Partee Flooring Mill

National Labor Relations Board - Board Decisions

Feb 18, 1954

107 N.L.R.B. 1177 (N.L.R.B. 1954)

PARTEE FLOORING MILL 1177
WE WILL NOT encourage membership in Local 452 or discourage membership in
Local 50. And our employees are not required to be members of Local 452.
WE WILL NOT in any other manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations, to join
or assist Local 50, 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, or to refrain from
any or all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the National Labor Relations Act, as amended.
All our employees are free to become or remain members of Local 50 or any other labor
organization.
HENRY HEIDE, INC.,
Employer
Dated ............... By.............. ... ....... ...... .. .. . . ... .
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
C. W. PARTEE, d/b/a PARTEE FLOORING MILL and LUM-
BER AND SAWMILL WORKERS, LOCAL UNION NO. 2757,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL. Cases Nos. 15-CA-468 and 15-CA-491.
February 18, 1954
DECISION AND ORDER
On August 5, 1953, Trial Examiner C. W. Whittemore issued
his Intermediate 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 Intermediate Report attached
hereto. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting
briefs.
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 Intermediate Report , the exceptions and
briefs, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial
Examiner , but only to the extent consistent herewith:
1. We are unable to agree with the Trial Examiner in his
finding that the Respondent has violated Section 8 (a) (5) of
the Act, for the following reasons:
One of the bases of the Trial Examiner 's general conclu-
sion on this aspect of the case is that the Respondent had
engaged in dilatory tactics in scheduling bargaining sessions.
107 NLRB No. 249.
1 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While it appears from the record that the Respondent's ne-
gotiator was often unable to arrange meetings at the Union's
convenience , a fact explained by his representing about 16
other concerns as labor relations consultant , the Union was
also responsible for some of the delay . Thus, union represen-
tatives were not available for meetings between April 29 and
May 4, and on May 8; the Union did not try to schedule another
meeting at the close of the May 5 session; and the Union would
not agree to a meeting for the afternoon of June 7. Taking into
consideration all the circumstances, we find, unlike the Trial
Examiner , that the delays which occurred in the scheduling of
bargaining sessions reflect no bad faith by the Respondent.'
We also disagree with the Trial Examiner that the Respondent
had been dilatory in furnishing the Union with classification
and wage-rate data. The request for the data was made on
March 6 and the Union received the data on March 21. The
Respondent showed at the hearing that the delay was occasioned
by the fact that the payroll was set up by wage rate for each
employee, and not by classification, and the bookkeeper needed
the assistance of a supervisor to determine the employee
classifications; the bookkeeper was occupied with other matters
of importance at the time; and the data was mailed to the
Respondent's negotiator at his office in another city and then
transmitted by him to the Union. In these circumstances,- we
do not believe that the delay of 15 days was unreasonable.'
The Trial Examiner further found that the Respondent's
adamant refusal to grant economic benefits was evidence of
its bad faith . It is true that , except for agreeing to a minor
demand concerning 2 hours call-in pay, the Respondent re-
fused to grant economic concessions . However, according to
the Respondent' s witnesses , whom the Trial Examiner did
not discredit, it has been explained to the Union that the de-
pressed state of the flooring business , including decreased
demand and a drop in prices , precluded any concessions that
would increase operating costs. Although the Trial Examiner
was not persuaded by the Respondent's explanation of its
inability to grant economic concessions, he did not find that
the Respondent failed to explain to the Union why it could not
meet its economic demands. The significant fact is not whether
the Respondent was able to grant such concessions but rather
whether it had bargained in good faith on this subject. Ac-
cordingly, we are unable to agree with the conclusion that the
Respondent acted unlawfully in persisting in its economic posi-
tion.'
IN. L R B v. Dealers Engine Company, 199 F. 2d 249, 251 (C A. 8), enfg as modified
95 NLRB 1009, 1011; N. L. R. B. v. Landis Tool Company, 193 F 2d 279, 282, reversing
89 NLRB 503
2See Reed & Prince Manufacturing Company, 96 NLRB 850, 852, enfd. 205 F. 2d 131
(C. A 1), for the applicable test in cases of this type.
3In view of our disposition of this issue, we find it unnecessary to rule upon the Respond-
ent's motion to introduce additional evidence to sustain its bargaining position concerning
economic concessions.
PARTEE FLOORING MILL 1179
The Trial Examiner, in finding a violation of Section 8
(a) (5), also relied on the Respondent ' s refusal to schedule
anything but a full 7-day workweek and to inform the Union
of proposed transfers . We do not agree . During the bargaining
sessions the Respondent agreed that the 8-hour workday and
40-hour workweek proposed by the Union were normal but
insisted on its right to schedule longer or shorter workdays
or workweeks if in its opinion business circumstances war-
ranted . This position cannot be said to be unreasonable.
Similarly , in rejecting the Union ' s proposal that itbe informed
in writing prior to temporary or permanent employee transfers,
the Respondent fully informed the Union of its reasons, i.e.,
the plant was small, prior consultation was not feasible, and
the Union could question any transfers under , the grievance
and arbitration provisions of the contract . The Board has
repeatedly held that the Act does not compel either party to
agree to the other ' s proposal; it only requires the parties to
confer in good faith .4 We find no breach of that obligation in
the facts under consideration.
