Lewisville Flooring Co.

National Labor Relations Board - Board Decisions

Jun 25, 1954

108 N.L.R.B. 1442 (N.L.R.B. 1954)

1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the above facts, and the record as a whole , we find that
the Employer ' s machinists , special machinists , and develop-
ment machinists are craftsmen . The IAM has traditionally
represented employees in the machinists ' craft . We therefore
find that these employees , together with the machinists' ap-
prentices , may, if they so desire , constitute a separate unit.9
The IAM would also include an employee classified as a
napper machinist and utilityman who is employed at the Pas-
saic plant . As his duties appear to be confined to minor repair
work, and there is no showing that he has the all - round skills
of a journeyman craftsman , we shall exclude him. He will
therefore be included in the production and maintenance unit.
Accordingly , we shall direct that an election be conducted in
the following group of employees of the Employer at its
plants at Garfield and Passaic , New Jersey.
All machinists , special machinists , development machinists,
and machinists ' apprentices , excluding the napper machinist
and utilityman , all other employees , guards , and supervisors
as defined in the Act.
If a majority of the employees in this voting group select
the IAM, they will be taken to have indicated their desire to
constitute a separate bargaining unit, and the Regional Director
conducting the election is instructed to issue a certification
of representatives to the IAM for such unit , which the Board,
in such circumstances , finds to be appropriate"for the purposes
of collective bargaining . On the other hand, if a majority of
the employees in this voting group do not vote for the IAM,
that group will appropriately be included in the production
and maintenance unit, and the Regional Director is instructed
to issue a certification of representatives to the TWUA for
such unit , which the Board , in such circumstances , finds to
be a unit appropriate for the purposes of collective bargaining.
[Text of Direction of Election omitted from publication.]
9 Although the Employer ' s machinists appear to be more highly skilled than the ordinary
journeyman machinist , we 'find no merit in the contention of the Employer and the TWUA
that they cannot , on that account , constitute an appropriate craft unit.
ALVIS FULLER, d/b/a LEWISVILLE FLOORING COMPANY
and UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, LOCAL NO. 2757, AFL. Case No.
15-CA-585. June 25, 1954
DECISION AND ORDER
On December 23, 1953, Trial Examiner John C. Fischer
issued his Intermediate Report in the above - entitled proceeding,
finding that the Respondent had engaged in and was engaging
108 NLRB No. 208.
LEWISVILLE FLOORING COMPANY 1443
in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report and a supporting brief . The Respondent's
request for oral argument is hereby denied as the record, the
exceptions , and the brief , in our opinion , adequately present
the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in the case, and finds merit in the
exceptions . The Board , accordingly, adopts the findings, con-
clusions , and recommendations of the Trial Examiner only to the
extent that they are consistent with this Decision and Order.
We do not agree with the Trial Examiner's finding that the
Respondent discriminatorily denied employment to A. B. Culp
and his son , Rice Roy Culp. i
On September 3, 1952, A. B. Culp applied to the Respondent
for a job as a grader . He had never previously worked for the
Respondent or for any of its supervisory officials. He was
not put to work . The General Counsel contended , and the
Trial Examiner found, that Culp' s leadership of a strike at
Partee Lumber Company, his place of previous employment,
was the moving cause for the failure to hire him . The Re-
spondent denies that this was the reason for the failure to
employ Culp . It asserts that there was no job opening for Culp
when he applied for work, and that subsequent vacancies were
filled with other persons for good and sufficient reasons
unconnected with Culp's previous organizational activities.
The Trial Examiner finds that the Respondent had or an-
ticipated a job vacancy for which Culp was qualified when
Culp applied for a job, and that the Respondent ' s refusal to
hire him was motivated by his previous union activity.
The Respondent normally employed four graders . On Sep-
tember 3, 1952, the day Culp applied fora job, a full complement
of graders was at work. In other words, there was no vacancy
for a grader at that time. Although he concedes th is fact, the
Trial Examiner infers that on September 3 , Foreman Simmons
foresaw future vacancies and "would have accelerated the re-
action ," in order to find a place for Culp had it not been for
the latter ' s participation in the strike at Partee . We do not
believe that such a broad inference is warranted on the basis
of the evidence in the record. The only vacancy which Simmons
might reasonably have foreseen on September 3 was that which
occurred when Simmons discharged Woodell on September 5.
The other vacancies which occurred after September 3 resulted
iThe case of Rice Roy Culp is wholly dependent on that of his father. Therefore, it is
not treated separately herein.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from employee and not employer action, except for the discharge
of Parsons for "absenteeism " which took place 3 months
after Culp' s application , a period too remote to have been
anticipated on September 3. There is no evidence of the Re-
spondent ' s turnover experience , and therefore no inference can
properly be drawn that the number of vacancies that occured
after September 3 was typical and could reasonably have been
foreseen.
Even assuming that on September 3 Simmons had already
made up his mind to discharge Woodell 2 days later, Simmons'
failure to replace Woodell with Culp was not necessarily
discriminatory . The Respondent hired a former employee
named Cockerham to fill Woodell' s position . The evidence is
uncontradicted , and is corroborated by Cockerham, that
months previously the Respondent had promised the first
grader job vacancy to Cockerham, who was also a longtime
friend of Foreman Simmons . When grader Castleman failed
to report for work one morning, the Respondent temporarily
moved another employee to the grading table, and then hired
Marvin Brazell , a former employee , as a permanent replace-
ment. When Brazell had to quit because of the condition of
his feet, the job was given to Logan, a friend of Manager
Taylor, and upon the latter ' s recommendation . The uncontra-
dicted testimony establishes that Taylor knew of the availa-
bility of both Brazell and Logan for grader jobs before Culp
applied for the job. No grader vacancy occurred between
September 29 and December 2, when the Respondent discharged
Parsons for absenteeism , and hired J. H. Rayon to take his
place . Rayon had worked as a grader for the Respondent up
to the previous August. The final replacement occurred late
in December when the Respondent hired Dale Aaron in place
of Logan, who had quit. There is no evidence as to Aaron's
background and former relationship , if any, to the Respondent.
The pattern of new hirings by the Respondent after Culp's
application for work shows a preference for applicants who
were present or former employees , or who had the recom-
mendations of Plant Manager Taylor.2 We can find no taint or
suspicion of discrimination in these hirings . The Trial Ex-
aminer's conclusion that- only Rayon 's hiring is " sound and
unsuspect " is without any record support. It is most natural
for an employer in filling job vacancies to prefer former
employees whose qualifications are known to him, or appli-
cants who have the personal endorsement of a top management
official, over a total stranger like Culp. The Trial Examiner's
contrary conclusion is entirely speculative and does not find
support either in the evidence or in common experience.'
2 Except as to Aaron, who was hired late in December 1952. However , this hiring was
remote in time from Culp ' s application.
