Moss Planing Mill Co.

National Labor Relations Board - Board Decisions

Mar 10, 1953

103 N.L.R.B. 414 (N.L.R.B. 1953)

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these objections. Accordingly, we adopt the findings and recom-
mendations of the Regional Director and overrule these objections.
The Regional Director, however, included in his report certain
findings and recommendations with respect to a fourth objection
raised by the Petitioner on November 17, 1952, after the period for
filing objections had closed. The Regional Director found that the
fourth objection raised substantial and material issues with respect
to the conduct of the election and recommended that the election be
set aside.
Thereafter, on January 30, 1953, the Employer filed exceptions
to the Regional Director's report, alleging, inter alia, that the fourth
objection of the Petitioner was not timely presented. We agree, and
find, therefore, that the fourth objection was not properly within
the scope of the Regional Director's investigation and report.'
We make no findings on the merits of this objection. Accordingly,
the Employer's exceptions to the fourth objection are hereby sustained.
As the Petitioner failed to secure a majority of the valid ballots
cast, we shall certify the results of the election.
Certification of Results of Election
IT IS HEREBY CERTIFIED that a majority of the valid ballots has not
been cast for Retail Clerks Union, Local 1682, Retail Clerks Inter-
national Association, AFL, and that the said labor organization is
not the exclusive representative of the employees of the Employer
in the unit heretofore found by the Board to be appropriate, within
the meaning of Section 9 (a) of the National Labor Relations Act.
8 Safety Motor Transit Corporation, 83 NLRB 892.
MOSS PLANING MILL Co. and INTERNATIONAL WOODWORKERS OF
AMERICA, CIO. Case. No. 11-CA-308 (formerly 34-CA 308).
March 10, 1953
Decision and Order
On April 29, 1952, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and (3) of the Labor
Management Relations Act, as amended, and recommending that the
Respondent cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices in violation of Section
103 NLRB No. 61.
MOSS PLANING MILL CO. 415
8 (a) (1) and (3) of the Act and recommended dismissal of those
portions of the complaint herein alleging that the Respondent dis-
criminatorily imposed more onerous work upon Roy E. Fulcher'
and Lee A. Wynne and discriminatorily denied Fulcher regular em-
ployment. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs. The
Respondent's request for oral argument is hereby denied, as the rec-
ord, including the exceptions and briefs, adequately presents the is-
sues and the positions of the parties.
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-
member panel [Chairman Herzog and Members Murdock and
Peterson].
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 2 The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions,
modifications, and corrections.3
1. On December 31, 1952, the Board issued an Order incorporating
as part of the record herein the Respondent's written admission that
it annually ships products valued at more than $25,000 directly to
points outside the State of North Carolina. Upon the basis of this
admission and other record facts, we agree with the Trial Examiner
that the Respondent is engaged in commerce within the meaning of
the Act,4 and find that it will effectuate the policies of the Act to
assert jurisdiction in this case.
2. The complaint alleges that the Respondent discriminated against
Roy E. Fulcher for reasons related to his union activity in these re-
spects: (1) By denying Fulcher regular daily employment; (2) by
increasing and making more onerous his workload; and (3) by
' Also referred to as Ersual Fulcher by the Trial Examiner in the Intermediate Report.
s The Respondent excepts to the portion of the Intermediate Report setting forth events
which occurred more than 6 months prior to the filing of the charge herein and asserts
that the Trial Examiner improperly relied upon these events . Inasmuch as such events
were presented by the Trial Examiner only as background material and were not the
subject of any finding of violation of the Act by the Respondent , we reject the Respondent's
contention. El Mundo, Inc , 92 NLRB 724.
8 At one point in the Intermediate Report, the Trial Examiner stated that the Respond-
ent did not independently violate Section 8 (a) (1) of the Act within 6 months prior to
the filing and service of the charge herein . Elsewhere in the Intermediate Report, the
Trial Examiner sets forth and finds several independent violations of this section of the
Act. It is apparent that the prior statement was an inadvertent error.
* We hereby correct the misstatement of fact appearing in the Intermediate Report that
the Respondent causes a substantial amount of raw materials , goods, and supplies to be
purchased , transported , and delivered in interstate commerce to its North Carolina plants.
In the light of our above commerce finding, this misstatement has no effect upon the
ultimate conclusions herein.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eventually discharging him on or about May 21, 1951. The Trial
Examiner dismissed the first two allegations and sustained the third.
For the reasons hereinafter given, we sustain both the first and third
of these allegations.
The record facts, which are fully detailed in the Intermediate Re-
port, show that the Respondent has had an impressive history of
openly expressed animosity toward unions and union activity by its
employees. This animosity was specifically manifested against
Fulcher on various occasions following its discovery of his union
activity at or about the time of the Board representation election on
September 15, 1950. On one such occasion, the Respondent' s secre-
tary-treasurer, Thompson D. Litchfield, told Fulcher that other
employees of the Respondent would be given work in a new company
in which Litchfield expected to have a personal financial interest.
On another occasion, Litchfield attempted to coerce Fulcher into
leaving the Respondent's employ by offering to sign an unemployment
compensation application for Fulcher if the latter would agree to
stop working for the Respondent. At still another time, Litchfield
went to the extent of assaulting Fulcher by pushing him bodily from
his office after Litchfield had summoned Fulcher to explain why the
latter had obtained the charging Union's help in processing his
grievance for reimbursement of a medical bill he incurred as the
result of an industrial injury.
The General Counsel contends that, in addition to the foregoing
manifestations of hostility, the Respondent assigned Fulcher fewer
than his normal number of hours of work after discovering he was
engaged in union activity. To support this claim, the General Counsel
placed in the record a statistical analysis showing by percentages
(1) the number of hours Fulcher worked in relation to his full poten-
tial workweek during the 4 months preceding the date the Respondent
discovered his union activity and during the following 8-month period
up to the date of his discharge; and (2) the hours worked by Fulcher
and the hours worked by the Respondent's other regular employees
for the same relevant periods of time. As the Trial Examiner found,
the analysis shows that Fulcher worked more hours per week in the
4-month period preceding the election of September 15, 1950, than
he did thereafter, and that Fulcher worked fewer hours in the period
following this date than did the average of all the other regular
employees. Nevertheless, the Trial Examiner was not persuaded that
the decrease in Fulcher's hours of work was attributable to the Re-
spondent's failure to assign work to Fulcher on a nondiscriminatory
basis. In refusing to accord the statistics controlling weight, the
Trial Examiner stated that they failed to (1) include the hours worked
by part-time employees; (2) take into account Fulcher's voluntary
MOSS PLANING MILL CO. 417
absences from work; and (3) show that during periods of inclement
weather the Respondent temporarily suspended the blocksetting
operation at which Fulcher was normally employed.
