Ozark Hardwood Co.

National Labor Relations Board - Board Decisions

Nov 3, 1950

91 N.L.R.B. 1443 (N.L.R.B. 1950)

In the Matter Of OZARK HARDWOOD COMPANY and GENERAL DRIVERS
AND HELPERS , LOCAL 373, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA,
A. F. L.
Case No. 3.2-CA-72.Decided November 3, 1950
DECISION AND ORDER
On May 16,1950, Trial Examiner Allen MacCullen issued his Inter-
mediate Report in the above-entitled proceeding,' finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint, and recommended dismissal of those
allegations. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.2
'Although the hearing in the case ended on February 2, 1950, the Trial Examiner, at
the Respondent's request, allowed the Respondent until March 1, 1950, to secure and make
part of the record a deposition by Plant Superintendent Wedel, who was unable to finish
his testimony during the hearing on account of illness. On March 1, 1950, having been
notified by the Respondent that Wedel was in the hospital and unable to make a deposition,
the Trial Examiner closed the hearing.
2In its brief the Respondent moves to dismiss the complaint because the record failed
to show (1) that the complainants authorized the execution and filing of the original
charge and the amendments thereto, and (2) that the Union complied with the filing
requirements of Section 9 (f), (g), and (h) of the amended Act.
For the reasons set forth in Duro Test Corporation, 81 NLRB 976, we find no merit
in the first ground. As to the second ground, we have repeatedly held, as we do now, that
compliance is a matter for administrative determination and is not litigable by the
parties. Porto Rico Container Corporation, 89 NLRB 1570. Moreover, we are adminis-
tratively advised that the Union was in full compliance with the filing requirements of
the amended Act at all times material to this case. Accordingly, we shall deny the
motion to dismiss the complaint.
Nor do we agree with the Respondent that it was neither adequately apprised of the
unfair labor practice charges against it nor allowed adequate and sufficient time within
which to file its answer and prepare for trial. With respect to the former, the Respondent
was apprised in substantial detail of the unfair labor practices charged as early as
September 21, 1949, when service of the second amended charge was made upon it. This
was made even more specific on January 12, 1950, when the complaint was served. " As to
the latter, the notice of hearing, served with the complaint, gave the Respondent 10 days
within which to file an answer. Thereafter, pursuant to a request for an extension by
the Respondent, the Regional Director extended the time for filing the answer to January
24, the date fixed for the opening of the hearing. And on January 24, after the complaint
91 NLRB No. 224.
1443
917572-51-vol. 91-92
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this proceeding to a three-member panel [Members Houston, Mur-
dock, and Styles].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The.
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings,3 conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions, modifications, and
additions noted below.
1. In agreement with the Trial Examiner, we find that the Respond-
ent interfered with, restrained, and coerced its employees in violation
of Section 8 (a) (1) of the Act. As fully set forth in the Intermedi-
ate Report, the proscribed conduct was engaged in by Foremen 0. D.
Brown and Legasse and General Manager Mills, and consisted in the
main of interrogation, threats of discharge for union activity, threats
to shut down the plant and discharge employees if the plant were
unionized, and fostering the impression, and, in fact, admitting, that
the Respondent had engaged in surveillance.'
2. We also agree with the Trial Examiner that the Respondent dis-
criminatorily discharged 27 employees on May 16, 1949, in violation
of Section 8 (a) (3) and (1) of the Act, but we do not adopt his find-
ing that such discrimination was not also practiced against Ralph
Kipfer on that date.
was amended in minor respects at the hearing , the Trial Examiner gave the Respondent an
additional day in which to file its answer. Significantly , the Respondent cross-examined
the General Counsel's witnesses , offered affirmative testimony in its own behalf, and fully
litigated all matters in issue.
, The Intermediate Report contains certain misstatements of fact and Inadvertences,
none of which affects the Trial Examiner 's ultimate conclusions or our concurrence therein.
Accordingly, we note the following corrections : (1) While Carter testified that he engaged
in union activity with the assistance of Duke, he did not testify that he "started a very
active campaign to organize the employees " with the assistance of such other employees
as Acord and warren, as the Trial Examiner found; (2) as the Trial Examiner found,
Foreman 0 . D. Brown acknowledged that he had been advised of the union activity of
several of the complainants . However, contrary to the Trial Examiner, he did not at first
deny "that the Union was ever mentioned to him" ; and (3) on the morning of May 16
Foreman grown told only one employee, and not "some employees," as the Trial Examiner
found , that the Respondent had a checkmark against the names of all union members.
° The Respondent excepts to the various unfair labor practice findings of the Trial Ex-
aminer on the ground that he made erroneous credibility findings. We do not agree.
Furthermore, the importance of observation of the demeanor of witnesses to any finding
of their credibility is such that we will not overrule a Trial Examiner 's resolutions as to
credibility except where the clear preponderance of all the relevant evidence convinces us
that the Trial Examiner ' s resolution was incorrect . Standard Dry Wall Products, Inc.,
91 NLRB 544. No such conclusion is warranted in this case.
The Respondent also attacks the Trial Examiner ' s findings on the ground of bias and
prejudice. However, we have examined the entire record in the case and are satisfied
that the Trial Examiner was not prejudiced against the Respondent.
OZARK HARDWOOD COMPANY 1445
The discharges took place approximately 1 month after the Union
commenced its organizational activity at the Respondent's plant. At
6: 55 a. in. on the crucial date, the Respondent first discharged com-
plainants Lloyd Herman Carter and William L. Duke, who became
members of the Union in April and had played leading roles in organ-
izing the plant. Approximately 2 hours later, the Respondent dis-
charged complainant Marvin Warren, who had joined the Union about
a, week and a half earlier and had been active in circulating union
cards since the inception of the Union's campaign. And shortly after
the lunch hour on the same date, the Respondent terminated, the em-
ployment of the other complainants herein, all of whom had joined
the Union sometime in April, and several of whom had been active
in the Union.
The Respondent contends that it did not unlawfully discharge any
of the afore-mentioned employees. In support of this position it
asserts that: (a) The complainants' union membership and activity
were unknown to the supervisors who played a part in their separa-
tion; (b) Duke and Carter were released because of economic consid-
erations; (c) Warren was discharged for cause; and (d) the other
complainants quit their jobs. As to the latter employees, the Re-
spondent alternatively claims that it did not, in any event, knowingly
discharge them for engaging in activity protected by the Act.
For the reasons set forth below, we are convinced that the foregoing
contentions are untenable and that, as already noted, all the com-
plainants herein were unlawfully discharged.
(a) Contrary to the Respondent, we are of the opinion, and find,
that the union membership and activity of the complainants herein
were known to management representatives at the time of the terlni-
nations on May 16. Such knowledge is amply demonstrated by the
following combination of circumstances established by the credible
evidence:1 (1) The small size of the Respondent's plant; (2) the
admission by supervisory personnel that, prior to May 16, they had
knowledge of the Union's presence in the plant and of the union activ-
ity of complainants Acord, Friend, Knuckles, Martin, and Morrow;
(3) Foreman Brown's admission to complainant Knuckles on May 14
that employees of the Respondent were attending the Union's meet-
ings for the purpose of compiling a list of union members; (4) Fore-
man Brown's statement to employee Gorman Turner on May 14, that
Unlike the Trial Examiner , in imputing this knowledge to the Respondent, and In
ultimately concluding that the Respondent discriminated against the dischargees herein,
we place no reliance on either the statements made by Sam Brown , a rank-and -file employee,
to fellow employees Troy Turner and Bartlett ; or Mills ' speech to the employees In April,
which . the Trial Examiner found to be protected under the Act; or Mills ' presence at the
two meetings about the Union held by employees after May 16.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had a list of employees who had joined the Union, that
all these employees would be fired, and that "by Wednesday night
[May 18] there will be lots of new faces in the mill," and virtually the
same statement by Brown to complainant Morrow on May 16; (5)
Foreman Brown's warning to employee Willis on July 15 that he had
better vote against the Union or "the men that was laid off on account
of the Union" 6 would be back to take his job; and (6) Foreman
Brown's statement to employee Smith on May 16 that Plant Super-
intendent Wedel intended to lay off some employees "over those union
cards."
(b) With respect to the discharges of Duke and Carter, the Re-
spondent contends that they were selected for discharge because busi-
ness conditions required a reduction of the force in the pallet plant.
The Respondent makes no claim, nor does the evidence suggest, that
the selection of these two employees was in accordance with seniority T
or pursuant to any practice theretofore utilized by the Respondent
when personnel curtailments were necessary. According to the Re-
spondent, Duke and Carter were selected because they were the "sorri-
est" employees in the pallet plant. However, there is nothing in the
record which shows that the Respondent ever complained about the
work habits of Duke and Carter prior to May 16. Indeed, the uncon-
troverted testimony establishes that, when Foreman Ferguson dis-
charged the employees in question, he told Carter that he was a "good
hand" and assured Duke that he was not being discharged for unsatis-
factory work.
In view of the Respondent's failure to advance a valid reason for
the selection of Duke and Carter, and in the light of all the evidence,
including the Respondent's knowledge of these complainants' promi-
nent union activity, its union animus, its expressed intention to rid
itself of all union adherents, and its admission on July 15 that the
May 16 discharges were "on account of the Union," we find, as did
the Trial Examiner, that, even assuming the necessity for a reduction
in force, Duke and Carter were terminated because of their support,.
and activity in behalf, of the Union.
(c) The Respondent contends that Warren was discharged because
of the calibre of his work as a grader. The record shows that the.
quality of Warren's work was the same during the whole of the
approximately 2 years that Warren graded for the Respondent.
While the Respondent had, on occasion, prior to the advent of the
'We find this to be an unmistakable reference to the employees whose employment
with the Respondent terminated on May 16.
7 In fact, .the record shows that at least one employee with less seniority than either Duke
or Carter was not terminated on May 16.
OZARK HARDWOOD COMPANY 1447
Union, called Warren's attention to mistakes in his grading," it had
theretofore considered Warren to be a satisfactory employee. It rec-
ognized his competency by having him train new employees and pass
on instructions to the other graders. Significantly, however, not long
after Warren began his union activity, the Respondent became more
critical of his work and abruptly terminated his tenure on May 16.
According to the Respondent, the decision to discharge Warren
was made by Foreman Brown after Brown had discovered additional
evidence of Warren's misgrading on May 16. But the evidence which
we, and the Trial Examiner, credit, shows that Brown's only check of
Warren's work on May 16 was begun with Warren's final pay check
in Brown's possession. It is clear, therefore, that the Respondent had
,decided to discharge Warren before Brown started to check Warren's
work and that the reason advanced to justify Warren's discharge was
.a mere pretext.
On the basis of the foregoing and the other evidence in the record,
including the Respondent's knowledge of Warren's union adherence,
its opposition to the Union, its announced plan to discharge all union
members, and its subsequent admission of the reason for the discharges
on May 16, we find, contrary to the Respondent, that Warren's dis-
charge was in fact motivated by his union membership and activity.
(d) As to the remaining 25 complainants herein, the Respondent's
main defense is that the employees involved voluntarily quit their
.jobs and were not discharged, as alleged in the complaint. We are
unable to agree with this contention, for the credible testimony in the
record, more fully detailed in the Intermediate Report, establishes
the following :
Twenty-two of the complainants 9 were among the employees
gathered across the railroad track near the pallet plant during the
lunch period on May 16. Having reason to suspect that union mem-
bers had been discriminated against that morning and fearing that
similar action might be taken against them, they decided to call on
Foreman Ferguson at the pallet plant for the purpose of questioning
him in connection with the discharges of Duke and Carter. As they
neared the entrance to the plant a few minutes before 1 p. in., they
were intercepted by Mills, who angrily ordered them to return to
work and then, upon the sounding of the 1 o'clock work whistle,
promptly countermanded that order and told them that they were
discharged and to go to the office for their pay.