3Our dissenting colleague apparently misconceives the basis for our reversal of the
Trial Examiner's ultimate findings. In Standard Dry Wall Products, Inc., 91 NLRB 544,
the Board said, ". . . it is our policy to attach great weight to a Trial Examiner's credi-
LEWISVILLE FLOORING COMPANY 1445
As, in our opinion, the General Counsel has not proved by
a preponderance of the evidence that the Respondent denied
employment to A. B. and Rice Roy Culp for discriminatory
reasons and this is the only unfair labor practice alleged, we
shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
Member Murdock , dissenting:
As stated by my colleagues, the Trial Examiner has found
that the Respondent had, or anticipated, a job vacancy for which
Culp was qualified and that the Respondent's refusal to hire
him and his son was motivated by Culp's previous union
activity. The Trial Examiner based his conclusions upon the
testimony of witnesses whom he credited. In doing so he
rejected the testimony of Simmons and Taylor, whom he did
not believe, including their contention that they filled the va-
cancies occurring after Culp's application fora job as a grader
on the basis of their preference for local men. My colleagues
have reversed the Trial Examiner and find that the refusal to
hire Culp and his son was not because of Culp's union activi-
ties, as shown by the credited testimony, but for the reason that
the Respondent preferred "applicants who were present or
former employees , or who had the recommendations of Plant
Manager Taylor ." In other words , my colleagues have rejected
the testimony credited by the Trial Examiner, and have ac-
cepted the testimony of the Respondent ' s officials , whom the
Trial Examiner did not credit, that they were not motivated in
their refusal to hire Culp and his son by Culp's union activities.
With this I cannot agree.
The Trial Examiner stated that "I cannot credit Simmons'
testimony on any material or controverted issue. . .," that
Simmons impressed him as one ''who had little or no regard
for the truth," and that "the material point in which I doubt
his veracity was that in which he told Culp he needed graders
and would hire him and his son if Culp were not tangled up
with the Union--and which he denied." In short, the Trial
Examiner did not believe Simmons. Nor did he believe Taylor.
On the other hand, the Trial Examiner did credit:
(1) Culp's testimony that Taylor told him whenhe applied for
a job as a grader that, "We really need a good experienced
bility findings insofar as they are based on demeanor." (Emphasis supplied.) We have not
here reversed the findings of the Trial Examiner based on demeanor, except to the limited
extent necessary to reconcile uncontroverted testimony of witnesses both for the Respondent
and for the General Counsel that a full complement of graders was working when Culp applied
for a job. Rather, we have reversed the Trial Examiner because on the entire record, and
attaching great weight to the Trial Examiner's factual findings, we do not make the same
inferences as does the Trial Examiner, or come to the same conclusions. The Board is
not bound by inferences drawn or conclusions reached by a Trial Examiner based on facts
or credited testimony, as the Trial Examiner's observation of demeanor does not give him
any advantage in logically evaluating such evidence.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grader and you are plumb welcome to go right on in and talk
to Mr. Simmons."
(2) Culp's testimony that Ivey Parsons told him that, on the
day he applied for a job as grader that Simmons had been
attempting to secure a grader for 2 or 3 weeks.
(3) Ivey Parsons' testimony that he had heard Simmons
mention the hiring of another grader and had told Culp that
Simmons might give him a job.
(4) Culp's testimony regarding Simmons' questions concern-
ing the strike at Partee Flooring Mill, Simmons' statement
that Culp was involved in the strike ("You were in the strike,
wasn't you") and other statements by Simmons, detailed in the
Intermediate Report, to the effect that he was not going to
have the Union come into his plant and that he was going to
check on Culp's activities with officials of the Partee Flooring
Mill. Simmons further stated that, "If it is all right," Culp
could start to work in the morning.
(5) Culp's testimony as to what Simmons said were Simmons'
reasons for checking on Culp at Partee, which was that he
did not want to make officials at Partee "mad" at him for
(a) hiring off Partee's employees or (b) "not get tangled up
with the Union or do anything that would make Mr. Partee
mad at us."
(6) The testimony of Culp and his son, Roy, that Simmons
asked where they lived and said that he would call on them
that night.
As I have explained earlier, the Trial Examiner did not
credit the denials of Simmons and Taylor regarding their
conduct on the day that Culp and his son applied for work.
It thus appears that Simmons was looking for another grader
and that, pending a favorable report from Partee on Culp's
union activities and Partee's clearance of Simmons' hiring
of Culp, he intended to have Culp go to work the next day.
If the Trial Examiner's resolutions of credibility, outlined
in brief above, were permitted to stand and the rejection by
the Trial Examiner of the denials of Simmons and Taylor
and their explanation as to why they failed to put Culp to
work were accepted, the Trial Examiner's conclusion that
the Respondent violated Section 8 (a) (3) and 8 (a) (1) is in-
escapable. Accordingly, it is obvious that the majority's
reversal of the Trial Examiner necessarily hinges on its
refusal to accept his credibility findings despite the majority's
protestation that it is because they do not draw the same
inferences from his factual findings.
The Board's current standard for reviewing the credibility
findings of Trial Examiners was laid down in Standard
Dry Wall Products, Inc., 91 NLRB 544, where the Board
stated that, "Hence we do not overrule a Trial Examiner's
resolutions as to credibility except where the clear pre-
ponderance of all the relevant evidence convinces us that the
Trial Examiner's resolution was incorrect."
LEWISVILLE FLOORING COMPANY 1447
It is difficult for me to reconcile my colleagues' applica-
tion of the standard in this case (if they have done so) with
that in M & S Compaan, Inc., 108 NLRB 1193, recently
decided y t e Board. Il n M & S the majority, sustaining
the Trial Examiner in the dismissal of a complaint, found that
there was some question as to the validity of the Trial Exam-
iner's credibility findings, but stated that they were not con-
vinced that the clear preponderance of the evidence showed that
the Trial Examiner's resolution was incorrect. As expressed
in my dissenting opinion in that case, I believed that the ap-
plication of the rule of Standard Dry Wall there required
the reversal of the Trial Examiner. In the present case there
are much more convincing and compelling reasons for sus-
taining the Trial Examiner.
I would not overrule the Trial Examiner's credibility
findings in this case and, for the reasons stated in the Inter-
mediate Report, would sustain the Trial Examiner's conclusion
that the Respondent violated Section 8 (a) (3) and 8 (a) (1) by
refusing to hire A. B. Culp and Rice Roy Culp because of the
former's previous union activity.
