, posters, or advertising matter about the plant with-
out permission of the Plant Manager or Industrial Relations Manager"
was cause for immediate discharge. This early rule was obviously
directed only at employees. At about the time these instructions is-
sued, and continuing to, July 3, 1941, merchants from nearby towns
were in the habit of employing boys to distribute their advertise-
ments among the respondent's employees. These boys and other dis-
tributors of pamphlets and reading matter would enter the North lot
and place their literature in the parked automobiles. This practice
resulted in the littering of the lot and a series of thefts from the auto-
mobiles. After conferences among plant officials concerning the litter-
ing and thefts, on July 3, 1941, Captain Stokes of the guard force issued
an order to his men, which read in part as follows : "In the future no
Merchant, Concern, Company or Individual or Individuals will be
permitted to distribute, post or otherwise circulate handbills or posters,
2 The time clocks are located just inside this gate.
LETOURNEAU COMPANY OF GEORGIA 1257
or any literature of any description on Company property without
first securing permission from the Personnel Department ." A similar
order was issued to the supervisory force and directed to be placed on
the bulletin boards.
Since October 1941, the respondent has provided its employees with
a printed pamphlet containing information concerning the plant. In-
cluded therein is a list of rules , the infraction of which is stated to be
cause for immediate discharge . Rule 22 prohibits "The posting of
handbills , placards , posters, or advertising matter on Company prop-
erty without permission of the Personnel Manager. " About this same
time, the plant-protection force was issued a set of rules to enforce,
which included an instruction "to prevent when possible and report at
once the posting or distributing of any notices , papers , or literature on
Plant Property without the permission of the Management . . ."
At the beginning of April 1943 , the bulletin boards displayed a rule
which forbade "posting" only , although , as has been indicated above,
in the latter half of 1941 an order was directed to be placed on the
bulletin boards prohibiting distributing , posting, or otherwise circulat-
ing lierature . Sometime between April 8, 1943, and May 15, 1943, the
respondent placed another set of rules on the bulletin boards, this time
prohibiting "posting or distributing . . . without permission of the
Plant Manager ." This was subsequent to the lay-off of Ferguson, but
prior to the lay-off of Ayers.
In spite of the apparent lack of uniformity in the printed versions
of the respondent 's rule against distributing literature on plant prem-
ises, it is uncontradicted in the record that, since July 3, 1941 , the plant-
protection force has strictly enforced a no-distributing -no-posting rule
on the respondent 's premises , including the two parking lots. There is
no evidence that either outsiders or employees have been permitted to
distribute literature of any kind on the lots since that time.
3. Sequence of events
In February 1943, the Congress of Industrial Organizations , herein
called the C. I. 0., commenced to organize the respondent 's employees.
An election was held on April 8, 1943, which resulted in the defeat of
the C . 1. 0. Thereafter , the Union sought to organize the respondent's
employees.
On the date of the election , Grady Ferguson , an employee of the
respondent for over 2 years, having finished his day's work , boarded a
bus standing in the North lot. He saw some C. I. 0 handbills in the
bus, which he proceeded to pass out ,to other persons in the bus who
requested them, and then handed four or five through an open window
of the bus to persons standing on the lot. At this point , Captain
Stokes observed his actions and requested Ferguson to accompany him
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to guard headquarters . There Ferguson was instructed to see the
Plant Manager the next day . Ferguson spoke to the Plant Manager
as instructed and was advised that he would be laid off just
as others had been laid off for distributing literature without per-
mission, and that the respondent was not motivated , in taking such
action in his case , by the nature of the literature being distributed.
Ferguson was then suspended from work for April 9 and 10, 1943.
L. Wayman Ayers , an employee of the respondent for 4 years, had
been interested in the C. I. 0. After the C. I. 0. lost the election, he
joined the Union and on or about July 9, 1943, became president of the
local . On July 15, Ayers sought permission from the Plant Manager
to distribute , and post about the plant , handbills announcing a Union
meeting for July 17. His request was refused , the Plant Manager
stating, in effect, that to grant permission would be letting the bars
down, and that the respondent might get into trouble under the Act
for aiding the Union . Ayers then inquired how far the respondent's
property extended. The Plant Manager replied that he knew it was
inside of the fence , but he did not know "how far out toward the high-
way it went," and suggested that Ayers consult with Captain Stokes.
Ayers did not consult Captain Stokes , but, on the following day during
his lunch period, entered the South Lot where he had parked his truck,
gathered some Union handbills from the truck and distributed them to
8 or 10 employees . He then ate his lunch, gathered up some more hand-
bills and proceeded to place them in automobiles parked in the lot. A
guard noticed his activities , and on Ayers 's return to the truck for
another handful , the guard approached him and directed him to guard
headquarters . At headquarters' Ayers was asked whether he knew
that he had been violating a rule. Ayers insisted that he had not been
on the respondent 's property . Captain Stokes then informed Ayers
that the South lot was the respondent 's property . After consulting
with the Plant Manager, Ayers and Stokes were directed to speak to the
General Manager , but were unable to contact him. Ayers returned to
work. After work , he spoke to the General Manager and was informed
that two other employees had been laid off for the same violation, and
that he would also have to be laid off. Ayers was suspended from
work on Saturday , July 17 , and Monday , July 19, 1943.