8 As appears from the Intermediate Report, the speed required in the grading operation
,caused all the Respondent's graders frequently to misgrade lumber.
9 Their names are listed on page 1462 of the Intermediate Report.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Complainants Dewey Acord and John Bartlett were not with the
group of employees when they set out for the pallet plant. They were,
however, standing on the steps of the flooring plant when these
employees and Mills passed that building on their way to the office.
As Mills went by, Bartlett asked him what was going on. Mills
countered by telling Bartlett and Acord to get in line; that they were
discharged.
Complainant Harold Boren started for the pallet plant with the,
other employees, but left the group before it was intercepted by Mills..
Thereafter, however, he rejoined the group as they passed him on
the way to the office. When the men reached the office they were
checked in by Mills one at a time. And, inside the office, each of them,
including Boren, was given his final pay check.'°
The Respondent also contends that it was not aware of the reason
for the appearance of the complainants at the pallet plant and there-
fore cannot be held to have been unlawfully motivated even assuming
that it discharged these employees. This contention is not borne out
by the record. It is clear, and we find, as the Trial Examiner did,.
that Mills acted against these employees with full knowledge of the
fact that their concerted activity was related to the discharge earlier
that morning of union members Duke and Carter.1' In our opinion,,
that is plainly to be inferred from the following circumstances: (1)
The discriminatory discharge of Duke and Carter and Mills' aware-
ness thereof at the time of the mass discharge; 12 (2) the Respondent's
knowledge of the union membership of Duke and Carter and all the
complainants; (3) the Respondent's union animus ; (4) the summary
discharge of this substantial number of employees, with no real
attempt "to ascertain the reason for their group activity ; and (5) the.
admission on July 15 that the discharges on play 16 were "on account
of the Union."
10 Contrary to the Trial Examiner , our finding that Boren was discharged is based on
the treatment accorded him at the office .where , like the other employees , he was directed
into the office by Mills and paid off in full . The Trial Examiner 's finding that Boren was
discharged just before he joined the group enroute to the office is based on testimony
given by Boren on direct examination to the effect that he was discharged by Mills as Mills
passed him on the way to the office with the other employees . In making this finding,
however , the Trial Examiner apparently failed to consider that on cross -examination
Boren denied any conversation with Mills on the afore-mentioned occasion and testified
that he was induced to join the group by a statement made by one of the employees in
the group that "all of us are fired."
We find further that Boren , as well as Bartlett and Acord , were discharged in the belief
that they were parties to the group action of the other 22 complainants.
11 For the reasons stated in N. L. R . B. v. Westinghouse Electric Corporation, Ansonia
Plant, 179 F. 2d 507 ( C. A. 6), we reject the Trial Examiner ' s alternative finding that the
Respondent "should have known the reason " why the employees were at the pallet plant.
12 Although Afills may not have ordered the discharge of Duke and Carter, as the Trial
Examiner found , his testimony that their discharge was not known to him until he was
served with a copy of the charge on May 26 is wholly incredible.
OZARK HARDWOOD COMPANY 1449
On the basis of all the foregoing, and the entire record, we find
that the 22 employees referred to above, including Ralph Kipfer,13
were discharged because of their concerted and union activity and
that Boren, Bartlett, and Acord were discharged because of the Re-
spondent's belief that they were parties to the aforesaid activity 14
Moreover, we would reach the same result even were we to credit
Mills' version of what happened at the pallet plant. Mills testified
that he gave the employees ample time to comply with his order
that they return to work and that he then told them that "if you
are not going back to work you can't bother these men who are
working here. Go on to the office and get your time." As already
noted, however, the employees were engaged in protected activity at
the time. Consequently, an order such as that assertedly given by
Mills, which provided an alternative of either abandoning that activ-
ity by returning to work or of being discharged, would not have been
legally privileged, and a discharge pursuant to such an order would
have violated the Act.15
The Remedy
Having found that the Respondent hats engaged in the unfair labor
practices set forth above, we shall order that it cease and desist there-
from and that it take certain affirmative action designed to effectuate
the policies of the Act.
As recommended by the Trial Examiner, we shall order the Re-
spondent to offer each of the employees listed in Appendix A, at-
tached hereto, immediate and full reinstatement to his former or a
substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole, in the manner
hereinafter described, for any loss of pay he may have suffered during
the period from the date of the Respondent's discrimination against
him on May 16, 1949, to the date of the Respondent's offer of rein-
statement.
13 The Trial Examiner 's finding that Kipfer was not discriminatorily discharged stems
from the fact that Kipfer declined an offer of reinstatement made by the Respondent shortly
after his discharge . While we agree with the Trial Examiner that Kipfer is not entitled to
reinstatement for this reason, we are unable to adopt his finding that the discharge itself
was thereby rendered nondiscriminatory.
'14 Crullett Gin Company, Inc. v. N. L. R. B., 179 F. 2d 499 ( C. A. 5), cited by the Re-
spondent to support its contention that an 8 (a) (3) finding is unwarranted herein, is
distinguishable on its facts . And we find uncontrolling , in the same connection, the fact
that the complainants , in seeking unemployment compensation , represented that there.was
no "labor dispute" current at the time of their termination , or that , according to the Re-
spondent , "all of the men drew unemployment compensation insurance , which they could
not have drawn under the laws of the State of Arkansas had there been a labor dispute
and had they been discharged because of union activity ." Horn Manufacturing Company,
Inc., 83 NLRB 1177.
11 Cf. The Electric Auto -Lite Company, 80 NLRB 1601.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As appears in the Intermediate Report, L. G. Bartlett was rein-
i1ated by the Respondent on July 25, 1949. We shall therefore order
only that the Respondent make him whole, in the manner hereinafter
described, for any loss of pay he may have suffered during the period
from the date of the Respondent's discrimination against him on
May 16, 1949, to the date of his reinstatement on July 25, 1949.
The record shows that Marvin Nichols was reinstated by the Re-
spondent in November 1949.16 In view of this fact we shall revise
the recommended order as to Marvin Nichols and provide merely that
the Respondent make him whole, in the manner hereinafter described,
for any loss of pay he may have suffered during the period from the
date of the Respondent's discrimination against him on May 16, 1949,
to the date of his reinstatement in November 1949.
As previously indicated Ralph Kipfer declined a valid offer of
reinstatement made by the Respondent shortly after his discharge
on May 1617 We shall therefore not order reinstatement or make an
award of back pay in his case.
Since the issuance of the Trial Examiner's Intermediate Report,
the Board has adopted a method of computing back pay different
from that prescribed by the Trial Examiner.1s Consistent with the
new policy, we shall order that the loss of _.pay herein be computed
on the basis of each separate calendar quarter or portion thereof
during the period from the Respondent's discriminatory actions on
May 16, 1949, to the date of a proper offer of reinstatement in the
cases of the complainants listed in Appendix A, to July 25, 1949, in
the case of L. B. Bartlett and, in the case of Marvin Nichols, to the
date of his reinstatement in November 1949. The quarterly periods,
herein called "quarters," shall begin with the first day of January,
April, July, and October. Loss of pay shall be determined by de-
ducting from a sum equal to that which each of the foregoing com-
plainants would normally have earned for each quarter or portion
16 Although Nichols ceased working for the Respondent shortly after his reinstatement,
the complaint does not allege , nor does the Trial Examiner find, that the Respondent
was responsible therefor.
17 Thus, it appears that as the complainants milled about the office waiting for their
final pay checks, Kipfer, abandoning the group action of which he was a part, asked
Mills if he could return to work. Mills told him that he could. But upon reflection
Kipfer decided that he had "better not go back."
Like the Trial Examiner, we reject the Respondent ' s contention that it asked all the
complainants to return to work when 'they were on their way to and at the office. Our
finding that no offer of this kind was made by Mills as the employees passed the loading
platform is based on the testimony of Mrs. Mills and Raymond Brown, both witnesses
for the Respondent, who were in a position where they would have heard the alleged
offer had it been made , but who denied that Mills made any such offer. Contrary to the
Respondent , Truman Einert 's testimony does not establish that he left the group and
returned to work because of an offer of work made by Mills opposite the loading platform.
18 F. IV. Woolworth Company, 90 NLRB 289.
OZARK HARDWOOD COMPANY 1451
thereof, his net earnings,19 if any, in other employment during that
period. Earnings in one particular quarter shall have no effect upon
the back-pay liability for any other quarter.
We shall also order the Respondent to make available to the Board
upon request payroll and other records to facilitate the checking of
the amount of back pay due.20
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, Ozark Hardwood
Company, Clarksville, Arkansas, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in General Drivers and Helpers,
Local 373, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, A. F. L., or any other labor
organization, by discharging or refusing to reinstate any of its em-
ployees, or by discriminating in any other manner in regard to their
hire and tenure of employment, or any term or condition of employ-
ment ;
(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 the General Drivers and Helpers,
Local 373, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, A. F. L., or any other labor
organization, 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 such activities, except to the extent that such
rights 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.
2. Take the following affirmative action; which the Board finds
will effectuate the policies of the Act :
(a) Offer to the employees named in Appendix A, if they have not
already been reinstated or offered reinstatement, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges,.
19 Crossett Lumber Company , 8 NLRB 440 ; Pepublie Steel Corporation v. N. L. R. B.,
311 U. S. 7.
11 F. W. Woolworth Company, supra.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and make each of them whole in the manner described in the section
entitled The Remedy ;
(b) Make whole L. G. Bartlett and Marvin Nichols in the manner
-described in the section entitled The Remedy;
(c) Upon request, make available to the Board or its agents, for
examination a.nd copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all otter rec-
•ords necessary to analyze the amounts of back pay due under the
terms of this Order;
(d) Post at its Clarksville, Arkansas, plant, copies of the notice
:attached hereto marked Appendix B.21 Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being signed by, Respondent's representative, be posted by Re-
spondent immediately upon' receipt thereof, and maintained by it for
sixty. (60) days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent engaged in surveillance of the union meeting of May
18, 1949, be, and it hereby is, dismissed.
APPENDIX A
William Leonard Duke
Lloyd Herman Carter
Marvin Warren
Dewey Acord
John Bartlett
John Barnes
Harold Boren
Homer Currier
Garland Curtis
Kenneth Davis
Jack Daniel
Lum Fisher
Billy Friend
Filo Hill
Marvin Knuckles,
Lewis Merritt
Earl Morrow
Robert L. Martin
Herman Owens
James Payne
W. B. Rinke
Billy Skidgel
Troy Turner
Ira Wolfe
James Wade
21 In the event that this Order is enforced by a 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 Appeals Enforcing."
OZARK HARDWOOD COMPANY 1453
APPENDIX B
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 in any manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the GENERAL DRIVERS
AND HELPERS, LOCAL 373, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
A. F. L., or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that any 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.
WE WILL OFFER to those 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 make them whole for any loss
of pay suffered as a result of the discrimination :
William Leonard Duke Filo Hill
Lloyd Herman Carter Marvin Knuckles
Marvin Warren Lewis Merritt
Dewey Acord Earl Morrow
John Bartlett Robert L. Martin
John Barnes Herman Owens
Harold Boren James Payne
Homer Currier W. B. Rinke
Garland Curtis Billy Skidgel
Kenneth Davis Troy Turner
Jack Daniel Ira Wolfe
Lum Fisher James Wade
Billy Friend
WE WILL MAKE WHOLE the employees named below for any
loss of pay suffered as a result of the discrimination :
L. G. Bartlett ' Marvin Nichols
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of any labor organization, except to
the extent that any such right may be affected by an agreement as
authorized in Section 8 (a) (3) of the Act.
OZARK HARDWOOD COMPANY,
Employer.
By ---------------------------------
(Representative ) (Title)
Dated --------------------
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
Messrs. William P. Alexander and Robert B. Stark, for the General Counsel
Messrs. J. M. Smallwood and George 0. Patterson, for the Respondent.
Mr. T. J. Gentry, for the A. F. L.
