Perry Norvell Co.

National Labor Relations Board - Board Decisions

Nov 10, 1948

80 N.L.R.B. 225 (N.L.R.B. 1948)

In the Matter of PERRY NORVELL COMPANY and UNITED SHOE WORKERS
OF AMERICA, C. I. 0., AND ITS AGENTS, GEORGE MARTIN, RUSSELL
HUTCHINSON, CLIFFORD JOHNSON, NORMAN BARTLETT, JULIUS CRANE,
RANDOLPH JOHNSON,' ET AL., and THE PERRY-NORVELL SHOE WORKERS
COMMITTEE, AND ITS AGENTS, ORBEN ADKINS, JOSEPH CHAPMAN,
GARNET DAVIS, GEORGE DAVIS, ROSE DAVIS, HAROLD DENNING, ELLA
MAY DRISKILL, LUTHER HATFIELD, JAMES HICKS, DALLAS HOLBROOK,
RANDOLPH JOHNSON, RAY JOHNSON, EVA MARIE MOECKEL, CHARLES
MORRIS, DALLAS MYRTLE, TRANCEY NEFF,2 LEO PARSONS, ODELL
PAUGH, GARNET PERKINS, EVA PETERS, P. H. TYREE, HOBART WOOD,
ET AL.
Case No. 9-CB_J.Decided November 10, 1948
DECISION
AND
ORDER
Upon a charge filed on October 6, 1947, by Perry Norvell Company,
herein called the Company, the General Counsel of the National Labor
Relations Board, herein called the General Counsel, by the Regional
Director for the Ninth Region (Cincinnati, Ohio), issued a complaint
dated October 8, 1947, against United Shoe Workers of America,
C. I. 0., herein called United, and its alleged agents set forth in the
caption above, and The Perry-Norvell Shoe Workers Committee, here-
in called the Committee, and its alleged agents set forth in the caption
above, herein collectively called the Respondents, alleging that the
Respondents had engaged in and were engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (b) (1) (A)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, as amended by the Labor Management Relations Act, 1947,
61 Stat. 136, herein called the Act. Copies of the charge and com-
plaint, together with notice of hearing, were duly served upon the
Respondents and the Company.
1 The complaint did not allege that Randolph Johnson was an agent of United. At the
hearing, the General Counsel moved to amend the complaint so as to include Johnson
among the agents of United. The Trial Examiner granted the motion in his Intermediate
Report.
2 The complaint erroneously listed this individual 's name as Francey Neff. The error
was corrected by amendment at the hearing.
80 N. L. R. B., No. 47.
225
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleged in substance (1) that, by a strike which
started on August 21, 1947, and other conduct, the Respondents had
restrained and coerced the employees of the Company in their right
to self-organization and to bargain collectively through representa-
tives of their own choosing by (a) depriving the employees of their
right to be effectively represented by Boot & Shoe Workers Union,
Local 613, A. F. L., herein called Local 613, their recognized bargain-
ing representative, during the life of the 1947 collective bargaining
agreement between the Company and Local 613, (b) depriving the
employees of their right to a continuation of the terms and conditions
of work established by the 1947 agreement, and (c) attempting to
force the Company to bargain with United or the Committee; (2)
that the Respondents had forced or had attempted to force employees
to refrain from joining or assisting Local 613, by attempting to dis-
solve Local 613 and by instructing the Company to discontinue recog-
nizing Local 613 as bargaining representative; and (3) that United
had threatened employees with discriminatory treatment as to jobs
and as to membership in United, unless the employees joined or as-
sisted United immediately.
Thereafter, the Respondents filed answers 9 denying the principal
allegations of the complaint. United's answer also affirmatively
alleged that the Company's unfair labor practices were the sole cause
of the strike; that the strike was lawful under the terms of the 1947
collective bargaining agreement between the Company and Local 613;
and that the complaint was issued because of an unwarranted inter-
pretation of the Act by the General Counsel, which, if sustained, would
be unconstitutional. The Committee's answer affirmatively alleged
that part of the Act is unconstitutional and that the conduct alleged
to have occurred before August 22, 1947, the effective date of pertinent
provisions of the Labor Management Relations Act, 1947, did not con-
stitute an unfair labor practice.
On October 31, 1947. the Company filed an amended charge; and,
on the salve (lay, the General Counsel issued an amended complaint
based thereon. The amended complaint repeated the allegations of
the original complaint and added the further allegation that since
October 22, 1947, the Respondents had restrained and coerced em-
ployees of the Company by intimidation, force, assaults, and threats
of violence and reprisal. The Committee received a copy of the
amended complaint on November 1, 1947, and United received a copy
on November 3, 1947. Copies of the amended charge were not served
on the Respondents until the opening of the hearing on November 5,
United filed an answer on behalf of itself and its alleged agents, except Randolph
Johnson . the Committee filed a separate answer on behalf of itself and its alleged agents,
including Randolph Johnson.
PERRY NORVELL COMPANY 227
1947. At the hearing, the Respondents waived the defect in the service
of the amended complaint and amended charge.4 The Respondents
denied the additional allegations contained in the amended complaint.-5
In addition, the Committee added to its affirmative defenses the allega-
tion that the Company's unfair labor practices'were the cause of the
strike.
On October 29, 1947, United filed a motion for a bill of particulars
with the Regional Director. The notion was referred to the Trial
Examiner.
Pursuant to notice, a hearing was held at Huntington, West Virginia,
on November 5, 6, 7, and 8, 1947, before Horace A. Ruckel, the Trial
Examiner duly designated by the Chief Trial Examiner. The Gen-
eral Counsel, the Company, and the Respondents were represented by
counsel and participated in the hearing. All parties were afforded
full opportunity to be heard, to examine and cross- examine witnesses,
and to introduce evidence bearing on the issues. However, the Re-
spondent unions called no Witnesses of their own. The Trial Examiner
granted, in part, United's motion for a bill of particulars. Without
objection, the Trial Examiner also granted the General Counsel's
motion to conform the pleadings to the proof in formal matters.
At the close of the General Counsel's case, the Respondents moved
to dismiss the complaint. The Trial Examiner reserved ruling on
the motion. At the close of the hearing, the parties argued orally
before the Trial Examiner, and subsequently they filed briefs. During
the course of the hearing, and in his Intermediate Report, the Trial
Examiner made rulings on other motions and on the admission of
evidence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudical error was committed. The rulings are
hereby affirmed .6
' The Respondents waived the defect in service after the General Counsel announced
that he would request an adjournment of the hearing unless the Respondents made such
a Ni am er
5 The Committee filed a written answer to the amended complaint United orally
amended its original answer to deny the additional allegations of the amended complaint.