Intermediate Report
STATEMENT OF THE CASE
On February 26, 1953, United Brotherhood of Carpenters and Joiners of America, Local
No. 2757. AFL, herein called the Union, filed with the National Labor Relations Board,
herein called the Board, a charge that Alvis Fuller, d/b/a Lewisville Flooring Company,
has engaged in and is engaging in certain unfair labor practices affecting commerce as set
forth and defined in the National Labor Relations Act, 61 Stat. 136, as amended, herein called
the Act, that by its officers, agents, and representatives refused to employ A. B. Culp as a
"grader" because of his membership and activity in behalf of the Union, and at all times
since that date has refused and does now refuse to employ the above-mentioned individual
in violation of Section 8 (a) (1) and (3) of the Act. Upon the Union's charge adverted to above,
the Regional Director issued his complaint, dated June 25, 1953, alleging that Respondent by
the acts described above, has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act.
Pursuant to notice, a hearing was held in Lewisville, Arkansas, between August 31 and Sep-
tember 2, 1953, before John C. Fischer, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. All parties were represented and participated therein and had
full opportunity to be heard , to examine and cross-examine witnesses , and to introduce rele-
vant evidence. Oral arguments were waived but a brief submitted by the Respondent has
been considered. At the opening of the hearing a motion was made by the General Counsel
to amend his complaint in two respects and the motion was granted. Paragraph numbered 4 of
the complaint was amended to read that on or about September 3, 1952, Rice Roy Culp applied
to the Respondent for employment and paragraph numbered 5 was amended to read that on
or about September 3, 1952, and at all times thereafter Respondent failed and refused to hire
said A. B. Culp and Rice Roy Culp because of A. B. Culp's membership in, and activities
in behalf of, the Union, and because he engaged in concerted activities with other employees
for the purposes of collective bargaining and other mutual aid and protection . At the con-
clusion of the entire case, the Respondent renewed all motions by them earlier made to dis-
miss allegations of the complaint. To the extent such motions attack the complaint for
expanding specifications in the charge, or for containing allegations not detailed in the
charge as originally filed, the motions were denied. Cathey Lumber Company, 86 NLRB
157. To the extent such motions otherwise attack the sufficiency of allegations of the com-
plaint, or proof thereunder, ruling on the motions was reserved, and they are now disposed
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of in accordance with the findings of fact and conclusions of law made below. General Coun-
sel accounted for failure to have amended the complaint before trial by reason of young
Culp's being then on duty in the Air Corps in Florida. Respondent was offered additional
time and opportunity if needed, to prepare his defense as to the alleged discrimination against
Culp's young son, Rice Roy. Both allegations arise out of the same set of facts and cir-
cumstances, i.e., whether the father was discriminated against. Cf. Cathey Lumber Company,
supra; J. S. Abercrombie Company, 83 NLRB 524. i A motion to conform the pleadings
to the proof with regard to minor variances was granted.
Upon the entire record in the case and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Alvis Fuller, d/b/a Lewisville Flooring Company is a sole proprietorship
located at Lewisville, Arkansas, where it is engaged in the manufacture of oak flooring.
During the year 1952, which period is representative of all times material herein, the Re-
spondent manufactured and sold oak flooring in the approximate value of $ 540,000 of which
approximately 90 percent was sold outside the State of Arkansas. The Company concedes
and I find that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America , Local No 2757, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
If a job was open or unavailable, the sole question in this case is whether or not the Respond-
ent failed and refused to hire A. B. Culp as a hardwood flooring grader and his 17-year
old son, Rice Roy Culp, as a day laborer on September 3, 1952, and thereafter, because of
A. B. Culp's membership in, and activities in behalf of, the Union and because he engaged
in concerted activities with other employees for the purpose of collective bargaining and other
mutual aid and protection.
The Respondent denies any unfair labor practices and affirmatively pleaded that on or
about September 3, 1952, A. B. Culp did apply to his plant superintendent, L. A. Simmons,
for employment as a flooring grader but was not employed for the reason that on that date
Respondent had no need or desire to employ A. B. Culp, or anyone else, as a "grader ." Thus,
this case hinges entirely on evidentiary conflicts and turns on resolutions of credibility
involving Culp and son and Respondent's witnesses.
A. Culp's background
Before going into the resolution of the question as to whether a job was open or available
and if so what the motive of the Respondent was in not filling it with Culp senior, it is ad-
visable to give the reader a synopsis of Culp's background A. B. Culp was a native of Arkan-
sas, age 52, married, and the father of 6 children. He went to work at the age of 15, and
"believed he was seventeen in 1918" when he got his first hardwood flooring employment in
the flooring mill branch of Bradley Lumber Company, at Warren, Arkansas, as a "rack
puncher and puller." He worked in the "bundling room" for about 5 years and began grading
the 6th year. He demonstrated qualified experience of grading flooring over a period of
30 years, 20 years of which was spent with Bradley Lumber Co. His explanation for leaving
Bradley early in 1947 was to take the head grading job at more money with Southern Lumber
i "Sec. 102.17 Amendment.--Any such complaint may be amended upon such terms as
may be deemed just, prior to the hearing, by the regional director issuing the complaint;
at the hearing and until the case has been transferred to the Board pursuant to section 102.45,
upon motion, by the trial examiner designated to conduct the hearing; and after the case has
been transferred to the Board pursuant to section 102.45, at any time prior to the issuance
of an order based thereon, upon motion, by the Board."
LEWISVILLE FLOORING COMPANY 1449
Co., also at Warren, Arkansas. After working on the night shift as foreman of two units
for 3 or 4 months, he left there "because the dry kilns gave down to where they couldn't
kiln-dry the flooring stock for both a day and night run." Having no union seniority, he went
to work for Brown Manufacturing Co., in Jacksonville, Texas, but left there and came to
Partee Flooring Mill at Magnolia, Arkansas. Culp worked at Partee for about if years
or until June 7, 1952. At Partee he became president of Local Union No. 2757, and when
a strike occurred on June 9, 1952, he "was at or near the picket line at all times from the
ninth through the seventeenth, with exception of just enough time to get my noon lunch."
When this strike was settled in Culp's language--"They just refused to, he constantly neg-
lected calling me and one other back to work after the unconditional offer to return to work
on June 23, 1952." But this was Culp's second difficulty with Partee, who had discharged
him early in 1952--at which time he caused an unfair labor practice charge to be filed against
Partee. This matter was settled through agreement reached by Mr. Partee, Mr. Harvey
Wilkins, representative of the United Brotherhood of Carpenters and Joiners, and officials
of the National Labor Relations Board, and he was reemployed by Partee and worked there
up until the strike began on June 9. On cross-examination by Counsel Patton, Culp admitted
he caused some five unfair labor practice charges against mills to be filed on his behalf
by the Union--among them being Graydon Anthony Lumber Co. of Hope, Arkansas, and
Superb Oak Flooring Co. of Whelen Springs, Arkansas, including charges against Respondent
Lewisville. Culp testified that he understood that these charges "have been dropped."
Thus, this was Culp's union background when he presented himself for employment to
Respondent officials. However, there is ample evidence and testimonials in the record
that establish the fact that he is an excellent hardwood flooring grader.