Both Ferguson and Ayers have continued in the respondent 's employ
since their respective suspensions.
4. Conclusions
The record in the instant proceeding is free from dispute as to the
material facts. There is disagreement , however, as to what inferences
may properly be drawn from the facts. The Board's attorney contends
that they show a discriminatory application of the rule against dis-
LFTOURNEAU COMPANY OF GEORGIA 1259
tribution to Ferguson and Ayers, because of their union activities;
the respondent denies any such discrimination. At the oral argument
before the Board, counsel for the Union conceded that there was no
basis in the record for a finding of a discriminatory application of the
rule by the respondent. We have carefully considered the facts, as they
have been set forth herein, and, while we note the apparent confusion
evident in the many and varied forms in which the rule against dis-
tribution of literature has been published, we are of the opinion and
find, as did the Trial Examiner, that the record does not support a
charge that the rule was discriminatorily enforced against Ferguson
and Ayers. It is undisputed that the rule against distribution has
been applied to all persons, without exception, seeking to distribute
literature on the parking lots where Ferguson and Ayers were appre-
hended. There remains for consideration, however, the broader issue
whether a rule prohibiting the distribution of union literature by
employees in areas outside the plant proper, although on company
property, is in itself repugnant to the Act under the circumstances of
this case. The Trial Examiner considered this broader issue and, upon
finding that the rule had as one of its purposes the prevention of litter-
ing, concluded that the instant case was governed by the Board's
decision in Matter of Tabin-Picker & Co.;4 in which the Board stated
that, "In the interest of keeping the plant clean and orderly it is not
unreasonable for an employer to prohibit the distribution of literature
on plant premises at all times." We do not agree, for reasons set forth
hereinafter, that the instant case is controlled by the broad principle
stated in the Tabin-Picker case.
The instant case is one which requires an evaluation of conflicting
rights and policies-the employer's right to regulate the use of his
own property, on the one hand, as against the employees' right to
receive information to enable them to exercise their right to self-
organization, which it is the policy of the Act to encourage. It is well
settled in our law that certain rights are not absolute, but qualified, and
that where conflicts between rights arise, a determination must be made
as to which should give way, and which should be deemed paramount,
in order to achieve the greater good. As the Circuit Court of Appeals
for the Second Circuit has held, "It is not every interference with
property rights that is within the Fifth Amendment and . . . Incon-
venience or even some dislocation of property rights, may be necessary
in order to safeguard the right to collective bargaining." 6 The Board
has frequently applied this principle in decisions involving varying
sets of circumstances, where it has held that the employer's right to
* 50 N. L. R. B 928.
IN. L. R. B. v. Cities Service Oil Co., 122 F. (2d) 149, 152 (C. C. A. 2). See also,
N. L. R B. v. Jones ci Laughlin Steel Corp., 301 U. S. 1, 43, 44; Art Metal Construction Co.
v. N. L. R. B., 110 F. (2d) 148, 150 (C. C. A. 2).
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
control his property does not permit him to deny access to his property
to persons whose. presence is necessary there to enable the employees
effectively to exercise their right to self-organization and collective
bargaining, and in those decisions which have reached the courts, the
Board's position has been sustained." Similarly, the Board has held
that, while it was "within the province of an employer to promulgate
and enforce a rule prohibiting union solicitation during working
hours," it was "not within the province of an employer to promulgate
and enforce a rule prohibiting union solicitation by an employee out-
side of working hours, although on company property," the latter
restriction being deemed an unreasonable impediment to the exercise
of the right to self-organization.7
In view of the foregoing well established principles, the sole ques-
tion confronting us is whether, under the circumstances of the in-
stant case, to the extent that the rule prohibits distribution of union
literature by employees on the parking lots, it constitutes such a
serious impediment to the freedom of communication which is essen-
tial to the exercise of the right to self-organization, that the right to
self-organization must be held paramount, and the rule give way.
It is clear that employees cannot realize the benefits of the right to
self-organization guaranteed them by the Act, unless there are ade-
quate avenues of communication open to them whereby they may be
informed or advised as to the precise nature of their rights under the
Act and of the advantages of self-organization, and may have oppor-
tunities for the interchange of ideas necessary to the exercise of their
right to self-organization. It must also be noted that speech is not the
only mode of communication by which self-organization is effected,
nor is it sufficient that this channel alone be free. Effective organiza-
tion requires the use of printed literature and of application and
membership cards, and these modes of communication are also pro-
tected by the Act.
To what extent then does the respondent's rule impede the effective
exercise of the right to self-organization?