The General Counsel and the Company have particularly challenged the Trial Exam-
inei ' s ruling excluding proposed Board Exhibits 16 and 17 from the record . Exhibit 1G
is a mimeographed letter addressed to "Members and Friends" from the "Organizing
Committee of the Perrv-Norvel Shoe Workers of the USWA-CIO, Huntington, W. Va."
Exhibit 17 is a letterhead of United A witness for the General Counsel testified that on
August 1, 1947, he had seen this letter on a letterhead of United, posted on the wall of
one of the washrooms in the Company's plant The General Counsel offered the exhibits
in evidence United said it had no objection to their going Into the record . The Trial
Examiner replied, "Well, you haze no objection to its admission , but without some testi-
mony as to who put it on the wall , it seems to me that the force of it as an exhibit fails
Who put it up there ?" The Trial Examiner also remarked that there was no testimony
as to who wrote the letter United refused to stipulate as to these facts The General
Counsel never proved who constituted the so-called organizing committee . who wrote the
letter, or who posted it Under these circumstances, no proper foundation was laid for
its admission , and the Trial Examiner 's ruling was therefore proper.
817319-49-vol 80-16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 8, 1947, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all parties. In the
Intermediate Report, the Trial Examiner found that the Respondents
had not engaged in any unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act, and recommended that the com-
plaint be dismissed in its entiyrety.
Thereafter, the General Counsel and the Company filed exceptions
to the Intermediate Report and supporting briefs. United filed a
brief in support of the Intermediate Report. Subsequently, at the
request of the Board, all parties filed supplemental briefs discussing
the application of common-law principles of agency to the facts of
the case.
On April 5, 1948, the Board heard oral argument at Washington,
D. C., in which the General Counsel, the Company, and United par-
ticipated.
The Board has considered all the exceptions and, except in the im-
portant respects indicated in the findings, conclusions, and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Perry Norvell Company is a West Virginia corporation engaged
in the manufacture of men's shoes at its plant in Huntington, West Vir-
ginia. The Company annually purchases, for use in its manufactur-
ing operations, raw materials valued at approximately $1,000,000, of
which about 95 percent is shipped to the Huntington plant from
sources outside the State of West Virginia. The Company annually
manufactures shoes valued at more than $1,000,000, of which approxi-
mately 75 percent is sold and shipped to customers located outside the
State. All parties stipulated that the Company is engaged in com-
merce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Shoe Workers of America, affiliated with the Congress of
Industrial Organizations; Boot & Shoe Workers Union, Local 613,
affiliated with the American Federation of Labor; and The Perry-
Norvell Shoe Workers Committee, unaffiliated, are labor organizations
admitting to membership employees of the Company.
PERRY NORVELL COMPANY 229
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Chronology of events 7
1. Events leading to the work stoppage
Since 1934, without the benefit of any Board certification, the Com-
pany has recognized Local 613 as the collective bargaining representa-
tive of its employees. On January 13, 1947, the Company and Local
613 entered into a collective bargaining contract to terminate on De-
cember 31, 1947. The contract provided, inter alia :
The Perry-Norvell Company recognizes the Boot & Shoe Work-
ers Local Union #613 as the agent for collective bargaining.
In handling all matters requiring discussion the Union will be
represented by its local Executive Committee and the Company
by its executives. It is agreed that every effort will be made to
settle promptly and peacefully any misunderstanding, and there
will be no strike, lockout, passive resistance or stoppage of work
until all peaceful means have been exhausted. [Italics supplied.]
Apart from the provision for discussion, the contract contained no
formal grievance procedure. However, Norvell, president of the
Company, testified, without contradiction, that for 2 years a custom
had existed under which grievances were filed in written form by
Local 613's Executive Committee and a hearing held thereon at a
time agreed upon by the Company and the chairman of the Executive
Committee.
On August 20, 1947, President Norvell discharged Pat Tyree, a
bed laster.8 The same evening some of the Company's employees
held a meeting at which Tyree's discharge was discussed. Among
those in attendance was Russell Hutchinson, a national representa-
tive of United. According to Hutchinson's uncontradicted account of
the meeting, some employees present asked his advice as to what
should be done about Tyree's discharge; he suggested that the men
take up the matter with Local 613's Executive Committee and the
Company under the regular grievance procedure, as the existing bar-
gaining contract did not interminate until the following December.
7 This statement of events is based on the testimony of witnesses for the General
Counsel. The Respondents rested on the completion of the General Counsel's case, without
introducing any witnesses of their own.
8 The reasons for Tyree 's discharge were not brought out in the record . The Respondents
attempted to prove that Tyree was discharged for his pro -United activities . The Trial
Examiner ruled out the questions as improper . Tyree was one of the leaders of the pro-
United faction among the employees.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hutchinson also testified, without contradiction, that there had been
no discussion of a strike at the meeting.
On August 21, 1947,0 the day following his discharge, Tyree re-
ported for work at 7 a. m., his usual time, and went to his machine.
His foreman told him he could not work, whereupon Tyree said "all
right, boys," and all the bed lasters stopped working. Immediately
after the bed lasters had stopped working. Odell Paugh, a side ]aster,
went over to the same foreman and told him that unless Tyree was
reinstated the side lasters were going to walk out. The foreman re-
plied that he could not reinstate Tyree. Thereupon, Paugh said that
the side lasters were not going to work and requested the foreman not
to put any more work on the machines because "if you do, we won't
side last." However, the side lasters first finished all the work the
assemblers and pullers had ready for them, and then walked out.
This walk-out occurred at about 8 a. m.
Most of the employees in the making department, including Orben
Adkins, also stopped working in protest against Tyree's discharge.
This stoppage, which occurred at 7:30 a. in., was immediately de-
nounced by Dewey Peters, a member of Local 613's Executive Commit-
tee, as a "wildcat" strike; he unsuccessfully urged the men in the de-
partment to go back to work until the Executive Committee had a
chance to investigate and take up the matter of the discharge with Pres-
ident Norvell. Peters then left the department and went downstairs to
the second floor landing to meet with other members of the Executive
Committee. While lie was waiting on the landing, employees Luther
Hatfield, Hobart Wood, and Odell Paugh, who regularly worked
on the sixth floor, came upstairs and joined the Executive Committee
on the landing. These three employees were not members of the
Executive Committee and had not been invited to join the group.
At about 8 a. in. the Executive Committee met with Norvell. The
meeting had been requested by Jasper Lunsford, chairman of the
Executive Committee. Lunsford told Norvell that the bed lasters
were refusing to work unless Tyree was reinstated. Some, but not
all, members of the Executive Committee asked that Tyree be rein-
stated to keep the bed lasters at work. Norvell replied that Tyree
had been discharged for just cause and would not be reinstated.