The record shows, however, that Fulcher was a regular full-time
employee before the election, and that inclusion of part-time workers
in the statistical analysis would have been statistically impractical and
misleading. The exclusion of the part-time workers' records was
therefore proper. The record also shows that neither Fulcher's volun-
tary absences nor the Respondent's suspension of blocksetting opera-
tions during inclement weather could have constituted material factors
to explain the difference in the number of hours Fulcher worked. This
is so in view of the fact that Fulcher had voluntarily absented himself
from work before the election as well as afterwards, and the fact that
before the election the Respondent had assigned Fulcher to other work
when blocksetting work was suspended. Furthermore, there is no
evidence in the record showing that Fulcher, after September 15, 1950,
had been voluntarily absent from work more frequently, or that eco-
nomic necessity had required the Respondent to discontinue its prac-
tice of assigning him to work other than blocksetting because of bad
weather conditions.
In the light of these facts we believe, unlike the Trial Examiner, that
the General Counsel's statistical compilation constitutes persuasive
evidence that the decrease in the number of hours Fulcher worked
following the election reflected the Respondent's purposeful handling
of work assignments, rather than a mere coincidence. Accordingly,
we find that the Respondent's denial of regular work to Fulcher after
the election was motivated by its displeasure with his activities on
behalf of the Union. Inasmuch as the charge in this case was filed
and served on May 28, 1951, we shall, in accordance with Section 10 (b)
of the Act, limit our unfair labor practice finding in this respect to the
period from November 28, 1950, to the date Fulcher was discharged.
As the Intermediate Report shows, the Respondent also discharged
Fulcher on or about May 21, 1951, under the circumstances there set
forth. The Respondent assigned various reasons for the discharge
which the Trial Examiner rejected. In so doing, the Trial Examiner
made the following subsidiary findings which we do not adopt: (1)
"that the blocks could be set when the log was released from the saw
as quickly from the ground where the dial on the carriage could be
seen, as from a position on the carriage itself"; and (2) that relative to
an incident occurring on May 17, 1951, "There is no showing that any
delay was involved in his [Fulcher's] returning through the bunk-
house rather than along its side." However, our refusal to adopt
these findings does not affect our agreement with the Trial Examiner's
ultimate conclusion that Fulcher's asserted shortcomings did not con-
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stitute the real motive for the Respondent's discharge action; rather
we find they were used as a pretext to cloak the Respondent's dis-
ci iminatory purpose of ridding itself of an active union leader. We
therefore conclude that the Respondent further violated Section
8 (a) (1) and (3) of the Act by discharging Fulcher.5
3. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (3) and (1) of the Act in discharging Wynne because of
his union and concerted activity in prosecuting his wage claim against
it under the wage and hour law.
The Respondent denies that Wynne's discharge was motivated by
antiunion considerations. It contends that not only was it unaware
that the Union participated in prosecuting Wynne's wage claim, but
also that the cause of his discharge was simply his refusal to settle
his claim for a lesser sum than that found to be due him by the wage
and hour law investigators 6 We find no merit in this contention.
As discussed in the Intermediate Report, Wynne and Speare, both
members of the Union, enlisted the assistance of the Union to process
their wage claims against the Respondent. Accordingly, the Union
presented their wage claims to the wage and hour office, which
action resulted in a determination that Wynne and Speare were en-
titled to certain specified sums. Plainly, Wynne's and Speare's
resort to the Union for assistance was a form of union activity relat-
ing directly to their wages and working conditions, which Section 7
of the Act protects.' That the Respondent knew of the Union's par-
ticipation in this matter and resented it is revealed by the remark
of the Respondent's secretary-treasurer, Litchfield, in Wynne's pres-
ence the day before the latter's discharge, that "This damned Union
caused us to pay all this back pay."
In view of these facts, the Respondent's admission that Wynne's
discharge stemmed from the wage dispute, and its open hostility
to the Union, we find that Wynne's discharge was in reprisal for his
union activity which was responsible for the Respondent's liability
under the wage and hour law. This conduct was clearly discrim-
inatory within the meaning of Section 8 (a) (3) of the Act and inter-
fered with, restrained, and coerced employees in the exercise of their
rights within the meaning of Section 8 (a) (1) of the Act.
Moreover, even were we to assume, contrary to the fact, that the
Respondent was unaware that the Union processed the wage claims,
S. S. Coachman and Sons, Inc., 99 NLRB 670.
The Respondent also contends that the Trial Examiner was required to dismiss the
portions of the complaint relating to the discharges of Fulcher and Wynne , because the
bargaining contract between the Respondent and the charging Union provides for an exclu-
sive procedure for handling alleged wrongful discharges . We reject this contention
because Section 10 (a) of the Act, as amended , expressly provides that the Board 's power
to prevent unfair labor practices "shall not be affected by any other means of adjustment
or prevention that has been or may be established by agreement, law, or otherwise."
r Cf. Spandsco Oil & Royalty Company, 42 NLRB 942.
MOSS PLANING MILL CO. 419
we would nevertheless find that Wynne's discharge violated at least
Section 8 (a) (1) of the Act. As indicated above, Wynne and Speare
acted in concert for their mutual aid and protection in prosecuting
their wage claims under the wage and hour law." The right to
engage in such concerted conduct, whether or not associated with
a particular labor organization, is guaranteed by Section 7 of the
Act. Just as an employer is prohibited by the Act from penalizing
employees who, in the exercise of their rights, present demands relat-
ing to their wages and working conditions, so is the employer pro-
hibited from punishing them for refusing to reduce their demands.
Therefore, by discharging Wynne for the asserted reason that he re-
fused to accept a lesser sum than that which the wage and hour office
found to be due him, the Respondent violated his statutory rights
within the meaning of Section 8 (a) (1) of the Act.
Whether or not Wynne's discharge constituted a violation of Sec-
tion 8 (a) (1) or Section 8 (a) (3), we find that the same remedy
prescribed in our Decision and Order is necessary to effectuate the
policies of the Act.
The Remedy
As recommended by the Trial Examiner, we shall order the
Respondent to offer reinstatement to Fulcher and Wynne and to
make them whole for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them. In the case
of Fulcher, he shall be reimbursed not only for the loss of pay sus-
tained by him as a result of his discriminatory discharge but also for
the loss of pay he sustained as a result of the discrimination practiced
against him with respect to work assignments from November 28,
1950, to the date of his discharge.