B. Culp and son apply for jobs with Respondent
The occasion of Culp's application to Respondent for employment resulted from a tele-
gram dated September 2, 1952, sent him by C. S. Wells, personnel director of Fordyce
Lumber Co. in reply to one sent by Culp requesting a job as an experienced flooring grader.
Wells' telegram read: "Nothing available here but contact Lewisville Flooring Co at
Lewisville, Ark. R. G. Taylor, Manager." Equipped with this telegram, Culp and his un-
employed 17-year old son, Rice Roy Culp, drove down from Magnolia to Lewisville the next
day, September 3, and presented themselves at Respondent's mill.
In describing their visit and reception Culp testified:
The first person I confronted was a lady working in the office. I asked her who would
I have to see to get permission to go into the plant and talk to the foreman in regard to
a job and she referred me to the room next door and I got to the door and this gentleman,
Mr. Taylor, was in there busy talking with a man and when he got through and the man
left, we went on in and Mr. Taylor asked me and my son what could he do for us and
I made myself acquainted and told him I heard they need an experienced flooring grader
and I had several years experience as a grader and was there to apply for a job and
would like to get permission to go into the plant and talk to the foreman. Mr. Taylor
told me that "We really need a good experienced grader and you are plumb welcome
to go right on in and talk to Mr. Simmons." He says, "He is the foreman and you will
more than likely find him at the grading table."
Rice Roy Culp's version was as follows:
We went in the front of it (the office) and the secretary was there and dad asked
her who could he see about employment there. She directed us to Mr. Taylor's office
and we went in there and dad introduced himself and me and told him we were looking
for work and he was an experienced flooring grader and he would like to get permission
to go into the mill and Mr. Taylor said, "Go ahead to find Mr. Simmons, he was the
foreman there, and see him."
Mrs. Maurice Berry, who helped Mr. Taylor with his bookwork and had been with the
Company since July 1952, recalled Mr. Culp coming to the office. She said: "He came into
the offfice and asked me whom to see about employment and I told him he would see Mr.
Taylor or Mr. Simmons, and he asked me where he could see them, and I told him that
Mr. Taylor was out of the office and was out in the mill and that Mr. Simmons stayed out
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the mill." She testified that no one was with Mr. Culp inside the office, but "There was
a boy standing outside, a young man standing outside." She further testified that when
she first saw the boy, he was standing in the middle of the driveway: "I looked outside the
window and I saw Mr. Culp stop and talk to him--and they went over to the mill together."
Thus we come to the first apparent conflict in the evidence.
Having personally, although hurriedly, visited the mill, in Company with Mr. Fuller
before leaving Lewisville, I believe it is possible to reconcile an apparent conflict between
Mrs. Berry and young Culp--both sincere witnesses. First. I believe Rice Roy just tagged
along behind to be his father's witness--he seemed bashful and diffident--and only heard
the conversations of his father with Mrs. Berry and Taylor from the entrance of the small
office building. And it is past as probable that when she returned to her work that she did not
see young Culp walk in.
Manager Taylor said he had neither seen nor heard of Culp or his son prior to September
3, 1952. He testified to his conversation with Culp on September 3 as follows: "The only
conversation I had with Mr. Culp was to apply to Mr. Simmons for a position." According
to Taylor, the conversation took place when: "I was between the loading shed and the office."
"He [Culp] asked me if there was any employment available at that time and I referred him to
Mr. Simmons." He stated that no one else was present, saying "I don't recall seeing Mr.
Culp's boy." Further, Taylor denied telling Culp that they needed a good, experienced grader.
Culp said after his conversation with Taylor in the office: "We went inside the flooring
plant and stood near the grading table, at the head of the graders looking for the foreman....
I then asked one of the graders could they tell me where Mr. Simmons, the foreman was.
One of them said, 'He was here just a few minutes ago,' and we walked on back in the bund-
ling room and watched them to see if we could catch the man that apparently was the fore-
man." In the bundling room he talked to another man. Culp didn't know him, but the man
told him he was one of the graders taking a break. He said the man first spoke to the son
saying "Are you fellows looking for work." According to Culp "He (my son) said, 'Yes, sir.
My dad is an experienced flooring grader and I was hoping to get on in the bundling room
or loading crew, shipping department, something,' and he walked on over, he and the boy,
to the side of me and he says, 'Your son tells me you are an experienced grader. You
ought to talk to Mr. Simmons,' and says, 'He has been trying to get ahold of graders for
two or three weeks,' and he then noticed Mr. Simmons down near the side matcher and pointed
him out to me and the boy and says, 'That is Mr. Simmons, the foreman, now down there
by the side matchers."' It appears that the man he talked to in the bundling room was
Ivey Parsons, one of the graders. Parsons corroborated the above recital.2
Rice Roy Culp's version of what happened after they left Taylor's office exactly follows
his father's recital.
C. The meeting of Culp, Rice Roy, and Simmons
1. Culp's version
Culp said he accosted Simmons near the "side matchers," and when Simmons suggested
it "we left and went outside of the mull away from the noise." As to this meeting Culp
testified: "I asked him was he Mr. Simmons, the foreman. He said, 'Yes.' I told him I
was A. B. Culp and this is my son, Rice Roy Culp, and I heard he was in need of experienced
flooring graders and I had had a number of years of experience as a hardwood flooring
grader and was there making application for the job. He told me, he says, 'We really do
need a good, experienced grader, one that really knows how to cut the grade and put up
a good grade.' He says, 'When could you go to work."' Culp replied: "Right now--And
then he wanted to know where I had been working. I told him well, for the past two or three
and a half months I had not had regular employment but I had worked a number of years
for Bradley Lumber Company and Southern Lumber Company of Warren and Brown Manu-
facturing Company of Texas and Partee Flooring and before I could say 'Partee Flooring
Mill' he said, asked me where I was from. I told him Magnolia. He said, 'You worked for
2Ivey Parsons testified that he first saw Culp and the boy "at the rack." He said when he
first saw them they were somewhere about the water fountain- -"the boy and Mr. Culp was
standing there watching taking down and racking lumber. I says, 'You fellows going to work
for the flooring mill grader,' and I heard Mr. Simmons saying something about hiring one,
and so I told him, "Why don't you see Mr. Simmons. He might get you a lob."'
LEWISVILLE FLOORING COMPANY 1451
Partee Flooring Mill.' I said, 'Yes .' He said , 'You tangled up in that strike over there
now.' I told him as far as I knew there wasn 't no strike at Partee at the present and as far
as I knew the mill was operating . He says , 'You were in the strike , wasn't you.' I said,
'Yes, I was , but I don 't think that would concern me and you , would hinder me working for
you and doing you as good a job as if nothing ever happened .' He said, 'Well , I just tell
you, Mr. Culp, I don't want to get tangled up in this darn union mess and I ain't going to
have it coming in here . I will tell you what I will do . I will check with Mr. Partee or Mr.