Lunsford asked if Norvell would see two or three men from the lasting
room who were waiting outside on the stairway. Norvell refused
to see them, explaining that the contract provided for dealing only
with the Executive Committee. Neither at this meeting nor there-
after did the Executive Committee raise any question as to the merits
0 This was the day before the Labor Management Relations Act, 1947 , became effective.
PERRY NORVELL COMPANY 231
of Tyree's discharge. Nor did the Executive Committee then or
thereafter file any written grievance as to the discharge.
After the meeting with Norvell, which he attended, Dewey Peters
returned to the making department and found that the employees in
the department had already left the room. Employees in several
other departments apparently also had stopped working before the
end of the Executive Committee's meeting with Norvell. Employees
who remained at their jobs were told by management to leave the
premises because of the disruption of operations brought about by a
"wildcat" strike. The Company's operations stopped on August 21
and did not resume again until October 23, 1947.
2. Events immediately following the work stoppage
On the afternoon of the work stoppage, the Executive Committee
of Local 613 decided, at a meeting which was also attended by John
Brooker, national representative of the incumbent Boot & Shoe
Workers Union, that the work stoppage of that day was unauthorized.
Advertisements to that effect were published in the local newspapers
on the following day. On the afternoon of August 22, the Executive
Committee also ordered canceled a regular union meeting scheduled
for that evening. A notice of cancellation was posted on the door
of the meeting place, and announcements of the cancellation were made
over local radio stations. Despite the cancellation of the meeting,
between 100 and 150 employees assembled at the regular place and time
for holding union meetings 1e None of the officers of Local 613 were
present at the start of the meeting. Orben Adkins opened the meet-
ing and then turned the chairmanship over to Randolph Johnson.
Subsequently, Bernie Burns, vice president of Local 613, entered the
meeting hall and, at the request of Johnson, assumed the chairmanship
of the meeting. Resolutions dissolving Local 613 and directing the
secretary-treasurer of Local 613 to withdraw the Local's funds from
the bank and redeposit them in the name of the Company's workers
were then read to the meeting and adopted by standing votes.- Notice
of the alleged dissolution of Local 613 was sent to the Company on
the same day. However, a few days later, the regular officers of
Local 613, including Burns, advised the Company that Local 613
10 Some of the employees who attended the meeting were unaware that Local 613 had
canceled the meeting. Bernie Burns , who presided at the meeting, stated that this was
true of him . In addition , employee Chrystena Wilson testified to seeing Randolph Johnson
tearing the notice of cancellation from the door to which it was affixed after Orben Adkins
had blocked the view of it with his body.
11 Orben Adkins read the resolution dissolving Local 613 . He testified that he read from
a typewritten copy that was handed to him in the crowd by a person whom he was unable
to remember.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been dissolved. An attempt to persuade the bank carrying
the Local 613 bank account to honor the resolution calling for a trans-
fer of the Local's account was unsuccessful.
3. The Perry-Norvell Shoe Workers Committee
At a meeting of some of the employees on the afternoon of August
21, the day of the work stoppage, the organization of The Perry-
Norvell Shoe Workers Committee was started 12 According to the
plan of organization, the employees of each department elected one
or more of their fellow employees as members of the Committee.
Some of the Committee members were selected at the August 21
meeting; the remainder was chosen at a second meeting held on August
25. Randolph Johnson was elected chairman at this second meeting.
As finally formed, the Committee consisted of 21 members.13
In Johnson's words, the original purpose of the Committee was
"to look out for the welfare of the shoe workers on strike," and the
Committee quickly assumed leadership of the strike. It ran a strike
headquarters, called meetings of the strikers, issued press releases,
collected and expended funds, placed newspaper advertisements in
its name, circularized employees, and urged them not to return to work.
On August 26, Johnson unsuccessfully attempted to arrange an ap-
pointment with Norvell for himself and the Committee to discuss the
strike situation. In a newspaper advertisement published on August
27, announcing a mass meeting of strikers, the Committee declared
that the strike was "in protest against the arbitrary discharge of our
fellow employees and for the recognition of the Perry-Norvell Shoe
Workers Union (Independent) as the collective bargaining agency.
5114
4. United's relation to the Committee
In April 1947, employees Randolph Johnson, Pat Tyree, Trancey-
NefF, and Odell Paugh, dissatisfied with their representation by Local
613, had visited United's office in Portsmouth, Ohio, and asked United's
representatives present, including George Martin, regional director,
and Russell Hutchinson and Norman Bartlett, national representa-
12 Russell Hutchinson testified that there were approximately 200 employees present
at the August 21 meeting How many of these participated in selecting members of the
Committee was not established.
12 The Trial Examiner found that the Committee was composed of 16 individuals
Board Exhibit 23, dated August 27, 1947, indeed, shows only this number. But the list
in this exhibit appears to he incomplete. Board Exhibit 20, dated October 21, 1947, shows
21 members we have accepted the list in this latter exhibit as accurate.
14In a circular sent to the employees early in October, the Committee said that all it
was seeking was "the immediate reinstatement of the people who were fired without any
just reason." The Committee reiterated that this was the real cause of the strike in a
circular sent to employees on October 21.
PERRY NORVELL COMPANY 233
tives, to come up to Huntington and talk with other dissatisfied em-
ployees. United took no action on this request until the summer of
1947. In June or July, National Representative Hutchinson attended
the first meeting of the group seeking to replace Local 613 as bargain-
ing representative. An active campaign to sign up members for
United was carried on by some of the dissidents within Local 613.
The precise degree of success of this campaign was not established in
the record. However, among the signers of authorization cards in
behalf of United were J. B. Pullen, president of Local 613, and Jasper
Lunsford, chairman of the Executive Committee of Local 61315
Hutchinson was the principal official of United active among the
employees of the Company. He was in Huntington about half the
time between August 19 and October 28, 1947, working with the em-
ployees of the Company. He addressed meetings of employees, in-
cluding the two meetings at which the Committee was formed,16 gave
advice as to publicity and other matters,17 was in and about the plant
before and during the strike, and was frequently present at strike
headquarters. There is no evidence to show that Hutchinson was
responsible for the calling of the strike. On one occasion, however, he
was heard urging the strikers "to stick it out" until the Company
should be willing to see their Committee. Several times Hutchinson
loaned the strikers sound equipment belonging to United. At one
meeting of strikers, he brought in a motion picture projector and
showed a film produced by United Electrical Workers, C. I. O.
Hutchinson collected about $145 from the employees in another shoe
factory and turned this money over to the Committee. He also
brought up individuals who contributed funds to the Committee.
