McKinney Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1949

82 N.L.R.B. 38 (N.L.R.B. 1949)

In the Matter of MCKINNEY LU IBER COMPANY, INC. and UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL
Case No. 15-C-1389.-Decided March 15, 1949
DECISION
AND
ORDER
On August 6, 1948, Trial Examiner J. J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices 1 and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-man
panel consisting of the undersigned Board Members.*
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, McKinney Lum-
ber Company, Inc., Gurdon, Arkansas, and its officers, agents, suc-
cessors, and assigns, shall:
1 Those provisions of Section 8 (1) and (3) of the National Labor Relations Act, which
the Trial Examiner found were violated, are continued in Section 8 (a) (1) and 8 (a) (3)
of the Act, as amended by the Labor Management Relations Act, 1947.
*Chairman Herzog and Members Reynolds and Gray.
2 We do not adopt the Trial Examiner 's finding that employee Ed Miller heard President
McKinney tell Foreman Wright that "he did not want anybody to work for him that be-
longed to the Union " The record indicates, and we find, that Miller only heard rumors that
McKinney had made the alleged statement to Wright. Nor do we base our 8 (1) finding on
this alleged statement.
82 N. L. R. B., No. 2.
38
McKINNEY LUMBER COMPANY, INC. 39
1. Cease and desist from :
(a) Discouraging membership in United Brotherhood of Carpen-
ters and Joiners of America , AFL, or in any other labor organization
of its employees , by discharging or refusing to reinstate any of its
employees , or in any other manner discriminating in regard to their
hire or tenure of employment , or any term or condition of their
employment;
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations , to join or assist United Brotherhood of
Carpenters and Joiners of America , AFL, or any other labor organiza-
tion, 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 , and to refrain
from any or all of 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 as authorized in Section 8
( a) (3) of the Act , as guaranteed by Section 7 thereof.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Offer Durward B. Bolt and Eugene Hughes immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges;
(b) Make whole Durward B. Bolt and Eugene Hughes for any loss
of pay they may have suffered because of the Respondent 's discrimina-
tion against them, by payment to each of them of a sum of money
equal to the amount which he normally would have earned as wages
during the period from the date of discrimination to the date of the
Respondent 's offer of reinstatement , less his net earnings during said
period;
(c) Post at its plant in Whelan , Springs, Arkansas , copies of the
notice attached to this Order and marked "Appendix A." 3 Copies of
said notice , to be furnished by the Regional Director for the Fifteenth
Region, shall , after being duly signed by the Respondent 's representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and maintained by it for sixty ( 60) consecutive days thereafter, in
conspicuous places , including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered , defaced, or
covered by any other material;
E In the event this Order Is enforced by decree of a United States Court of Appeals, there
shall be inserted , before the words : "A DECISION AND ORDER ," the words : "A DECREE
OF THE UNITED STATES COURT OF APPE ALS ENFORCING "
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Fifteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent discriminatorily
discharged Andy L. Hughes and Joseph Oscar Hughes.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership of our employees in
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
AFL, or in any other labor organization, by discharging or
refusing to reinstate any of our employees or in any other manner
discriminating in regard to their hire or tenure of employment, or
any term or condition of their employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organi-
zation, to form labor organizations, to join or assist UNITED BROTH-
ERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid
or protection, and to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the
Act, as guaranteed by Section 7 thereof.
WE WILL OFFER to Eugene Hughes and Durward B. Bolt imme-
diate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other
rights and privileges previously enjoyed, and make each of them
whole for any loss of pay he may have suffered as a result of the
discrimination.
All our employees are free to become or remain members of
the above-named union or any other labor organization. We will
not discriminate in regard to hire or tenure of employment or
any term, or condition of employment against any employee be-
McKINNEY LUMBER COMPANY, INC. 41
cause of membership in, or activity on behalf of, any such labor
organization.
MCKINNEY LUMBER COMPANY, INC.,
Employer.
Dated-------------- By---------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. C. Paul Barker, for the General Counsel.
Moore, Burrow, Chowning and Mitchell, of Little Rock, Ark., by Mr. Lawrence
B. Burrow and Mr. Cy G. Lowe, of New Orleans, La., for the Respondent.
Mr. Charles F. Mendenhall and Mr. C. W. Mowery, of Little Rock, Ark., for
the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed October 6, 1947, by United Brotherhood
of Carpenters & Joiners of America, AFL, herein called the Union, the
General Counsel of the National Labor Relations Board by the Regional Director
for the Fifteenth Region (New Orleans, Louisiana),' issued his complaint
dated May 26, 1948, against McKinney Lumber Company, Inc., herein called the
Respondent, alleging that the Respondent has engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (1)
and (3) of the National Labor Relations Act,2 and Section 8 (a) (1) and (3) of
the Labor Management Relations Act, 19478 and Section 2 (6) and (7) of the
Act and the amended Act Copies of the complaint and amended charge together
with notice of hearing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance:
that the Respondent (1) discharged Durward B. Bolt and Eugene, Andy L. and
Joseph Oscar Hughes because of their membership in and activities on behalf of
the Union, and has since failed to reinstate any of said employees for the same
reason and because they engaged in concerted activities with other employees for
the purposes of collective bargaining and other mutual aid and protection; (2)
interrogated its employees concerning their union affiliations, threatened and
warned them to refrain from assisting, becoming members of, or remaining mem-
bers of the Union ; and threatened its employees with discharge or other dis-
cipline if they engaged in concerted activities.