As previously indicated, the respondent's plant is located in the
country in the heart of 6,000 acres of land owned by it or its sub-
sidiary. Apart from U. S. Highway No. 13 (and perhaps the inter-
6 Matter of West Kentucky Coal Co., 10 N. L R. B. 88, 133, enforced as modified in
N L R B. v. West Kentucky Coal Co, 116 F. (2d) 816 (C. C A 6), Matter of Cities
Service Oil Co, 25 N . L. R. B. 36 , 57, enforced in part in N L. R. B. v. Cities Service 041
Co, 122 F (2d) 149, 152 (C. C A 2) ; Matter of Weyerhaeuser Timber Company, Longview
Branch, 31 N. L. R. B. 258; Matter of American Cyanamid Co., 37 N. L. R B 578; Matter
of Ozan Lumber Company, 42 N. L. R. B 1073; cf. Matter of_Harlan Fuel Company,
8 N. L. R B. 25.
7 Matter of Peyton Packing Company, 49 N. L. R. B. 828; Matter of Carter Carburetor
Corporation , 48 N. L. It. B. 354 ; Matter of Scullin Steel Company, 49 N. L. R B. 405;
Matter of Republic Aviation Corporation , 51 N. L. R. B., No . 186; Matter of Denver Tent
and Awning Corp, 47 N L. It. B 586, enforced in N L. R. B v Denver Tent and Awning
Corp, 138 F (2d) 410 (C. C A 10)
LFTOURNEAU COMPANY OF GEORGIA 1261
s'ecting road), the respondent and its subsidiary own all the land
adjacent to the plant. This, in itself, seriously limits the possibilities
of effectively communicating with the bulk of the respondent's em-
ployees. This limitation would not, however, be too restrictive if the
respondent's gate opened directly onto the highway, for then persons
could stand outside the respondent's premises and distribute literature
as each employee entered or left the plant.' But at the respondent's
plant the gate is 100 foet back from the highway, on company prop-
erty. Over 60 percent of the respondent's employees, after passing
the gate, enter automobiles or busses parked in the space between the
gate and the highway, and presumably speed homeward, without ever
setting foot on the highway. Distribution of literature to employees
is rendered virtually impossible under these circumstances, and it is
an inescapable conclusion that self-organization is consequently seri-
ously impeded. It is no answer to suggest that other means of dis-
seminating union literature are not foreclosed. Moreover, the
employees' homes are scattered over a wide area. In the absence of
a list of names and addresses, it appears that direct contact with the
majority of the respondent's employees away from the plant would be
extremely difficult.
The respondent nevertheless urges the reasonableness of the rule on
several grounds, one of which is to prevent littering of the plant prem-
ises. Although we recognized this justification for the rule in the
Tabin-Picker case, as we have noted, we do not think that the general
principle there stated is applicable to the peculiar facts of this case.
There was no serious impediment to self-organization by the rule
prohibiting distribution of literature in the plant proper in that case,
since the employees could effectively distribute literature at the plant
gates. Moreover, considerations of efficiency and order which may be
deemed of first importance within buildings where production is be-
ing carried on, do not have the same force in the case of parking lots.
It is also to be noted that the respondent had no general rule against
littering.
The respondent also urges that the rule is necessary and reasonable
to prevent sabotage and thefts of automobiles and of property left
therein. It appears that this problem was solved when merchants
were denied access to the lots to distribute advertisements. Since the
employees have free access to the lots in any event, we fail to see how
the fact that they use such access as an occasion to distribute literature
has any bearing on the problem of thefts. Finally, the respondent
urges that the rule prevents literature from going into the plant where
it might lessen efficiency and endanger the safety of machines and
8 Cf Matter of Adolph Spalek and William J. Zyenchik, Co-Partners, doing business as
dpalek Engineering Company, 45 N. L. R. B. 1272.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. We are not impressed with the sincerity of this conten-
tion. The respondent's own magazine, intended for its employees, is
placed in wooden boxes which are located near the plant gate, where
copies may be picked up and taken into the plant. Moreover, the
respondent appears to have no rule barring the carrying of literature
or newspapers into the plant. Such a rule would provide a better
safeguard against the impairment of efficiency and safety in the plant
than a rule directed at distribution, and would not be subject to the
same objections.
Upon all the above considerations, we are convinced, and find, that
the respondent, in applying its "no-distributing" rule to the distri-
bution of union literature by its employees on its parking lots' has
placed an unreasonable impediment on the freedom of communication
essential to the exercise of its employees' right to self-organization,
and that by suspending Grady Ferguson and L. Wayman Ayers for
violations of the rule, the respondent has discriminated in regard to
their hire and tenure of employment, thereby discouraging member-
ship in the Union and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
B. Other interference, restraint, and coercion.
Although not set forth in the complaint, the issue of the allegedly
unlawful conduct of Foreman Arlo Todd, was raised at the hearing.
Ayres testified that on April 8, 1943, as he and, employee George
Taylor were about to vote in the election mentioned heretofore, Tay-
lor said, "We're going in there and mark the biggest yes we can;" to
which Todd remarked, "You better use your head." Ayres further
testified that since July 1943, Todd has teased and made fun of him
for being president of the Union local. Todd was not, during any of
this time, Ayer's supervisor.
On April 1, 1943, the respondent posted in conspicuous places
throughout its plant, the following notice:
APRII, 1, 1943
To all foremen, employees and bulletin boards :
This company desires to inform- each of its employees of a
definite fixed policy which it does and will adhere to.
Any statement or rumors by any persons contrary to the policy
stated herein are without authority and are hereby repudiated.
The employees of this company have the right to organize, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their-own choosing and this company
will not interfere with, restrain, or coerce any employee in his
or her exercise of these rights.
LETOURNEAU COMPANY OF GEORGIA 1263
The company will not undertake or permit any interference,
aid or restraint of its employees in the exercise of their right of
self-organization and concerted activities for the purpose of col-
lective bargaining or other mutual aid and protection mentioned
above.