Finally, unlike the Trial Examiner, we find no basis in
the so-called Partee-Culp incident on which to predicate a
violation of the Act. The record is clear that when Partee
rebuked Union President Culp in the presence of a number of
people he had no knowledge of the fact that Culp had acted
under instructions from his immediate foreman.' Under the
circumstances , we believe that Partee ' s conduct was not so
unreasonable as to constitute an additional basis on which to
make an unfair labor practice finding.
As we have found that none of the conduct complained of
constituted a refusal to bargain in good faith , we shall dismiss
the Section 8 (a) (5) allegations of the complaint . Moreover,
in view of our finding that the Respondent did not refuse to
bargain in violation of Section 8 (a) (5) of the Act, we also find
that the strike which began on June 9, 1952, was for the pur-
pose of winning economic demands , and not to protest against
any ltnfair labor practices . As permanent replacements had
been hired for those employees who were not reinstated, we
find further that the Respondent ' s refusal to reinstate certain
strikers when they abandoned the strike did not violate Section
8 (a) (3) of the Act, and we shall accordingly also dismiss
this portion of the complaint.
4See . for example , Old Line Insurance Company , 96 NLRB 499, petition for review denied
200 F 2d 52 (C. A 7); W. W. Cross & Company , 77 NLRB 1162, enforced but staying certifi-
cation and issuance of decree until further order of the court , 174 F. 2d 875 (C. A. 1.).
5In reversing the Trial Examiner onthis point, we note specifically that he made an errone-
ous finding of fact in imputing knowledge to Partee that Culp had acted under his foreman's
instructions . The record supports no such finding. At the time of the Partee-Culp incident,
Partee was in possession of information, received from the bookkeeper , that Culp had polled
the employees and that they preferred going home rather than waiting for the machinery to
be repaired . Partee did not know , at that time , according to the record, that Culp had acted
under his foreman 's instructions. Without such knowledge , Partee was entirely justified in
characterizing Culp's conduct as "meddling." With this in mind , we see no basis for our
dissenting colleague 's conclusion that Partee 's remarks were related to Culp's union activity.
1 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner found that the questioning of em-
ployees by the Respondent ' s counsel prior to the hearing ex-
ceeded the privileged limits of trial preparation in violation
of Section 8 (a) (1) of the Act . We are unable to agree with this
finding. Although the hearing itself now reveals that some of
the questions asked concerning the Union ' s strike-vote meeting
of June 7 were not necessary for trial preparation , we must
afford counsel full opportunity to prepare to defend his client
while at the same time safeguarding the rights of employees
to be free from restraint as provided in the Act. We note that
the questioning concerned events that occurred more than a year
earlier, that counsel for Respondent had not been associated
with those events, and that he did not ask for the names of
employees involved in any of the activities in question, thus
demonstrating that the questioning has not been intended for
any possible discrimination in the future . In the circumstances
of this case we find no element of restraint sufficient to bring
the facts within the provisions of Section 8 (a) (1) of the Act.
3. In agreement with the Trial Examiner, we find that the
Respondent violated Section 8 (a) (1) of the Act by its in-
terrogation , attempted surveillance , and threats of reprisal,
as more fully set forth in the Intermediate Report . We find
further, also in agreement with the Trial Examiner , that the
Respondent violated Section 8 ( a) (3) and ( 1) of the Act in dis-
charging employees Culp and McGuire on January 14, 1952. 6
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 Re-
spondent , C. W. Partee , d/b/a Partee Flooring Mill, Magnolia,
Arkansas , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Lumber and Sawmill Work-
ers, Local Union No. 2757, United Brotherhood of Carpenters
and Joiners of America , AFL, or any other labor organization
of its employees , by discriminatorily discharging any of its
employees because of their union membership or activities,
or by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of
employment.
(b) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right to self-
organization , to form labor organizations , to join and assist
the aforesaid or any other labor organization , to bargain
collectively through representatives of their own choosing and
to engage in other concerted activities for the purposes of
6 Although McGuire did not return to work until February 20, 1952, both he and Culp were
offered unconditional reinstatement by the Respondent on February 16, 1952.
PARTEE FLOORING MILL 1 181
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment 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) Make employees A. B. Culp and W. P. McGuire whole,
in the manner set forth in the section of the Intermediate
Report entitled "The Remedy" for any loss of pay they may
have suffered by payment to each of them of a sum of money
equal to the amount each normally would have earned as wages
from the date of the discrimination against him to the date
the Respondent unconditionally offered to reinstate him, less
his net earnings during said period.
(b) Upon request make available to the National Labor
Relations Board, or its agents, for examination and copying,
all payroll records, social-security payment records, time-
cards, personnel records and reports, and all other records
necessary for a determination of the amounts of back pay due
under the terms of this Order.