None of this money came from United or any of its locals. United
stipulated that, in all that he did, Hutchinson acted within his au-
thority. The other officials of United, George Martin, Clifford John-
son, Norman Bartlett, and Julius Crane, also appear to have been
active among the strikers, but to a considerably lesser extent than
Hutchinson.
"Pullen asked to have his name removed from the United authorization card about a
week before the strike.
16 Typical of Hutchinson's accounts of his talks at meetings of employees is his uncon-
tradicted account of his speech at the August 20 meeting: "I don't know the exact words,
just my usual talk that I usually make to any group of workers Probably there was
some questions asked me as to what kind of a situation they was in, and so forth, what
kind of conditions they could receive if they had a different organization, or better or-
ganization, because they hadn't been getting any service in the organization that they had,
had had people fired, grievances wasn't taken up, I don't know, the usual that goes along
with my work of organizing "
11 Hutchinson testified, without contradiction, that at both the August 20 and August
21 meetings of employees which he had attended, he had advised those present to try to
settle their difficulties with the Company through the Executive Committee of Local 613.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The reopening of the plant
On August 23, the Executive Committee and officers of Local 613,
together with Brooker, met with Norvell iii an attempt to persuade
the latter to reopen the plant. Norvell said that he could not resume
operations until he was assured of a sufficient number of employees
and of a balanced organization to operate the factory. At a special
meeting of the membership of Local 613, attended by approximately
250 people, Brooker denounced the strike as illegal and unauthorized
and suggested that the employees return to their jobs. Apparently
the appeal was unsuccessful, for the plant remained closed.
On October 13, Local 613 sent letters to the employees urging them
to return to work. A week later, on October 20, the Company sent
letters to its employees announcing the reopening of the plant on Oc-
tober 23 and requesting their return to work. Simultaneously, it sent
letters of discharge to all members of the Committee, except Alma
Ferguson; 18 it also sent them to Eva Marie Moeckel and Charles
Morris, who were not members of the Committee, but who are named
in the complaint as its agents.' On October 23, the plant reopened
with a working force of 110 people as against the 350 who were
employed when the plant ceased operating. At the time of the hear-
ing herein , the factory was operating with a working force of 150,
some of whom were new employees.
6. Alleged acts of intimidation
The following incidents in connection with the strike are alleged
by the General Counsel to have restrained and coerced the employees,
and to have violated Section 8 (b) (1) (A) of the Act without regard
to the lawful or unlawful purpose of the strike: 20
(a) About 2 weeks after the start of the strike, employee Holt met
Pat Tyree, a member of the Committee, and two other strikers. Tyree
asked Holt why the latter didn't run Brooker, the Boot & Shoe Work-
ers' representative, out of town. Holt disclaimed any interest in this
suggestion. Thereupon, Tyree said, "Nell, he is liable to be run
out." Tyree also doubled up his fist and continued, "I'll use that if
it's necessary. If you ain't damn careful, I'll use that on you." Holt
18 No reason was offered at the hearing as to why Alma Ferguson was not discharged.
Incidentally , Ferguson is not named in the complaint as a party respondent.
19 The reason for naming Moeckel and Moiris as agents of the Committee is not clear.
Neither is a member of that body . The only evidence concerning Moeckel which would make
her an agent is that, at the August 22 meeting of Local 613 at which the resolution of dis-
solution was adopted, she acted as secretary in taking notes. The evidence as to Morris
is that before the strike he had solicited employees to join United, and on the morning
of the strike he had voluntarily, together with other employees in his department , stopped
working.
21 The Board ' s conclusions concerning these incidents appear in Section E, infra.
PERRY NORVELL COMPANY 235
replied that he was not afraid. Holt admitted that he had been on
friendly terms with Tyree before this conversation, and that the only
explanation he could give for the latter's remarks was that Tyree
"wanted to do a little bluffing." 21
(b) On or about October 21, 1947, the day after she had received
a letter from the Company asking her to return to work, employee
Thelma Earl received a telephone call from Ella May Driskill, a
member of the Committee, who asked if Earl was going back to
work. Earl replied that she was. Driskill then said that 22 strikers
had been discharged and that if other employees went back to work
they would be "rats." Driskill also characterized employees who had
signed affidavits for Board agents as "skunks" and said, "when we
have our trial in the courtroom down there, their odor is going to
be let out." Finally, Driskill said that she had been fired, but she
was going to report back to work and be fired right, "and I am going
to get whoever one is on my job sooner or later." 22
(c) On the reopening of the plant on October 23, and again on
October 24, about 200 people were around the plant. "Some . . . were
in the alley, some were on the vacant lot, some were between the side-
walk and the curb, and some were also on the sidewalk and in front
of the door at the factory." People standing outside called employees
entering and leaving the plant "scabs" and "yellow scabs." There was
no difficulty entering or leaving the plant on either of those days.
"The only thing, they just hollered at us." The same events occurred
on October 27, except that employees entering the plant were told by
unidentified individuals outside that if they entered the plant that
day they would not go to work the following day.
(d) On October 23, employee Chapman, a 16-year-old boy, while
walking away from the plant after his day's work, was followed by
an automobile containing two or three men. One of the men, whom
Chapman identified only by his first name, "Odell," got out of the
car, grabbed Chapman by the shirt collar, and, after asking if Chap-
man had worked that day and receiving an affirmative answer, said,
"The next time I catch you back in that plant I am going to give you
a whipping." Before this incident, Chapman had commuted by auto-
mobile to his home 20 miles from the plant. Shortly after he was
threatened, he moved to his sister's home near the plant.
(e) On October 23, as employee Wilma Sheets left the factory and
started to walk home, Garnet Davis, a member of the Committee, got
"The complaint alleged that the Respondents had coerced the employees since October
22. The above incident occurred weeks before that date.
Z' Earl was insistent that this telephone conversation took place on October 13. How-
ever, from the contents of the conversation , this date appears to be incorrect, as Driskill
was not discharged until a week later. Driskill did not testify.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out of a car, and started down a field directly in front of Sheets, who
thereupon turned back to the factory. Davis yelled after Sheets,
"You God damned coward, go back and get you a cab." Sheets got
a cab.
(f) On October 24, employee Sheets left the plant in the automobile
of another employee. This car was followed by a second automobile
in which were several strikers, none of whom were members of the
Committee. After a while, the car in which Sheets was riding stopped
and the husband of the other employee went back and asked the oc-
cupants of the second car, which was immediately behind, why they
were following. One of the occupants of the second car replied, "We
want to beat the hell out of that bunch." Sheets and the other occu-
pant of the first car heard this threat. The incident ended at this
point.