This company does not neither will it discriminate in regard
to hire or tenure of employment or any term or condition of em-
ployment, to encourage or discourage membership in any labor
organization.
This company seeks at all times to be ready and willing to co-
operate with our employees, or their representatives, for the
mutual benefit of our company, our employees, and our country.
LETOURNEAU CO. OF GEORGIA
JACK SALVADOR
Vice Pres.-General Manager.
In view of the posting of the above notice, and in the absence of
any evidence indicating that any other supervisory employees or offi-
cers of the respondent failed to observe the letter of the notice and
attempted to interfere with the employees' rights to self-organization,
we do not consider that Todd's remarks and conduct truly represented
the respondent's actual policy toward the concerted activities of its
employees, nor could be so construed by the employees to whom they
were made. We are of the opinion, as was the Trial Examiner, that,
under all the circumstances, the remarks and conduct of Foreman
Todd, standing alone, did not interfere with, restrain, or coerce the
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III A, above,
occurring in connection with the operations of the respondent de-
scribed in Section I, above, have a close, intimate, and substantial re-
lation 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
Having found that the respondent has engaged in certain unfair
labor practices , within the meaning of the Act, we shall order that it
cease and desist therefrom, and take certain affirmative action which
we find will effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire
record in the case , the Board makes the following:
1264 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. United Steelworkers of America, affiliated with the Congress of
Industrial Organizations , is a labor organization , within the meaning
of Section 2 (5) of the Act.
2. By applying its no-posting- no-distributing rule to the distribution
of union literature by its employees on its parking lots, the respondent
has engaged in unfair labor practices, within the meaning of Section
8 (1) of the Act.
3. By suspending Grady Ferguson and L. Wayman Ayres, the
respondent has engaged in unfair labor practices, within the meaning
of Section -8 (1) and (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.
5. The respondent, by the remarks of Foreman Todd, has not
engaged in unfair labor practices , within the meaning of Section 8 (1)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
LeTourneau Company of Georgia, Toccoa, Georgia , and its officers,
agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
CIO, or any other labor organization of its employees , by discharg-
ing or refusing to reinstate any of its employees , or in any other
manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition of employment;
(b) In any other manner 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 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) Rescind immediately the rule against distribution of literature
insofar as it prohibits distribution of union literature by employees
outside the gates of the plant and in the parking lots.
(b) Make whole Grady Ferguson- and L . Wayman Ayers by pay-
ment to them of a sum of money equal to that which they would have
LETOURNEAU COMPANY OF GEORGIA 1265
earned on the respective days they were suspended from work, namely
April 9 and 10, 1943, in the case of Ferguson, and July 17 and 19, 1943,
in the case of Ayers; less their respective net earnings during such
period .9
(c) Post immediately in conspicuous places throughout its Toccoa,
Georgia, plant, and maintain for a period of at least sixty- (60) con-
secutive days, notices to its employees stating that the respondent will
not engage in the conduct from which it is ordered to cease and desist
in paragraphs 1 (a) and (b) hereof; that it will take the affirmative
.action set forth in paragraphs 2 (a) and (b) hereof; and that the re-
spondent's employees are free to become and remain members of United
Steelworkers of America, CIO, and the respondent will not discrim-
inate against any of its employees because of membership in or activity
on behalf of that organization;
(d) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Paul S. Knelthaat, for the Board.
Wheeler, Robinson, and Thurmond, by Mr. Alonzo C. Wheeler, and Mr. Emory
F. Robinson, of Gainesville, Ga ; and Mr. Clifton W. Brannon, and Mr. C. M.
McClure, of Toccoa, Ga , for the respondent
Mr. Archie W. Graham, of Atlanta, Ga., Field Representative, for the Union.
STATEMENT OF THE CASE
Upon a first amended charge duly filed October 13, 1943, by United Steelworkers
of America, CIO, herein called the Union, the National Labor Relations Board,
herein called the Board, by its Acting Regional Director for the Tenth Region
(Atlanta, Georgia), issued its complaint dated October 15, 1943, against Le-
Tourneau Company of Georgia, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and (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, as amended at the
hearing, alleged in substance that the respondent• (1) on or about April 8, 1943,
suspended Grady Ferguson for 2 days, and on or about July 16, 1943, suspended
L. Wayman Ayers for a similar period, for the reasons that Ferguson and Ayers
had distributed union literature outside the plant premises, joined and assisted
the Union, and engaged in concerted activities ; (2) on or about August 11, 1943,
913y "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work performed
upon Federal , State , county, municipal , or other work -relief projects shall be considered as
earnings See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
567900-44-vol. 54-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Foreman LaBranch of the machine shop, prohibited union literature from
being brought into its plant by employees of the machine shop, although it per-
mitted other literature to be brought into its plant; (3) interpreted and enforced
"the rule against distribution of literature outside of the plant fence" ;1 and
(4) by suspending Ferguson and Ayers violated Section 8 (3) of the Act, and
by said suspensions and all the foregoing conduct violated Section 8 (1) of the
Act. On October 26, 1943, the respondent filed 'its answer admitting that it
had suspended Ferguson and Ayers, but denying that it had engaged in any
of the unfair labor practices alleged.