(c) Post at its plant at Magnolia, Arkansas, copies of the
notice attached hereto and marked "Appendix A."? 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 Respondent immediately upon re-
ceipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fifteenth Region,
in writing, within ten (10) days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that the Respondent
has violated (1) Section 8 (a) (5) of the Act; (2) Section 8 (a) (3)
and (1) of the Act by failing and refusing to reinstate the strik-
ing employees upon their unconditional application; and (3)
Section 8 (a) (1) by its counsel's questioning of employees
during his prehearing preparation.
Member Murdock, dissenting in part:
I agree with my colleagues that the Respondent has violated
Section 8 (a) (1) of the Act by certain conduct, and has also
violated Sections 8 (a) (3) and 8 (a) (1) by the discriminatory
discharge of employees Culp and McGuire on January 14,
7 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision And Order" the words "Pursuant
to a Decree of the United States Court of Appeals , Enforcing an Order."
337593 0 - 55 - 76
11 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1952 . I am, however , unable to join with my colleagues in the
conclusions stated in paragraphs numbered 1 and 2 of their
opinion that the Respondent did not violate Sections 8 (a) (5)
or 8 (a ) ( 1). I would also affirm the Trial Examiner on these
issues, for the reasons given in the Intermediate Report, with
the following additions :
Section 8 (d) of the Act defines collective bargaining, in
part , to consist of the performance of the "mutual obligations"
of the parties "to meet at reasonable times and confer in good
faith with respect to wages, hours , and other terms and condi-
tions of employment . . . . "
As found by the majority , the union representative was not
available for bargaining negotiations between April 29 and May
4 and on May 8, and the Union had not tried to schedule another
meeting at the close of the May 5 session , and was not agree-
able to a meeting on the afternoon of June 7. In this connection
it is noted that the Union did request a meeting for the morning
of June 7:
On the other hand, the Union on February 16 requested a
meeting for as soon after February 20 as possible and secured
a meeting date almost 2 weeks after that ; on March 6. In
response to a request for a meeting on March 27 or March 28,
the Union obtained a bargaining sessiononApril 14--more than
2 weeks later . At the meeting of April 15, which was a con-
tinuation of a meeting of April 14 , the Union requested a meet-
ing for April 16 and was given a conference on May 5, almost
3 weeks later . On May 12 the Union , through the Federal
conciliator , got a meeting scheduled for June 6 --more than 3
weeks later . On June 6 the Union sought a meeting the morning
of the next day, but June 16 was the earliest the Respondent's
representative said he could meet--10 days later . Thus it
appears that the Union had to wait in connection with 5 of the 6
meetings for periods ranging from 10 days to more than 3
weeks . It seems to me, as it did to the Trial Examiner, that
this conduct , despite the occasional inability of the union
representative to meet with the Respondent hardly constitutes
compliance by the Respondent with its obligations to meet at
reasonable times and to confer in good faith . These delays,
together with the other techniques employed by the Respondent
at the bargaining conferences , do not bespeak that " sincerity
of effort and intention to arrive at and consummate an agree-
ment" which the Court of Appeals for the Second Circuit has
stated are the requirements of the Act. (N, L. R. B. v.
National Shoes, Inc ., 208 F. 2d 688 (C.A. 2).
The Trial Examiner found that the Respondent had violated
Section 8 (a) (5) for several reasons including Partee's treat-
ment of Culp , the unionpresident , on June 7. Under the circum-
stances detailed in the Intermediate Report and at his fore-
man's instruction Culp had gone to the plant office to get pay-
checks for the employees . He was told by Partee:
PARTEE FLOORING MILL 1 183
Culp you have been messing with my entire business,
trying to run my entire business for quite awhile, and
been stirring trouble among my men. I am riot going to
put up with any more of it, don't intend to tolerate it. . . .
As far as I am concerned, you can start walking now.
Go home or anything you damn please . I am tired of
your messing with my business.
The majority states that this conduct was not so unreason-
able as to constitute an additional basis on which to make a
finding that Respondent had violated Section 8 (a) (5). I agree
with the Trial Examiner. In my opinion, when viewed in the
existing circumstances, this statement refers to Culp's union
activity and his attempts to negotiatewiththe Respondent. From
this viewpoint, Partee's statement indicates that he was be-
rating Culp as much for his union activity as for the incident
which at that particular time irritated him. Moreover, the
statement evinced an intention by Partee not to "tolerate"
any more union activity by Culp. Inherent in the statement, in
my opinion, was the threat to terminate Culp's employment
for the same reason.
I am also convinced, as was the Trial Examiner, that the
Respondent's counsel exceeded the interrogation which is
privileged for trial preparation, under the standards which
have been set forth, with court approval, in previous cases.
(Joy Silk Mills, Inc., 85 NLRB 1263, 1290, enfd. as mod. 185
F. 2d 732 (C. A., D. C.), cert. denied 341 U. S. 914.)
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of
the National Labor Relations Act, as amended, I hereby notify
my employees that:
I WILL NOT discourage membership of my employees
in Lumber and Sawmill Workers, Local Union No. 2757,
United Brotherhood of Carpenters and Joiners of America,
AFL, or any other labor organization by discharging, or
refusing to reinstate any of them, or in any other manner
discriminating in regard to their hire, and tenure of em-
ployment, or any term or condition of employment.