The Respondent's answer filed June 7, 1948, admits the jurisdictional allegations
and the discharge of the employees named in the complaint, but denies the allega-
tions of unfair labor practices.
Pursuant to notices a hearing was held in Gurdon, Arkansas, on June 22, 23 and
24,1948, before J. J. Fitzpatrick, the undersigned Trial Examiner , duly designated
by the Chief Trial Examiner. The General Counsel and the Respondent were
I The General Counsel and the attorney representing him at the hearing will be referred
to herein as the General Counsel. The National Labor Relations Board will be called the
Board.
2 49 Stat. 449, herein called the Act
61 Stat. 136, herein called the Amended Act
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each represented by an attorney, the Union by an International Representative
and an Organizer. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertaining to the issues was afforded all
parties. At the conclusion of the hearing the parties waived oral arguments
before or the filing of briefs with the Trial Examiner.
Upon the entire record and from my observation of the witnesses, I make the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
McKinney Lumber Company, Inc., is an Arkansas Corporation, with its office
at Gurdon, Arkansas, and its mill at Whalen Springs, Arkansas, about 9 miles
distant from Gurdon. It is engaged in the manufacture of lumber and hard-
wood flooring. In the course of its business during the calendar year 1947, the
Respondent purchased over $200,000 worth of rough lumber and other materials
and supplies, approximately 10 percent of which came from points outside the
State of Arkansas. During the same period it manufactured and sold products in
excess of $200,000 in value, approximately 85 percent of which went to points
outside the State.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters & Joiners of America, AFL, is a labor organi-
zation admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
On the night of June 19, 1947, an organizer for the Union met with a group
composed of eight or nine people mostly employees of the Respondent at the home
of James H. Hughes, located about 11/2 miles from Whalen Springs, where the
Respondent's mill is situated. A committee was selected from the group to solicit
for the Union and the members thereof were each furnished with blank cards
for the purpose of securing as many union authorizations as possible among the
Respondent's employees. Included in those who took cards were Eugene, Andy
L., and Joseph Oscar Hughes, sons of James H. Hughes, and all employed by the
Respondent, and also Carl Bolt, a partially disabled, unemployed veteran. The
next morning, June 20,' during working hours there was considerable union dis-
cussion among the Respondent's employees, engendered to some extent by the
three Hughes boys above referred to, but more particularly because of the activi-
ties of Carl Bolt who spent most of that morning at the mill talking union to the
employees. When the Respondent's President, J. B. McKinney, heard about Bolt's
activities he ordered him off the premises.
On June 23, Eugene Hughes, and on June 24, Durward Bolt (brother of Carl
Bolt and who had also attended the June 19th union meeting at the Hughes' home)
were discharged by the Respondent.
Early in August the Respondent sent a representative to Monroe, Louisiana,
who hired 14 experienced mill men including 10 Negroes' to work on the night
shift. The 10 Negroes arrived at Whalen Springs by automobile in the imddle of
the afternoon of August 6th, and reported at the mill but did not go to work until
* All dates herein unless otherwise specifically Indicated are for the calendar year 1947.
5 All these men had been employed at a mill in Monroe which had recently burned.
McKINNEY LUMBER COMPANY, INC. 43
the night of August 7th. However , their arrival at the mill on August 6th, causea
considerable concern and discussion among the employees as the Respondent had
not informed any of its employees that the new workers had been secured largely
to train inexperienced employees.
On the morning of August 7th, the Respondent discharged Andy L and Joseph
Oscar Hughes . None of the four discharged employees has since been reinstated.
It is the contention of the General Counsel , challenged by the Respondent, that
the four named employees were discriminatorily discharged and refused reinstate-
ment, and also , that during the summer of 1947, the Respondent by other acts
interfered with the rights of its employees as guaranteed under the Act and the
amended Act.
B. Interference, restraint, and coercion
As previously found, on June 20th, Carl Bolt, not an employee, spent several
hours at the Respondent's mill during working hours distributing union cards
and attempting to interest the employees in the Union. When the Respondent's
President J. B. McKinney heard that Carl was on the premises and what he was
doing, he told Bolt he was interfering with production, ordered him off the
premises and instructed him not to return. I do not believe this act of McKinney
constituted interference by the Respondent with the rights of the employees.