Normally, the Board has excluded from the computation of back pay
due a discriminatorily discharged employee the period of time when
he was physically unable to work. However, as Wynne's incapacity
to work for at least a portion of the period following his discharge
was caused by the injury inflicted upon him by the Respondent, we
shall not abate back pay for such period. There is some testimony
in the record by the doctor who treated Wynne for his injury that
he was capable of performing his work as a fireman on May 18, 1951.
This testimony shall be considered in the compliance stage of our
proceedings in determining what efforts Wynne made to secure other
employment from May 18, 1951, to the date of the Respondent's offer
of reinstatement.
Except as modified herein, the amount of back pay shall be com-
puted in the manner prescribed in the Intermediate Report.
8 Spandsco Oil cC Royalty Company, supra ; cf. The Ohio Oil Company , 92 NLRB 1597.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the nature of Wynne's injury and the real probability
that he may suffer an incapacitating recurrence thereof, we expressly
reserve the right to modify the back-pay and reinstatement provisions
of our Order herein, if required by a future change in Wynne's phys-
ical condition, and to make such supplements to the Order as may
therefore become necessary.9
Order
Upon the entire record in this 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, Moss Planing
Mill Co., Washington, North Carolina, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of
America, CIO, or in any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees, or by deny-
ing them regular work assignments, or by discriminating against them
in any other manner in regard to their hire or tenure of employment
or any term or condition of employment, because of their participa-
tion in union or concerted activities.
(b) Assaulting or otherwise injuring its employees, refusing to en-
dorse their applications for unemployment insurance, or threatening
not to employ them, because of their union or concerted activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in their right to engage in, or to refrain from engaging
in, any or all activities guaranteed to them by Section 7 of the Act,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Roy E. Fulcher and Lee A. Wynne immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges.
(b) Make whole Roy E. Fulcher and Lee A. Wynne for any loss of
pay they may have suffered by reason of the Respondent's discrimina-
tion against them in the manner provided in the remedy section of the
Intermediate Report, as modified in the Board's Decision.
(c) Upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other
9 Atlantic Metallic Casket Company, 91 NLRB 1225.
MOSS PLANING MILL CO. 421
records necessary to analyze the amounts of back pay due and the
rights of reinstatement under the terms of this Order.
(d) Post at its plant and office in Washington, North Carolina,
copies of the notice attached hereto as an appendix.10 Copies of such
notice, to be furnished by the Regional Director for the Eleventh
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof
and be 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) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of the Order, as to what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges viola-
tion of the Act by the Respondent prior to November 28, 1950, and that
the Respondent increased and made more onerous the workload of Roy
E. Fulcher and Lee A. Wynne, be, and it hereby is, dismissed.
10 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
Appendix
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 in INTERNATIONAL WOOD-
WORKERS OF AMERICA, CIO, or in any other labor organization of
our employees, by discharging or refusing to reinstate them, or
by denying them regular work assignments, or by discriminating
against them in any other manner in regard to their hire or tenure
of employment or any term or condition of employment because
of their participation in union or concerted activities.
WE WILL NOT assault or otherwise injure our employees, or
refuse to endorse their applications for unemployment insurance,
or threaten not to employ them, because of their union or con-
certed activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in their right to engage in, or to refrain
from engaging in, any or all activities guaranteed to them by-
257965-54-vol. 103-28
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
WE WILL offer the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority or other rights and
privileges previously enjoyed, and we will make them whole for
any loss of pay suffered as a result of our discrimination against
them.
Roy E. Fulcher
Lee A. Wynne
All our employees are free to become, remain, or to refrain from
becoming or remaining members of the above-named union or any
other labor organization, except to the extent that such right may be
affected by an agreement authorized by Section 8 (a) (3) of the Act.
We will not discriminate in regard to hire or 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.
MOSS PLANING MILL CO.,
Employer.
Date-------------------- 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
STATEMENT OF THE CASE
Upon a charge duly filed on May 23, 1951, by International Woodworkers of
America, CIO, herein called the Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for the Fifth Region (Baltimore,
Maryland), issued a complaint dated January 17,1952, alleging that Moss Planing
Mill Co., herein called the Respondent, had engaged in and was 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 National Labor Relations Act, as
amended (61 Stat. 136), herein referred to as the Act. Copies of the complaint,
the charge, and a notice of hearing were duly served upon Respondent and the
Union.
With respect to the unfair labor practices, the complaint alleged in substance
that Respondent since about October 23, 1950, and continuously down to and
including the date of the issuance of the complaint, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act by urging, persuading, and coercing its employees by threats of reprisal,
or force, or promise of benefit, to refrain from assisting or becoming or remain-
ing members of the Union or engaging in or continuing to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
MOSS PLANING MILL CO. 423
tection ; by questioning its employees concerning their membership in, sympathies,
and activities on behalf of the Union ; by threatening its employees with loss of
employment should they assist, become, or remain members of the Union or engage
in or continue to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection; and, by grievously injuring and
incapacitating Lee A. Wynne because he joined or assisted the Union or engaged in
concerted activities with other employees of Respondent for the purposes of
collective bargaining or other mutual aid or protection.
The complaint also alleged that from on or about October 1950, until on or
about May 21, 1951, Respondent interrupted the employment of Ersual Fulcher
and denied him regular daily employment because he joined or assisted the
Union or engaged in concerted activities. The complaint further alleges that in
violation of Section 8 (a) (1) and (3) of the Act, on or about January 12, 1951,
Respondent discharged Lee A. Wynne and on or about May 21, 1951, discharged
Ersual Fulcher and has at all times since failed or refused to reinstate them
because they joined or assisted the Union or engaged in concerted activities with
other employees of Respondent for the purposes of collective bargaining or other
mutual aid or protection.
The Respondent in its answer denies the commission of any of the unfair labor
practices alleged in the complaint.
Pursuant to notice, a hearing was held at Washington, North Carolina, on
February 11, 12, 13, 14, and 15, 1952, before me, Stephen S. Bean, the duly desig-
nated Trial Examiner. The General Counsel and Respondent were represented
by counsel and the Union was represented by its assistant State director for the
State of North Carolina. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence pertaining to the issues was accorded
all parties. At the close of the General Counsel's case-in-chief, Respondent moved
for dismissal of the complaint. This motion was denied, leave having been
granted Respondent to renew its motion at the conclusion of the hearing. At this
time the motion to dismiss was renewed and was taken under advisement. The
motion is disposed of in accordance with findings contained in this report. When
all counsel had rested, I granted an unopposed motion by the General Counsel
that the pleadings be amended to conform to the evidence with respect to the
spelling of names, dates, and places. General Counsel waived oral argument.