Sharp this afternoon as soon as I get off from work. I will get in my car and drive over
there and drive on down to your house and let you know what I can do , whether I can work
for you or not. If it is all right , you can start in the morning as our work week ends on
Wednesday night and in the morning is Thursday morning and you would be starting on the
work week.'"
"I asked him how many hours they were running at top pay . He told me running at that
time forty -five hours a week and sometimes more, according to the man 's custom and the
rate for good experienced grader was a dollar and twenty cents per hour, and ... Mr. Taylor
then came from the office toward us and when he got about eight feet from us Mr . Simmons
says, 'Ain't that what you say, Taylor.' "
"Mr. Taylor says, 'I don 't know. What is it2' "
"He said , 'Mr. Culp been off from Partee 's about three months , ever since the strike and
I don't think Partee has any strings on him because Ray Sharp has told us that all those men
had been offered their jobs back, and I don't think it would have any strings on Mr. Culp, but
I don't want to get tangled up where it would make Mr. Partee mad at us because Mr. Sharp
been very nice about not hiring our men off the job over here , and not get tangled up with the
union or do anything that would make Mr. Partee mad at us and I told him I would check with
him this afternoon , let him know tonight whether or not we could work him,' and Mr. Taylor
said, 'Sure , I would check with him ,' and he turned and goes back toward the office." Both
Simmons and Taylor denied this version on the witness stand.3
2. Rice Roy's version
Rice Roy Culp testified that they were pretty close to the side matcher when he and his
daddy and Mr. Simmons stopped: "We were in the mill part of the time and outside of the
mill part of the time." "Dad walked up to Mr. Simmons and I was about three or four feet
behind him , not any farther than four feet. Daddy asked him if he was Mr. Simmons and he
said he was and Dad introduced himself and me. I spoke to Mr . Simmons . Dad said he heard
he needed a flooring grader . He[simmons] says , 'Yes, I do.' He says , he suggested to him
we go outside the mill where we could talk and hear . The end matcher broke down when we
started talking first , and after they got the end matcher fixed back , Mr. Simmons suggested
we move outside ." Rice Roy verified his father almost in haec verbae . Simmons flatly denied
testimony of Rice Roy Culp that he[SimmonS ]asked the father where he had worked; that
Simmons asked his father if he had been involved in a strike ; that he made a statement that
he didn't want to get the union in the Lewisville flooring mill and mess it up, and Simmons
also denied telling the father that they were paying graders $1.20 per hour.
3. Simmons ' version
L. A. Simmons ' version of the meeting with A . B. Culp was as follows : Simmons testified
that he had never seen or heard of Culp prior to September 3. 1952.
Simmons said he was standing between the end matcher and the side matcher when Culp
first approached him; both machines were noisely operating at that time but he didn't suggest
3 Manager Taylor said that after talking to Culp he saw him again "at the door to the side
of the flooring mill south of the side matcher machine." "Q . Who was present'? A Mr.
Culp and Mr. Simmons. Q. Was anyone else present ? A. Not that I remember . Q. When
you saw Culp standing at the door of the flooring mill talking to Mr. Simmons , did you enter
into the conversation in any way? A. No, sir . Q. Did Culp say anything to you? A. No, sir.
Q. Did Simmons say anything to you? A No , sir. Q. Did you say anything to either Mr. Culp
or Mr. Simmons. A No, sir . Q. Did you stop and stand there with theme A. No, sir.
Q. Mr. Taylor , Mr. A B Culp and Mr. Rice Roy Culp have both testified that they were
talking to Mr . Simmons and that you walked by and told Mr. Simmons that he had better check
with Partee Flooring Company about them. Is that correct9 A. That is not.,,
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they go outside and talk . He stated no one was with A . B. Culp and "he asked me if I
needed a grader .... I told him no , I was full up ." In answer his counsel 's question if any-
thing else was said Simmons replied : "Well, he said something and walked on talking and I
asked him where he was from .... He said , ' What difference does that make where I am
from.' I said , it doesn't make a bit of difference to me , and he flew off the handle." Simmons
testified that Culp got mad when he asked him where he was from, stating : " Iasked Mr. Culp
one question , where he was from." The absolute conflict between the Culp's version and Sim-
mons' is illustrated on examination by counsel:
Q. Did your entire conversation with Mr. Culp take place at that time or was it re-
sumed at another spot?
A. We was between there and the door on the little side door next to the back.
Q. What happened after the conversation you have related?
A. Well , Mr. Culp told me that they had laid all this trouble on him over at Partee's
flooring mill, and I told Mr . Culp I couldn't help that, if I needed a grader I would let
him know.
Q. Was anyone present when that was said?
A. No, sir.
Q. Was there any other conversation?
A. A boy, I reckon, he claimed it to be his boy, came from outside . He was between
the front door and the shed . I don't know if he came out of the bundling room or the shed.
He walked on up there. I didn't know it was his boy. He said, "This is my boy. If you can
use him , I would like for you to use him .... I said, "If I can use him , I will use him, too,
had an opening up."
The evidence shows that Rice Roy was only qualified for a job at common labor. He had fin-
ished the tenth grade , Saturday , May 17, and spent most of the summer looking for work. Be-
cause he couldn 't get a job he enlisted in the Air Force in October 1952 , and at time of the
trial was on leave from MacDill Air Force Base, Tampa, Florida . He testified and I credit
his testimony quoting Simmons : "If I put your dad to work I will put you to work too."
Simmons said he didn't believe Culp told him the name of the boy: "but I do think he said
he was married and had a family ." Rice Roy was asked to stand up in the courts' om and
Simmons said he was not the young man he saw at the mill that day --"Because this boy
looked larger than this one and older than this one that is standing here . Doesn't look like
the same boy to me ." To me , at the time of the trial and now, this portion of testimony is
simply incredible . I cannot credit Simmons' veracity or integrity.
Simmons denied that he talked with Culp and the boy in the mill ; that he asked Culp about
the strike at Partee and if he was in it ; that he made the statement that he did not want to get
tangled up in a union mess ; that he told Culp he would go to see Partee and Sharp about him
(Culp) and would see him later that night ; that Mr. Taylor came up and took part in the con-
versation while Culp was talking to Simmons and to his son; that he asked Mr. A. G . Taylor if
it would not be a good idea to check with Partee and Sharp about him; that he and Mr. A. G.
Taylor discussed the possibility of making Partee mad if they hired Culp; and denied that Mr.
Taylor came over while he was talking to Culp and son and engaged in the conversation.