STATEMENT OF THE CASE
Upon a charge filed by General Drivers and Helpers, Local 373, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
A. F. L., herein called the Union, the General Counsel of the National Labor Re-
lations Board, called respectively the General Counsel' and the Board, by the
Regional Director of the Fifteenth Region (New Orleans, Louisiana), issued a
complaint dated January 12, 1950, against Ozark Hardwood Company, herein
called the Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Re-
lations Act (49 Stat. 449-457, as amended by 61 Stat. 136-163), herein referred
to as the Act. Copies of the charge and the complaint, together with notice of
hearing, were duly served upon the Respondent and the Union.
,With respect to the unfair labor practices, the complaint alleged, in substance,
that the Respondent: (a) on or about May 16, 1949, discharged 23 employees and
refused to reinstate them because of their membership in and activities on behalf
of the Union or because of their concerted activities engaged in for the purpose of
collective bargaining or other mutual aid and protection; and (b) from and after
April 1, 1949, interfered with, restrained, and coerced its employees in the exer-
cise of their rights guaranteed in Section 7 of the Act, by, interrogating employees
as to union membership and activities, threatening to discharge employees be-
cause of union activities, etc.
Prior to the hearing, Respondent filed certain preliminary motions for addi-
tional time to answer, for an extension of the date of the hearing, and to make
the complaint more definite and certain. The Regional Director extended the
time for filing the answer to January 24, 1950; denied the motion for an exten-
sion of the date of the hearing; and referred the motion to make the complaint
more definite and certain to the Trial Examiner. At the opening of the hearing,
Respondent renewed its motions for additional time to answer and for an-exten-
i The designation General Counsel includes the attorneys who appeared on his behalf at
the hearing.
OZARK HARDWOOD COMPANY 1455
:sion of the date of the hearing. The latter motion was denied. The motion to
make the.complaint more definite and certain was granted in part and denied in
part, and General Counsel amended the complaint to comply with the order of
the Trial Examiner, and the time to file the answer was extended to the next day.
In its duly filed answer, Respondent admitted that it is an, Arkansas corporation
.and was engaged in commerce as alleged in the complaint, but in general denied
all of the other allegations of the complaint, and alleged that 3 of the 28 em-
ployees named in the complaint were discharged for cause, and that the other
25 employees "quit of their own volition."
In its answer, Respondent denies that the Regional Director for the Fifteenth
Region had the authority, either as agent for the Board or on his own motion,
to issue the complaint. No proof was offered as to his authority, nor was any
necessary. Section 203.15 of the Rules and Regulations of the Board, adopted
pursuant to Section 6 of the Act, clearly and unequivocally authorizes the
Regional Director to issue and serve complaints.
Pursuant to notice, a hearing was held on January 24, 25, 26, 30, 31, and
February 1, and 2, 1950, at Clarksville, Arkansas, before Allen MacCullen, the
undersigned Trial Examiner duly designated by the Chief Trial Examiner. The
General Counsel, the Respondent, and the Union were represented by counsel
and participated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence on the issues was afforded all
parties.
At the conclusion of the hearing General Counsel moved to conform the plead-
ings to the proof, which motion was granted. The parties waived oral argument
and elected to file briefs with the undersigned.
Upon the entire record in the case and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is an Arkansas corporation with its principal office and place of
business at Clarksville, Arkansas, where it engaged in the production of lumber
products. In the course and conduct of its business operations, during the
12-month period ending June 30, 1949, which period is representative of all times
material herein, Respondent purchased in excess of 6,000,000 board feet of unfin-
ished lumber, substantially all of which originated within the State of Arkansas.
During the same 12-month period, Respondent manufactured in excess of
6,000,000 feet of lumber products valued in excess of $200,000, approximately 75
percent of which was shipped to points outside of the State of Arkansas.
I find that Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent denies that there is an organization known as General Drivers
and Helpers , Local 373 , which is affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers , A. F. L., and denies that
the Union is a labor organization within the meaning of Section 2 ( 5) of the
Act. A. L. Roberts , an officer of Local Union 878, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , A. F. L., and
William' B . Powers , general organizer for said International , credibly testified
that ' General Drivers and Helpers, Local 373 , an affiliate union of International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. F. L., admits to membership employees of Respondent , as well as other ware-
feurs , Warehousemen and Helpers of America , A. F. L., is a labor organization
is to negotiate with employers as to hours of employment , wages, grievances,.
and conditions of work of the employees . I find that General Drivers and. Helpers,.
Local 373 , an affiliate , union of International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America , A. F. L., is a labor organization
within the meaning -of Section 2 (5) of the Act.
Respondent has also denied that the party or parties signing the charge and
amended charges had authority to sign same , and at the hearing raised the
question of compliance by the Union with Section 9 (f), (g), and ( h) of the Act.
It is the well established policy of the Board that both of these questions are
administrative matters to be determined by the Board and are not subject to•
attack by the parties to the proceeding!
III. THE UNFAIR LABOR PRACTICES
A. Discriminatory discharges
1. Union activities and knowledge of Respondent
Lloyd Herman Carter, an employee of Respondent , testified credibly that
sometime in April 1949 , an organizer for the Union handed him at least 500
applications , that with the assistance of other employees , including Leonard
Duke, Dewey Acord , and Marvin Warren, he started a very active campaign
to organize the employees, holding meetings once a week . John M. Ferguson,
foreman of the pallet plant, testified credibly that the Union was openly dis-
cussed during the lunch recess, and that a number of employees talked to him
about unions . O. D. Brown, foreman of the flooring plant , after first denying that
the Union was ever mentioned to him, admitted on cross-examination that he
had been advised by one of the employees of the union movement , and was told
that Dewey Acord , Earl Morrow , Billy Friend , and Henry Knuckles, employees,
were the ringleaders . Joe B. Mills , general manager of the Respondent , testified
that he heard these rumors in.late April or early in May 1949, from his foremen
or some of the employees . Mills was very evasive concerning his knowledge of
the Union , but finally admitted that one of his employees advised him. "Joe,
they told me I would be fired if I didn't sign a union card. " That Mills did not
secure full information as.to the union activity and the names of all employees
involved is not probable . His reluctant admission that he had heard some
rumors is rather significant . It is hardly probable that he did not get full in-
formation from his foremen or the employees who came to him with these rumors.
E. J. Wedel, Respondent 's general superintendent , testified credibly that Herman
Einert mentioned to him that Dewey Acord and Bud Martin had passed out,
union cards.'
Troy Turner and John Bartlett testified credibly that on Saturday , May 14,
1949, just prior to the mass discharge of employees as hereinafter mentioned,.
Sam B. Brown , the son of O. D. Brown, told them "that we should be quiet
about the Union and that if we didn't we would be out of a job, that the Company
2 Metropolitan Life Insurance Co., 86 NLRB 428; The Ann Arbor Press, 85 NLRB 946:
South Georgia Pecan Shelling Co . et al., 85 NLRB 591; 117estern Electric Co., Inc., 85
NLRB 563.
3 Wedel collapsed on the witness stand during his direct examination , became uncon-
scious and was later removed to a hospital . He never completed his testimony and was
not cross -examined . He collapsed immediately after giving the above testimony.
s
OZARK HARDWOOD COMPANY 1457
was going to pay off the ones that had signed union cards one or two at a time
until they got them all ." Sam Brown , employed by Respondent as a machinist
working under his father , denied that he made any such statement on May 14
or at any other time, and testified that the last time he was out with Turner was
in March 1949 . Gorman Turner testified credibly that his brother Troy was
out with Sam Brown on Friday , May 13, that he did not come home that night
and he went to Brown's home the next morning looking for Troy, and that
neither Troy nor Saw Brown was there. James Dimmitt testified credibly that
Turner, Bartlett , and Sam Brown called on him at his house on Saturday, May
14, 1949, between 4 and 5 o'clock . Brown 's testimony is not credited.
Gorman Turner testified that on Saturday morning, May 14, 1949 , he called
on 0. D . Brown at his home looking for his brother Troy , and that while there,
0. D. Brown said to him "That they have a list of every man's name in the office
that has joined the Union . He said: Whether it goes union or not the men will
be fired, all these men that have joined the Union . He said : By Wednesday
night there will be lots of new faces in the mill ." Brown denied that Turner
called on him in May 1949, but tried to fix the time as in March 1949.' Turner's
testimony is credited.
Marvin Knuckles testified credibly that on Saturday afternoon , May 14, 1949,
he went to Respondent 's plant to get his check , that while there he had a talk
with 0. D. Brown about a newspaper clipping of a strike down in Louisiana, and
that in the conversation with Brown the latter said that there were some boys
in his plant that were going to the union meetings and they were in there for
the purpose of finding out who the members were and how many they were
and getting a list of every man that had signed a union card.
Earl Morrow testified credibly that on May 16, 1949 , he was employed in the
flooring plant , that he reported for work that morning about 6:45, that as he
walked in 0. D. Brown came out of the shipping clerk's office and he had a
time book in his hand, and he said that he had a check mark beside every man's
name that signed a union card, and that by Wednesday morning they would see
some new faces around there ; that Mr. Mills came in and he and Brown walked
over to the other side of the flooring mill and stood there looking at the time book.
In its brief , Respondent urges that General Counsel has failed to sustain
the burden of proving that Respondent had knowledge of the union activities
of its employees , and of the particular employees involved . I find no merit in
this contention . Brown , Wedel , and Ferguson all gave direct testimony of this
knowledge and of the names of some of the employees involved . Mills admitted
some knowledge but gave no testimony of the employees who were active. The
credited testimony of the employee witnesses makes it appear very unlikely
' All of O . D. Brown ' s testimony is discredited . His attitude on the witness stand was
clearly prejudicial and antagonistic to the Union . His denials of all conversations with
employees concerning union activities was so emphatic it was obvious he was seeking to
avoid any reference to conversations on this subject . It was clear that some of these
conversations at least had taken place . Mills, Ferguson , and Wedel all admitted some
conversations on this subject , and it was very unusual if this matter was being discussed
in other departments that there were no such conversations in the flooring mill. When
confronted with an affidavit he gave to the Board 's investigator containing statements
conflicting with his testimony , including his denial of any conversations concerning the
Union , Brown was very evasive and sought to repudiate the affidavit , and it was only after
severe cross -examination that he finally admitted the truth of the statements in the affi-
davit . In many other respects Brown's testimony varied materially from the testimony
of all of the other witnesses, including Respondent 's witnesses , and it is difficult to credit
any of his testimony.
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent was ignorant of the employees 'who had joined the Union and
of those who were most active .' I find that Respondent was advised as to the
names of all employees who were active in the union organization.
Mills testified credibly that because of these rumors concerning the Union
be called a meeting of the employees , and went into the condition of his business
at the time , which was bad, that sales had fallen off and prices of flooring had
dropped ; that he mentioned what a good organization they had at the plant
and the efficiency of the employees ; that he had heard that union cards were
being circulated , and he assured the employees of their right to organize if they
cared to do so. Lewis Merritt , an employee who was present at the meeting,
testified credibly that one of the employees present asked Mills what he thought
about the Union, and Mills replied , "Well, I don 't think very much about the
Union, but the Union is a very radical thing I think and here is the reason why.
On working days in the plant if I should happen to be short in the plant Icould
go out in the yard and bring a man into the flooring plant and if it will become
union if I am, short a man I can 't do that. The Union is too radical. . . . If it
becomes union you men won't get as much work . . . . If we give you a raise and
the Union comes in, I will have to shut the mill down."'
On direct examination , Mills testified that he called two meetings of the
employees about this time. On cross -examination , he at first denied calling
other meetings of the employees , was very evasive as to any other meetings
with the employees at this time , but finally admitted after some prompting that
he met with the employees on at least two other occasions about this time at
which meetings the question of the Union was discussed.