Respondent's counsel argued the case. Briefs have been received from the
General Counsel and Respondent and have been duly considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT 1
I. THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times material herein a corporation duly
organized under and existing by virtue of the laws of the State of North
Carolina, with its principal place of business located at Washington, North
Carolina, and is now and has been continuously engaged in the manufacturing,
processing, and sale of rough and dressed lumber in the State of North Caro-
lina. Respondent in the course of its business operations causes and has con-
1 In making the findings herein , I have considered and weighed the entire evidence of
the 15 witnesses. It would needlessly burden this report to discuss all the testimony on
disputed points. Such part of the testimony and the 22 exhibits as may be in conflict
with these findings and is not specifically discussed hereinafter is either not credited or is
considered insubstantial or immaterial.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinuously caused a substantial amount of raw materials, goods, and supplies
used by it in the manufacturing of rough and dressed lumber to be purchased,
transported, and delivered in interstate commerce from and through the States
of the United States other than the State of North Carolina to its North
Carolina plants. Respondent causes and has continuously caused a substantial
amount of its finished products to be sold, transported, and delivered in inter-
state commerce through and to the States of the United States other than the
State of North Carolina from its North Carolina plants. Its annual volume
of raw materials purchased exceeds $50,000. Its finished products approxi-
mate $75,000 in value annually, approximately 20 percent of which is sold and
delivered outside the State of North Carolina.
The Respondent admits and I find that it has at all material times been
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Woodworkers of America , CIO, is a labor organization within
the meaning of Section 2 (5) of the Act and admits to membership employees
of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background events
The events recounted under this subheading occurred more than 6 months
prior to the service of the charge and do not constitute a basis for findings of
any unfair labor practices. They are recited for the purpose of throwing light
upon the genesis and significance of later incidents.
In April 1950 Eli Jackson, assistant director for North Carolina of the
organizing committee for the Union, was assigned to the duty of initiating and
carrying on an organizational campaign among the employees of lumber mills
in Washington, North Carolina, and vicinity. After several talks with the
employee sometimes called Ersual or Roy Ersual Fulcher, who had opposed
the unionization of Respondent's and other neighboring plants when an attempt
had been made to organize their employees 2 years earlier, Jackson finally
succeeded in June 1950 in getting Fulcher to agree to serve as chairman of a
general committee which ultimately succeeded in organizing several plants in-
cluding the Respondent's, where the Union prevailed at an election held on
September 15, 1950. Among others on this committee was another of Re-
spondent's employees, Lee A. Wynne. The 8 (a) (3) allegations regarding
Fulcher and Wynne will be considered in a subsequent subheading of this
report.
Between April and September 15, 1950, public organizational meetings of the
Union were held in and around Washington, North Carolina, at churches, a union
hall, and private homes including Fulcher's. These meetings were publicized
by announcements made in churches, by radio broadcasts, and other means.
Bruce E. Davis, assistant State director of the union organizing committee,
after writing Respondent on August 10, 1950, requesting recognition for its
maintenance and production employees, petitioned for an election on August 21,
1950. At a conference on September 7, 1950, Respondent signed a stipulation
for a consent election. A collective-bargaining agreement was entered into on
January 1, 1951.
Fulcher, an ordained minister, entered Respondent's employ in 1942 or 1943
as a laborer; in 1947 or 1948 he was promoted to blocksetter. In May, June,
and July, 1948, at the behest of Respondent's President Lane and Thompson D.
MOSS PLANING MILL CO . 425
Litchfield , Respondent 's secretary-treasurer, who offered him money and prom-
ised him regular work at the time , Fulcher talked with fellow employees in
opposition to the Union. Before the election of September 15, 1950, Litchfield,
at whose home Fulcher occasionally worked as a gardener , told Fulcher that
friendship would be broken if the Union came in , that he wanted him to vote
against the Union and get the other employees to vote against the Union and for
the Company. The day before the election, Litchfield asked Fulcher who he
thought was going to win , which way he was going to vote, and requested him
to talk against the Union to his fellow employees.
Wynne entered Respondent 's employ January 10, 1950, as a watchman and
became a fireman on June 24, 1950. On September 14, 1950, Litchfield asked
him to do all he could for him at the election which was to be held on the follow-
ing day, to talk to fellow employees and get them to vote against the Union ; he
also told Wynne he did not want a Union and that although Wynne had never
asked for any money , he would let him have some if he would vote against
the Union and talk to "the boys."
On the afternoon of September 15, 1950, about one-half hour before the election
took place, Litchfield assembled all the employees of the plant and told them
they had always gotten along beautifully with Respondent, that they had been
loaned money, had been helped out of trouble, given Christmas bonuses and
clothes, but that if the Union came in they would receive no more bonuses,
clothes, loans, or help in getting out of trouble. Litchfield displayed a sample
ballot and made a cross in ink in the box provided for voting for the Company
and told the assembled employees he wanted them to mark that box for the
Company. He also told them that a union -representation election had just been
held at Cox's nearby lumber mill, that the Company had won, and that he wanted
his employees to be just as loyal to Respondent as Cox's employees had been to
their employer ; that if they were, they could get more favors but if the Union
won the election, all favors they had been receiving before would be done away
with . Litchfield further stated that the wanted the home addresses of all his
employees, so that he could get them out of trouble , but that if the plant became
unionized, he would not do anything for them. He then took each employee's
home address . On the morning of September 18, 1950 , Litchfield again called
together all the employees , stated that they had voted the Union in, reminded
them he had told them the preceding Friday that he was not going to do them
any more favors in that eventuality and asserted that henceforth they could
call upon the Union to get them out of trouble. He also said that he was no
longer going to make pay advances , give clothes , and pay bonuses ; that the
employees could go to the Union to borrow money and that since the plant had
become unionized , he was going to be tough . He further said that thenceforth
an armed watchman would patrol the plant after 5 p. in. and that he did not
want anyone to remain on the premises after that hour ; that the Water's mill
'ad burned down after it had become unionized and that his reason for putting
-on an armed guard was that his employees had voted the Union in.
On October 11, 1950, Fulcher was called into Litchfield's office after the Union's
State organizing committee 's director and one of its international representa-
tives had interceded in his behalf in connection with the payment of a medical
bill for treatment for an industrial injury he had sustained the preceding spring.