I WILL NOT interrogate employees as to their union
affiliation or activities, attempt surveillance of their
union activities, or threaten reprisals in order to dis-
courage union membership or activities.
I WILL NOT in any manner interfere with, restrain,
or coerce my employees in the exercise of the rights
1 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of self-organization , to form labor organizations , to join
or assist the above - named or any other labor organiza-
tion , to bargain collectively through representatives of
their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection , or 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.
I WILL make A. B. Culp and W. P. McGuire whole for
any loss of pay suffered as a result of the discrimination
against them.
All my employees are free to become, remain , or to re-
frain from becoming or remaining members of the above-
named or any other labor organization , except to the extent
that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the Act.
C. W. PARTEE, d/b/a PARTEE FLOORING MILL,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof , and must not be altered , defaced , or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Lumber and Sawmill Workers, Local Union No. 2757, United
Brotherhood of Carpenters and Joiners of America, AFL, the General Counsel of the Na-
tional Labor Relations Board, through the Regional Director for the Fifteenth Region (New
Orleans, Louisiana) issued his complaint dated April 20, 1953, against C. W. Partee, doing
business as Partee Flooring Mill, herein called the Respondent, alleging that it had en-
gaged in and was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act. Copies of the charges, an order con-
solidating the cases, and notice of hearing were duly served upon the parties.
The complaint, as amended during the hearing, alleged in substance that the Respondent:
(1) In January 1952 discriminatorily and to discourage union membership discharged em-
ployees A. B. Culp and W. P. McGuire; (2) engaged in coercive conduct by interrogating
employees about their union membership and activities and by threatening economic re-
prisals and promising benefits; (3) refused to bargain in good faith with the Union since
February 1952; (4) by its unfair labor practices caused its employees to go on strike on
June 9, 1952, (5) on and after June 23, 1952, when its employees unconditionally offered to
return to work, discriminatorily delayed or refused the reinstatement of certain of them;
and (6) by such conduct interfered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed in Section 7 of the Act.
Pursuant to notice, a hearing was held in Magnolia, Arkansas, on June 15, 16, 17. and 18,
1953, before the undersigned Trial Examiner. All parties were represented and were af-
PARTEE FLOORING MILL 1 185
forded full opportunity to be heard, to examine and cross-examine witnesses, to introduce
relevant evidence, to argue orally, and to file briefs. Briefs have been received from the
Respondent and General Counsel.
Upon the entire record in the case, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
C. W. Partee , d/b/a Partee Flooring Mill, is an individual doing business under the
laws of Arkansas and having his principal office and place of business in Magnolia , Arkansas,
where he is engaged in the manufacture and sale of finished hardwood flooring.
During 1952 the Respondent purchased materials valued at more than $40,000, all of
which came to the Respondent from within the State of Arkansas . During the same period,
sales of its finished products were valued at more than $ 50,000, of which about 98 percent
were shipped outside the State of Arkansas.
The Respondent is engaged in commerce within the meaning of the Act.
IL, THE LABOR ORGANIZATION INVOLVED
Lumber and Sawmill Workers, Local Union No. 2757, United Brotherhood of Carpenters
and Joiners of America, AFL, is a labor organization within the meaning of Section 2 (5)
of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The issues arise from self-organizational efforts of the Respondent's employees--total-
ing about 43, begun in January 1952.
- It is claimed that the Respondent interfered with the exercise of the legal right to self-
organization by illegal conduct, including the discharge of two white employees active
in the organization (most of the Respondent's employees are Negroes),
A Board-conducted election was held, the Union won the election about 3 to 1, in propor-
tion, and early in February the Union was formally certified by the Board as the exclusive
bargaining agent of all employees in an appropriate unit. A few days thereafter the two
employees discharged in January were recalled to their jobs.
The Union sought to negotiate an agreement with the Respondent. By June, as described
below, no agreement was reached and the employees voted to and did go on strike. It is
claimed that the strike was caused by the Respondent's unfair labor practices, including
its refusal to bargain in good faith. In the latter part of June the strike was abandoned
and the strikers offered unconditional return to work. Some were permitted to resume their
jobs, shortly thereafter or at later tunes. Some had not, at the time of the hearing, been
reinstated. As to reinstatement at abandonment of the strike there is a sharp issue: as to
whether or not it was an unfair labor practice strike and therefore as to whether or not the
Respondent was required to reinstate the strikers upon their unconditional application.
Insofar as possible, for the sake of clarity, the various issues will be discussed in the
order relevant events occurred.
B. Interference with self-organization; the discharges
of Culp and McGuire
The first organizing meetings were held at the home of a Negro employee, Parker Early
in January the union organizer approached A,. B. Culp, a grader at the mill, and asked if
he would help organize the few white employees. Culp readily agreed, having previously
been a member of the Carpenters. On January 11, Culp and another grader, W. P. McGuire,
attended a meeting at Parker's home, where about two-thirds of the mill's employees were
gathered. Culp, McGuire, and one other, not here involved, were the only white employees
present.