It was not necessary to go into details of the testimony of the various witnesses
as to the situation that existed just prior to May 16, 1949 . Credible testimony
establishes , and I find, that Mills was very much disturbed at the attempts to
organize his employees . This testimony shows that the prevailing wages then
being paid the employees was from 65 cents to 77 cents an hour , and wholly
apart from other objections Mills may have had to the Union , he associated union
organization with demands for wage increases. Whether through mismanage-
lnent, poor management , or economic conditions , the evidence indicated that at
least during 1949, Respondent had been operating at a loss, that demands for
flooring had decreased and prices fallen. It is obvious , therefore , that Mills
considered any increase in operating costs out of the question.
Other testimony was given as to minor incidents about this time, which it is
not necessary to relate in detail, all of which clearly establishes the tense feeling
6In F. W. Woolworth Co. V. N. L. R. B., 121 F. 2d 658, the court said :
Petitioner attacks the Board's finding because there was no positive proof that it
knew which of its employees were, and which were not, members of the union. This
same protestation is made as a defense to the allegation of discriminatory discharges
(which will be discussed below), where the evidence is capable of no other rational
explanation than that the petitioner knew which employees were members. It seems
unlikely that petitioner remained entirely ignorant of the identity of the active union
men at a time when they were distributing circulars, soliciting membership, signing
up other employees, and collecting dues from their fellow workers.
In N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536, the court said :
Circumstantial evidence must, of course, be weighed with caution. Yet, when
the strands of such evidence are of sufficient quantity and proper quality, these
strands, as in the instant case, make up a rope strong enough in probative force to
constitute at least substantial evidence that will justify the Board's findings.
6 Several other witnesses gave credible testimony as to the statements made by Mills
at this meeting all of which corroborates Merritt's testimony. It is not necessary to go
into the details of all of this testimony.
OZARK HARDWOOD COMPANY 1459
existing in the plant, both by the employees and by management. Mills knew
that the employees were attempting to organize, and was apprehensive of the
effect such organization would have upon his economic situation. The employees,
particularly those who had joined the Union, were warned that something
might happen and they might be discharged. With this in mind, something did
happen on the morning of May 16, 1949.
Coy Smith, one of the employees who had been active 'in soliciting members for
the Union, testified credibly that on the morning of May 16, 1949, he saw E. J.
Wedel hand O. D. Brown a piece of paper ; that this was just outside the flooring
mill and about three or four steps from where he was working; that he did not
hear what Wedel slid to Brown, but Brown said, "Mr. Wedel, you can't do that.
You will stir up one of the awfulliest things you have ever heard of out here" ;
that he "walked over to pick up two bunks to set on the chain, my buddy was
there with a package of lumber to set down and when I picked them bunks up I
turned back and looked over O. D. Brown's shoulder and I saw my name, Troy
Turner's name, and Dewey Acord's name on the paper." The following then
occurred :
Q. After that, Coy, did Mr. Brown say anything to you?
A. Yes sir. He came back where I was and he said: "Mr. Wedel is going
to lay some you fellows off."
Q. What else did he say that you now recall and what did you say?
A. I believe I asked him who and he said : "Over those union cards."
Shortly after this, Brown discharged Marvin Warren.
2. Discharge of Marvin Warren
Marvin Warren testified credibly that he had worked for Respondent for the
past 2 years as a grader of flooring. Briefly his duties were to receive the oak
flooring after it was finally milled and ready for shipment, inspect it on both
sides and mark it with a crayon as to its quality into one of four recognized
grades, and to reject any flooring with knots. He was working with two other
graders at the time of his discharge. On the morning of May 16, 1949, he saw
Brown and Mills leave the flooring plant and go in the direction of the office;
later Brown returned and stood for about 20 or 30 minutes by the trough that
carried the inspected flooring from him;, Brown then called him over and
pointed out about four or five pieces of flooring, varying in length from 1 to 4
feet, that had been misgraded, and said, "If I couldn't do better than that, why
he just didn't need me," and Brown then handed him his check; this was about
9 or 9: 1.5 in the morning.
The other two graders, John Bartlett and Billy Friend, testified credibly that
they were too busy to tell how many pieces of lumber had been misgraded, but
one of them thought it was about 7 pieces and the other about 12 pieces.'
4 From the testimony it is difficult to estimate with any degree of accuracy the number
of pieces of lumber Warren graded while Brown was checking. Brown, whose testimony
I have discredited, said he checked for 15 minutes and picked out 100 pieces graded by
Warren, and 40 of them were misgraded. As the work of the other 2 graders were coming
down the same trough with Warren's (each identified by the color of the chalk used in
marking) and the flooring was in varying lengths from 10 inches to 1.6 feet, it seems un-
likely that Brown could have picked out an even 100 pieces of Warren's grading in the
short time he was there. It is clear, however, that when Brown checked Warren's
work that morning he had already decided to discharge him, and it is obvious that the
checking was resorted to for the purpose of furnishing some excuse for his discharge.
917572-51-vol. 91-93
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown admitted that Warren was his fastest grader, that he had been a grader
for 2 years, and that after he was discharged he recommended Warren as- a
grader to another company. John W. Bartlett, .who had worked with Warren
for some time prior to his discharge, testified credibly that Warren was the best
grader in the plant, that "He was the fastest and he had more experience. 0. D.
Brown would come up and give him orders to tell us what to do. When he
wanted to change grades he would tell Marvin and Marvin would tell me and
Billy Friend" ; that in grading you have to work fast, examining both sides of
the lumber, and it comes through the machine at the rate of 10,000 feet an hour,
and that he estimated there would be more than 1,000 pieces come through in
an hour; that all the graders misgraded lumber, and that he would misgrade
not less than 20 pieces an hour. William B. Rinke testified credibly that 0. D.
Brown and Marvin Warren gave him instructions on how to grade, that Fore-
man Brown told him to watch Warren grade lumber, that in his opinion Warren
was the fastest grader and that he was the chief grader. Troy Turner testified
credibly that Warren was the fastest grader in the plant ; that when they
changed the grades, changing over and running a different kind of lumber,
Brown would tell Warren, and Warren would instruct the other graders.
Warren testified credibly that there were no complaints about his work during
his whole employment until just a few weeks before he was discharged, "When
the union started I started getting kickbacks. Up until then I never got any" ; 8
that he, Herman Carter, Bill Dukes, and Dewey Acord were actively participating
in union work, that he was passing out applications for the Union to other
employees, and that he joined the Union about 11/ weeks before he was dis-
charged.
Mills testified that he had complaints from customers about misgraded floor-
ing as far back as December 1948, and that he cautioned Wedel and Brown about
misgrading, that he tried to make spot checks at least once a day and sometimes
twice a day in the plant.
Respondent has urged that General Counsel has failed to sustain the burden
of proof that Respondent had knowledge of -Warren's union activity and has
cited certain cases in support thereof. It is not necessary to review these au-
thorities as the law is clear that proof of Respondent's knowledge is necessary.
It is not necessary as Respondent seems to argue to prove this knowledge by
direct evidence. This fact may be established by circumstantial evidence!
In fact in all contested cases that is about the only way it can be established.
Respondent's knowledge of the union activity of all of the employees, including
Warren, has been considered and decided by me.
Respondent has also cited several authorities in support of the principle that
cause has long been recognized by the Board and the courts as a basis for dis-
charge. It is not necessary to review these authorities as this principle is well
recognized. The real issue in the present case is whether the cause given by
Respondent for Warren's discharge was the real cause or just a pretext. I am
convinced that it was a pretext. The credited testimony shows that Warren
had rendered satisfactory service for about 2 years, that he was the fastest
6 Brown testified that Warren's work was satisfactory and he had no complaints except
for the last 5 or 6 months of his employment. His estimate of the time is probably as
accurate as some of his other testimony. Although discredited, his testimony in this
respect has some probative value as confirming Warren's testimony that no complaints
were made about his work until after union activity began.
9 N. L. R. B. v. Entwistle, supra; F. 1V. Woolworth Co. v. N. L. R. B., supra.
OZARK HARDWOOD COMPANY 1461
grader Respondent had, that his services were utilized to instruct other graders,
and that there were no complaints until about the time union activity began.
In this connection, Mills' testimony that he called Brown's attention to mis-
grading as early as December 1948 is significant. He testified that he tried to
check the grading at least once a day and twice a day, but he gave no testimony
that he discovered any misgrading by Warren. If Warren's work was as un-
satisfactory as Brown indicated and this went on from December 1948, it is
strange that it was not until the union activity had reachd a crisis that the
cause for Warren's discharge was discovered. On the morning Warren was dis-
charged, the credited testimony shows Brown told some employees they had a
check mark opposite the name of each employee who was a member of the
Union, that shortly after this Brown and Mills had a conference, that Brown
then left for the office and returned with Warren's check, and then he made
a check of Warren's work to secure some basis for action which he had already
decided to take. These facts are not at all convincing that Respondent was
sincere and honest in the reason given Warren for his discharge, and it is clear
that the discharge of Warren was but a part of the general plan which Brown
disclosed to Gorman Turner and Coy Smith, and Sam Brown related to Troy
Turner and John Bartlett. As the court said in N. L. R. B. v. Entwistle Mfg Co.,
supra :
But, when there is substantial evidence,' direct or circumstantial, to in-
dicate that an employee was discharged because of his union activities, a
very definite burden is imposed upon the employer to prove the existence of
a reason, not within the prohibitions of the Act, sufficient in itself to war-
rant or justify the discharge.
I find that Respondent has not sustained this burden, and that the reason given
for the discharge of Warren was a mere pretext, and that he was discharged
for union activities.
3. Discharge of William L. Duke and Lloyd H. Carter
William L. Duke had only been employed by Respondent for about 4 months
and Lloyd H. Carter about 6 weeks prior to their discharge on May 16, 1949.
Neither one of them was an experienced or skilled worker. There were no
complaints at any time as to their work, and the reason given by Respondent
for their discharge was that it was an economic layoff-the loss of a large
contract for pallets and the necessity for reducing the force in the pallet plant by
10 percent. General Counsel offered no testimony rebutting the alleged reason
advanced by Respondent, but established by credible testimony that Carter
initiated the union activity at Respondent's plant, and that Duke joined with
him very actively in trying to organize the employees, and that Respondent was
fully advised of this activity. (All of this testimony has been reviewed and
is not repeated here.) Out of context-with surrounding circumstances, it would
be difficult to find that there was any discrimination by Respondent in discharg-
ing these two employees. When considered in connection with the situation then
existing in the plant, the apparent antagonism of Mills to the union organization,,
the plan to discharge union members, and the additional fact that Respondent
knew that Carter and Duke were among the leaders, if not the actual leaders:
in the union organization, it then becomes somewhat questionable if the reason
given by Respondent for the dismissal of these two employees was in fact the
real reason or a pretext:
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Credited testimony establishes that the seniority rule was not exercised in
selecting the employees to be laid off. Ferguson, who made the selection, testi-
fied that he selected these two because they were the two "sorriest" men he had.
The reason given by him is not so impressive when it is considered that the two
men selected happened to be the two most active in the union organization. He
had never previously reprimanded them for their work, and Carter testified
credibly that other employees were hired after they were dismissed, and they
were not recalled.
Respondent has advanced the same reasons it urged in connection with the
discharge of Warren, as to the burden of proof and the Respondent's knowledge-
of union activity of the two employees. Credited evidence previously considered
proves that Respondent was fully advised as to the union activities of all of
its employees, including Duke and Carter. Respondent has urged that in
making his selection, Ferguson did not select any of the employees he admitted
had discussed the Union in his presence. This has little merit when viewed
in the light of the plan of Respondent to discharge the union employees a few
:at a time. In making his selection he did choose the two in his plant recognized
.as the leaders. Respondent also urges that the Board has recognized the right
to select the most inefficient and cites Miller Abbatoir Company, 17 NLRB 872,
.and N. L. R. B. v. Piedmont Cotton Mills, 179 F. 2d 345. In the latter case the
-circuit court said that inefficiency, rather than seniority, must be.accepted, in
the absence of evidence or reason to the contrary. In the present case there
:Is evidence which raises serious doubts as to whether inefficiency was the real
:reason or just a pretext. This evidence convinces me that it was a pretext, and
I find that Respondent discharged Carter and Duke because of their union
activity.