(g) On October 24, as employee Alma Roach was entering the plant,
she was pushed by striker Elizabeth Edmonds, who was not a mem-
ber of the Committee. Edmonds pushed Roach "with her right hand
on her left shoulder and she [Roach] went kind of off balance. She
didn't fall down or anything like that." After this incident, Roach
entered the factory, but she was upset and was taken home. Ella
Driskill, a member of the Committee, was in the group which wit-
nessed this incident.
(h) On October 24, as employee Spencer was going to work, he
was met by Pat Tyree, a member of the Committee, who remonstrated
with Spencer for going to work. Tyree then said, "We're going to
make it hard for you to get in here. If you had good judgment you
wouldn't go in that plant this morning." Spencer ignored this state-
ment and started toward the plant. Tyree continued, "Well, we're
going to crack somebody's head for coming in here. W'e're going to
crack your head. It's going to be hard to get in here from now on."
Spencer entered the plant and went to work. He testified that he did
not think that Tyree would hit him. "The only way I thought, it
might be someone ganging in on me."
(i) On October 24, Hattie Graves and her aunt applied for work
at the Company's plant. On leaving the plant building, they found
about 10 people assembled outside, including Garnet Perkins, Odell
Paugh, Ella Driskill, and Garnet Davis, members of the Committee.
As Graves and her aunt walked down the street, Perkins and Paugh
followed, telling the job applicants at the same time that they had
better not go to work. Perkins twice pushed Graves with her elbow,
once against a building and a second time up on to a lawn. At the
same time, Perkins warned Graves that that was a sample of what she
was going to receive if she went to work. When pushed, Graves did
PERRY NORVELL COMPANY 237
not scream, fall down, run, or fight back, but continued to walk along
calmly. However, the following morning, she swore out a warrant for
Perkins' arrest. Notwithstanding Perkins' threat, Graves, but not her
aunt, went to work for the Company. Six days later, as Graves was
standing near the factory waiting for a bus to take her home, Perkins
approached her and said, "I hear you have something you want to talk
to me about." Graves answered in the negative. Then, according to
Graves, Perkins "hauled off and hit me in the nose and bloodied my
nose, she hit me two or three times in the face, pulled my hair, too,
and knocked me plumb down."
(j) On October 25, as employee J. B. Pullen, president of Local 613,
was approaching the plant entrance to go to work, he encountered a
number of people about the entrance, including Orben Adkins, a mem-
ber of the Committee. Adkins told Pullen that he "was going to get
the hell beat out of" him and that, if Pullen wasn't an old man, "he
would do it himself, but he had a friend that would do it." Three
days later, as Pullen was going up the alley leading to his home, Jimmy
Hicks, a member of the Committee, jumped out and grabbed him, say-
ing, "Come on here, I want to kick the hell out of you, I don't want
George Norvell to see me." (The point at which this occurred was
about 300 feet from the plant.) Pullen refused to go along with Hicks,
and started down the alley, whereupon Hicks jumped in front of
Pullen "with his mitts up" and said, "Make a pass at me." Pullen
first refused this invitation, then got angry and threw the things
he was carrying to the ground as a preliminary to a fight. But then
a friendly taxicab driver came along and prevailed on Pullen to enter
the taxicab and go home. No fight ensued. Hicks called Pullen a
"yellow back scab" when the latter entered the taxicab.
(k) On October 27, as employee Nettie Roberts was approaching
the entrance to the factory, she saw striker Orville Driskill, Jr., who
was not a member of the Committee, standing with two other indi-
viduals on the sidewalk. As Roberts tried to go through this group
of three, Driskill Jr. pushed her with his shoulder, almost knocking
her down. Then he stepped back and Roberts went on through. A
somewhat similar incident involving employee Blanche Moore and
Driskill Jr. occurred on the same day, except that Driskill Jr. pushed
Moore with his knee. Moore was not hurt, but "shoved on through and
went on."
(1) On October 27, as employee Chrystena Wilson approached the
plant, she noticed that the sidewalk was blocked at the corner of the
alley next to the factory by approximately eight men, one of whom
was Odell Paugh, a member of the Committee. Wilson walked around
the group blocking the sidewalk and entered the factory. Some of the
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
girls who were with her crowded their way through the group. Wil-
son was accused by the strikers of being afraid to walk in front of
them, but she testified, "It wasn't that I was afraid of walking in front
of them, it was that they had the sidewalk blocked and I didn't care
to go through it."
(m) On October 31, employee Sheets was chased home on foot by
six individuals, one of whom was Garnet Davis, a member of the
Committee. Sheets got home safely. One of the unidentified in-
dividuals told Sheets through the door, "You come out here. We'll
take you one at a time, we won't all jump onto you at one time."
Another of these unidentified individuals said, "Well, you won't
always have protection. We'll get you sooner or later," Since that
day Sheets has driven to the factory from her home, although she
lives only a block and a half away.
B. The allegations of the complaint
The General Counsel alleged that the Respondents violated Section
8 (b) (1) (A) of the Act by: (a) the strike itself, (b) the attempt to
dissolve Local 613, and (c) coercion of employees by intimidation,
force, assaults, and threats of violence and reprisal. In addition,
the General Counsel alleged that United separately violated this sec-
tion of the Act by threatening employees with discriminatory treat-
ment as to jobs or membership unless the employees joined United
immediately. No proof was offered in support of this latter allega-
tion. Accordingly, we shall dismiss it.
C. The contention that the strike itself violated Section 8 (b) (1) (A)
The General Counsel contends that the strike by some employees
was a "wildcat" strike in violation of the agreement between the
Company and Local 613, that the purpose of the strike was to abrogate
the existing agreement and to compel the Company to bargain with
the Committee instead of with Local 613 during the contract term,
and if the Company had acceded to the Committee's demands it
would have violated Section 8 (a) (5) and 8 (d) of the Act. He
further contends that, regardless of the methods used, and even if
they happened to be themselves lawful, a strike for such a purpose is
per se an unfair labor practice in violation of Section 8 (b) (1) (A) '23
because it deprives employees of the rights guaranteed them under
Section 7 of the Act, particularly the right to bargain collectively
through representatives of their own choosing. This contention is
21 Section 8 (b) (1) (A) provides that it shall be an unfair labor practice for a labor
organization or its agents "to restrain or coerce employees in the exercise of the rights
guaranteed in Section 7."
PERRY NORVELL COMPANY 239
wholly separate from the contention, discussed in Section E below,
that certain acts engaged in during the strike were themselves coer-
cive in character. We shall consider it wholly separately.
Assuming arguendo the validity of the premises upon which the
General Counsel has based his argument, the conclusion does not fol-
low that the strike violated the Act.- Section 8 (b) (1) (A) was not
intended to have the broad and almost limitless reach which the Gen-
eral Counsel urges upon the Board. The legislative history of the
Act shows that, by this particular section, Congress primarily intended
to proscribe the coercive condnwt which sometimes accompanies a
strike, but not the strike itself.25 By Section 8 (b) (1) (A), Congress
sought to fix the rules of the game, to insure that strikes and other
organizational activities of employees were conducted peaceably by
persuasion and propaganda and not by physical force, or threats of
force, or of economic reprisal.- In that Section, Congress was aim-
ing at means, not at ends.