Work time is for work and the employer is entitled to see to it that production is
not unduly interfered with.' There is no evidence that management made any
effort to restrict talking among its employees on Company time about any subject,
including the Union. Such practice is quite common in industry unless there
happens to be a special restriction on solicitation uniformly enforced, and there
was no such restriction in the mill. But very few employers, without special per-
mission, permit outsiders to talk to employees during working hours on matters
not concerned with their work.' Bolt testified that his solicitation and distribution
of cards did not interfere with the work of the employees, but this is hard to
believe. The testimony shows without contradiction that during the 2 or 3
hours he was in the mill he talked to practically every employee with whom he
came in contact. In any event, I find that McKinney believed, and had reasonable
cause to believe, that Bolt was interfering with the work of the employees. While
he may have been unnecessarily rough ordering Bolt off the mill property, it must
be remembered that he was addressing an apparent trespasser who had not asked
for permission to come on the premises' There is no evidence that barring Bolt
from the mill unduly restricted the employees in the exercise of their rights under
Section 7. While the above act of McKinney did not constitute interference with
the rights of the employees it is credible evidence that the Respondent was aware
of union activities in the plant on June 20th.
° Matter of Peyton Packing Company, Inc , 49 N. L R. B. 828, 843.
' There is no question involved here of inability of a union representative to obtain
reasonable access to the employees, as was true in Matter of Weyerhanser Timber Company,
Inc., 31 N. L R. B. 258, or N. L. R. B. v. Cities Service Oil Company, at al., 122 F. (2d)
149, 152. Here, the employees were local people living near the mill and readily accessible
In non-working periods.
° Bolt testified without contradiction that he had been on the mill premises on prior
occasions during working hours and was not molested There is no evidence, however,
that his prior visits were for so extensive a period of time as 2 or 3 hours, he interfered
with the work of the employees, or that his presence had been brought to the attention
of management. On the June 20, occasion his testimony indicates rather clearly his con-
viction that he was not wanted upon the premises. He testified, "I was fixing to leave
and get In my car, and I saw Mr. McKinney coming. I knew he was mad-."
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Durward B. Bolt, brother of Carl Bolt, who only began working for the
Respondent the morning of June 20th and whose discharge on June 24th will be
fully discussed hereafter, testified credibly that on June 20th, shortly after his
brother had been ordered off the premises, McKinney warned him that if Carl
returned on the property, "he was going to get hurt" and that if Durward had
joined the Union he could quit working immediately, "I- have money in my
pocket to pay you off." Durward told McKinney that he needed the work and
would not quit, would continue to work until someone fired him. McKinney
then left after stating to Durward that he was "not going to have anything like
that on this job."
Employee Ed Miller, testified that in the summer of 1947," he heard McKinney
tell Foreman Elmer Wright that, "he did not want anybody to work for him that
belonged to the Union" ; that about August 5, Wright asked him [Miller] what
he thought about the Union and that he replied that the Union was all right.
Willie Frank Green, who had been laid off by the Respondent in the summer
of 1947 and who reapplied for a job three times within a week thereafter, testi-
fied that on the last of these occasions he asked Foreman Wright if it would
be all right that he [Green] sign a union card and Wright replied "if that was
what he had in mind he could not use him any more." McKinney denied generally
that he "ever threatened his men in connection with their union activities" or
that there was any union activity in the mill other than the Carl Bolt incident
heretofore referred to, but was not asked about and did not deny the above
testimony of Miller and Green. Foreman Wright although available, was not
called as a witness. It is found that President McKinney and Foreman Wright
made the statement substantially as testified to by Miller and Green. It is
further found that, by the anti-union statements of President McKinney to
Durward Bolt and to Foreman Wright, and Wright's statement to job applicant
Green that he could not use him if he joined the Union, the Respondent has
interfered, restrained and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and the amended Act.
C. The discharges
Eugene Hughes, was employed by the Respondent as a crane operator about
the end of February 1947," and remained in that capacity until his discharge
on June 23. His supervisor was Foreman Wright. As found before, he attended
the meeting at his father's house on June 19th. The next day, Friday June 20th,
and probably Saturday June 21, he brought union cards to work with him,
distributed them among the employees and secured some signers, either on
Company time or his own time. On Monday morning June 23, after lie had been
working about 30 minutes, according to his credited testimony, Foreman Wright
handed him a check stating that McKinney had fired him 12 When Eugene
asked the reason for his discharge, Wright told him to see McKinney. Eugene
McKinney testified generally that he did not at any time threaten his employees con-
cerning their union activities. He was not asked and did not deny the testimony of this
conversation with Durward.