4. Mass discharge of 22 employees at pallet plant
On May 16, 1949, about 1 o'clock the following employees were discharged by
Joe B. Mills, general manager, at the pallet plant :
L. G. Bartlett Filo Hill Herman Owens
John Barnes Ralph Kipfer James Payne
Homer Currier Marvin Knuckles W. B. Rinke
Garland Curtis Earl Morrow Billy Skidgel
Kenneth Davis Lewis Merritt Troy Turner
Jack Daniel Robert L. Martin Ira Wolfe
Lum Fisher Marvin Nichols James Wade
Billy Friend
The credited testimony of employee witnesses was that following the discharge
of Warren, Duke, and Carter on the morning of May 16, about 30 of the union
members gathered across the railroad track from. Respondent's plant during the
lunch hour and discussed the situation. Having in mind the plan disclosed to
some of them by Brown and his son to discharge the union members a few at a
time, they decided to call on Ferguson, foreman of the pallet plant, and find out
why Duke and Carter were discharged. No discussion was had nor any decision
reached as to what action they intended to take if Ferguson's answer was not
satisfactory. Some 12 or 13 of these employees testified as to what occurred
between that time and when they were finally discharged.10 With few variations;
1 0 Counsel for the parties stipulated that if the other members of the group were called
as witnesses their testimony would be substantially the same as those who had testified.
OZARK HARDWOOD COMPANY 1463
Which I regard as insubstantial, the credited testimony of these witnesses pro-
duced by General Counsel is summarized as follows :
It was customary for Respondent to sound a warning whistle at 12 : 55, but none
of the employees in the group heard it, if it did blow. Respondent offered testi-
mony that it did blow, but that it was not very loud. Billy Skidgel, one of the
discharged employees, testified on cross-examination, as follows :
Q. Are you telling his Honor that the caution whistle didn't blow or that
you didn't hear it?
A. I didn't hear it.
Q. If you had heard it would you have heeded it?
A.
Q.
A.
Q.
A.
Q.
A.
Yes, sir, I would have went back to work.
You would?
Yes.
You wouldn't have gone up there to find out why the boys were let out?
No, sir.
You wouldn't have done that?
No.
Q. Why didn't you turn around and go to work then when Joe Mills told
you to?
A. He didn't give its time. [Emphasis supplied.]
Shortly before 1 o'clock, the group started in the direction of the pallet plant,
approximately 250 yards away. As the men reached the pallet plant, they
stopped, and Martin who was in the lead, followed by Wolfe, started up the
steps to the pallet plant. About this time, Joe B. Mills ran up very excited, and
in a very loud voice and with some profanity told Martin not to go up there
that the men were working. Apparently Martin did not hear Mills as there was,
considerable noise from the pallet plant with several power saws operating, as
well as other machinery, and about 14 or 15 men driving nails. Mills caught
Martin by the shoulder and stopped him. Mills was very excited, appeared to be
very angry, was using some profanity, and was wildly gesticulating. After he
stopped Martin, he turned to the group and told them to go on back to work.
About this time the 1 o'clock work whistle blew, and Mills then turned to the
men and said, "Hell no, go on to the office and get your checks, you are fired."
Mills' testimony as to what happened at the pallet plant did not vary sub-
stantially from the testimony of the employees, except in one respect. He denied
telling the employees that they were fired, but rather testified that he told them
if they were not going back to work to go to the office and get their checks "
His timing of events at the pallet plant differed very little from that of
the employees. It is also noticeable that he made no effort to ascertain why the
employees were gathered at the pallet plant. Asked by his counsel what he
said to Martin after he stopped him, he replied :
A. I said : "Mr. Martin, you can't go in there." I asked him what he was
doing there, to the best of my recollection. [Emphasis supplied]
11 There were the usual variations in the testimony of the witnesses as to the exact
language Mills used, but all of them testified that Mills used the word "fired," and I credit
their testimony. There were also some variations' as to when the work whistle blew,
whether before or after Mills discharged them. It is probable that it was the work whistle
that prompted Mills to peremptorily discharge the employees and I so find.
L Mills' attempts to make the discharge of the employees conditional "if you are not
going back to work" is not credited. It was used by him in other testimony as to what
happened on the way to the office and at the office, and was obviously but ail afterthought
to justify his position that the employees were not discharged but that they quit their jobs.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did Mr . Martin give you any response as to what he was doing there?
A. No, he didn't. He didn't say a word to me.
Q. Did Mr. Wolfe hear your conversation?
A. Mr. Wolfe was on past Mr. Martin , I would say to the northeast corner
of the pallet plant.
Q. Mr. Martin did not answer you at all?
A. No, he didn't.
Q. I believe you say then that you, Mr . Wolfe and Martin turned toward
the group?
A. Yes.
Q. What did you do then?
A. I started to ask the men-because of the noise there, the whistle blow-
ing and the noise you couldn't hear me talk at all-why and what they were
doing there and then the second blast blew and I had to wait. [Emphasis
supplied .] I waited until . the whistle blew and I said: "Men , it is work
time. Your machines are running and you are supposed to be back on your
jobs." -
Q. What response , if any, did you receive?
A. I didn't have a response at all.
Q. Were you talking to the group then?
A. Yes.
Q. The entire group?
A. Yes. At that time they had backed up to the railroad track-that is
the spur which runs into the pallet plant and we have a loading dock ad-
joining the railroad track on this spur.
Q. You received no response?
A. No.
Q. What did you next do , if anything?
A. I stood there , I would estimate a minute or something like that, I know
it was a long interval-
Q. A minute after you made this inquiry?
A. It was very long because I was restless myself because of the fact that
the men were standing there in a group like that and I was expecting a
spokesman or at least somebody to say something there as to why they were
there and why they weren 't going back to work. After about a minute pause
there I repeated to them-
Q. What did you say this time?
A. I said : "Men, it is work time. Go back to your jobs."
In response to further questioning , Mills testified that he waited about a minute
longer, that the men were restless and were moving around, and he then said,
"Men, if you are not going back to work you can't bother these men who are
working here. Go to the office and get your time."
With Mills ' leading, the employees then followed him past the flooring plant to
the office . All of the employees testified credibly that after leaving the pallet
plant and following Mills to the office, nothing occurred until just before they
reached the office when -they noticed John Bartlett and Dewey Acord standing on
the steps leading to the flooring plant, hereinafter mentioned.
Mills testified that as they were passing the loading dock to the flooring plant,
he either stopped or hesitated and said to the group , "Boys, your machines are
running. Go on back to work ," or something like that. E. S. Kerr , a customer,
testified that he was on the loading dock and saw the employees led by Mills on
OZARK HARDWOOD COMPANY 1465
the way to the office, that as they passed him he saw Mills hesitate and heard
him say, "It is work time. It is past work time. I wish you would all go back
to work. Go back to work. All of you who are not going to work, come over to
the office and I will give you your money." Mrs. Mills, wife of Joe Mills, and
employed as a bookkeeper by Respondent, testified credibly that she was right
behind the group on the way from the pallet plant to the office. She was asked
by Respondent's counsel if anything happened on the way to the office, and
replied :
A. There was no conversation. The men followed him right on clown
toward the flooring plant and when we got opposite the flooring dock he
slowed up and I went on around the group to the east end of the flooring
plant.
Q. Did you hear Mr. Mills make any statement to the men at the time he
slowed up at the dock?
A. No, sir. [Emphasis supplied.]
Phillip Pittman, one of Respondent's witnesses, testified credibly that on May
16 he was working for Respondent as a shipping clerk and as the men came by,
led by Mills on the way from the pallet plant to the office, he was standing in
the doorway leading from the flooring plant to the loading dock, that Mr. Kerr
was standing at the end of the loading dock near his truck and as the men passed
by he did not hear any statement made to the men by Mills."
5. Discharge of Bartlett, Acord, and Boren
Dewey Acord and John William Bartlett were not with the group that gathered
across the railroad track and then went to the pallet plant. Harold Boren was
with the group that gathered across the railroad track. He testified credibly that
"they started down to the pallet plant and I dropped off. I didn't go down to the
pallet plant. I went into the mill and got my gloves and walked through to the
back. I stood there a while and they came marching back up there and he says:
`All of you are fired. Go to the office and get your pay.'"
Q. Who said that?
A. Joe B. Mills. So I just fell in line with them.
Q. Now let's get this straight. Maybe I didn' t understand you correctly.
Joe said : "All of you are fired." Then you went on to the office with them?
A. Yes, sir.
Q. Harold, did you know anybody working in the mill there by the name of
Acord?
A. Yes, sir.
Q. Did you know anybody there named Bartlett?
A. Yes, sir.
Q. Did you see anybody there by the flooring mill on the way down to the
office?
A. Yes, sir. John Bartlett and Dewey Acord was somewhere on the steps.
I was about back to the door in the flooring plant.
1s Mills testified that when he made this statement "I heard one machine running and
I know the large fan in the flooring plant was running and that is the one that carries
all the waste, sawdust, shavings and hog fuel on and it makes quite a noise itself when it is
running ." If Mrs. Mills , who was just passing the group, and Pittman who was near by,
did not bear Mills' alleged statement, it is probable that the employees in the group did not
hear it if it was made , and I credit their testimony that they did not hear any statement
made by Mills at this time.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John William Bartlett testified credibly that when he returned from lunch
on May 16 he went into the flooring plant before the work whistle and regraded
the lumber Warren had misgraded, and cleared all of the lumber off the grading
table, and that he caught up with his work and was waiting for some lumber
to come through ; that the 1 o'clock whistle blew, and about a minute later he
saw Mills leading the men to the office, that having no work to do, he walked
over about 20 feet to the steps, and as Mills passed he asked him what was
going on, and Mills said, "Get in line. You are fired. Get your money."
Q. You asked him what was going on and he said "Get in line you are
fired. Get your money?
A. Yeah.
Q. Was there anyone else on the steps with you at the time?
A. Dewey Acord.
Q. Do you know what, if anything, happened to Dewey?
A. He told both of us to get in line.
Q. Did Dewey get in line?
A. Yes, sir."
Dewey Acord was not called as a witness by General Counsel in his case-in-
chief" but testified credibly in rebuttal that he was with the group across the
railroad track that went to the pallet plant; that he was out on the steps to the
flooring plant with Bartlett when Mills and the men came by, that he went to the
office with the group, got his check, and then went to his car.
Mills corroborated Bartlett's testimony, except he added that before he told
Bartlett to get in line he asked him why he was not working. He also denied
seeing Acord there. He gave no testimony concerning Boren.
The employees testified credibly that after they reached the office, Mills sent
for the time sheets, directed the men to go to the office one at a time and get
their checks which were prepared for them after they got in the office. The em-
ployees went into the office one at a time, and their checks were made out and
delivered to them. All of the discharged employees were paid and left the
property about 1: 45 o'clock.
Mills testified that after they got to the office he went inside and directed one
of the clerks to call Sheriff Yarbrough. It was about 15 minutes after they got
there before they started to pay the men off one at a time. About half of the
employees had been paid off when the sheriff arrived. This testimony was not
contradicted and is credited.
Mills further testified that while he was waiting outside the office with the
employees, and before they started to pay them off,
14 Several of the employee witnesses in the group testified credibly that they saw Bartlett
and Acord on the steps and corroborated Bartlett's testimony. Mrs. Mills testified that as
she passed she asked Acord, "Dewey, are you going back to work?" and he replied, "No,
madam." Although Acord was not questioned about any conversation with Mrs. Mills,
I do not place much credence in Mrs. Mills' testimony for the reason that the evidence
shows there was no agreement between the employees to quit their jobs and there is no
testimony that Acord was with the group across the track or that he had any knowledge
of any plans they may have made.