The next morning, a Saturday, Foreman J. A. Turner came to the grading table and in
the presence of McGuire told Culp that he had learned from employees that he was starting
1 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union in the mill . Culp replied that this was the first he had heard of it. Turner laughed
and then told Culp that Superintendent Sharp had lust "wrote up" two graders, although
only one was needed--to replace the third grader , one Emerson , who was inexperienced
and because of poor eyesight unable to perform the work.'
Shortly before noon, the closing hour on a Saturday. Sharp approached McGuire while
Culp was out on a regular break-period and asked where Culp was. McGuire informed
him. Sharp then told the three graders he wanted to see them together as soon as the mill
shut down. They then discussed the practice of taking "breaks," how many and for what
periods. It was agreed that they would continue as in the past , since the work was of a con-
centrating nature and hard on the eyes: two breaks each morning and afternoon , one of about
15 minutes and the other of 5. All 3 employees then left, nothing having been said of pos-
sible discharge.
When they reported for work the next Monday morning Culp and McGuire were summarily
discharged by Sharp, being told that Partee had issued the instructions on Sunday. They
were ordered out of the company-owned houses and warned not to go into the mill again
without permission.
It is undisputed that when Turner told McGuire to go to the office, the Monday before
Sharp discharged them, and McGuire asked why, the forman said, "Well, Culp has been
out talking to these men about a union."
General Counsel claims that Culp and McGuire were discharged because of their union
activity. The preponderance of credible and undisputed testimony sustains the claim. Com-
pany knowledge of their presence at the union meeting of January 11 is reasonably inferrable,
not only from the fact that the mill and the town are small, but also from Turner's remarks
to Culp on the Saturday before the discharge.
The reasons advanced by the Respondent for its summary action do not withstand scrutiny.
The testimony of Sharp and Turner and their previously given affidavits before a Board
agent are inconsistent and contradictory , where not extravagantly exaggerated . In summary,
they would have it believed that either for 2 weeks--or 2 or 3 months, neither Culp nor
McGuire were often at their work, but either on extended and frequent breaks or wandering
around the plant talking to other employees . In a small mill, with both a superintendent and
foreman present, the absence of the only 2 admittedly efficient employees from what appears
to have been the most important job in the plant would reasonably have caused their dis -
charge, or the closing of the mill, long before January 14.
As noted above, after the election, both were rehired, Culp on or about February 15 and
McGuire on or about February 20,' It is undisputed that they continued to take the same
breaks they had before their discharge.
The Trial Examiner specifically finds that neither Culp nor McGuire took "excessive
breaks" before January 14, and that there is no merit in the Respondent's claim that taking
such breaks was the cause of their discharge.
It is concluded and found that they were discrimmatorily discharged on January 14 to
discourage union membership and activity.3
On the same day that Culp and McGuire were dismissed, the Union informed the Company
by letter that it had granted membership to a "substantial number" of its employees and
requested a meeting to discuss bargaining , recognition , and a Board certification . Promptly
upon its receipt, Partee and Sharp went with it from employee to employee, throughout
the mill. That they did so is admitted by both. Credited testimony of many employees es-
tablishes, and the Trial Examiner finds, that on this occasion Partee. (1) asked employees
Emerson, Watts, and Standoak if they had signed a union card; and (2) asked Sanders, Green,
Wyrick, Johnson, and Doss if they had attended a union meeting. It is also found that shortly
thereafter Sharp: (1) told employee Waller that the Union could not help them but that Partee
'Culp's testimony that Turner told him, during Saturday morning, that Sharp had in effect
hired two new graders is undisputed , And Sharp admitted that three grader applicants--at
least one of them called in by himself- -were in the mill that morning.
2 They were recalled , company officials said , because graders hired to take their places
were unable to grade properly . Thus it is plain , in view of the fact that their job performance
before January 14 was not questioned, that whatever breaks they may have taken their work
was done creditably.
3 Additional support for this conclusion is the credited testimony of employee J D. Sanders,
who said that on the day Culp and McGuire were discharged Sharp told him to "Keep his nose
clean" and that he would "get this mess out of here if I have to fire the last man in the mill "
PARTEE FLOORING MILL 1 187
would "just cut down on the hours", (2) asked Emerson how many wanted the Union, (3)
urged Sanders to keep his "eyes and ears open" and later asked if he had "found out any-
thing", (4) told Green that if the Union came in the hours would be cut to 40 a week and he
would stop lending him money, as he had in the past; (5) asked Watts to get others to vote
against the Union; and (6) interrogated Burris as to who "got up" the Union.
Such conduct of interrogation and threats of economic reprisals are prohibited by the
Act. It is concluded and found that by the above-described action of Partee and Sharp the
Respondent interfered with, restrained, and coerced employees in the exercise of rights
guaranteed by the Act. 4
C. The refusal to bargain in good faith
The Respondent admits and it is here found that at a Board-conducted election in January
1952 a majority of its employees selected the Union as their collective-bargaining agent in
an appropriate unit consisting of all production and maintenance employees at the Magnolia
mill, excluding all office and clerical employees, guards and/or watchmen, shipping clerk,
professional employees, and supervisors as defined in the Act. Pursuant to the Board
certification of February 4, 1952, and despite the Respondent's denial which at the hearing
was unsupported by proof, it is found that at all times since January 25, 1952, the Union
has been and now is the exclusive representative of all the employees in the above-de-
scribed unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours of work, and conditions of employment.