4. Woodell and Parsons testify about the meeting
Warner L . Woodell, one of the graders , testified in regard to Culp's presence on September
3. He said, "I just got the glimpse of a man in the back as he went through." When he saw him
later "there was a boy with him ." He said they walked up to Mr. Simmons: "I was at the
grading table and they was across the grading table and a trough that does down and standing
over next to the wall ... near the side matcher."Woodell testified that he asked Ivey Parsons
who the man was and Parsons replied "he was a grader ." Parsons said he talked to Woodell
at the grading table about seeing them in the mill stating : "Mr. Woodell says , 'Who are those
fellows .' I says , ' It is some fellows ' ... I either said, ' Fellows' or 'Fellow ' looking for a
grading job."'
Woodell, when questioned as to where he first saw Culp, said : "Right behind the racks
where you punch the lumber in the rack there is a little aisle there ; a man come in the side
door and there is an aisle there. I just happened to glance"--he could not tell who it was--
"just saw his back." According to this descripton, which I accept: "They were walking on
the opposite side of the mill from the grading table" (which is on the east side of the mill),
LEWISVILLE FLOORING COMPANY 1453
thus they were about 12 feet from the side matcher and about 20 feet from his position at the
grading table . Woodell said the boy had the side of his face "turned to me and the man did,
too." "Q. Had you ever previously seen either one of them . A. Well, I had seen the man but
I couldn't get him placed right then . Q. You recognized him? A. I didn't know who it was.
Q. Do you knownowitwasMr .A. B. Culp A. Yes, sir." Woodell explained that he had worked
with Culp in Whelen Springs in March 1951, for about a month , and had previously worked
with him at Whelen Springs for about 30 days . Subsequently , Woodell went to work at Graydon
Anthony at Hope, Arkansas , on September 8, 1952 , and later Culp came there and he worked
with him again,
5. Simmons' questioning of Culp
Rice Roy Culp corroborated his father in reference to Simmons' promise to communicate
or visit Culp on the light of September 3 testifying: "Mr. Simmons asked us where we lived
and my dad told him. He says, 'Do you have a phone.' Dad said he did and told him the phone
number. Mr. Simmons said he would be in Magnolia that night and come by and see us or call
us and when we left he said, 'I will see you tonight, Mr. Culp."'
A. B. Culp testified in this connection: "I said, 'Well, you say you will come to my house
as soon as you check with them, then tonight.' He said, 'I sure will, Mr. Culp, and you tell
me just how to get to your house,' which I did. I described the way of entering into the square
at Magnolia and turning down the side of the First National Bank and heading straight out
south and about three quarters of a mile from the end of the pavement to my house which was
the first white house after passing the Maline Trailer on the right and the white house also
on the right, and I told him if he couldn't come I also had a telephone and the number was
1703-M-4, and I was also on Route 3, Magnolia." Manager Taylor said he was at Culp's
house one time looking for Culp and Smolen about March 13, testifying: "Q. How did you find
out his address, sir? A. I found out through Simmons. Simmons thought he had a slip showing
that he lived on Route 1 and Route 1, I found out went out toward Partee's mill. Mr. Simmons
told him Culp lived on Route 1. Q. Isn't it a fact that Mr. Simmons at the time Mr. Culp
made application wrote thatdown9 A. He thought he did, yes, sir. Q, But he mislaid it? A, Yes,
sir." On the basis of the evidence, I credit the Culp's account in this conflict of evidence.
D. Culp contacts Simmons
Culp testified that on November 19, 1952, that he telephoned Simmons at the mill, but was
unable to make Simmons understand so he talked with the secretary, Mrs. Berry, who re-
peated Culp's request for a job to Simmons. Simmons directed her to say that he didn't have
an opening yet, but he would be glad to keep him in mind if he did. This was Culp's last
effort to get a job with Respondent.
E. Simmons' visit to Partee
One of the sharpest conflicts in this case concerns an alleged incident which occurred
when Culp was on the picket line at Partee's strike. Culp testified that during the first week
of the strike an employee of Respondent drove up in front of the Partee office, blew his horn,
and "Mr. Sharp came out of the office and opened his car door and sat in the car and talked
with him, left the door open." Culp testified that he recognized, on September 3, that the
driver was Simmons. Culp repeated as muchofthe conversation as he could remember: "Well
Mr. Sharp was telling him about, pointing me out to him as the one white man and all those
Negroes and explaining that I was Mr. Culp, the president of the Union, and going on to tell
that I had been getting awfully hot out there in the hot sun and thought I should wear a long-
sleeved shirt or get me an umbrella, that I was about to blister, and then he got to talking to
the man about coming over and getting some No. 2 common flooring to finish out a shipment if
he could get enough men together from somewhere to load it and unload it."
Simmons denied this incident by stating that he did not know Culp and had never seen him
prior to September 3, 1952, and testified he did not go to Magnolia to the Partee Flooring
Company at the time when a strike was in progress and there was a picket line along the street.
He admitted he would probably know Mr. Ray Sharp of Partee Flooring Co. but said he had
been to Partee Flooring Co. only three times: "It was before I went to work for Fuller Lum-
ber Company. I had a job there and I came there and on up here and me and Mr. Taylor went
over and picked some strapping. Then we went over and looked at their conveyor before we
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
installed ours. That is the only time I have been in Mr . Partee 's mill .... Each time I was
there I was with Mr . Taylor in a truck. My car has never parked there ." Simmons denied
the incident in its entirety but I credit Culp 's recital.
Resume of the First Issue in the Case
Thus , at this point, a resolution of the facts shows that A. B. Culp, an experienced and
qualified lumber grader, as well as former president of his local union , in company with his
17-year old son , had presented themselves on September 3 to Respondent 's officials re-
questing jobs, that Culp had actively participated , as the leading picket, in an unsuccessful
strike against his last employer , Partee Lumber Co.; and that. Respondent 's employing
supervisor , Simmons , was well aware of this fact . Further , that this supervisor had indicated
the need of a grader of Culp's experience , and promised to employ the son if he gave the
father a job as grader . And finally that he would check with Partee , and if Culp were not
"tangled up in the union mess ," he, Simmons , would communicate with him, and Culp could
start to work the next morning . It follows , that a day-labor job would be given young Rice
Roy Culp.
F. The grading table as of September 3, 1952
The situation at the grading table on September 3 and shortly thereafter demonstrates that
there was a job available for Culp when he applied for employment as intimated in the tele-
gram he received from Taylor 's brother - in-law, Wells. The record shows on that day W. L.
Woodell, Joe Castleman , and Ivey Parsons were the regular graders , and Hoyte Stewart was
their relief man . 4 Simmons testified that he had four graders on the table at all times in
1952.
However Simmons testified that on September 3, 1952, there were no other graders working
in the mill he could use on the grading table except a boy working in the bundling room--J. E.
McClellan -- and D. L. Weaver , a side matcher.
The changes on the grading table during the next 3 months were almost kaleidoscopic
with regard to personnel shifts and replacements:
(1) Simmons fired Woodell, his top hand, on September 5, and over the weekend, drove
down to Georgetown . Louisiana, hired, brought back , and put to work on Monday morning,
September 8, W. A. Cockerham , who was then employed as a grader for the Louisiana Delta
Hardwood Co.