15 After a number of employee witnesses had testified, a conference was held as to the
testimony of the other employee witnesses concerning the events of May 16, and counsel for
all parties then stipulated that if Dewey Acord and the other employee witnesses were
called to the stand they would give testimony similar to that given by preceding witnesses
on this subject. Dewey Acord, therefore, was not called to testify except as a rebuttal
witness.
OZARK HARDWOOD COMPANY 1467
The fellow walked up to the back of me and he said : "What am I being
fired for?" I turned around and it was Herman Owen. I said : "Where
are you working?" He said : "I ' ve been working on the yard ." I said :
"What are you doing down here ?" He didn 't reply to that. I said : "You
boys should be working . Go on back on the hill and work." He said : "No.
I wouldn't work for you at all."
Herman Owen testified credibly that while he was waiting at the office for his
check he asked Mills why he was being fired, and Mills said it was because lie
refused to work :
Q. Did you say anything to that?
A. I said I didn ' t have time to refuse. "Yon fired me after the whistle
blew before I could say a thing." [Emphasis supplied.]
Q. Did he make any reply to that?
A. No.
Mills also testified that Dewey Doke, one of the employees in the group, came
to him while they were waiting outside the office, and
He says, "I need to be working. I don't know what this is all about." I
says : "Dewey, didn't you hear me tell you to go back to work and I asked
you to go back to work." He said : "Yes, sir.. I didn't know what to do."
I says: "If you want to go back to work, go on back to work." I made that
statement to the whole group when I said that. I turned around to all of
them when I said that.
Dewey Doke was not called as a witness. The records disclosed that Doke was
not discharged that'day. As to Mills' conversation with Doke, it was not con-
tradicted, and is credited. As to Mills' testimony that he read his statement
to the whole group, of all of the employees in the group who testified, six denied
that Mills made this statement or any similar statement to them at the office, and
their denial is credited.
Mills testified that after Doke went back to work, James Dimmitt, another
employee, asked him if he could go back to work, and he replied, "Any man here
can go back to work. I want you to go back to work," that he said this loud
enough so that they could all hear it. Dimmitt testified credibly that when
he went in to get his check, Mrs. Mills said to him :
"What is the matter with you Mr. Dimmitt," I said "I have heard they
fired a man unfair and I want to do the right thing." She says : "If you
want to do the right thing you can go back and go to work."
Q. She.said if you wanted to do the right thing you should go to work?
A. If I wanted to do the right thing I could go back and go to work.
Q. Go ahead.
A. I said : "Give me my check." She wrote my check out and I said
"Thank you," and walked out. Then I stood around there with the group
a while and Mr. O. D. Brown came up. I never said nothing to Mr. Brown.
He walked over by me and he said: "If you have got a damned brain in your
head you'll go back and go to work." I said "I believe you are right." And
I did go back and go to work.
Asked if at any time he had quit or been fired, he replied, "I had been fired,"
and after Brown told him to go back and go to work, he did. Mrs. Mills testified
that she questioned all of the employees when they came to the office for their
checks. She gave testimony as to conversations with some two or three em-
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, but when asked to, relate conversations she had with employees other
than the few she mentioned, she testified that she could not recall any of the
other conversations. O. D. Brown testified that he talked to Dimmitt and put
him back to work.
Mills further testified that Ralph Kipfer, one of the employees in the group,
came to him while they were waiting outside the office and asked him if he could
go back to work, and was told that he could, that he looked around at the others
in the group and then said: "No, Mr. Mills, I guess I better not go back to work."
Kipfer was not-called as a, witness, and there was testimony that his present
address was not known. Mills' testimony with respect to his conversation with
Kipfer is credited.
Mills testified that after all of the employees, except one or two, had received
their checks, he turned to a group of about five or six employees standing there,
and said :
"Boys, what is this all about. I would like to know what you fellows
mean here. You haven't given me any reason for this walk out."
John Bartlett says: "0. D. Brown-we heard O. D. Brown said he was
going to fire every man two or three at a time until he fired every man
that signed a union card. He has a list of the names."
That he then called Brown; told him what Bartlett had said, and Brown said,
"Any man that said that is a derned liar." After Brown left, he said to the
men, "Fellows, you men know I have asked you several times to go back to work.
Is there any man here who wants to go back to work? If there is he can go
back to work now."
Sheriff Yarbrough, who testified that he was present at the time of Mills' alleged
statement related above, testified that there were about 15 or 20 men grouped
around in front of the office, that he asked them a few questions trying to find
out what was the matter, and while he was talking to them, Mills came out,
And he was addressing me and the group and he said there wasn't any body
there that couldn't go out and go to work if they wanted to.1°
L. G. Bartlett, called by General Counsel in rebuttal, credibly testified that he
was in the group who were discharged by Mills on May 16, that he was around
the office for about 45 minutes before he left, that he saw Mills around there, that
Mills never told him to go back to work, never invited him to go back to work,
and that he never heard Mills say anything like that to anybody else.
Dewey Acord, called in rebuttal, testified credibly that he was at the office on
May 16 when the men were discharged, that he did not hear Mills say to him or
to any of the other employees present, "You can go back to work is you want to"
or "You men are not fired, you quit. You can go back to work if you want to"
or anything similar thereto.
William Rinke, called in rebuttal, testified credibly that he was at the office in
the group of employees discharged on May 16, that he was either the last one or
16 Yarbrough 's testimony was rather evasive and unconvincing . Questioned on cross-
examination he admitted that "there was quite a lot of conversation but that has been 10
months ago and I can 't remember direct , specific conversation that happened 10 months
ago." Questioned concerning a sworn statement given to the Board's investigator shortly
after May 16, in which he omitted to mention his quoted testimony, he said the investigator
asked him to tell as much as he could recall of the incident, but that he did not mention
Mills' alleged statement on this occasion because the investigator did not ask him about it.
It was obvious to me that his testimony was based on recent prompting rather than on
his recollection of what actually happened on May 16.
OZARK HARDWOOD COMPANY' 1469
very near the last one to get his check ; that Mills was there most of the time,
that he left once or twice for short periods ; that during the time he was there
Mills never tried to get him to go back to work and that he did not hear Mills
invite anybody to go back to work ; that he was there when 0. D. Brown came
over from the flooring plant , that Brown told the men that he didn't say anything
about firing them two or three at a time, and said that "whoever said that was a
damned liar."
There was some testimony by several employees of conversations with Mrs.
Mills as they went in to get their checks, and testimony by Mrs. Mills of conversa-
tions she had with some of these employees . Mrs. Mills was the wife of Joe
Mills. ' She held no official position with Respondent , had no financial interest
in it, nor was there any evidence that she was supervisor . She was employed as
bookkeeper. All of this testimony has been carefully considered by me, and
except for such parts as have been previously referred to, it does not have
sufficient probative value to set forth in detail.
Marvin Knuckles testified credibly that he was president of the Union and
that all of the employees discharged on May 16, 1949, were members of the Union.
Counsel for both parties stipulated that L. G. Bartlett , who was discrimi-
natorily discharged on May 16, 1949, was reemployed by Respondent on July 25,
1949.
Conclusions as to Discharge at Pallet Plant
The undisputed testimony shows, and I find, that all of the 25 employees dis-
charged on May 16, 1949, were members of the Union, and that the majority of
them had been quite active in the attempt to organize the employees of Respondent.
The credible testimony discloses that Respondent had full knowledge of the
union activities and of the names of the employees involved. Ferguson's testi-
mony, and the limited testimony of Wedel before his collapse , and the credible
testimony of a number of witnesses as to statements made by 0. D . Brown proves
that Respondent had this knowledge. The two meetings of employees called by
Mills about the time of the start of the union activity , and the other meetings of
employees which , he reluctantly admitted on cross-examination that he attended,
establish that Mills knew of the union activity and was disturbed by it. He
testified that he called these meetings to present the economic picture of Re-
spondent to the employees but admitted that the rumor brought to him by one of
the employees disturbed him and he decided to call the employees together.
There was no testimony that Mills was in the habit of calling his employees
together to discuss his economic problems . Consideration of what he said, includ-
ing the parts supplied by the testimony of other witnesses , and the timing of
the meetings, leads to the conclusion that the real motive for the meeting was to
discourage the union organization . Failing in his efforts to discourage union
organization by direct appeal to the employees , it is obvious that Mills then
realized that more drastic steps must be taken . The plan to discharge a few of
the employees at a time as credibly testified by Troy Turner , John W. Bartlett,
Gorman Turner , Marvin Knuckles , and Earl Morrow was the logical conclusion.
The evidence convinces me that Mills had no intention of a mass discharge of
the union members. In the first place he testified that he had some knowledge
of the Act and must have realized the probable consequences thereof. Selecting
the probable leaders for discharge would serve to discourage the others and
accomplish his purpose without possible charges being preferred against him,
and at the same time avoid radical changes in personnel . There was no testi-
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony as to the number of his employees on May 16, but based on testimony that
was adduced it was certainly less than 100. The sudden loss of 25 or 30 em-
ployees therefore would seriously disrupt his operations. The unexpected
gathering of a large number of the employees at noon on May 16 was unques-
tionably a shock to him and undoubtedly accounts for his unusual conduct on
this occasion.
I have already found that the discharge of Warren, Duke, and Carter was dis-
• criminatory. and it is clear that these discharges were the first step by
Respondent to discourage union activity.
At the luncheon meeting of the employees, they had but a few minutes to
decide what action, if any, they would take. They had no leader experienced in
union activity with whom to consult. They were laboring men with little educa-
tion and little experience in thinking things out and planning their movements.
They may have lacked finesse in their plan, but in the emergency they had but
one thought and that was to go to the foreman who made the discharges and ask
him "Why." The credited 'testimony conclusively shows that they had no
discussion and made no plans to quit their jobs or go on strike.
When the employees reached the pallet plant, they were stopped by Mills.
The credited testimony of the employees was that Mills gave them no opportunity
to state why they were there, to abandon their activity and go back to work, or
as Mills contends, quit their jobs. Mills' testimony was that it was only a,
matter of 2 or 3 minutes, and then be decided the issue for them, "come on to
the office and get your checks" or as the employees testified "you are fired."
As the Circuit Court said in the Gullett Gin Co. case (179 F. 2d 499), "A per-
emptory question was put to them. They were not allowed to answer it. The
employer answered it for them. And because they did not answer with the
celerity the employer desired, they were fired out of hand." In the present
case it was not a peremptory question, but a peremptory order, "go back to
work." In the present case, Mills' action was more arbitrary and dictatorial
than in the Gullett Gin Co. case. There the employees were in the comparative
quiet of an office, and had discussed their problem for some time with the
employer. In the present case the employees were taken by complete surprise,
and, as Mills testified, the noise from the pallet plant was so great that he could
not be heard, there had been no previous calm discussion, but the peremptory
orders from Mills were thrown at the employees like a, thunderbolt. As one
of the employees said when asked on cross-examination why he did not go to
work when Mills told him to, "He didh't give us time," and another, "You fired
me after the whistle blew before I could say a thing." These two employees
correctly describe what happened.
Respondent further urges that the activities of the employees in this case were
not concerted activities protected by the Act for the reason that the two employ-
ees whose discharge prompted the activities were not present and had been absent
from the premises for more than 5 hours. This argument is without merit.
Respondent has cited the language of the court in the Gullett Gin Co. case, supra,
where the court said, "The primary claim made and supported by evidence is
that, while in the course of taking in their own behalf concerted activity for the
mutual aid or protection of the employees involved." [Emphasis supplied.]
There is no such limitation in Section 7 of the Act as Respondent tries to place.
upon the language of the court. Respondent also overlooks the fact that the
employees engaged in the activities were concerned not alone with protection
of the two discharged employees, but as to whether this was the beginning of
the plan to discharge the union members a few at a time.