On February 16 the chief negotiator for the Union wrote to the Respondent's manager,
requesting a bargaining conference as soon after February 20 as convenient On February
22, a written reply to this request was sent by an "industrial relations consultant" in
New Orleans, who said that the date of March 6 would best suit his "convenience." It is
plain from the record, and apparently was to the union negotiator, that the outside consultant
was empowered by Partee as his chief negotiator. It is likewise plain that no subsequent
meeting was held except at the consultant's convenience.
Between February, when the Union sought to negotiate an agreement, and June 6, 1952,
only 5 meetings were held, occupying a total period of about 162 hours.5 It is General
Counsel's contention, and it was claimed as the chief reason for the strike of June 9, that
the Respondent displayed a lack of good faith in agreeing to so few brief meetings extending
over the period of nearly 4 months.
The Trial Examiner finds merit in the contention. Although the Act accords, by impli-
cation, an employer the right to select his own negotiator,6 reason demands that such
negotiator hold himself available for negotiations upon reasonable request, and not at his
own convenience. Counsel for the Respondent offered evidence in apparent extenuation of
the negotiator's inability to arrange more frequent meetings, by showing that he also repre-
sented, as "consultant" some 18 or 19 other concerns, covering an area of many thousands
of square miles in Tennessee, Arkansas, Louisiana, Mississippi, and Alabama, and that
during this material period he was busy representing his other clients. Unquestionably
he was busy, and could hardly have been in a dozen places at once. The principal is here
at fault, not the agent. Section 8 (d) of the Act specifically reouires that "to bargain collec-
tively" the parties must "meet at reasonable times and confer in good faith." The Respond-
ent may not avoid his responsibility by r.-taming an agent who, because of the pressure of
his other business, can represent him only at infrequent meetings.
The Trial Examiner specifically concludes and finds that the Respondent, by declining to
meet "at reasonable times," refused to bargain collectively in performance of its obliga-
tion. The seriousness of such "stalling" tactics stands out even more clearly when viewed
4There is a good deal of testimony in the record concerning an alleged "speed up" of
machinery on May 6, the day after a negotiating meeting, which General Counsel claims was
effected by the Respondent in order to discourage union membership. While the circumstances
are suspicious, and company records show that somewhat more footage of flooring was pro-
duced that day than the day before, the Trial Examiner is not convinced by the preponderance
of evidence that the machinery was actually or purposely speeded up. In any event, the daily
records show that if any such speed up occurred, it was of a short duration.
5On March 6, April 14 and 15, May 5, and June 6.
6Section 8 (b) (1) makes it an unfair labor practice for a union "to restrain or coerce .., an
employer in the selection of his representatives for the purposes of collective bargaining "
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the light of other factors, noted below, particularly the Respondent's flat and unyielding
refusal, at any of the conferences, togranta single item of economic benefit to its employees.
It is unnecessary to trace in detail the discussions at each of the five meetings before the
strike, on each of the provisions contained in the Union's proposed contract, submitted to
the employer at the first meeting. At the very outset the company negotiator told the Union
that nothing in the proposal would be agreed to that "would change their cost one cent,"
and stated that this position would be maintained regardless of the Company's ability to make
concessions of this nature.
Throughout the negotiations, the Company continued to refuse to grant any wage increase,
to provide for any paid holidays or vacations , to pay employees for time present but unable
to perform their work because of machinery repairs, to establish any regular workweek
except that of 7 full days--from "12:01 a. m. on Monday" to "12:00 midnight on Sunday,"
(according to the language of its written proposal) and to modify or include in an agreement
any work schedule other than a clause reserving to the employer the right to shorten or
lengthen the working periods whenever he saw fit. The Company also refused to agree to any
overtime pay not already required by Federal law. It refused to agree to inform the Union
of prospective discharges and transfers, conceding only that it would discuss such matters--
after they had occurred--as grievances, thus again agreeing only to perform as the Act
requires. Finally, the Company even refused to pay the employees on its own time --although
an official admitted that only 2 or 3 minutes for the payoff was required.
The Union requested, on March 6, a list of the job classifications and rates of pay, in order
to set out specifically its own proposal for wage rates. The information was not forthcoming
for 15 days--until March 21. There were only about 40 employees in the unit. The wage rates
were already recorded on the company payroll, and the company bookkeeper admitted that
all he had to do to ascertain the classifications was to ask the superintendent. To obtain this
information, even in leisurely fashion, would reasonably have taken no more than 30 minutes.
The Trial Examiner considers the unreasonable delay of 15 days to have been another demon-
stration of the Respondent's intent and resolve to impede negotiations.