Litchfield told him that the damn union was going to get into trouble, that its
officials who wore fine clothes and drove good cars were not doing anything but
taking money he needed for his family. Thereupon Litchfield opened a drawer
and turned over but did not remove a gun which was in the drawer. He then
grasped Fulcher's shoulders with both hands, turned him part way around, and
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him if he could keep him from getting a job and working anywhere, he would'
do so. At noon Fulcher was informed that the plant had nothing for him to do
and was again sent to Litchfield's office where the latter told him that the first
time he was late or should not work as Litchfield wanted him to, he would be
fired. On the following day, he was called into the office a third time. Litchfield
stated that the employees had voted the Union in, that they had tried to be
tight, that he was going to be tight, cut off the logging labor and cut off some
laborers around the mill because the employees voted the Union in. On October
24, 1950, at a period he was not being given work full time,' Fulcher, as shop
steward and member of the negotiating committee, asked permission to attend
a negotiation meeting the following day. Litchfield denied this request on the
ground that to let Fulcher go would result in a shutdown of the plant, although
Respondent had another employee who always set blocks when Fulcher was not
there. Another negotiation session was held on October 31, 1950. At this meet-
ing Litchfield said that the sawyer was grumbling, wanted to have a hand set
put on and set his own blocks, and do away with Fulcher. Litchfield pointed at
Fulcher and employee Julian Mackey, secretary of the Union and a member of
the committee who was also present, and said that he was going to make a
change, put in a trimming machine and do away with 20 or 30 people around
the mill and that they would probably be included. Out of a normal full 40-hour
workweek, Fulcher worked 28 hours during the week ending October 6, 36 hours
during the week ending October 13, 20 hours during the week ending October 20,
40 hours during the week ending October 27, and 20 hours during the week ending
November 2. In November, Fulcher averaged 30% hours a week while the num-
ber of hours worked per week by all other employees exclusive of those who
worked less than 50 hours during the month, but including at least 12 persons
among the approximately 70 employees whose time averaged from 42 to 50 hours
per week, was 38 hours.
B. Interference , restraint , and coercion
The events and circumstances recounted under this subheading occurred within
6 months of the service of the charge.
Wynne is a thrifty individual possessing an unblemished record of good con-
duct and presenting the appearance of a person of mild behavior . He had suf'
fered the loss of his right leg many years ago. He was an active organizer and
union member. As a watchman , he had worked 70 hours a week and as a fire-
man, he worked 42 hours a week . He was paid at the straight rate of 72 cents an
hour. In his own behalf and in behalf of another employee , David Speare, who
had suffered the loss of an arm while in Respondent 's employ, Wynne took up
with Fulcher and the Union's State Director Davis at a union meeting on Octo-
ber 11, 1950 , the matter of their apparent underpayment under the Federal
wage and hour law. As a result, Davis communicated with the North Carolina
division of the United States Department of Labor which instituted an investiga-
tion. It was found that Wynne had been underpaid approximately $700 and
that Speare had also been underpaid . The division communicated its con-
clusions to Wynne, Speare , and Respondent about January 10, 1951. On January
12, Litchfield said in Wynne's presence , "This damned union caused us to pay all
this back pay." Later that day Wynne and Speare were called into Litchfield's
office and offered a compromise settlement of $100 each. Speare accepted $125
but Wynne asked time to think it over. Litchfield told him to come in the fol-
lowing day at 8 a. in. to give his answer and to hire another man to take his
place in the boilerroom . Wynne was unable to procure a substitute and was at
2 Fulcher worked but 1 full week of 40 hours this month.
MOSS PLANING MILL CO. 427
work on the following morning in the boilerroom when Litchfield came in about
8: 10. He had a revolver in his pocket. He swore at Wynne, stating he had told
him to be in his office at 8 o'clock. Wynne apologized, saying he understood he
was to be there at 9 o'clock. Upon Litchfield asking Wynne what he had decided
to settle for, the latter said he wanted whatever the Goverment man told Litch-
field to pay him. Litchfield said that he would not pay that amount and would
carry the matter to court. He then walked to or toward the south window of
the boilerroom and asked Wynne if he had procured anyone to substitute for
him. When Wynne replied that he had not, Litchfield walked to the window,
through which slats may be dragged into the fireroom, and began to look around.
Wynne is now 47 years old, crippled, 5 feet 41/2 inches tall, and of medium
stature. Litchfield is 34 years old, a former amateur athlete, 5 feet 8 inches tall,
and weighs 165 pounds.
As Litchfield walked to the window, Wynne turned to adjust a valve and was
bent over (back to Litchfield) with his head near the wall when Litchfield kicked
him in the groin and called him a "black son of a bitch." Wynne went down on
the floor and Litchfield stood over him with a gun in his right hand and a paper
in his left hand and told him to get up and sign the paper. Wynne drew his hand
over his face and rolled out of the boilerroom down the steps. He then crawled
and walked in a bent-over position to the street about 85 yards from the building.
Litchfield followed him part of the way telling him to come back into the boiler-
room, and said that he was going to claim that Wynne "took a shovel at him."
Wynne kept going toward the office of a neighboring plant and Litchfield went
back toward the boilerroom. The police were notified by the owner of the
neighboring plant. Before they arrived, Litchfield came up to Wynne who was
then on his knees holding onto a truck and told Wynne that if he were badly hurt
he would carry him to the hospital. Wynne refused, saying that he did not want
anything else to do with him. Litchfield then said to Wynne that he would have
to state that he "held a shovel at" Litchfield. Wynne replied that Litchfield
should not tell any such tale and that there was nobody in the county who knew
Wynne who would believe any such thing. The owner of the neighboring plant
told Wynne that he had called the police and Litchfield departed. The police
transported Wynne to a hospital. There it was found that he was unable to walk
and was in excruciating pain. He was given morphine and admitted. Examina-
tion disclosed extreme tenderness over the right and left lower quadrant, espe-
cially over the internal ring, and that the scrotum was swollen approximately
three times its normal size. He was discharged as an in-patient on January 18,
1951, by which date all swelling in the scrotum had disappeared, but slight edema
of the vas deferens on the right side remained. Wynne was treated 18 times as
an out-patient until his final discharge on May 18, 1951. His attending physician
testified that in his opinion Wynne was able to return to his former work as a
fireman on May 18, 1951. Wynne attempted to work for 2 or 3 weeks since May
18, as an assistant to an electrician, and sometimes he would have pain in his
groin upon lifting. He believes that as of the time of the hearing he could
perform such work at Respondent's plant as figuring lumber, in which he is
experienced, that he is able to do light work but not able to pick up things or to do
watchman's work that requires too much walking. I find that although Wynne
has not entirely recovered from his injury, he is not presently incapacitated from
attempting to perform his former work as a fireman.