OZARK HARDWOOD COMPANY 1471
Respondent also urges that the activities of the employees were not protected
because they were prompted by the economic layoff of two employees which was
not violative of the Act. I have found contrary to Respondent's position that
the discharge of these two employees was in violation of the Act. Assuming
that Respondent's position is correct and that the discharge of these two employ-
ees was not violative of the Act, Respondent's position is not materially improved
therby. Respondent cites Joanna Cotton Mills Company, 176 F. 2d 749, where
the court held that a "wild cat" strike was not a concerted activity protected
by the Act. In making such finding, however,•the court said: -
We agree that the "concerted activities" protected by the Act are not
limited to cases where employees are acting through unions or are otherwise
formally organized. It is sufficient that they are acting for mutual aid or
protection. . . . Thus, an employee may not be discharged for concerted
activities to get pay for overtime work . . . ; nor for demonstrating in
protest over the firing of a union president. [Emphasis supplied.]
In the present case, there was no "wild cat" strike or any other unprotected
activity. Here the employees were clearly engaged in protected activities, they
were, in the words of the court in Joanna Cotton Mills case, demonstrating in
protest over the firing of the recognized union leaders, in the first place, and
as to the effect upon them of the plan to discharge union members. This is
clearly shown by the testimony of Mills in his belated inquiry as to the cause
of the gathering when he was informed of what 0. D. Brown had said.
Respondent has urged that the employees never informed Mills of the purpose
of their concerted activities, and has cited some authorities showing that the
employer did know of the purpose of the activities. I find no merit in this. The
complete answer is that Mills made no attempt to find out the cause of the
gathering and discharged the employees before they could tell him why they
were at the pallet plant. His only testimony is that when he first spoke to
Martin he said, "Mr. Martin, you can't go in there. I asked him what he was
doing there, to the best of my recollection." [Emphasis supplied.] Even assum-
ing that he did ask Martin what he was doing there, he testified that apparently
Martin did not hear him as he had to catch Martin by the shoulder, and he further
admitted that the noise was so great that he could not be heard. As several of
the employees testified, Mills was so mad and was swearing and the employees
were afraid to say anything, even had Mills given them the opportunity which
he did not. As one of the employees testified, he ordered them back to work,
caught his breath, and then fired them, and now the Respondent complains that
the employees did not do what Mills gave them no opportunity to do. The testi-
mony shows why Mills did not make this inquiry. In 'the first place he was
so shocked and angry and the prompt action by the employees had taken him
by surprise and he had no opportunity to carefully plan. His testimony as to
what happened at the pallet plant, "I started to ask the men- because of the
noise there, the whistle blowing and the noise you couldn't hear me talk at
all-why and what they were dong there" suggests that as an afterthought
he must have realized what a serious blunder he made by discharging the em-
ployees without ascertaining why they were there. The evidence indicates
that he must have known the reason they were there, and, therefore, it never
occurred to him at the moment to ask why they were there. He had ordered
the discharge of the three men, and although he testified that he did not learn
that Duke and Carter were discharged until some time later when he received
a copy of the charge filed against Respondent, this is very improbable and is
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not credited. O. D. Brown probably knew the employees better than Mills when
he told Wedel that morning, "You can't do that. You will stir up one of the
awfulliest things you have ever heard of out here." The employees were engaged
in protected activities at the time and entitled to the protection of the Act. The
fact that they did not actually inform Mills of the reason for such activity under
the circumstances of this case does not change the character of their act to
unprotected activities. To hold otherwise would make the Act very difficult
to enforce. To say that an employer who anticipated the plans of his employees,
and at the inception of such activities and before his employees could send him
a message as to why they were engaging in such activities, could discharge the
employees with impunity, is absurd, and this is particularly true in the present
case where the evidence and the actions of the Employer indicated that it already
knew the reason, or at least should have known the reason.
Respondent makes some point of the fact that after the events at the pallet
plant, one of the employees left the group, returned to work, and was not dis-
charged, and that after the group arrived at the office, two other employees
in the group returned to work, one by appeal to Mills who sent him to his fore-
man, and the other because of a conversation with O. D. Brown, his foreman.
What prompted Mills to ignore the fact that one of the employees did not go to
the office and get his check as ordered, and to permit the other two employees
to be restored to their jobs after, they were discharged has no material effect
upon the action Mills had already taken at the pallet plant as to the other dis-
charged employees.
Bartlett, Acord, and Boren were not a part of the group that went to the
pallet plant with the other employees, and they were not discharged at the time
the 22 employees were dismissed. Acord was with the group across the railroad
track, but as they left for the pallet plant he left them and went to his place
of employment ready to work. Bartlett had already started work even before
the 1 o'clock whistle, had completed all of his work then at hand , and seeing
the group going to the office with Mills went over to see what was the matter.
Boren was also at his place of work ready to begin, but as the testimony dis-
closed, work did not start at 1 o'clock because of the absence of so many of. the
employees. The conduct of these 3 employees clearly shows that they had no'
intention of quitting their jobs as Respondent contends. On the other hand it
is clear that they were present ready to go to work as soon as work started.
Pittman and O. D. Brown both testified that work in the flooring plant was at
a standstill because the men were not there, and as the men passed both of them
stopped and Pittman went to the loading platform to see what was the matter.
Mills testified that he saw Kerr on the loading dock when he passed. Pittman
was near Kerr and it is reasonable'to assume that Mills saw him, yet he did not
assume that Pittman had quit his job-why, because Pittman had had no part
in the union organization. There was no logical reason for him to assume that
Bartlett, Acord, and Boren had quit. Mills saw them on the steps leading to the
flooring plant not actually working at the time, recognized them as members
of the Union, and without giving them an opportunity to explain why they were
on the steps or not actually working at the time, peremptorily discharged them.
He testified that he did not know that Bartlett, and Acord got in line. He gave
no testimony concerning Boren. Mills was at the office and the testimony shows
that he checked the men into the office to get their checks one at a time. If he
had no intention of discharging these 3 employees, if these employees had mis-
understood him, here certainly was the opportunity to correct any mistake that
OZARK HARDWOOD COMPANY 1473
had been made, but the testimony shows that he did nothing. The conclusion
is irresistible that he did discharge them by reason of their union activity.
Respondent contends that the facts in this case do not warrant a finding of a
violation of Section 8 (a) (3) of the Act, and cites the decision of the court in
Gullett Gin Co. case, supra. Quoting from its brief, Respondent says, "While
the actions of the men in making demands and the action of the employer admit-
ting discharge are wholly different from the instant case, the facts are somewhat
similar." I cannot agree. In the Gullett Gin Co. case the question of union
membership was not an issue. The only question was the demands of a group
of employees independent of any union organization for an increase in pay.
In the instant case the main issue is the right of the employees to become mem-
bers of a union without interference by the employer. The discharge of Warren,
Carter, and Duke was clearly in violation of Section 8 (a) (3) of the Act because
it was definitely to discourage membership in the Union. The same is true of
the mass discharge of the 22 employees and the discharge of Bartlett, Acord,
and Boren. The whole purpose of the concerted activities of the 22 employees
was to protect their right to become members of the Union, and Bartlett, Acord,
and Boren were discharged because they were active in the union organization
and had become members of the Union. Summarized, the purpose of Respondent
was to discourage membership in the Union, as well as interfere with the rights
of the employees guaranteed in Section 7 of the Act. '
I find that after Ralph Kipfer was discharged at the pallet plant, Respondent
made an offer to reinstate him which he rejected.
B. Interference, restraint, and coercion
Earl Morrow, an employee, credibly testified that on May 16, 1949, about
6: 45 a. in. O. D. Brown, foreman of the flooring plant, came out of the shipping
clerk's office with a time book in his hand, and "He said he had a check mark
beside every man's name that signed a union card. He said : by Wednesday
morning you will see some new faces around here."
H. E. Bean, an employee, credibly testified that around May 27, 1949, O. D.
Brown came into the flooring plant and said, "Joe Mills said that every man
that had a union card was going to be fired."
Gorman Turner, an employee, credibly testified on the morning of May 14,
1949, in a conversation at Brown's house, O. D. Brown said to him, "They have
a list of every man's, name` in the office that has joined the union. Whether
it goes union or not the men will be fired, all these men that have joined the union.
By Wednesday night there will be lots of new faces in the mill."
Marvin Knuckles testified credibly that on Saturday afternoon, May 14, 1949,
he was talking to O. D. Brown about the Union and in the course of the,con-
versation Brown said "That there was some boys in his plant that was going
to our union meetings and then was in there for the purpose of finding out who
members were and how many they were and getting a list of every man that
had signed a union card."
Coy Smith credibly testified that on the morning of May 16, 1949, O. D. Brown
said to him,
"Mr. Wedel is going to lay some of you fellows off." I believe I asked
him why and he said: "Over those union cards."
Respondent has urged that it did not maintain a time book, but carried time
sheets ; and that there was no actual proof that a list of employees who were
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the Union was actually in existence. There is no merit in either
of these arguments. It is somewhat significant to observe that Brown admitted
that he did on occasions refer to these time sheets as a time book. It is not
material, however, whether Respondent actually had such a list nor whether
such threatening statements were actually carried out. As the Board said in
Chicopee Manufacturing Co. of Georgia, 85 NLRB 1439, "The unlawful nature
of [employer's] conduct is determined not by the actual coercive effect of the
actions or statements upon the employees concerned, but by the reasonable
tendency of such conduct to interfere with the full exercise of the rights guar-
anteed to employees under the Act."" That the reasonable tendency of the
above statements was to intimidate the employees and interfere with their
right to become or remain members of the Union cannot be questioned, and
such statements were violative of Section 8 (a) (1) of the Act.
Marvin Nichols testified credibly that in the latter part of November 1949,
O. D. Brown said to him, "This damned union will never go over. If it does
Joe Mills will shut the plant down."
H. B. Willis testified credibly that on July 15, 1949, just prior to a represen-
tation election ordered by the Board, O. D. Brown said to him, "This afternoon
when you vote you had better vote 'no' or the men that was laid off on account
of the Union will be back to get your job."
Truman K. Einert testified credibly that about 1: 30 in the afternoon of July
15, 1949, shortly before the Board election, O. D. Brown said to him, "Truman,
if you don't vote right I fear that we will be out of a job." 18
William E. Walker testified credibly that just a few days before the Board
election on July 15, 1949, O. D. Brown and George LaGasse were sitting on the
loading platform, and that he walked over to Brown and the following con-
versation occurred : ,
I said to Brown "Well, it won't be long now, until we will have a union."
Brown said "Well, if we do you won't have no job. The mill will shut down
if it goes union." I said : "No, it won't shut down. They can't shut it down."
He said : "They can shut it down." I said : "They could but they won't.
The man don't kill the goose that lays the golden egg." He said : "Well,
you will see, if it goes union they will shut down." 19
Charles Walker testified credibly that a few days before the July 15, 1.949,
Board election, O. D. Brown said to a group of employees, "There was an election
coming up and to vote right or we wouldn't have no job." Walker said that
James Porter was one of the employees present when this statement was made.
Porter testified credibly, corroborating Walker's testimony as to the time and
place, that Brown said, "Boys, there is an election coming up. I can't tell you
boys how to vote. But, he says, I will advise you to be careful how you vote for
if this goes union he will close the mill down tighter than hell." 20
17 J. S. Abercrombie Co., 83 NLRB 524; Premier Worsted Mills, 85 NLRB 985.
16 Einert testified that sometime after the above statement , and about the time he was
to be interviewed by the Board's investigator, Brown said to him, "Now don't tell, them
anything that I said to you the day of the election."
1° LaGasse testified that he was with Brown on the loading dock on the day of the
election [ emphasis supplied ] and that no such conversation occurred . He was not asked
as to any conversation that may have occurred several days prior to the election.