(2) On Monday morning , September 8, Joe Castleman did not appear for work and Simmons
moved J. D. McClellan up on the table for a few days and did not call Culp, whom he had
provisionally promised a job.
(3) On September 11 Simmons replaced McClellan with Marvin Brazell.
(4) On September 29 Simmons replaced Brazell (whose feet hurt) with M. M. Logan, upon
Manager Taylor 's recommendation (a friend of Manager Taylor).
(5) On December 2, Simmons fired Ivey Parsons for "absenteeism ," and replaced him
with J. H. Rayon, within 2 weeks of Culp's phone call indicating availability.
(6) Late in 1952 Logan quit and Simmons replaced him with Dale Aaron.
Thus, it is obvious that Simmons had six separate and distinct opportunities to employ
Culp as a grader if he had been so minded . With such a rapid turnover of personnel at the
grading table , Simmons and Taylor 's statements to Culp of Respondent's need for good
graders , at the time he applied for a job, and subsequently , is demonstrated without doubt
in my mind.
Counsel Patton in his carefully prepared brief for Respondent argues at great length that
on September 3 Simmons did not need another grader since he had Castleman , Woodell,
Parsons , and Stewart, relief. In light of what happened, it is evident that Simmons foresaw
the events and would have accelerated the reaction . So I would wholeheartedly agree with
Counsel 's argument and defense except for the facts that I cannot credit Simmons ' testimony
on any material or controverted issue , and Mr. Taylor simply did not know the facts and was
not in control of the situation. It was clear to me that Simmons dominated the mill, and he
impressed me as a man who would brook no opposition , and one who had little or no regard
41n a flooring mill of this type, it is necessary to keep 3 graders constantly in action at
the table to maintain a constant flow of production. Each grader was allowed 2 short breaks
to 20 minutes each in the morning and afternoon. Thus, a relief grader was necessary.
LEWISVILLE FLOORING COMPANY 1455
for the truth. Simmons reply to me that ,Rice Roy "was not the same boy" was tantamount
to perjury . But the material point in which I doubt his veracity was that in which he told
Culp he needed graders and would hire him and his son if Culp were not tangled up with the
Union--and which, he denied.
The terrible strain under which Mr. Taylor was laboring in testifying was apparent to
all in the courtroom . He was suffering from a severe cardiac condition and his beloved wife
was suffering sorely with migraine headache and under constant medical care , before and
during the trial , as he told me, and as was indicated in the courtroom by counsel . For him,
I have the greatest compassion but under the circumstances I cannot accept his limited
testimony to offset better informed witnesses whom I credit.
The most telling argument made by Respondent was that it preferred to employ local
men, and I have no doubt that this would be the general policy of Mr. Fuller , the mill owner,
as stated by Manager Taylor. But I am convinced that the opportunity to acquire an expert
grader of 30 years' experience , and in a steady , family man obviously possessed of great
strength of purpose --if conversation and external appearance can be relied on to judge a
man on first meeting--caused Simmons to waive any such custom in Culp 's case . Certainly,
I was as impressed with Culp 's strength of character as was Simmons and Mr. Taylor. I
am also convinced that Simmons , also a man of purpose , would have persisted in intention
to hire Culp as the vacancies arose , had Culp not turned out to be a militant union leader.
Having come to this conclusion , after careful study of the whole record, including again the
careful and detailed brief of Respondent 's very competent counsel, Patton, I would belabor
this report by answering each argument advanced In absolute detail.
The unrest and dissatisfaction at the grading table and the concern of Foreman Simmons
at the time Culp applied for a job undoubtedly was occasioned somewhat by desire of the
graders for higher pay and because of disparity in the wages paid particular graders . Woodell
testified that he had a conversation with Simmons about September 1 and told Simmons he
would like a raise , and if he did not get one by the 15th he was going to quit. He said Castle-
man and Parsons also wanted pay raises . This Simmons denied, but I credit Woodell. Woodell
said when they paid him off "They said I had been talking about quitting so they just paid
me off in full. " Simmons said he fired him for loafing on the job, being habitually late, and
using the marking crayons of other graders . Parsons testified that the day Woodell was
fired, Simmons said , "Ivey , I am going to give Woodell his time this afternoon.s5
Woodell was replaced by W. A. Cocerham , not a local resident.
W. A. Cockerham , age49,hadbeenagrader at Lewisville in 1951 , for 6 months . He testified
that he asked Simmons when he left if he could come back if there was an opening and he
was not satisfied . He said that on Easter Sunday in 1952 , he told Simmons he would like
to have the next opening. He had left Lewisville for Tremont Lumber Co. at the end of 1951
and worked at Tremont until June 1952 , when there was a shutdown because of a strike.
Then he worked at Urania Lumber for a couple of months , then worked at Louisiana Delta
Lumber Co ., Trout, Louisiana , and had been working for only 9 days when Simmons appeared.
Simmons drove down to Georgetown , Louisiana , on September 7, got him and he went to work
on September S. He was being paid 97 cents at Louisiana Delta and got $ 1.25 at Lewisville
and said he quit Louisiana Delta because "I got more money up here than I did down there."
Cockerham said he had worked for Simmons at Trout, Louisiana, and had known him all his
life but until after the Culp and Woodell episodes Simmons made no effort to obtain his
services.
The boy, McClellan, was obviously a temporary replacement for Castleman , who walked
off the job, as was Brazell , who lasted only 2 weeks because of painful feet . The evidence
on the replacement on September 29 of Brazell by W. M. Logan, a friend of Manager Taylor's
who recommended him to Simmons , as counsel says , is not contradicted . Logan also, was
not a local resident.
I am in accord with counsel that it is not a discrimination for Simmons to show a pre-
ference for Logan for any reason he wished --provided however, that Simmons was not
motivated because of Culp 's prior union activities . But from a sincere and careful study of the
5 "Q. Did he tell you why he was firing Woodell? A. He didn't say for sure. He just
told me he had to get rid of Woodell because Mr. Woodell had been taking, or something
like that, about , you know, about us boys getting more money , as much money as the rest
were getting and we were working on the table which I don 't know anything about that."