As Senator Taft said, in answer to the observation that Section 8
(b) (1) (A) would outlaw all strikes by unions for organizational
purposes :
* * * I can see nothing in the pending measure which, as
suggested by the Senator from Oregon [Morse], would in some
way outlaw strikes. It would outlaw threats against employees.
It would not outlaw anybody striking who wanted to strike. It
would not prevent anyone using the strike in a legitimate way,
conducting peaceful picketing or employing persuasion. All it
would do would be to outlaw such restraint and coercion as would
prevent people from going to work if they wished to go to work.
[Emphasis supplied.] 27
Other considerations support the conclusion that Congress did not
intend that the kind of strike present here should be per se an unfair
labor practice under Section 8 (b) (1) (A). In the first place, Con-
gress, by another Section, specifically made it an unfair practice for a
labor organization to strike to force an employer to recognize one labor
organization when another has been certified by the Board under the
provisions of Section 9 (a).28 Local 613 was never certified, so Section
8 (b) (4) (C) cannot be here invoked; the General Counsel, barred
from invoking it by this fact, has turned to Section 8 (b) (1) (A)
24 There is no question in this case of any possible violation of Section 8 (b) (4) (C)
of the Act.
25 For a detailed account of the legislative history of Section 8 (b) (1) (A) of the
Act, see Matter of National Maritime Union of America , 78 N. L R B 971.
26 Matter of National Maritime Union of America, 78 N L . R. B. 971.
27 93 Daily (bng Rec. 4563 (May 2, 1947).
21 Section 8 (b) (4) (C).
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instead . But we conclude that Congress did not intend either section
to declare it an unfair labor practice to strike for recognition in the
absence of a certification . Otherwise , Section 8 (b) (4) (C) would
be redundant . The General Counsel , to be sure , asserts that a strike
for recognition in the face of an outstanding certification of another
labor organization is an unfair labor practice also under Section 8 (b)
(1) (A), as well as under Section 8 ( b) (4) (C), and that the latter
section is not thereby rendered redundant . He argues that its pur-
pose is merely to insure the expeditious handling of , and the immediate
application for appropriate injunctive relief against , recognition
strikes in the face of an outstanding certification . However, Section
8 does not deal with remedy. It is devoted solely to defining unfair
labor practices by employers and labor organizations . It is Section
10 (1) that deals with special remedies in strike situations under
Section 8 ( b) (4) (C). If Congress had really intended Section 8 (b)
(4) (C) to have primarily a procedural effect, it would surely have
inserted its terms in Section 10, rather than in Section S.
Secondly, even accepting arguendo the General Counsel's contention
that the strike here was a violation of the contract between the Com-
pany and Local 613-a question that we do not decide-we do not
find the calling of the strike to be a violation . The original Senate
version of the Taft-Hartley Act contained a provision making it an
unfair labor practice for either a union or an employer to violate the
terms of a collective bargaining agreement . This provision was elim-
inated in conference 29 From this we also conclude that Congress did
not intend to make a strike in breach of a contract an unfair labor
practice per se.
Finally, the logic of the General Counsel 's contention that the
present strike is, in and of itself, an unfair labor practice , would re-
quire the outlawing of practically any strike opposed by some em-
ployees. The impact of a strike on employees who disapprove the
strike is the same, regardless of its purpose . Hence, if some employees
should strike for recognition in the absence of any bargaining repre-
sentative , and other employees should oppose the strike and the union
calling the strike, the strike would perforce be an unfair labor practice
under the General Counsel 's reasoning , because the strike would inter-
fere with the right of some employees not to join a labor organization
and not to bargain collectively , as guaranteed by Section 7. However,
during the course of the debate on the bill , Senator Taft expressly
denied that Section 8 ( b) (1) (A) would have this effect.30
29 H. R . Rep. No. 510, 80th Cong, 1st Sess., pp. 41-42 (1947).
30 93 Daily Cong Rec. 4563 (May 2, 1947).
PERRY NORVELL COMPANY 241
Accordingly, we find that the strike which started on August 21,
1947, did not, in and of itself, violate Section 8 (b) (1) (A) of the
Act.
In making this finding, we do not mean to imply that the employees
who were discharged because of the strike would be held entitled
to reinstatement and back pay if they should invoke our jurisdiction
under Section 8 (a). That question is not before us and we do not pass
upon it. There is an area of employee activity, not precisely de-
fined, which, while not constituting unfair labor practices under Sec-
tion 8 (b) of the Act, is nevertheless not protected by the Board
when employees seek affirmative relief themselves under Section 8 (a).
This doctrine was evolved by the courts and the Board under the
Wagner Act.31 Although some employee conduct previously denomi-
nated as "unprotected" has been made an unfair labor practice when
committed by a labor organization or its agents (as, for example, a
strike in the face of a certification of another union), the doctrine
that some conduct by employees may be unprotected, although not
amounting to unfair labor practices, has retained its full vigor under
the Labor Management Relations Act, 1947.31
D. The contention that the Respondents violated Section 8 (b) (1)
(A) by attenhpting to dissolve Local 613
This allegation appears to be bound up with the allegation that
the strike violated Section 8 (b) (1) (A). For similar reasons, we
find that the attempt to dissolve Local 613 did not constitute a vio-
lation of Section 8 (b) (1) (A) of the Act.
E. The intimidatory conduct during the strike 33
Of the incidents alleged by the General Counsel to have been co-
ercive, we find that incidents (a), (b), (c), (e), and (1), did not
have that effect. To that extent we agree with the Trial Examiner.
Incident (a) consisted primarily of a threat by Respondent Tyree
to employee Holt to run Brooker, the Boot & Shoe Workers' repre-
ai See , for example , Fansteel Metallurgical Corp v. N. L. R B., 306 U. S 240 (1939) ;
N. L R. B. v. Sands Manufacturing Company, 306 U. S. 332 (1939) ; Matter of American
News Company, 55 N. L. R. B. 1302; Matter of Scullin Steel Company, 65 N. L. R. B.
1294; Matter of Joseph Dyson A Sons, Inc., 72 N. L. R. B. 445; Matter of Thompson
Products, Inc., 72 N. L. R. B. 886.
82 See H R. Rep . No. 510, 80th Cong., 1st Sess, pp . 38-40, 42-43 (1947). A great
deal of the confusion in the arguments of the General Counsel and the Company set forth
in their briefs stems from their failure to distinguish between unprotected activities of
employees on the one hand and unfair labor practices by labor organizations on the other.