10 Miller fixed the time between the discharge of Eugene Hughes ( June 23) and the dis-
charge of Joseph Oscar Hughes (August 7).
11 Hughes, although only 18 years of age, had previous experience as a crane operator and
tong hooker with the Respondent's predecessor and had been sent for by Foreman Wright.
32 The record discloses that all checks were issued at Gurdon, Respondent ' s office, 9 miles
from the mill . The previous Saturday ( his regular weekly pay day) Eugene had received
his check for the week ending Thursday . The check received by him on Monday , also dated
June 21, was for wages earned on Friday and Saturday , June 20 and June 21.
McKINNEY LUMBER COMPANY, INC. 45
then went to McKinney. His undenied, corroborated " credited testimony as to
the interview follows :
I asked him if my work was satisfactory. That was the first thing I asked
him, and he said, "Yes it was as good as anyone's." I asked him then what
was wrong, and he said, "You know just as well as I do." I told him I
didn't. He said, "well, if you don't, you will next time."
It is McKinney's testimony that Eugene Hughes was discharged by Foreman
Wright under his instructions, as the result of a talk the week before when
Wright asked him to replace Hughes stating that he "did not tend to his job
like he should," "don't keep up his rig and he comes in late to work." Wright
not having been called as a witness, there is no corroboration of this testimony
of McKinney.
The boom on the crane used by Eugene was old and beginning to decay. He
called Wright's attention to its condition sometime after he first began working,
but nothing was done about it. Approximately 3 weeks prior to his discharge
the boom broke but was promptly repaired and used thereafter by Eugene up
to the time of his release. There is no evidence that Eugene was in any way
criticised by management for mishandling the crane or other equipment at the
time the boom broke or at any other time. About the end of May, McKinney
reprimanded Eugene for shooting craps on the job during intervals when the
crane was not in operation. This is the only criticism in the record of Eugene
by management, ° nor is there any evidence-by way of Company records or
otherwise-to support McKinney's statement that it had been reported to him
that Eugene was late in coming to work.
McKinney testified also, that "maybe" a third reason why Foreman Wright
discharged Eugene was for "keeping his men afraid of him." Two tong hookers
attached the logs which were raised by the crane. This is dangerous work as
the dangling rope may catch the tong hooker as the boom is raised, if he is
careless and the crane operator is not watching. Pat Harris, a tong hooker
who worked with Eugene for a while, testified that on one occasion" he gave
the signal to the crane operator to "tighten up" after he had fastened a log with
the tongs, and that Eugene jerked the boom up instead of raising it slowly,
causing Harris to be dragged about 2 feet by the rope but unhurt ; that he asked
Foreman Wight to change his job as he was afraid "the Hughes boy would
hurt him" and that he was later transferred to another job. The record dis-
closes that this kind of accident was not uncommon among tong hookers, but
this was the only incident of the kind involving Eugene during the 4 months he
worked for the Respondent.
Durward D. Bolt came to work for the Respondent on June 20, 1947. He
worked with two Negroes supplying the rip saws with lumber from stacks. These
stacks consisted of layers of planks with 6 to 8, inch square, 6 foot strips between.
As the layers of lumber were removed by the two Negroes, Bolt removed the
strips, piled them in a wagon and counted the lumber pieces.
is By his brother Andy L. Hughes who attended the interview at Eugene's request.
14 W. H. Guess, a log scaler but not a supervisor who also acted as relief crane operator,
testified credibly that he told McKinney about Eugene shooting craps and that he told
Foreman Wright Eugene unnecessarily "Jerked" the boom, did not keep the crane mechanism
oiled, and that Eugene had told him when he remonstrated with him for his carelessness,
"they cannot fire me as I have a union card in my pocket." Eugene denied that Guess ever
criticized his handling of the crane.
is Harris could not fix the time . Apparently , from the record , Harris was transferred
to another job before Eugene was discharged , and the occasion in question was 2 weeks
prior to his transfer.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Durward, as previously found, had attended the union meeting on June 19th,
and on the 20th, after his brother had been run off the mill property a few hours
after Durward started to work for the Respondent , McKinney warned him
that his brother would be hurt if he came on the property again and also told
Durward to quit his job if he was connected with the Union . At this time
Durward was not a member of the Union , but signed an authorization card that
evening after work. He worked Friday and Saturday, June 20 and 21, and also
on Monday , June 23. The next morning before work began, according to Dur-
ward's credited testimony , Foreman Wright gave him a check for his pay to
date and when Durward asked why he was being discharged replied, "Well, Mr.
McKinney sent the check to you and that is all that I know about it."