While Wynne was still an in-patient in the hospital, Litchfield sent Fulcher to
tell him he was discharged from further employment. Although Wynne requested
the hospital and medical bills they were never presented to him. By check dated
January IT, 1951, Wynne was paid $687.64, the amount of "back wages" less $31.55
taxes.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the period November 28, 1950, to April 30, 1951, about 3 weeks before the
last day he was in Respondent's employ, Fulcher worked 3.9 percent less time than
the average of all regular employees in December 1950, 10.9 percent less time than
the average in January 1951, 29.4 percent less time than the average in February,
4.9 percent less time than the average in March, and 27.5 percent less than the
average in April. During the first 18 days of May 1951, Fulcher worked 70.8
percent less time than the average of all Respondent's regular employees.
On January 1, 1951, Fulcher was told by Litchfield at the time the contract was
signed that the contract provided that the shop steward should go around and tell
the other employees to work more, not to lay down on the job, and compel them to
do a lot more work than they had been doing. Later in January Litchfield com-
plained that cement bags which were mixed in with brick and were being unloaded
from a boxcar were being broken in the back of the warehouse. Fulcher said that
he did not know anything about it but he knew that no one broke them intention-
ally. Thereupon Litchfield drew back his fist as if to hit Fulcher, said, "Can't you
work here without talking to me?" and ordered him to knock off work for the rest
of the day. Fulcher worked a half day January 22 and not at all January 23 and
26. Between April 26 and May 16, Fulcher, who reported to work practically
every day, was given very little work although the saw was operating some of the
time and when it was not, other employees, including the sawyer and the other
blocksetter, were engaged in planing, trimming, and other work. Consequently he
approached Litchfield, reminding him he had said he did not know when there
was going to be work for him and asked him to endorse an unemployment compen-
sation application form. Litchfield replied he thought the Union was paying
Fulcher, that he had seen him on a picket line at a neighboring plant, that he
could not sign the form unless he had fired him, that Fulcher was to forget about
it, but that he would endorse the application, thus enabling Fulcher to get unem-
ployment compensation, provided Fulcher would sign an agreement not to seek
work at Moss Planing Mill anymore.
The following morning, at about 7: 10, Litchfield came down to where Fulcher
was standing before work started, and engaged in conversation concerning the
method and division of responsibility between sawyer and blocksetter of taking
up dogs or ratchets. Litchfield then changed the subject by saying that he had
purchased Roper Lumber Company and was going to send his employees to work
there, that he could give Fulcher work but was not going to do it for reasons
known to Fulcher, and that the reason why he would not give him work was that
when Fulcher's wife was sick he loaned him $100 but now was not going to lend
him a cent.
Conclusions Respecting Interference, Restraint, and Coercion
For reasons set forth in section III, C, 2, hereunder, I find that Litchfield's
assault upon Wynne constituted interference, restraint, and coercion, upon the
part of Respondent, of its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and that thereby Respondent engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
I am not without some doubts as to whether the allegations concerning Re-
spondent's treatment of Fulcher between November 28, 1950, and the date he
was discharged constitute independent violations of Section 8 (a) (1) of the
Act, for Respondent's earlier openly expressed antipathy toward the Union and
its desire to avoid the unionization of its plant and its more recent disapproba-
tive expressions regarding Fuicher's leadership in the affairs of the Union, make
suspect any treatment of him seemingly at variance with that accorded other
employees, all of whom were far less prominent (many of whom were, so far
MOSS PLANING MILL CO . 429
as is disclosed by the record , completely impassive ) in union activities than
was Fulcher . The comparative records for the months of December 1950 and
January and March 1951 , showing the amount of time Fulcher and other em-
ployees worked, fail to support the allegation that Fulcher was discriminatorily
denied work during those months. The figures for February , April , and May,
1951 are more impressive . It is apparent that between November 1950 and
April or May 1951 , Fulcher took several days off on his own account. The
evidence does not clearly disclose whether he failed to report for work which
would have been given him had he appeared more or less often in February,
April , and May, than in December , January, and March . Neither is there suf-
ficient payroll evidence in the record upon which to base a finding as to whether
or not Fulcher was given less work in February, April , and May than was
given to the sawyer and Jones , another blocksetter who was working for
Respondent during those months. It is undisputed that work was not avail-
able for Fulcher as a blocksetter during inclement weather nor when there
were no logs to saw, as was frequently the case. The force of the figures
set forth in the comparative records of time worked by Fulcher and the time
worked by all full-time employees is considerably mitigated by the fact that
the hours of work of such employees as cabinetmakers regularly working over
50 hours a week , drivers and clerks and a foreman regularly working over 45
hours a week , and firemen working 42 hours a week , are weighted against the
hours of work of Fulcher whose normal maximum possible weekly hours of
employment were 40, and whose hours of work , in turn , were not compared
with those of an undisclosed number of other employees who were given less
work than he. Considering all the facts respecting this aspect of the case I
find, although the question is extremely close, that the General Counsel has
not sustained burden of proving that Fulcher was coercively or discriminatorily
denied regular daily employment and shall therefore recommend dismissal of
the complaint as to this allegation . As I am convinced that the record does
not contain sufficient substantial evidence to warrant a finding that Respondent
coercively or discriminatorily imposed onerous workloads on either Fulcher or
Wynne because of their union activities , I shall also recommend dismissal of
that allegation.
I am further of the opinion that the evidence does not warrant a finding that
during the period commencing 6 months prior to the filing of the charge and the
date of the filing of the complaint , Respondent in violation of Section 8 (a) (1)
independently interfered with, restrained, and coerced its employees (1) by
threats of reprisal , or force, or promise of benefit, to refrain from assisting,
becoming, or remaining members of the Union , or engaging in or continuing to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection ; and (2 ) by questioning its employees concerning mem-
bership in , and activities on behalf of, the Union , and accordingly I shall also
recommend dismissal of these allegations.
I am persuaded , however, that in view of all the surrounding circumstances,
the General Counsel by proving that between April 26 and May 16 , 1951, Litch-
field ( 1) proposed he would endorse Fulcher's unemployment compensation
application if the latter would agree not to seek further work with Respondent,
and (2 ) told Fulcher that he was going to send other employees to work at another
company he had purchased and that although he could give Fulcher work there,
he was not going to do so for reasons known to Fulcher, has carried the bur-
den of establishing the portion of the complaint alleging that in violation of
Section 8 ( a) (1) of the Act Respondent threatened its employees with loss
of employment should they engage in and continue to engage in concerted activ-
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ities for the purposes of collective bargaining or other mutual aid or protection,
and I so find.