38 The conduct alleged to constitute violations of Section 8 (b) (1) (A) is recited in
Section III A 6 of this Decision, supra. The incidents are here identified in accordance
with the paragraph subheadings in that Section.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative, out of town. The threat was never, so far as appears from
the record, communicated to Brooker, and the record does not show
that the threat to Brooker or to Holt was intended or taken as more
than a bluff.
Incident (b) involved Respondent Driskill's characterization of
returning strikers as "skunks" and "rats" and a threat "to get" any-
body who should replace her. The name calling is privileged under
Section 8 (c) of the Act; the threat "to get" any replacement did not
reach, and was too vague to affect, any employee who might have been
intended by it. The person to whom the threat was made, employee
Earl, had her own job and was not a possible replacement for Driskill.
Incident (c) involved the gathering of a large number of strikers
near the plant during the strike and the crowd's verbal denunciation
of returning workers as "scabs" and "yellow scabs." Although a
large number of persons were about the plant during the strike, there
was no mass picketing and no interference or attempt to interfere
with ingress or egress at the plant. Under the circumstances, the
assemblage of strikers cannot be said to have been coercive. The
name-calling by persons in the crowd was privileged under Section
8 (c).
Incident (e) was limited to Respondent Garnet Davis' oral denun-
ciation of employee Sheets on seeing the latter leave the factory. This
statement, although vigorous, did not reach the level of coercion under
the circumstances.
Incident (1) involved employee Wilson's walking around a group
of strikers on the sidewalk in order to enter the plant. Several em-
ployees walking with her crowded through the strikers. No attempt
was made to prevent Wilson from entering the plant. The incident
shows some slight inconvenience to Wilson, but was not sufficiently
strong to constitute coercion.
We disagree, however, with the Trial Examiner's holding that other
incidents did not constitute "restraint" or "coercion" within the mean-
ing of Section 8 (b) (1) (A) of the amended Act. We believe that
each of the remaining incidents, namely: the threat to whip employee
Chapman (incident d) ; the threat to beat up the occupants of the car
in which employee Sheets was riding (incident f) ; the shoving of
employee Roach (incident g) ; the threat to crack the head of em-
ployee Spencer (incident h) ; the threat to beat employee Graves if
she went to work and the actual beating administered to her by Re-
spondent Perkins (incident i) ; the threat to beat up employee Pullen
(incident j) ; the shoving of employees Roberts and Moore (incident
k) ; and the chasing of employee Sheets and the threat to beat her
,up (incident m) ; all were reasonably calculated to restrain or coerce
PERRY NORVELL COMPANY 243
employees. If committed by "a labor organization or its agents,"
these incidents or a combination of them would constitute a violation
of Section 8 (b) (1) (A), contrary to the conclusion of the Trial
Examiner.34
F. The responsibility of the Committee for the acts of restraint and
coercion
The question of whether the Committee, a labor organization, is re-
sponsible for the above acts, depends upon whether the individuals
committing them were acting as its agents. As to who shall qualify
as an agent, Section 2 (13) of the amended Act provides as follows:
In determining whether any person is acting as an "agent"
of another person 35 so as to make such other person responsible
for his acts, the question of whether the specific acts performed
were actually authorized or subsequently ratified shall not be
controlling.36
The implication of this language , which is borne out by the legisla-
tive history, is that the common-law rules of agency shall govern 37
We shall consequently be guided here by the familiar rule of agency
as Cf. Matter of Sunset Line and Twine Co., 79 N. L. it. B. 1487, decided October 22,
1948.
as The term "person," as defined in Section 2 (1) of the Act, as amended , includes a
labor organization.
16 The same definition is repeated in Section 301 (e).
iaz The Conference Report, discussing Section 2 ( 13) says :
. . . under the conference agreement , as under the House bill , both employers and
labor organizations will be responsible for the acts of their agents in accordance with
the ordinary common law rules of agency (and only ordinary evidence will be required
to establish the agent's authority). (80th Cong, 1st Sess, H. it. Rep. No. 510,
June 3, 1947, p. 36; see also 93 Daily Cong Rec. 6599 (June 5, 1947) )
Senator Taft , in a supplementary analysis of the Taft-Hartley bill, which he inserted in
the Congressional Record after the passage of the Conference bill, said:
This [ Sec. 2 (13)] restores the law of agency as it has been developed at common
law. . . . It is true that this definition was written to avoid the construction which
the Supreme Court in the recent case of United States v. United Brotherhood of
Carpenters [330 U. S 395] placed upon-section 6 of the Norris-La Guardia Act
which exempts organizations from liability for illegal acts committed in labor disputes
unless proof of actual instigation, participation, or ratification can be shown The
construction the Supreme Court placed on this special exemption was so broad that
Mr Justice Frankfurter, speaking for the dissenting minority, pointed out that all
unions need do in the future to escape liability for the illegal actions of their officers
is simply to pass a standing resolution disclaiming such responsibility. The con-
ferees agreed that the ordinary law of agency should apply to employer and union
representatives. Consequently, when a supervisor acting in his capacity as such,
engages in intimidating conduct or illegal action with respect to employees or labor
organizers his conduct can be imputed to his employer regardless whether or not the
company official[s] approved or were even aware of his actions Similarly union
business agents or stewards , acting in their capacity of union officers , may make their
union guilty of an unfair-labor practice when they engage in conduct made an unfair-
labor practice in the bill, even though no formal action has been taken by the union
to authorize or approve such conduct. [ Emphasis supplied .] (93 Daily Cong. Rec.
7000, June 12, 1947.)
817319-49-vol. 80-17
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "a principal may be responsible for the act of his agent within
the scope of the agent's general authority or the `scope of his em-
ployment' if the agent is a servant, even though the principal has
not specifically authorized or indeed may have specifically forbidden
the Act in question. It is enough if the principal actually empowered
the agent to represent him in the general area within which the
agent acted." 38
Although the structure of the Committee was not very formal and
the area of authority of the Committeemen was not sharply delineated,
this much is entirely clear : The Committee was formed after the
inception of the strike with the avowed purpose of "look[ing] out
for the welfare of the shoe workers on strike." 39 Its objective was
to make a success of the strike and to control and direct the strike
to that end. Whatever governing force perpetuated the strike there-
after flowed from the Committee, acting through its chairman and
Committeemen. These individuals were elected to office by the strik-
ers and each one was thereby clothed with authority to function in
behalf of the Committee in attaining its objective. By the nature
of their authority, acts of the Committee members in the attainment
of that end were acts of the Committee itself. The Committee mem-
bers were the instrumentalities through which the Committee operated
and through which its policies were effectuated. That Congress in-
tended this type of organization to enjoy the privileges and bear the
responsibilities arising from the statute is apparent from its specific
inclusion of a "representation committee" within the definition of a
labor organization set forth in Section 2 (5) of the amended Act 40
In these circumstances, we are persuaded that any conduct of a Com-
mitteeman which was reasonably directed toward attaining the Com-
mittee's objectives was an act of the Committee.