Pursuant to notice, a hearing was held at Toccoa, Georgia, on October 28,
1943, before William Feldesman, the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the respondent were rep-
resented by counsel, the Union by its Field Representative, and all participated
in the hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all
parties. In the course of the hearing, the undersigned granted, without ob-
jection, a motion of counsel for the respondent to strike from the complaint
for failure of proof the averment concerning the alleged conduct of Foreman
LaBranch. Near the close of the hearing, the undersigned granted, without
objection, motions to conform the complaint and answer to the proof, with re-
spect to names, dates, and other minor variances At the same time ruling
was reserved upon a motion of the respondent's counsel to dismiss the com-
plaint. It is disposed of as indicated in the recommendations below.
Oral argument, in which counsel for the Board and the respondent participated,
was thereafter had upon the record. Although the parties were advised of
their right, upon request made before the close of the hearing, to file briefs
with the undersigned, none took advantage of the opportunity offered.
Upon the entire record thus made, and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following :
FINDINGS OF FAOT
I THE BUSINESS OF THE RESPONDENT
The respondent, a Georgia corporation created in 1938, is engaged at its
plant in a town three miles northeast of Toccoa, Georgia, in the manufacture
and sale of earth moving machinery, specialty machines, shells and other
products essential to the war effort. In 1942 the respondent purchased $3,932.-
420 55 worth of war materials, almost all of which were shipped to its plant from
points outside the State of Georgia. In the same year the respondent sold
finished products amounting to $6,746,525.10 in value, more than 80 percent
of which was shipped from its plant to points outside the State of Georgia.
II. THE ORGANIZATION INVOLVED
United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of
the respondent e
1 At the hearing, counsel for the Board moved to amend the complaint by adding this
allegation . The motion was granted.
LETOURNEAU COMPANY OF GEORGIA 1267
III. THE ALLEGED UNFAIR LABOR PRACTICES 2 '
A. The suspensions of Grady Ferguson and L. Wayman Ayers; alleged interfer-
ence, restraint, and coercion
1. Sequence of events
The respondent's plant is situated on the north side of U. S Highway No. 13
in a town 3 miles northeast of Toccoa, Georgia. An intersecting roadway
divides the plant premises into two sections. Enclosing the plant.premises is
a 6 foot link wire fence, surmounted by two strands of barbed wire, which
extends, separated into two parts by the intersecting roadway, for approximately
1,000 yards along U. S. Highway 13. The land between the fence and U. S.
Highway 13 is owned by the respondent. The main gate is located in the
east section of the plant premises. Virtually all of the respondent's employees
must pass through the main gate in order to report for and finish their daily
work. Close by the main gate is the respondent's office. In front of the main
gate and office is a concrete parking lots which extends to the north shoulder
of U. S. Highway 13 Across the highway, opposite the concrete lot, is a sand
and gravel parking lot" which reaches to the south shoulder of the highway.
Of the respondent's 2,100 employees who possess automobiles, approximately 60
percent park their vehicles in the north lot, and about 30 percent park in the
south lot. Buses stop at a reserved space within the north lot.
Since 1938, the north lot has been utilized for parking space by the respond-
ent's employees, although it was for a time in an unpaved state. Before 1942,
in permissible weather, some of the respondent's employees parked their cars
on the south shoulder of U. S. Highway 13, opposite the north lot ; at that
time the south lot was not in existence. In 1941 the respondent leased from
a subsidiary corporation the site of the south lot, and in the ensuing year
cleared and placed the land in its present condition. Both lots are maintained
and kept clean by the respondent at its expense for the benefit of its employees.
As part of their duties guards employed by the respondent keep both lots
under surveillance.
Approximately 6000-acres of land are owned by the respondent and its sub-
sidiary corporation in and about the respondent's plant, and the respondent
also owns about 50 homes, in which a number of its employees reside. The re-
spondent's employees live within a radius of 20 miles from the plant.
At the end of February 1943, the Congress of Industrial Organizations 2 started
to organize the respondent's employees. L. Wayman Ayers, an employee of the
respondent for approximately 4 years, became interested in the CIO about
March 15. On April 1, the respondent posted in conspicuous places in its
plant a notice stating in general terms the rights of its employees under the
Act, and declaring the respondent's intention not to violate or permit interfer-
2 The findings in this section are based upon undisputed and, in some instances, corre-
lated testimony of witnesses for the Board and the respondent, as well as documentary
evidence.
Referred to herein as the north lot.
Referred to herein as the south lot.
2 Referred to herein as the CIO.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence with such rights " 'An election was held, on April 8, under the auspices of
the Board, with the CIO,pn the ballot. After he had finished work on the day
of the election, and before the polls had closed, Grady Ferguson, who has been
in the respondent's employ for about 2-yeIrs, entered a bus which was parked
in the north lot, found some CIO handbills, distributed several to people present
in the bus, and handed 4 or 5 through a window to persons standing on the lot.