C. Discrimination
1. The discharge of Roy E. Fulcher
Respondent contends that Fulcher , who was a valuable employee before the
advent of the Union , became insubordinate and interfered with the prerogatives
of management after the election to such an extent that it was warranted, if
not required , in the interests of efficient management to discharge him. Three
specific examples of alleged insubordination are cited by Respondent as evi-
dence of the fact that Fulcher was discharged for cause ; the first, that he failed
to remain on the carriage of the saw throughout the time it was moving to and
from the saw ; the second , that on one occasion he left the saw on which he
was setting blocks, went over to an employee and told him to get assistance in
rolling a log; and the third , that he disobeyed Litchfield 's order on May 17,
1951, to assist in removing slabs from the vicinity of the saw.
Clete Massagee , Respondent 's sawyer, who at the time when it appeared to
him that Litchfield was going to allow another employee to take over his job,
had told Fulcher that he approved of the Union and would join it if there were
enough whites who would join, but who despite his apprehensions continued
to be the sawyer as of the time of the hearing , testified that Fulcher was a very
good man setting ratchets when he, Massagee , first came to work in the summer
of 1950 and that Fulcher was alert to help out in various ways around the mill,
but that after 2 weeks "he kind of got sluggish" and would not stay on the car-
riage all the time ; that it was desirable for a blocksetter to stay on the car-
riage where he could see the figures better than from the ground ; that he knew
of no other particular reason for staying on ; that after 2 weeks Fulcher would
not do other jobs around the mill the same as before but would sweep, clean,
and grease the carriage and ratchets when the saw stopped ; that Fulcher told
him he had to put on another man to help a man roll logs ; and that the last
day he worked , Fulcher walked off when it was necessary to remove slabs away
from the saw.
On credited evidence of Fulcher , I find that he did not ride on the saw carriage
any less after Massagee became the sawyer or after the commencement of union
activities than before , and that the blocks could be set when the log was released
from the saw as quickly from the ground where the dial on the carriage could
be seen, as from a position of the carriage itself. There was no substantial
evidence to controvert Fulcher's testimony that the occasional setting of ratchets
from the ground did not impede the speed of production.
It does not seem to be the position of Respondent that the fact ( if it be a fact
and it was denied by Fulcher ) that he spent more time sweeping , cleaning, and
greasing and less time doing other work after he became active in the Union and
its shop steward than before , was a contributing cause to his ultimate discharge.
As appears above, Litchfield told Fulcher, who, among his other positions, was
chairman of or a member of the grievance committee , that it was his function
to talk to the employees and inspire them to greater effort. It is true and indeed
quite natural , from Litchfield 's point of view, that emphasis should have been
laid by him on Fulcher 's duty to his employer rather than upon his equally bind-
ing obligation to represent his fellow employees . Nevertheless , it was Fulcher's
responsibility to submit grievances to Respondent and if he, in fulfillment of
this requirement , should on one isolated occasion intervene in a situation where
it appeared that an employee was assigned to the task of rolling a log too heavy
MOSS PLANING MILL CO. 431
to be handled alone, I consider that such conduct does not constitute "cause"
for discharge under the Act. Nor do I believe it was the real reason for his
discharge . Neither do I regard any of Fulcher 's activities performed by him in
behalf of his fellows as their shop steward and grievance representative ( and the
instances of his engaging in such activity are relatively rare ) as attempts to
"usurp the prerogatives of management " of which Respondent complains. At no
point did Fulcher 's conscientiousness in the performance of his union duties reach
the point of meddlesomeness . Respondent apparently argues that Fulcher's use
of the expression "take it easy" warrants the conclusion that he endeavored to
slow down production and accordingly establishes a reason justifying his dis-
charge. The evidence , however, discloses that this expression was current among
Respondent 's foremen and employees ( as indeed it is throughout the country
among persons in all walks of life ), that it was no more than a form of friendly
greeting or "byword ," as testified to by several employees , and that it was neither
understood as suggesting , nor had the effect of inducing , relaxation of endeavor.
I reject, as unworthy of merit, Respondent 's contention in this respect.
Respondent takes the position that an occurrence which took place on May 17
was the culminating cause which , coupled with its earlier dissatisfaction with
Fulcher's conduct since the election , led to his discharge.
The facts concerning this affair are as follows :
Fulcher went to work setting blocks at the regular time, 8 a. in., after Litch-
field had made the previously related statements to him to the effect that he
could give him work at the Roper Lumber Company but was not going to do so
for reasons known to Fulcher . He continued working until about 10: 30 a. in.,
when the slab slicer became so blocked with slabs that it was necessary to stop
the saw . He then went through the bunkhouse to a place about 60 feet from the
saw behind the house where he relieved himself. He then got a drink of water
and as he was doing so Litchfield appeared at the corner of the building on the
side of the fireroom and angrily hollered at him to come over and help remove
the slabs . Fulcher said he was going back the way he had come. At this time
Fulcher , who had seen Litchfield hit an employee named Bruce Martin, knew
Litchfield had kicked Wynne and also another employee and had himself under-
gone the experiences of Litchfield having drawn back his fist as though to hit him
and having grabbed him by the shoulders and having seen him handle a gun,
was afraid to pass close by where Litchfield was standing . Consequently, he
went back to the saw through the bunkhouse the way he had come . When he
nearly arrived at the saw , Litchfield came up almost running , pulled up his
sleeve, looked at his wrist watch , said it was 10: 30 a. in., and ordered Fulcher
to knock off work.
Respondent at the hearing and in its letter of May 31, 1951 , to the Regional
Director of the Board , contended that this incident precipitated Fulcher's
discharge and constituted on his part "an open defiance of managerial authority
and the circumstances were such that he either had to be discharged or the
management had to admit that it was powerless to exercise authority over its
employees."
I do not agree with this contention . On the evidence before me, I find that
Fulcher neither disobeyed an order nor defied managerial authority on May 17,
1951 . That he had a right to relieve himself and get a drink of water without
asking permission to do so cannot be disputed . That, for justifiable reasons of
his own, he should not return the distance of some 60 feet from where he was
when Litchfield hollered at him to get back to the saw , by any other route
than that he had taken to arrive at the point , plainly was no act of disobedience.
There is no showing that any delay was involved in his returning through the
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bunkhouse rather than along its side. It is indeed apparent that Fulcher arrived
at a point in the immediate vicinity of the carriage at least as soon as did
Litchfield who was standing at the corner of the building when he hollered at-
him.