McKinney testified that Foreman Wright discharged Durward and that he did
not order or have anything to do with it. The only evidence as to Durward's
work record, aside from his own testimony , is that of Oma Locke , one of the
Negroes who worked with him on the stacks. Locke testified that he and the
other Negro, James Couch, also known as "Snake Eyes ," handled the lumber
and Durward took care of the strips , the latter being the easiest job , but that
Durward handled the lumber also when either of the other two workers went for
a drink of water several times a day ; that he never complained to Foreman
Wright or other management representative about Durward's working mostly
with the strips , "he kept up his job . I reckon that was his job. That is what
he was doing when he first started on it. He was keeping up with the sticks
[strips], and he kept them away."
Durward testified that he was doing the work he had been instructed to do by
the foreman. There is no evidence that he was criticized or warned in any way
by management that his work was unsatisfactory.
Conclusions as to the discharges of Eugene Hughes and Durward Bolt
McKinney 's testimony that he did not know that either Eugene or Durward
were interested in the Union until after their discharge is rejected. On June
20th, McKinney ordered Carl Bolt off the mill premises because of his efforts
to interest the employees in the Union . Later the same day he suggested to
Durward ( who had just reported for work that morning ) that he quit working
as McKinney did not want the Union in the mill . Log scaler Guess credibly
testified that he told Foreman Wright that Eugene was in the Union prior to the
latter's discharge . I find that the Respondent knew or suspected that Eugene
Hughes and Durward Bolt were members or interested in the Union prior to their
respective discharges.
Respondent 's contention that these two employees were discharged for cause
is rejected . Lacking the testimony of Foreman Wright, too much has to be
left to conjecture to warrant a finding in that respect. Wright could have
told about their work, possible criticisms thereof he made to these workers
themselves and his version of what happened at the time of the discharges.
This also applies to the failure to produce Company records of time sheets which
could have definitely established whether Eugene Hughes was unnecessarily or
unduly late in coming to work.
As the record stands there was no criticism of Eugene Hughes by manage-
ment except McKinney's warning that he desist from shooting craps while on
the job a month before his discharge-which warning was heeded . It is prob-
ably true that he lacked extensive experience as a crane operator but Wright
hired him because he had some experience and the breaking of the boom 3
MoKINNEY LUMBER COMPANY, INC. 47
weeks before his discharge cannot be ascribed entirely to negligence or inex-
perience, as there is credible testimony that the boom was not in good condi-
tion. Furthermore, the record is silent as to any criticism for this incident at
the time or of any criticism of him when Harris complained and asked to be
transferred to other work
Insofar as Durward Bolt is concerned, management at no time criticized his
work. His testimony stands uncontradicted and is credited that he was doing
the work Wright had instructed him to do.
When an employer resorts to the drastic and severe measure of summary
discharge without notice, the employee involved is entitled to know the reason
therefor. When no reason is given, as in these two instances , the immediate
surrounding circumstances are particularly material. I am convinced and find
there is no adequate probative or substantial evidence that Eugene Hughes or
Durward Bolt were discharged for cause, but on the other hand, such evidence
does show that each of them was discharged and has not since been reinstated
because he joined or assisted the Union.
Andy L. Hughes and Joseph Oscar Hughes, brothers of Eugene, were hired
by the Respondent in May as end matchers and worked together on the day
shift until their discharge on August 7, 1947. Their starting pay was 60 cents
an hour. It was raised to 75 and finally to $1.00 an hour, the last raise going
into effect 3 or 4 weeks prior to the discharges.
Both brothers were on the Union committee and active in distributing cards.
Andy gave one card to Lewis Harper on June 20th, who through Carpenter
Foreman Stinnett brought the card to McKinney's attention. As previously
found, Andy was present when McKinney discharged his brother Eugene on
June 23. On July 11th, a copy of the charge filed by the Union alleging dis-
criminatory discharges of Eugene Hughes and Durward Bolt was received by
the Respondent. Under all the circumstances shown by the record I find that
the Respondent knew or suspected the Union activities of Andy L. and Joseph
Oscar Hughes on and after June 20th, 1947.
About the 5th of August, Respondent arranged to import some experienced
saw mill workers from Louisiana including ten Negroes, as previously found.
When the Negroes arrived by auto in the late afternoon of August 6th, they
reported at the plant but were told to report on the night shift on August 7th.
Management had not informed any of the employees that these Louisiana workers
were being brought in to help train inexperienced workers on the night shift,
and their appearance on August 6th produced speculation and concern, par-
ticularly among the day shift employees, as to the reasons for the importations.
In this respect Andy Hughes testified :
Q. Now, did you have any remarks to make about those outside employees
they were bringing in?
A. Yes, sir.
Q. To whom did you make the remarks?
A. Well, Sherman Bryant, several of the boys standing around together
talking and they were talking just as much as I was about the boys coming
in and taking our jobs, you know, and there was one in particular , and that
was Bill Ogle.