Although the Union's negotiator urged the Company on April 15 to continue meeting until
some agreement was reached, the consultant retained by the employer refused to meet again
until May 5. Because no progress on any substantive matter was made at the May 5 meeting
the Union sought the services of a Federal conciliator, and another meeting was finally ar-
ranged for June 6. At this meeting, despite the fact that on no point of material significance
had it made any concession, the Respondent protested the presence of the conciliator. The
Union, at this meeting's close, asked that negotiations continue the next morning. The Company
refused to meet if the two employee committee members were to be present , claiming, as it
had at all previous meetings, that their presence on the job during the day was necessary. The
union negotiator offered to permit the Company to select some one employee it could spare--
but again the Company refused,- -although at the hearing it was admitted that there were
employees whose absence from work would have been possible.
On the morning of June 7 another incident occurred which, although not at the negotiating
table, was closely related to the issue of collective bargaining and the Union's right to rep-
resent the employees, as well as to the Employer's resentment toward Culp, the union
president and a member of the negotiating committee. Early that Saturday morning a
machine broke down, causing production to cease. The foreman, according to his own testi-
mony, told Culp to canvas the employees to find out whether they wanted to wait around for an
hour and a half or to go home. Culp did as instructed and reported that they preferred to go
home. The foreman then told Culp to go to the office and see if the superintendent would give
them their paychecks. Still under the foreman's instructions Culp proceeded to the office,
made the request, and was told by Partee:
Culp, you have been messing with my entire business, trying to run my entire business
for quite awhile, and been stirring trouble among my men. I am not going to put up with
any more of it, don't intend to tolerate it .... As far as I am concerned, you can start
walking now. Go home or anything you damn please. I am tired of your messing with my
business.
The men finally were given their paychecks .T The testimony of both Culp and the foreman
7 Although the version of this incident as given by Partee and the superintendent differs some-
what from that of Culp, the latter's testimony is in major respects corroborated by that of the
foreman.
PARTEE FLOORING MILL 1 189
establishes that Partee well knew, at the time of berating Culp, that he was carrying out the
foreman's instructions.
That same day the employees, at a union meeting, voted to strike in protest against the
Company's "stalling" tactics in negotiations.
The Trial Examiner concludes and finds that the evidence amply sustains General Counsel's
contention that by June 6 and from on or about February 16, 1952, the Respondent refused to
bargain in good faith and that the strike was caused by its unfair labor practices. As noted,
after nearly 4 months of negotiation the Union could report to its membership no single
economic benefit: not even a work schedule upon which employees could depend. Partee's
vigorous defense, as a witness, to the effect that business conditions warranted no increase
in costs, plainly does not withstand the scrutiny of his own records, introduced in evidence,
and other testimony of management witnesses. His claim that he "just didn't have any
market demand" leaves unexplained the fact that for several months the plant had been
working 50 or more hours each week, requiring the payment of legal overtime. No wage
increase had been given at this plant for about 2 years--a period when industry generally
throughout the country was increasing wages.
Upon these specific points the Trial Examiner considers that the conclusion of refusal to
bargain soundly rests: (1) The long delay between negotiating meetings; (2) the long delay in
providing the Union with data readily available; (3) the adamant refusal to grant any economic
benefit; (4) the refusal to schedule anything but a full 7-day workweek; (5) the refusal to inform
the Union of proposed transfers; and (6) Partee's wholly unwarranted treatment of the union
president on June 7.8
D. Abandonment of the strike, refusal to reinstate strikers
Early Monday morning, June 23, the employees voted to call off the strike. A committee
of two was appointed, one of them well known to Partee as an employee member of the Union's
negotiating committee, to inform the Employer that all strikers were ready to return un-
conditionally. They went to the office that morning and so informed Partee. Partee told them,
however, that he would employ them only as vacancies occurred, and that he had hired
permanent replacements during the strike. They reported Partee's statements to the chief
union negotiator who, by letter of July 3, reminded Partee that the union committee had
offered unconditional return of all strikers on June 23. Partee did not reply.
The record shows that certain strikers were permitted to return to work on various dates
after June 23.8
Superintendent Sharp's testimony is uncontradicted and it is therefore found that he offered
two other strikers their jobs: James Pickens on June 30 and Clifton Gilbert on July 21.
Sharp's vague testimony that some 2 or 3 weeks after the strike employee Deatry Berry "was
sent word through his uncle to report back to work" is not considered by the Trial Examiner
as sufficient basis for a finding that Berry has, at any time since June 23, 1952, received an
appropriate offer of reinstatement.
A. B. Culp, president of the Union, has never been reinstated.
The Respondent makes no claim that jobs were not available for all the strikers on June
23--only that replacements had been hired during the strike. Since it has been found that the
strike was caused by the Respondent's unfair labor practices, it was the Employer's obliga-
tion to reinstate them upon their unconditional offer to return. It is concluded and found that
the Respondent, since June 23, 1952, has refused to offer reinstatement at all times to A. B.
Culp and Deatry Berry, that it refused to reinstate the employees set forth in footnote 9
below until the dates noted therein, and James Pickens and Clifton Gilbert until the dates
noted above, and that thereby the Respondent has discouraged union activity and restrained
and coerced employees in the exercise of rights guaranteed by the Act.