However, Parsons admitted he had observed that Woodell was late and had observed him
using the wrong chalk.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence in this case, and having presided at the trial for 4 days with the attendant op-
portunity to see and judge the witness, to value the credibility and weigh all the factors,
I am convinced that the truth is that Simmons was so motivated by Culp's union activities,
and was unwilling to employ a man who lodged charges of unfair labor practices against
his previous employer and who might " mess up" his plant with the Union. Ivey Parsons
fired for "absenteeism" was the last of the original graders as of September 3 who, ac-
cording to accepted testimony, were dissatisfied with the pay scale and individual rates
and so informed Simmons. Of the replacements that Simmons made, during the time in ques-
tion, the one involving Rayon only is sound and unsuspect. In Rayon's case we have a man who
became employed 2 days after the mill opened in 1948 and, in language of counsel, worked
in various jobs, and after 1 year went to work on the grading table,finally reaching $ 1.10
per hour until he quit on August 13, 1952. When he was reemployed 3 months later, he was
started at 85 cents per hour in the bundling room, but was raised to $ 1.10 when he went
back on the table. This would indicate that Simmons was not overly generous to former or
old employees whether local resident or outsiders. The evidence adduced at the trial demon-
strates wage disparities which might cause dissatisfaction and could lead to collective
bargaining and even a union shop--exactly the thing Simmons feared and intended to avoid.
Counsel ably and adroitly makes the point that "a charge such as the one in this case must
be proved by clear and convincing evidence and not by a mere preponderance of the evi-
dence." The Act does not prescribe counsel's rule, but provides for a preponderance of
evidence. However, I consider the evidence upon which I decided the discriminatory motive
of Simmons to meet counsel's contention. The finding and holding under the facts in this
case that Culp and son were discriminated against not only does not do violence to the
rule in Phelps Dodge Corporation v. N. L. R. B., 313 U. S. 177, cited by counsel, but falls
within the principles enunciated by that landmark decision. And the principle of discrimina-
tory motivation obtaining in the case at bar has been sustained by the Board and courts
in cases too numerous to mention. I will answer counsel in this respect however: it is a
case of first impression, as far as I have been able to find, where a son was discriminated
against because of the union activities of his father. There are, however, numerous cases
of unfair discrimination involving the husband and wife relationship.
Charge of Injustice
Counsel for Respondent argues that it would be an injustice to the Respondent to find it
guilty of unfair labor practices on thetestimonyof A. B. Culp and submits that Culp conceived
and planned this charge against the Respondent and charges against other flooring mills to
enrich himself and to receive payment for work he did not perform. He cites 5 separate
instances, heretofore alluded to, of unfair labor charges which Culp filed within a period of
14 months. My answer' to this indictment is that if I held the slightest belief that this was
Culp's motive and intention, I would have dismissed this case from the bench at the conclu-
sion of Respondent's case without the necessity of writing a formal report, or if having read
the record and brief, I had a suspicion which matured into a belief not even amounting to a
conviction, I would have resolved the credibility conflicts in favor of the Respondent and
summarily recommended the dismissal of General Counsel complaint.
However, I am convinced from the evidence that Culp, a middle aged, married man with six
children to support, whose only vocation is working in a lumber mill in the hardwood belt of
the Mississippi Valley, followed the only course open to him to get justice to himself and
family. It is apparent to all that he is a union crusader and certainly a man of iron purpose
else he would not have notoriously walked a picket line for 2 weeks in the hot sun--a lone
white man with all those Negroes. Section 7 of the Act guarantees him that right, and in Sec-
tion 8 (a) 3 Congress has immunized against reprisal, the exercise of the right to engage in
concerted activities as Culp did and which resulted in discrimination by "Respondent" toward
him and his son, Rice Roy Culp, in respect to their hire and tenure of employment. Accord-
ingly, I find that failure to employ A. B. Culp and Rice Roy Culp was discriminatory and in
violation of Section 8 (a) (3) and 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connection with the
operations of Respondent described in Section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States and Terri-
LEWISVILLE FLOORING COMPANY 1457
tories 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, I will
recommend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
The undersigned has found that the Respondent discriminated against A. B . Culp and
Rice Roy Culp in regard to their hire and tenure of employment because of A. B. Culp's
concerted activity with and on behalf of other employees , thereby discouraging membership
in a labor organization and concerted activity by employees for their mutual aid and pro-
tection . This conduct was found to be a violation of both Section 8 (a) (3) and 8 (a) (1) of the
Act. For the purposes of effectuating the policies of the Act, however, the remedy for a
discriminatory discharge is the same, whether it be predicated upon a violation of one
section or the other or, as here, upon both. It will, therefore , be recommended that Respond-
ent offer to A. R. Culp immediate employment as a flooring grader or a substantially equiva-
lent position without prejudice to seniority or other rights and privileges . It will further be
recommended that Respondent make Culp whole for any loss of pay suffered by reason of
the discrimination against him. Said loss of pay , based upon earnings which he would nor-
mally have earned from September 3, 1952, the date of the discrimination against him to
the date of the offer of reinstatement , less net earnings , shall be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289;
N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344.
Because the Respondent 's unlawful conduct tends to thwart the fulfillment by employees
of their basic rights guaranteed by the Act to form labor organizations and to engage in
protected concerted activity, and because unlawful discrimination goes to the heart of the
Act, the remedy should be coextensive with the threat. It will therefore be recommended that
the Respondent cease and desist from infringing in any other manner upon the rights guaran-
teed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America , Local 2757, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of A. B. Culp
and Rice Roy Culp, thereby discouraging membership in a labor organization of its em-
ployees , Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT discourage membership in any labor organization of our employees
by discriminating against them or any prospective employee by refusing to hire em-
ployees because of prior union activity , or in any other manner discriminating in their
hire or tenure of employment, or any term or condition of their employment.
WE WILL NOT interfere with, restrain , or coerce our employees in the exercise of
their right to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection by discharging or refusing to reinstate our employees.
339676 0 - 55 - 93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL OFFER to A. B. Culp immediate employment as a flooring grader or to
a substantially equivalent position, without prejudice to any seniority or other rights
and privileges, and make him whole for any loss of pay suffered as a result of the dis-
crimination against him; and upon his return from service in the Armed Forces, offer
to Rice Roy Culp a job at common labor.
All our employees are free to form, join, or assist any labor organization, and to engage
in any self-organization and other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment in conformity with Section 8 (a) (3) of the
Act.
ALVIS FULLER, d/b/a LEWISVILLE
FLOORING COMPANY,
Employer.
Dated .................. By ..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be al-
tered , defaced , or covered by any other material.
THE LOUISVILLE PLANT OF THE MINNEAPOLIS-MOLINE
COMPANY and LODGE NO. 681, DISTRICT NO. 27, INTER-
NATIONAL ASSOCIAT ION OF MACHINISTS, AFL, Petitioner.
Case No. 9-RC-2171. June 25, 1954
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before William
G. Wilkerson, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the National Labor Relations Act.
2. The labor organizations involved claim to represent em-
ployees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the
following reasons:
The Petitioner seeks to sever employees in the maintenance
machine shop from an existing plant production and maintenance
unit' at the Employer's farm implements manufacturing plant,
Louisville, Kentucky. The Employer and the Intervenor' contend
that the proposed unit is inappropriate.
'The existing unit excludes several craft groups, currently under separate representation
as the result of Board-directed self-determination elections.
2 Local 751, International Union, United Automobile Workers of America. AFL.
108 NLRB No. 219.