Q. Bill Ogle?
A. Yes, sir. I told him that if the boys had stuck together and signed
the Union cards, and got that Union in here, we would not have to be
worried about this .. .
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q Did you make a remark to the same effect to Mr. Turner , who was
the Superintendent there, to the same effect?
A. Yes, sir ; about the same.
In a similar vein Joseph Oscar Hughes testified :
Q. Now , Oscar , had there been some talk the day before about the
new men coming in from the plant in Louisiana and Texarkana , Texas?
A. Yes, sir. That was the general talk among all the mill hands. They
could see there were some new men being put on that didn 't even have a
place ; they didn 't even have a job . They were just standing around wait-
ing, and naturally that would arouse anybody 's curiosity when men would
be standing around hired and say they were working when they didn't
have no place to work. We wondered where they were going to work.
All the men in the plant had that on their mind , and were talking about
it.
Q. Did you or your brother say anything to the employees about if they
had signed up the cards that would not have happened?
A. I don't know whether he did or not. You see, I was busy. He was
keeping up the end matcher and had some spare time. I was feeding
the end matcher and there was no relief man at that time and I did not
have any time to talk.
Superintendent Turner was asked on direct if Andy and Oscar Hughes talked
to him on August 6th, and he answered :
A. Well, yes, they did. They said, "I don't think it is right for Mr. Mc
to get the men to come in here and take our places."
On cross-examination Turner testified that he thought it was the oldest Hughes
boy (Andy) that talked to him.
Employee W. M. White testified that on August 6th, when the Louisiana
negroes appeared he talked with some of the other employees about new men
coming to work in the mill ; that Oscar Hughes asked him if he was going to
let a negro take his job, that he replied that it was alright with him if the Com-
pany wanted it that way, whereupon Oscar stated that "no negro was going to
take his job" ; that he rode home that evening with employee Sherman Bryant,
who stated to him, "if we would stay down with the Hughes boys we could run the
negroes away from here." White further testified that he did not report to
management what Oscar or Bryant had said to him.
Employee William Scott testified that on August 6th, all the employees were
excited and worried about the negroes coming into the mill ; that he was working
with Andy and Oscar Hughes and both of them were talking about "running
them [the negroes] off , or get a union in and run them off" ; that other employees
were talking the same way ; that Oscar and Andy Hughes rode home with him
in his auto that evening and the Hughes boys said, "they would get their guns
and return and run the negroes off, would not go in the mills, but you know,
around the mill and shoot around trying to scare them." Scott further testified
that he did not inform management what the Hughes brothers had stated to him.
Employee Floyd Hicks testified that on August 6th, Andy Hughes told him
and other employees they were going to run the negroes off "as fast as they were
brought in"; that Andy told one of the negroes that he had better go back to
Louisiana if he know what was good for him," because they were going to run
them back if he didn't." On cross-examination Hicks testified that Andy Hughes
might have said "something like" if the boys would sign up with the Union they
McKINNEY LUMBER COMPANY, INC. 49
might be able to keep the negroes out. He further testified that he did not
report to management what he had heard Andy Hughes say.
Oscar Hughes denied the testimony of W. M. White to the effect that he had
stated no negro was going to take his job. Both Oscar and Andy Hughes denied
that they had threatened to use guns to scare the negroes and Andy categorically
denied that he told anyone including Floyd Hicks he had warned one of the
negroes he would run them back to Louisiana as fast as they came in.
I find that on August 6th, when the imported negroes arrived at the mill the
day shift employees particularly were incensed and concerned, as they had not
been told by management that the new employees were largely additions to
the night shift, and assumed that they were brought in to replace old employees ;
that they discussed among themselves manners and methods to meet the ap-
parent threat to their jobs, including securing the Union to represent their
interests and also scaring or running the outside negroes off the mill property ; 16
that Andy and Oscar Hughes took the lead in these discussions ; that Andy
complained to Superintendent Turner about bringing in outside workers to "take
our places" but was reassured by Turner that such was not the purpose; and
that neither the employees nor Turner brought this concern of the men about
the new employees to the attention of President McKinney at the time.
Early in the morning of August 7th, before the first shift started McKinney
drove out to the mill (as it was not unusual for him to do), and instructed
Superintendent Turner to discharge Andy and Oscar Hughes, putting on their
discharge slip, "agitators." iT It is McKinney's testimony that he ordered the
discharge of Andy and Oscar Hughes after he had heard rumors from several em-
ployees when he went out to the mill on August 7, about "threats that the Hughes
boys had made" the day before.16 After the first shift started Turner, instead
of doing as he had been instructed by McKinney, told the two Hughes boys to
go to the office at Gurdon to see McKinney.19 When they arrived at the office
they had to wait a while for Mr. McKinney, but when he appeared he instructed
Robert Topp, the office manager, to make out checks for Andy and Oscar. Andy
Hughes then asked McKinney the reason why they were being fired. McKinney,
after insisting at first that they knew the reason, told them in substance that it
was because the two of them had done some threatening, and had been "talking
when they should have been listening." Andy then said something to the effect
that "those negroes are not going to take our jobs," and McKinney replied that
he would run the plant as he saw fit 20
McKinney then went to breakfast While Topp was preparing the checks he
testified that he heard one of the Hughes boys saying to the other, "Its been a
long time since I have been scuffled like this," and when Topp gave them their
checks one of the boys said, "Let's go down there," and the other one replied,
"That the imported negroes had actually been threatened is clear from the undisputed
testimony that they refused to work for a while the night of August 7, until reassured
by management that they would not be molested.