8 Although the Trial Examiner believes that the Respondent's conduct during the negotiating
period constituted a clearly defined refusal to bargain, its preceding acts of coercion and
discrimination , described above, give the meaning and clarity of a third dimension to the
picture of an entire course of conduct, designed to deprive employees of their rights under
the Act: to be represented by a labor organization and to seek a collective- bargaining agree-
ment.
9 Vernest Parker on June 25; Johnny Parker, Curtis Smith, and Coolidge Watts on June 28;
L C. Williamson July 1; Sim Wyrick on July 28; Lucius Kener and R. L. Wyrick on July 21;
Joe McKeller on July 28; Pleas Cook on August 22; all in 1952; and Freeman Green on
January 9, 1953.
1 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Interference by Respondent 's counsel
It is undisputed that just before the hearing counsel for the Respondent called various
employees into the office , and in the presence of the Respondent 's chief negotiator , queried
them about their union activities . Counsel protested that such action was his privilege, in
order to prepare for the hearing . The Trial Examiner considers and finds that counsel went
beyond any reasonable limit of such privilege by. (1) Asking who and how employees voted at
a union meeting , before the strike ; and(2 ) querying employee Watts whether or not he attended
a union meeting of January 11, how many were present , who sponsored the meeting , and how
many white men attended.
An employer is proscribed by law from engaging in this type of inquisition . It is nonetheless
violative of the Act when indulged in by an employer 's counsel . It is therefore concluded and
found that by its counsel 's interrogation of employees about their union activities , the Re-
spondent interfered with , restrained , and coerced employees in the exercise of rights
guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth m section III, above occurring in connection with
the operations of the Respondent described in section 1 , above, have a close, intimate, and
substantial relation to trade , traffic , and commerce in the several States and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices , the Trial
Examiner will recommend that it cease and desist therefrom and take affirmative action
which will effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and tenure of em-
ployment of certain employees , the Trial Examiner will recommend that it will : ( 1) Offer to
those not already reemployed or who have declined such offer immediate and full reinstate-
ment to their former or substantially equivalent positions , without prejudice to their seniority
and other rights and privileges ; and (2 ) make them whole for any loss of pay they may have
suffered by reason of the discrimination against them by payment to each of them of a sum of
money equal to that which he would haveearned from the date of the discrimination to the offer
of reinstatement, less his net earnings during said period.10 Back pay due shall be computed
in accordance with Board policy set out in F . W. Woolworth Company , 90 NLRB 289.
It has also been found that the Respondent , from on or about February 16, 1952, has unlaw-
fully refused to bargain with the Union as the exclusive representative of employees in an ap-
propriate unit . The Trial Examiner will therefore recommend that the Respondent, upon
request , bargain collectively with the Union as such representative and, in the event that an
understanding is reached , embody such understanding in a signed agreement.
In view of the nature of the unfair labor practices committed , the commission by the Re-
spondent of similar and other unfair labor practices may reasonably be anticipated. The
remedy should be co-extensive with the threat . It will therefore be recommended that the
Respondent cease and desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Lumber and Sawmill Workers , Local Union No. 2757 , United Brotherhood of Carpenters
and Joiners of America , AFL, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. All production and maintenance employees at the Respondent 's Magnolia mill, excluding
all office and clerical employees , guards and/or watchmen , shipping clerk, professional
employees , and supervisors as defined in the Act , constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of the Act.
10 Crossett Lumber Company , 8 NLRB 440.
MINNEAPOLIS-iIONEYWELL REGULATOR CO. 1191
3. The above-named labor organization was on January 25, 1952, and at all times since
then has been the exclusive representative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on February 16, 1952, and at all times thereafter to bargain collectively
with the aforesaid labor organization as the exclusive bargaining representative of its em-
ployees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of A. B. Culp, W. P.
McGuire, Deatry Berry, James Pickens, Clifton Gilbert, Vernest Parker, Johnny Parker,
Curtis Smith, Coolidge Watts, L. C. Williams, Sim Wyrick, Lucius Kener, R. L. Wyrick, Joe
McKeller, Pleas Cook, and Freeman Green, and thereby discouraging membership in the
above named labor organization the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of rights
guaranteed in section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
MINNEAPOLIS-HONEYWELL REGULATOR CO. and LOCAL
#1114, UNITED ELECTRICAL, RADIO & MACHINE
WORKERS OF AMERICA, Petitioner . Case No . 13-RC-
3690. February 18, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Hubert J. Sigal,
hearing officer . The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organization involved claims to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of certain employees of the Employer within
the meaning of Section 9 (c) (1) and Section 2 ( 6) and ( 7) of the
Act.
4. The parties generally agree that a unit of salaried office
clerical employees , including the chauffeur , but excluding the
secretaries to the plant manager and the chief engineer as
confidential employees and the chief clerk of the purchasing
department, sales employees , technical employees , profes-
sional employees , employees in the personnel department, pro-
duction and maintenance employees , and supervisors as defined
in the Act, is appropriate for bargaining purposes at the
Employer's Chicago, Illinois , plant. The parties disagree as to
the unit placement of the secretaries to the manager of the
107 NLRB No. 247.