George M. Stokes, captain of the respondent's guard, observed Ferguson handing
literature through the bus window. At Stokes' request, Ferguson accompanied
him to the guardhouse. Stokes unsuccessfully attempted to communicate with
Plant Manager Joe Salvador, and directed Ferguson to speak to Salvador the
following day. Concerning what transpired the next morning with Salvador,
Ferguson testified : "I went in that morning, and he said he would have to lay
me off, because he had done that before, and he said he would have clone the
same think if it had been a chicken sale, or something like that, advertising
of any kind.""' Ferguson was suspended from his work for April 9 and 10
The CIO lost the election of April 8. Thereafter, the Union, an affiliate of the
CIO, continued the organizing campaign. Ayers became a member of the Union
on about May 15, and was elected its local's president about July 9. In the
evening of July 15, Ayers finished his work, sought out Plant Manager Salvador,
and requested permission to distribute and post about the plant handbills an-
nouncing a union meeting for July 17. Salvador answered, as Ayers testified, that
. . . they might get in trouble if they were to let the gap (sic) down and give
[Ayers] permission to hand out those handbills, and that would let the gap (sic)
down, and might get them in trouble with the Government, that they were not -
supposed to have anything to do for the Union or against it, and . . . for that
reason he could not give [Ayers] permission,' Ayers then inquired how far the
respondent's property extended. Salavador replied that he knew "it was inside
of the fence," but did not know "how far out toward the highway it went," and
suggested that Ayers speak to Stokes regarding the matter.
During lunch hour the following day, Ayers went to the south lot where his
truck was parked, distributed union handbills to 8 or 10 employees, and ate his
e The text of the notice read
APRIL 1, 1943.
To all foremen, employees and bulletin boards :
This company desires to inform each of its employees of a definite fixed policy which
it does and will adhere to.
Any statement or rumors by any persons contrary to the policy stated herein are
without authority and are hereby repudiated.
The employees of this company have the right to organize, to form, loin, or assist
labor organizations, to bargain collectively through representatives of their own
choosing and this company will not interfere with, restrain , or coerce any employee
in his or her exercise of these rights.
The Company will not undertake or permit any interference, aid or restraint of its
employees in the exercise of their right of self-organization and conceited activities
for the purpose of cellective bargaining or other mutual aid and protection mentioned
above.
This company does not neither will it discriminate in regard to hire or tenure of-
employment or any term or condition of employment , to encourage or discourage
membership in any labor organization.
This company seeks at all times to be ready and willing to cooperate with our
employees , or their representatives , for the mutual benefit of our company, our em-
ployees, and our country.
LETOURNEAU CO. OF GEORGIA,
JACK SALVADOR,
Vice Pres .-General Manager.
7 The respondent ' s rule prohibiting the distribution of literature without permission is
discussed below. '
LETOURNEAU COMPANY OF GEORGIA 1269
lunch in the rear of the lot. Having finished his lunch, Ayers returned to his
truck, which contained a number of the handbills, secured some, and placed 20 to
25 in automobiles parked on the lot. Tom J Born, one of the respondent's guards
stationed in the vicinity of the south lot, noticed Ayers' activities. When Ayers
returned to his truck a second time in order to obtain more handbills, Born, who
had been relieved by another guard, approached him Born directed Ayers to
go with him to the guard office. Upon their arrival at the office, Born told
Lieutenant Brown of the guard that Ayers "was putting out some circulars
there . . ." Brown asked Ayers if he was aware that he had been violating the
respondent's rules, and Ayers replied that he had not been on company property.
By this time Stokes appeared and was apprised by Brown of Ayers' conduct, and
Born left. Ayers told Stokes where he had distributed literature, and was in-
formied that he had been on the respondent's property. Accompanied by Ayers,
Stokes walked to the south lot and noticed handbills littered on the lot and
present in the interior of several parked automobiles. They returned to the office
and later conversed with Plant Manager Salvador. Stokes told Salvador what
Ayers "had been doing." and Salvador directed Stokes and Ayers to speak to
Tice-President and General Manager Jack Salvador. Upon ascertaining that
Vice-President Salvador was not to be found, Stokes permitted Ayers to return
to work with the understanding that Ayers would be notified when Salvador was
available. Ayers worked in his department until 4 o'clock that day. At that
time General Foreman Orville Dubie called Ayers' attention to a "card" which
detailed Ayers' activities in the south lot, and contained the information that
Ayers was suspended for 2 days. Although Dubie asked Ayers to sign the "card",
Ayers refused, insisting that he first be allowed to speak to Vice-President Sal-
vador. After work that evening, Ayers spoke to Vice-President Salvador. With
respect to this conversation, Ayers testified as follows : "I went in to talk with
him after work hours that evening, .and he said that there had been two other
fellows laid off for the same purpose, and he was sorry it was me, but he would
have to just lay me off too " Ayers was suspended from work for July 17 and 19.a
Ferguson and Ayers have continued in the respondent's employ. Although
Ayers has distributed union literature to the respondent's employees since his
suspension, he has been compelled, in doing so, to stand on U. S. Highway 13, or
its shoulders, between the north and south lots. Consequently, he has not been
able, in this manner, to distribute literature to all the respondent's employees who
enter and leave the plant premises.
From the evidence, it is apparent that Ferguson and Ayers were suspended for
the asserted reason that they violated the respondent's rule against the distribu-
tion of literature.
2. The rule igainst the distribution of literature
The earliest record of the respondent 's attitude concerning the distribution of
literature appears in a list of instructions given its supervisory force about Octo-
ber 11 , 1940. "The posting of handbills , placards , posters , or advertising matter
about the plant without the permission of the Plant Manager or Industrial Rela-
tions Manager" was mentioned in these instructions as cause for discharge after
a previous warning. While there is no direct evidence that the employees re-
ceived notice of the instructions , the record reveals that supervisors were charged
with the obligation to make the respondent 's rules known to their subordinates.