17 This finding is based upon the credited testimony of Turner who, although later in
the day of August 7th, was also summarily discharged by McKinney, in no way showed
any hostility at the hearing toward McKinney or the Respondent.
18 McKinney also testified that Superintendent Turner also told him about the threats,
and "He and I both decided that the safest plan would be to fire them " This testimony
of McKinney's is rejected in view of Turner's testimony that on the morning in question
McKinney "came down to the plant and said, `Don't put the Hughes boys to work this
morning ' . . " and his failure to corroborate McKinney
"It was McKinney 's custom to be in his Gurdon office each morning about 7 •30.
20 The above findings are based upon a reconciliation of the more or less mutually cor-
roborative testimony of Andy and Oscar Hughes, Topp and McKinney.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Yes, I want to be there when the end matcher tears up." When McKinney re-
turned from his breakfast Topp reported the discussion he had heard between
the Hughes brothers 21 The same morning McKinney went to the county
seat at Arkadelphia and, after consulting with his attorney, reported to the
county sheriff that Andy and Oscar Hughes had threatened employees at the mill.
The sheriff the same day went to the father of the Hughes boys, and was assured
by the latter that there would be no disturbance as far as his sons were
concerned.
After they had received their paychecks the two Hughes boys left the office.
Sometime during the day one of the two went to the mill to secure their belong-
ings but there is no evidence that they or any other of the employees or former
employees in the mill caused any disturbance at the mill or otherwise, then or
thereafter.
Conclusions as to the reasons for the discharge of Andy L. and
Joseph Oscar Hughes
The discharge of these two employees must be viewed in the light of all the
surrounding circumstances and what had transpired before that time. Mc-
Kinney, who controlled and managed the Respondent, was opposed to any
Union securing a foothold in the mill, and the Respondent, as heretofore found,
engaged in acts of interference and discrimination when efforts to organize the
employees in the Union were started the previous June. Andy and Oscar Hughes
were known to be among the leaders in that activity. Nevertheless, they both
were given substantial raises thereafter. Superindendent Tucker's testimony
is credited that these raises were granted to stimulate production McKinney
bad taken over and started running the mill the previous year. He was inex-
perienced and was having difficulties with production in 1947 . He needed more
experienced help , particularly on the night shift. McKinney was no doubt at
fault not notifying the employees in August that the experienced mill hands
he was importing from Louisiana were to augment and train the inexperienced
night shift workers and were not necessarily for replacement purposes. There-
fore when the strangers appeared on August 6, the employees then working
naturally assumed their jobs were in jeopardy. They talked about methods to
protect their positions. Andy and Oscar Hughes were prominent in this dis-
cussion. They stated that if they had a Union in the mill it could protect
them, but there is credible testimony that they also suggested unlawful action
to "scare the negroes off" and prevent them from reporting for work.
Although McKinney testified that the rumors he heard before the first shift
started on August 7, were that the "Hughes boys" were going to run the imported
negroes off the mill property, it is likely that he also heard what Andy Hughes
had said concerning the protection a Union could afford the employees in such
a situation. In any event, without checking the authenticity of the rumors,
or giving Andy and Oscar an opportunity to deny, affirm or explain them, he
summarily ordered their discharge and appealed to the county sheriff to protect
the negro employees.
21 Both Andy and Oscar denied making any statements in the presences of Topp, but
in view of the mutually corroborative testimony of Topp and McKinney, these denials are
rejected.
zz It must be remembered , however, that the same day Andy and Oscar Hughes and
probably other employees concerned were told by Superintendent Turner what the real
purpose was in bringing into the mill the outside experienced help.
McKINNEY LUMBER COMPANY, INC. 51
It can be assumed under these circumstances that McKinney was glad of a
legitimate reason to discharge the two Hughes boys, because of their enthusiasm
for the Union. By their suggestion to other employees that the Louisiana
Negroes be run out of the mill, Andy and Oscar certainly presented him with
such reason. I am of the opinion and find upon the preponderance of the testi-
mony that Andy L. Hughes and Joseph Oscar Hughes were discharged for cause
and shall therefore recommend that the allegations in the complaint as to them
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce, among the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act and the amended
Act.