° All of the above statements attributed to Brown were emphatically denied by him in
his testimony . When asked if he made these statements , his answer in every instance was
so vehemently "NO" that one of the attorneys on cross-examination was prompted to ask
him if his name was N 0 Brown. It was hardly probable that with all of the union talk
OZARK HARDWOOD COMPANY 1475-
Ira W. Price testified credibly that on the day of the Board election, July 15,
1949, George LaGasse, his foreman, asked him what he thought about the Union,
and he replied : "George, it would be a fine thing if we could get it," and LaGasse
replied, "If the Union comes in the whole bunch will be without a job."
Respondent has urged that in matters involving 0. D. Borwn, only an isolated
instance is related and the witnesses are not corroborated by any other witness,
and that such evidence does not discharge the burden of proof. It is noticeable
that in all of the statements attributed to Brown, and to the other foremen, one
thought is conveyed that if the Union came in or if the employees (lid not vote
right, the employee would be out of a job or the plant would close. As
Brown's testimony has been entirely discredited, this leaves the testimony of the
witnesses uncontradicted and sufficient to discharge the burden of proof. Re-
spondent also contends that the isolated instance in the case of Brown does not
show a violation by Brown for the reason that his very actions belie any threats
to the men. I find no merit in this contention for the reasons already stated."
All of the above statements were threatening and obviously made for the purpose
of interfering with the rights guaranteed to the employees by Section 7 of the
Act, and I find that such statements violated Section 8 (a) (1) of the Act.
Garland Felkins testified that John Ferguson asked him if he had signed a
union card, that this was sometime around November 1, 1949. After some
prompting by General Counsel, he said that Ferguson asked him the same ques-
tion about 2 weeks before the Board election. The following then occurred :
Q. Garland, did you ever know an employee there named Leo Allen?
A. Yes, sir.
Q. I want you to try to recall to the best of your ability whether you were
ever standing around or present when Ferguson or any of the other super-
visors ever talked to Leo Allen about signing a card?
A. Yes, sir. He asked me what we was going to do about it.
Q. Who asked you?
A. Ferguson.
Q. When was that?
A. It was before the election. I don't know what day it was.
Q. It was sometime before the election?
A. Yes.
Q. Go ahead.
A. He asked us what we were going to do about it and we told him we
didn't want nothing to do with any of it.
Q. You weren't going to have anything to do with any of it?
A. That's right.
Q. Did Ferguson say anything either in agreement or disagreement with
that attitude?
A. Well, he told me once that I had better leave the cards alone. That
is all he ever said to me.
Q. I'm talking particularly about the time he was talking to Leo Allen
and when you say that Leo told him be wasn't going to have nothing to
do with it. Did Ferguson make any reply that you recall?
going on among the employees at this time Brown did not hear or participate in some
of it, and his emphatic "No" in response to each of these questions was clearly
indicative of evasion on his part. It was one of the reasons why all of his testimony
was rejected.
=" Chicopee Manufacturing Co. of Georgia, supra; J. S. Abercrombie Co., supra; Premier
Worsted Mills, supra.
917572-51-vol. 91-94
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Nothing only just ask how he felt about it.
Q. It may or may not refresh your memory, Garland; I don't know exactly
what happened but if that is all you can remember , tell me whether you
remember anything like this-Do you remember Ferguson saying anything
about "that's the way we like to hear the boys talk?"
A. I don't believe so.
On cross-examination , Felkiiis said he did not know what Ferguson said to
Leo Allen. Ferguson denied questioning Felkins about signing a union card.
'elkins' testimony was not convincing and is not credited.
Truman A. Bartlett testified that about 3 days before the Board election on
July 15, 1949, John Ferguson said to him, "You and Norman Westwood will be
the first ones to leave here if you'ens get beat in the election." Ferguson
testified that Bartlett came to him just before the election and said "that he
knew that if it didn't go union that he would be laid off immediately," and
that he replied, "Truman, I will insure you that Mr. Mills and Mr. Wedel never
said nothing like that to me. As long as you do your job, your job is here and
you will have a job." Ferguson then expressly denied that statement attributed
to him by Bartlett. Ferguson's statement was frank and impressive and I
credit his testimony.
Lewis Merritt testified that at the meeting of employees called by Mills in
the latter part of April 1949, while Mills was speaking to the employees, one
of them asked him what he thought of the Union, and Mills replied: "Well,
I don't think very much about the Union, but the Union is a very radical thing
I think and here is the reason why. On working days in the plant if I should
happened (sic) to be short in the plant I could go out in the yard and bring a
man into the flooring plant and if it will become union if I am short a man I
can't do that. The Union is too radical. If it becomes union you men won't
get as much work, and if we give you a raise and the Union comes in, I will
have to shut the mill down." On cross-examination, Merritt modified the latter
part of the quoted statement, and testified that Mills said, "If the Union comes
in I can not pay union wages" ;
Q. Is that what he said?
A. That's the very words he said.
Q. Didn't he state that if the Union came in and demanded a raise in
wages, that he couldn't pay it. Wasn't that what he said?
A. He would have to shut down.
Q. That he would have to shut down if the Union came in and demanded
a raise, that he couldn't pay it? That is what he said wasn't it?
A. Yes.
Mills did not deny specifically the testimony of Merritt, but testified that at the
meeting of the employees in question, he went into the economic condition of the
Company, the sales of lumber and flooring and the drop in prices ; that he told
the employees he had heard that union cards were being circulated in the plant,
and he assured them of their right to organize a union if they cared to, that if
they signed a card or did not sign a card it would not affect their jobs, that he
spoke of the efficient organization from an operating standpoint, and that outside
of a few in each department, they had as near a perfect crew as he would ever
expect to have. Mills was asked about his alleged statement that "unions are
too radical," and replied, "At the meeting I was asked by an employee about
how I felt about unions. I rep lied I thought they were good if they were not
radical."
62AMt IIARDWOO 13 COMPANY 1477
Herman Owens, who was present at the same meeting, gave a different version
of what Mills said . He testified that Mills gave them a talk on his troubles, that
lumber was off and went on to say about how much it was off, and that if he
had to pay higher wages why he would just have to shut down , that he could
not pay any raise whatsoever.
William B . Rinke testified that at the meeting Mills said he was paying more
money than any mill in the south and that he couldn 't afford another nickel raise,
Mills said if the Union was to come in and he was forced to pay a nickel raise that
he would have to shut the plant down ; that he had no objection to an organiza-
tion among the men but he didn ' t want the CIO or AFL because they were too
:radical-.
Marvin Knuckles' recollection of what Mills said at this meeting was that
Mills said the AFL union was too radical and he didn't want them, and that
he couldn 't pay any higher wages and that he was losing money , that he couldn't
:pay even 5 cents an hour raise and if he did he would have to closb the plant
,down.
I am convinced that the testimony of Owens and Knuckles is more accurate
as to the statements made by Mills and such testimony is credited . The cross-
-examination of Merritt indicates that he was somewhat confused and not certain
as to Mills' statement. All four of these witnesses were produced by General
Counsel. I find that the statements made by Mills at this meeting were expres-
.sions of views , arguments , and opinions within the meaning of Section 8 (c)
of the Act and are not evidence of an unfair labor practice.
Homer Wood testified credibly that on the day of the Board election Joe Mills
said to him , "Well, I want you boys to remember when you go to vote that if I
,have to pay one penny more I will just have to shut the plant down." Mills
testified that he did not recall any conversation with Wood. The above state-
ment standing alone might well be considered as coming within the exemption
of Section 8 (c) of the Act. When taken in context with the situation then exist-
ing in the plant, the recent discharge of a large number of employees for union
activity and Mills' known antipathy for the Union, Mills' meaning becomes rather
clear, and was coercive and threatening and in violation of Section 8 (a) (1) of
the Act.
Lattie Bean testified credibly that on the day of the Board election Mills
passed him in the mill and "said he had heard that I said he couldn't shut the
mill down" and I said: "Well, I have had lots of fun out of that." Mills then
said, "Well, you have always been with us and don't forget us when you go to
vote." I do not find this statement as coercive or threatening , and in violation
of Section 8 (a) (1) of the Act.
Coy Smith testified that he attended a meeting of the Union- on May 18, 1949,
that he left the meeting about 9 o'clock that night and as he left the meeting
hall he saw Mrs . Mills, with two of the office clerks , sitting in an automobile
parked about 10 steps from the foot of the stairway that goes into the hall, that
as he passed , Mrs. Mills said to him , "Hello, McCoy." Harold Boren testified
that he was at the same meeting, and came out about 10 o'clock and saw Mrs.
Mills and one of the clerks in the office at Respondent's plant sitting in a car
parked a short distance from the entrance to the union hall.
Mrs. Mills testified credibly that on May 18, 1949, shortly before 6 o'clock in
the evening, she parked her car adjacent to the hall where the union meeting
was held, that she left the car and went a short distance to the church where
she joined'Mrs . Armil Taylor and several other Sunday school workers, that she
left the church about .6: 05 p. in. in Mrs. Taylor's car and was driven to Russell-
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ville, Arkansas, about 26 miles from Clarksville, that she remained in Russell-
ville that evening attending a dinner and meeting, and returned to Clarksville
in Mrs. Taylor's car; arriving at her car about 10: 55, and left immediately in
her car for her home. Mrs. Mills further testified that no one was with her when
she parked her car near the union meeting hall. Mrs. Taylor corroborated Mrs.
Mills' testimony that Mrs. Mills was in her car on the way to Russellville and re-
turn, and as to the time they left and returned to Clarksville. Three other wit-
nesses testified credibly that they made the trip to Russellville and back to Clarks-
ville, and that Mrs. Mills was with them.
I find that Respondent did not engage in surveillance of the union meeting on
May 18, 1949, as charged in the complaint.
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 described in Section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices
affecting commerce, it will be recommended that it cease and desist therefrom
and take certain affirmative action which the undersigned finds is required in
order to effectuate the policies of the Act.
The Respondent having discharged the 26 employees whose names are listed
in Appendix A of this Intermediate Report because of their union and concerted
activities, it will be recommended that Respondent offer to each of them who
has not already been reinstated to an equivalent position without loss of seniority
and other rights and privileges, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority and
other rights and privileges. It will also be recommended that Respondent make
whole for any loss of pay they may have suffered by reason of Respondent's dis-
crimination against them, each of the employees whose names appear in Appen-
dix A of this Intermediate Report, by payment to each of them of a sum of
money equal to the amount he normally would have earned as wages from the
date of the discharge, May 16, 1949, to the date of Respondent's offer of reinstate-
ment, less his net earnings during that period.
The Respondent having discharged L. G. Bartlett on May 16, 1949, because
of his union and concerted activities and having reinstated him on July 25, 1949,
it will be recommended that Respondent make him whole for any loss of pay he
may have suffered from May 16, 1949, to July 25, 1949, by reason of Respondent's
discrimination against him, by payment to him of a sum of money-equal to the
amount he normally would have earned as wages from the date of his discharge,
May 16, 1949, to the date of his reinstatement, July 25, 1949, less his net earnings
during that period.
Finally, because of Respondent's manifest hostility to the efforts of its em-
ployees to assert the rights guaranteed them by the Act, I find that danger exists
that the Respondent may in the future commit other unfair labor practices not
directly related in kind to those it has already committed, it will, therefore, be
recommended that Respondent cease and desist from in any manner 'interfering
with, restraining, or coercing its employees in their right to self-organization.
OZARK HARDWOOD COMPANY 1479
The Respondent having discharged Ralph Kipfer on May 16, 1949, and having
immediately offered him reinstatement, which offer of reinstatement Ralph
Kipfer rejected, it will be recommended that the allegations of the complailit that
Respondent discriminatorily discharged and refused to reinstate Ralph Kipfer
be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. General Drivers and Helpers, Local 373, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of those
employees whose names are listed in Appendix A of this Intermediate Report,
thereby discouraging membership in a labor organization, Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and.
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act ;
5. Respondent has not engaged in unfair labor practices by surveillance of the
union affiliation and activities of its employees, "or by discrimination in the hire
and tenure of employment of Ralph Kipfer."
[Recommended Order omitted from publication in this volume.]