Prior to July 3, 1941, merchants would enter the north lot, distribute their ad-
vertising matter to the respondent 's employees , and place such literature in parked
8 Sunday intervened
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
automobiles. Coincident with this practice, the parking lot became littered, thefts
of property from within parked automobiles occurred, automobile accessories were
found missing, and one automobile was stolen from the lot. Complaints were
made to the management by employees who were the victims of such acts. As a
result of the littering and.thefts, and after conferences among the respondent's
officials, on July 3, 1941, Captain Stokes of the guard sent an order to the plant
protection, force whose subject was, "Distributing literature on Co. Property,"
and which read, in part: "In the future no Merchant, Concern, Company or indi-
vidual or Individuals will be permitted to distribute, post or otherwise circulate
handbills or posters, or any literature of any description on Company property
without first securing permission from the Personnel Department."
At about the same time Stokes' order was issued, the respondent's personnel
manager sent a notice directed to all foremen, supervisors, and bulletin boards,
which embodied in substance the proscription contained in the order There is
no specific evidence that the notice was posted ; however, it is the respondent's
practice to post on its bulletin boards all material directed to be placed there.
In October 1941, a printed pamphlet entitled, "You and your company," con-
taining rules and regulations governing the conduct of employees was given to
all in the respondent's employ. This pamphlet has been and still is issued to
all new employees. As cause for immediate discharge the pamphlet lists, "The
Posting of handbills, placards, posters, or advertising matter on Company property
without the permission of the Personnel Manager."
The plant protection force, in the latter half of 1941, received a list of "General
Rules and Regulations" to be enforced. Under a section headed, "Posters and
Circulars," the following appeared : "Every member of the Plant Police will
prevent when possible and report at once the posting or distributing of any
notices, papers, or literature on Plant property without the permission of the
Management . . .
From July 3, 1941, the prohibition of the distribution of literature on the
respondent's plant premises, inclusive of the north and south lots, has been
strictly enforced. Persons, including Clifton W Brannon, the respondent's "legal
advisor," have been refused permission to distribute religious literature on any
company property. Trades people from Toccoa, Georgia, have been denied
the privilege of distributing their advertising matter on the respondent's premises.
Those individuals who proceeded to distribute reading matter without permission
were immediately stopped when they were observed, and their attention called
to the respondent's rule.
A set of rules was conspicuously posted in the plant at the beginning of April
1943, headed, "VIOLATION OF THE FOLLOWING RULES WILL BE CAUSE
FOR IMMEDIATE DISCHARGE." One of the prohibitions was, "The posting
of handbills, placards, posters or advertising matter about the plant without
permission of the Plant Manager."
Between April 8, 1943 and May 15, 1943, the respondent placed on its bulletin
boards another set of rules, headed, "Violation of the Following Rules Will Be
Cause for Immediate Discharge." As a reason for dismissal, these rules listed,
"Posting or distributing handbills, placards, posters, or advertising matter of
any nature about the plant without permission of the Plant Manager."
Ferguson's suspension occurred while the April 1943 rules were posted, and
Ayers was penalized during the time the latest set of rules appeared on the re-
spondent's bulletin boards.
9 From 1941 until the present, the respondent has published a magazine entitled, "Now."
This publication is intended for the respondent's employees. It has been the respondent's
practice to place the magazine in several wooden boxes located within the plant and to
permit employees to take copies for reading purposes.
LETOURNEAU COMPANY OF GEORGIA 1271
Conclusions
The written notice directed to employees which was current at the time of
Ferguson's suspension and which was posted in the beginning of April 1943,
prohibited the "posting" of literature "about the plant" without permission.
From such verbiage it is not clear that on April 8, 1943, the day Ferguson dis-
tributed literature in the north lot, the respondent's employees were cognizant
that permission was needed to distribute literature in the respondent's north
and south lots.
Nor is it clear that on July 16, 1943, the day Ayers distributed literature in
the south lot, the respondent's employees were aware of the proscription, without
previous permission, of the distribution of literature in these lots. Between
April 8, 1943, and May 15, 1943, the respondent posted a written notice for the
attention of its employees in which it forbade "distributing" as well as "posting"
literature "about the plant"; "about the plant" may or may not connote the
parking lots. It is significant, however, that Ayers questioned Plant Manager
Salvador on July 15, 1943, regarding the extent of the respondent's premises,
thus revealing some knowledge that the 'rule covered property beyond the
fence.
That the respondent at all times since 1941 did in fact prohibit the distribution
of literature within its plant and north and south lots is, however, certain.
Because of the littering of its north lot and the thefts which there occurred,
the respondent's plant protection force received orders on July 3, 1941, to prevent
the distribution of literature on "Company property" unless permission was
first granted by the "Personnel Department." At about the same time, the re-
spondent caused a notice to be sent to its supervisory force and for its bulletin
boards, embodying in substance the July 3 order. In the latter half of 1941
the plant protection force was again enjoined to prevent the "distributing" of
literature on "Plant property" without the management's previous permission.