It has been found that the Respondent has discriminated in regard to the hire
and tenure of employment of Eugene Hughes and Durward B. Bolt. It will,
therefore, be recommended that the Respondent offer the said employees im-
mediate and full reinstatement to their former or substantially equivalent posi-
tions,' without prejudice to their seniority or other rights and privileges and
make them whole for any loss of pay they may have suffered by reason of the
discrimination against them by payment to them of a sum of money equal to that
which they normally would have earned from the dates of the discriminatory
discharges to the dates of the offers of reinstatement, less their net earnings 21
during said period.
The unfair labor practices found herein, including discrimination in regard
to the hire and tenure of employment (one of the most effective methods of de-
feating and frustrating employees in their right to self-organization), establishes
that the Respondent is manifestly opposed to self-organization among its em-
ployees, and that danger of commission in the future of unfair labor practices
by the Respondent is to be anticipated from its conduct in the past. It will,
therefore, be recommended that the Respondent be required to cease and desist
from in any other manner interfering with, restraining, and coercing its em-
ployes in the exercise of the rights guaranteed under the Act and the amended
Act.'
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
"In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, but if such position is no longer in existence, then a substantially equivalent
position." Matter of The Chase National Bank of the City of New York, etc., 65 N. L R. B
827.
24 Matter of Crossett Lumber Company, etc , 8 N. L R B. 440, 492-498
25 N. L. R. B. v. Express Publishing Co , 312 U S. 426.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters & Joiners of America, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act and the amended
Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act and the amended Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the amended Act.
3. By discriminating in regard to the hire and tenure of employment of Eugene
Hughes and Durward B. Holt, thereby discouraging membership in a labor
organization, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act and Section 8 (a) (3)
of the amended 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 and of the
amended Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in this case, I recommend that the Respondent, McKinney
Lumber Company, Inc., Gurdon, Arkansas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Brotherhood of Carpenters & Joiners
of America, AFL, or any other labor organization of its employees, by discharg-
ing or refusing to reinstate any of its employees, or in any other manner dis-
criminating in regard to their hire and tenure of employment, or any term or
condition of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form, join, and
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, or the right to refrain
from such activities, as guaranteed in Section 7 of the Act and of the amended
Act.
2. Take the following affirmative action, which I find will effectuate the
policies of the Act and the amended Act:
(a) Offer Eugene Hughes and Durward B. Bolt immediate and full rein-
statement to their former or substantially equivalent positions, without preju-
(lice to their seniority and other rights and privileges;
(b) Make whole Eugene Hughes and Durward B. Bolt, and each of them, for
any loss of earnings he may have suffered by reason of the Respondent's dis-
crimination against him, by payment to him of a suin of money equal to that
which he would normally have earned from June 23, 1947 (In the case of
Eugene Hughes), and June 24, 1947 (in the case of Durward B. Bolt), the date
upon which he was discriminatorily discharged, to the date of the offer of
reinstatement less his net earnings,26 during said period ;
(c) Post at its mill in Whalen Springs, Arkansas, copies of the notice at-
tached hereto and marked "Appendix A." Copies of said notice, to be furnished
by the Regional Director for the Fifteenth Region, shall, after being duly signed
11 See footnote 24, supra.
McKINNEY LUMBER COMPANY, INC. 53
by the Respondent's representative, be posted by the Respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any other
material;
(d) Notify the Regional Director for the Fifteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the Respondent has taken to comply therewith.
It is further recommended that the complaint be dismissed insofar as it
alleges discrimination as to the hire and tenure of employment of Andy L.
Hughes and Joseph Oscar Hughes.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board , Series 5 , effective August 22, 1947, any party may,
within twenty (20) days from the date of service of the order transferring
the case to the Board, pursuant to Section 203.45 of said Rules and Regula-
tions, file with the Board, Rochambeau Building, Washington 25, D. C, an
original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof ; and any party
may, within the same period, file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement
of exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46, should any party desire
permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of service of the
order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
J. J. FITZPATRICK,
Dated August 6, 1948. Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations , to join UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF
AMERICA, AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining and other mutual aid
or protection, or their right to refrain from any or all of such activities.
838914-50-vol 82-5
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE wits OFFER to Eugene Hughes and Durward B. Bolt, and each of
them, immediate and full reinstatement to his former position or sub-
stantially equivalent position , without prejudice to his seniority and other
rights and privileges , and make him whole for any loss of earnings suf-
fered as a result of the discrimination against him.
WE WILL xor discriminate in regard to hire and tenure of employment
or any term or condition of employment against any employee because
of membership in or activity on behalf of any such labor organization.
McKINNEY LUMBER COMPANY, INC,
Employer.
Dated-------------------------- By---------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced, or covered by any other material.