It is of course fundamental that an employer may discharge an employee for
any reason, good or bad or for no reason at all, without violating the Act, so
long as the reason is not premised on antiunion motivations. But I am
satisfied that the reasons advanced by Respondent for discharging Fulcher do not
stand up under scrutiny and that the real reason was its opposition to his known
union activities. In arriving at this conclusion, I have in mind, by way of back-
ground and context, such considerations as Fulcher's long and satisfactory years
of employment with the Employer ; his outstanding leadership and prominence in
the organization and activities of the Union ; the fact of Respondent urging him
to assist in the defeat of the Union and his failure to do so ; its warnings of
economic reprisals if the Union succeeded in its organizational campaign ; its
promise of continuance of its personal-loan policy, gifts of clothing, payment of
bonuses, and help in getting out of trouble, if employees gave up their interest
in the Union and its threats of discontinuing these benefits and favors if they
did not; its requests of employees to vote against the Union; its questioning
of employees with respect to their union sympathies and how they were going
to vote ; and its statements that the Union was going to get Fulcher into trouble
and that if it could prevent him from getting a job anywhere, it would. When
the entire sequence of events is considered in connection with the insubstantial
nature of the proffered reasons for the discharge of Fulcher, upon whose leader-
ship and influence in the employee community it had hoped to depend in 1950 as
it did depend in 1948 to defeat the organizational effort, it is clear that those
reasons were used as pretexts to obscure the fact that his discharge was effected
because of Respondent's disappointment concerning, and in retaliation for, his
engagement in union activities including his carrying out his duties as job
steward of the Union' Equally clear is the fact that Fulcher did not become
intolerable to Respondent until he began to play his leading part in the affairs of
the Union. I thus find that on or about May 21, 1951, Respondent discharged
Ersual Fulcher because of his activity on behalf of the Union, and that Respond-
ent thereby violated Section 8 (a) (1) and (3) of the Act.
2. The discharge of Lee A. Wynne
The facts relating to the assault upon Wynne and his subsequent discharge in,
the first part of section III, B, above, need not be repeated.
Respondent contends that assuming, without admitting, Litchfield made an
unprovoked assault on Wynne, its motivation was not Wynne's union activities,
but on the contrary was a dispute over money alleged to have been due as a
result of a failure of the Company to pay a proper wage under the Federal
wage and hour law. It argues, therefore, that the allegations that Respondent
injured and incapacitated Wynne and discharged him because he joined or
assisted the Union or engaged in concerted activities with other employees of
the Respondent, for the purposes of collective bargaining or other mutual aid
and protection, are without support in evidence and must be dismissed.
I am unable to agree with Respondent. We are not dealing here, as Respondent
contends, with an employer-employee argument and assault arising from a dis-
pute unconnected with the employment relationship nor are we considering in-
cidents unassociated with the terms and conditions of such relationship. Rather
8 Cf. Leadbetter Logging and Lumber Co., 89 NLRB 576.
MOSS PLANING MILL CO. 433
are we concerned in this phase of this case with occurrences that directly relate
to a concerted activity the purpose of which was to furnish mutual aid and
protection to Respondent's employees. Manifestly, the activity of the Union's
State officials and its plant steward in behalf of Speare and Wynne and their
activities in their own behalf, in seeking to procure wages to which they were
proven to have been entitled, was a protected concerted activity in regard to
employee's tenure of employment or terms and conditions of employment. Any
doubt as to whether Respondent recognized this activity as a concerted union
movement is dispelled by Litchfield's undenied statement that the Union was
responsible for Respondent being required to make the back payments. The
quarrel over results for which the Union was responsible was a dispute in re-
gard to the terms and conditions of employment. The assault was the result
of the Union's achievement in Wynne's belief. Wynne was discharged because
of the dispute and accompanying assault arising out of his having engaged in
concerted activities with the Union and other employees of Respondent for the
purposes of mutual aid or protection. The Act is violated where a discharge is
motivated by such activity. I accordingly find that on January 13, 1951, in
violation of Section 8 (a) (1) and (3) of the Act, Lee A. Wynne was discharged
by Respondent because he assisted the Union and engaged in concerted activities
with other employees of Respondent for the purposes of collective bargaining
or other mutual aid or protection.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent set forth in section I, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) and (3) of the Act, I will recom-
mend that it cease and desist therefrom and take certain affirmative action in
order to effectuate the policies of the Act.
I have found that Respondent discriminatorily discharged (Ersual) Roy E.
Fulcher and Lee A. Wynne on May 21, 1951, and January 13, 1951, respectively,
and I find it has since failed and refused to reinstate them to their former or
substantially equivalent positions.
I will recommend that Respondent offer Fulcher and Wynne immediate and
full reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges. See The Chase
National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB
827. It will further be recommended that Respondent make them whole for any
loss of pay suffered by reason of the discrimination against them. Said loss
of pay, based upon earnings which they would normally have earned from the
date of discrimination to the date of Respondent's offer of reinstatement, less
net earnings, shall be computed on a quarterly calendar basis in accordance
with the formula adopted by the Board in F. W. Woolworth Co., 90 NLRB 289.
See Crossett Lumber Co., 8 NLRB 440.
I have found that although Wynne has not entirely recovered from the effects
of his injury of January 13, 1951, he is not presently incapacitated from reenter-
ing upon his former or substantially equivalent employment. In view of the
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possibility, however, that Wynne may sustain a disabling recurrence of his injury,
I shall recommend that the Board retain jurisdiction in this case by expressly
reserving the right to modify, as to Wynne, any back-pay and reinstatement pro-
visions that may become necessary by reason of change in his physical condition
and to make such supplements thereto as may hereafter become necessary in
order to define or clarify their application to circumstances not now appearing.
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. International Woodworkers of America, CIO, is a labor organization admit-
ting to membership employees of the Respondent.
2. By discriminating in regard to the hire and tenure of Roy E. Fulcher and
Lee A. Wynne, thereby discouraging membership in International Woodworkers
of America, CIO, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act.
3. By assaulting and incapacitating Lee A. Wynne, and by threatening its
employees with loss of employment should they engage in and continue to engage
in concerted collective-bargaining and union activities, Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By the above unfair labor practices, Respondent has interfered with,
restrained, and coerced its employees in the rights guaranteed in Section 7 of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent did not independently interfere with, restrain, and coerce its
employees by questioning its employees concerning their membership in and
activities on behalf of the Union.
7. Respondent did not increase or make more onerous the workload of Roy E.
Fulcher and Lee A. Wynne and did not deny Roy E. Fulcher regular employment
because either of them joined or assisted the Union or engaged in concerted
activities for purposes of collective bargaining or other mutual aid and protection.
[Recommendations omitted from publication in this volume.]
AMERICAN BAKERIES COMPANY (MERITA BAKERY) and EMPLOYEES OF
AMERICAN BAKERIES COMPANY (MERITA BAKERY), PETITIONER and
BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF
AMERICA, LOCAL No. 380, AFL. Case, No. 5-RD-75. March 10, 1953
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Louis S. Wallerstein, 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
Act.
103 NLRB No. 53.