License to distribute literature in the north and south lots has not been granted
anyone. From July 1941 to the present, the respondent assiduously prohibited
the distribution of literature on its plant premises and north and south lots.
Tradesmen and others were denied the privilege ; Brannon, the respondent's
"legal advisor," has been refused permission. Those who attempted to dis-
tribute literature in the respondent's north and south lots without first securing
permission were immediately halted after they were observed. While the evi-
dence discloses that those who were refused the right to distribute literature in
the respondent's plant and lots were not in the respondent's employ, there
is no evidence that employees were allowed to distribute literature there.
Under other circumstances, changing, during union activity, a notice directed
to employees within approximately one month's time by adding a prohibition
against "distributing" would render the respondent's motive susgect. But, in
these circumstances, considering the promulgation of a policy proscribing the
distribution of literature within the respondent's plant and north and south
lots and its consistent enforcement long before the advent of union activity,
the only significance which can be attached to the change is the respondent's
apparent desire more accurately.to apprise its employees of its actual rule. It
is clear, moreover, by virtue of the foregoing facts, that the respondent's pro-
scription of the distribution of literature of all types in its plant premises and
north and south lots was initiated, and enforced in the cases of Ferguson and
Ayres, without discrimination.'°
10 The practice of placing the magazine "Now" in wooden boxes located in the plant is not
such a departure from the rules enforcement as to indicate discrimination.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is contended by counsel for the Board that the rule is inherently violative
of the Act insofar as it applies to the distribution of union literature beyond the
fence enclosing the plant premises. There is no evidence that the respondent
prohibited or intended to prohibit the distribution of union literature on any of
its property other than its plant premises and north and south lots.1' The issue
is consequently clear. The question to be determined is whether the rule is re-
pugnant to the Act as it applies and has been applied to the distribution of union
literature in the respondent's north and south lots The north lot is owned by
the respondent and the south lot is leased by it. Both are adjacent to the plant
premises. The respondent maintains and cleans the lots at its expense. In
order to avoid the littering of these lots and thefts of its employees' property
the respondent promulgated and enforced the rule. In the recent Tabin-Pecker &
Co. case 12 the Board held that, "In the interest of keeping the plant clean and
orderly it is not unreasonable for an employer to prohibit the distribution of
literature on plant premises at all times." Since the respondent has undertaken
to provide parking facilities for its employees and to maintain and clean them
at its expense, there is no persuasive reason to apply in respect to the parking
lots in the instant proceeding a principle different from that which was enunci-
ated in the Tabin-Picker & Co. case with regard to "plant premises." Counsel for
the Board argues that the rule is unreasonable because those wishing to distribute
literature, as in the case of Ayers, will be forced to stand on U. S. Highway 13,
or its shoulders, and will be unable to reach all the respondent's employees. Yet,
other, ways of disseminating union literature are not foreclosed and other means
of organizing are not barred by the rule.
Accordingly, it is found that the rule, as it applies and has been applied to the
plant and north and south lots, is reasonable and valid, has not been interpreted
and enforced in violation of Section 8 (1) of the Act , and that the suspensions of
Ferguson and Ayers were not discriminatory within the meaning of Section 8 (3)
-of the Act. It will be recommended below that the complaint be dismissed in its
entirety.1'
JJpon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization, within the meaning of Section 2 (5) of
the Act.
2. The operations of the respondent occur in commerce, within the meaning of
Section 2 (6) of the Act.
3. By suspending Grady Ferguson and L. Wayman Ayers the respondent has
not engaged in unfair labor practices, within the meaning of Section 8 (3) of the
"As found above, the respondent and, its subsidiary corporation own about 6,000 acres
of land in and about the respondent 's plant. The respondent , in addition , also owns ap-
proximately 50 homes in the plant ' s vicinity.
'a Matter of Tabin -Picker & Co ., 50 N. L. R. B 928.
'3 The issue of the allegedly unlawful conduct of Foreman Arlo Todd, although not
alleged in the complaint , arose at the hearing. On April 8, 1943, the day of the election,
as Ayers and employee George Taylor were about to enter the polls, Taylor stated, "We're
going in there and mark the biggest yes we can " Todd remarked , "You better use your
head." According to Ayers, since July 1943 , Todd on occasion has jocularly called him
"Mr Prsident ," in one instance has asked him to pay Todd dues, and generally "makes
fun" of him Under all the circumstances , the undersigned finds that Todd's conduct does
not constitute interference with , restraint , or coercion of the respondent ' s employees in
the exercise of the rights guaranteed under the Act.
LETOURNEAU COMPANY OF GEORGIA 1273
Act, nor has the respondent engaged in any unfair labor practices , within the
meaning of Section 8 (1) of the Act.
- RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the complaint herein be dismissed in its entirety.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended effective October 19,
1943-any party or counsel for the Board may within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board , pursuant to
Section 32 of Article II of said Rules and Regulations , file with the Board,
Rochambeau Building, Washington , D. C. an original and four copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report or to
any other part of the record or proceeding ( including rulings upon all motions
or objections ) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief , the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with the
Regional Director . As further provided in said Section 33, should any party de-
sire permission to argue orally before the Board . request therefor must be made
in writing within ten (10 ) days from the date of the order transferring the case
to the Board.
WILLIAM FELDESMAN,
Trial Examiner.
Dated November 11, 1943.