It is abundantly clear that incidents (d), (h), (i), (j), and (m),
consisting of threats of bodily harm to non-striking employees and
job applicants by Committeemen Odell Paugh, P. H. Tyree, Garnet
Perkins, Orben Adkins, James Hicks, and Garnet Davis, and of
assaults upon employees by Committeemen Paugh, Perkins, and Hicks
38 Matter of Sun8et Line and Twine Company, 79 N. L. R. B 1487, issued October
22, 1948.
39 The term "welfare" implied , and apparently was understood to mean, the general
welfare of the strikers and not merely the alleviation of economic hardship during the
strike.
40 Section 2 (5) of the amended Act states that "The term `labor organization' means
any organization of any kind , or any agency or employee representation committee or
plan, in which employees participate and which exists for the purpose , in whole or in
part, of dealing with employers concerning grievances , labor disputes , wages, rates of
pay, hours of employment , or conditions of work." The identical provision was contained
in Section 2 (5) of the National Labor Relations Act.
PERRY NORVELL COMPANY 245
were so directed.41 We therefore conclude and find that these named
individuals were acting as agents of the Committee during these inci-
dents and that their threats and assaults were the acts of the Com-
mittee.42 And we find further that the Committee thereby violated
Section 8 (b) (1) (A) of the Act. The Trial Examiner is to that
extent reversed.
A different result is indicated, however, as to incidents (f), (g),
and (k), which we have also found to be substantively coercive in
character. Striking rank-and-file employees, and not Committeemen,
appear to have been involved in these incidents. There is no showing
that these acts were committed in the course of picketing or of any
related activity sponsored, supervised, or incited by the Committee."
As previously noted, Section 8 (b) of the amended Act designates as
unfair labor practices certain acts by a labor organization or its
agents. It is not directed toward such conduct by persons or employees
in their individual capacity. We find, therefore, that the fact that
these strikers may have been Committee adherents is clearly insuffi-
cient, standing alone, to establish that they are agents of the Com-
mittee so as to make the Committee liable for their commission of
41 Employee Chapman testified that he was threatened by one "Odell ." As the name
corresponds to the first name of Paugh and because Paugh was conspicuously active in
the strike , we infer and find that the reference was to Odell Paugh.
In another incident referred to above , Garnet Perkins and Paugh left a group of Com-
mitteemen with whom they were standing outside the plant, in order to follow Graves
on her way home from the plant . So far as appears , those left behind did not instigate
or in any way initiate the shoving incident which occurred away from the plant shortly
thereafter . Under these circumstances , we find the mere presence of these Committeemen,
at the plant exit insufficient to involve them as responsible parties in the fracas. As to
Perkins and Paugh , although Perkins did the shoving , we find both to be jointly respon-
sible therefor.
42 Chairman Herzog finds it difficult to agree that the common -law rules of agency,
imposed by Section 2 ( 13) of the amended Act have been sufficiently satisfied on this
record to justify the Board 's holding the Committee responsible for the coercive acts of
these individuals . It appears questionable to the Chairman whether the General Coun-
sel's representative , perhaps because he tried his case on a quite different theory remi-
niscent of the long discredited conspiracy and proximate cause doctrines , actually met
his burden of proof under the statutory standard . The record contains little evidence
to show the internal functioning of the Committee , or the duties or authority of the
various Committeemen whose acts we are attributing to the Committee
However, the proof of agency here does seem to the Chairman more Impressive than
that thought sufficient by the majority in the recent Sunset Line case. In the dissent
in that case ( limited to the responsibility of the International Union ), he expressed his
views as to the standards which should govern the Board in appraising evidence sub-
mitted to establish an agency relationship . There being no occasion to reiterate those
general views in the present case , the Chairman is signing the Board 's opinion and order,
as he agrees without reservation with his colleagues ' conclusions on the substantive merits.
43 Cf. the majority opinion in Matter of Sunset Line and Twine Company, 79 N. L. R. B.
1487, decided October 22, 1948.
Although , before September 30, 1947, the Committee issued a bulletin to all employees in
which it stated "we are ready and willing to fight for our rights as millions of others did
before us ," this statement is too general and too remote in time to be construed as causing
the conduct by the strikers on and after October 23, 1947, the date on which the plant was
reopened.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct proscribed by Section 8 (b) (1) (A) of the amended Act's
We also attach no significance to the fact that Committeewoman Dris-
kill witnessed the incident in which striker Edmonds pushed employee
Roach. The mere presence of Driskill was insufficient in these cir-
cumstances to constitute that act an act of the Committee. Nor were
the acts of coercion by Committee members so general or widespread
as to lead the rank-and-file strikers to believe, as contended by the
General Counsel, that an act of coercion by an individual striker was
supported by the Committee.
G. The alleged responsibility of the other Respondents for the acts
of restraint and coercion
There remain for consideration the questions of whether the in-
dividuals named in the complaint as agents of the Committee have also
violated the Act, and whether United and the individuals named as
its agents are to be held responsible for the conduct which we have
attributed to the Committee. As already noted, we have determined
that the acts of Odell Paugh, P. H. Tyree, Garnet Perkins, Orben
Adkins, James Hicks, and Garnet Davis were, in fact, the acts of the
Committee. As agents of the Committee, they have by their conduct
restrained and coerced the employees of the Employer in violation of
the Act. Their acts are, of course, not binding upon any other Com-
mitteemen listed in the complaint who were not participants in their
coercive acts. Accordingly, we find that Odell Paugh, P. II. Tyree,
Garnet Perkins, Orben Adkins, James Hicks, and Garnet Davis have
violated Section 8 (b) (1) (A) of the Act, but that Joseph Chapman,
George Davis, Rose Davis, Harold Denning, Ella May Driskill, Lu-
ther Hatfield, Dallas Holbrook, Randolph Johnson, Ray Johnson, Eva
41 In the course of debate on the Taft -Hartley bill , Senator Taft stated :
. . . There must be legal proof of agency in the case of unions as in the case of
coipoiations ; but I do not think there is anything in the fact that a union is an
unincorporated association which would bring about a condition in law that the act
of every member is necessarily charged to the labor organization . No ; I think not
(93 Daily Cong. Rec., 4142, April 25, 1947).
Senator Taft at another time further emphasized the fact that an individual employee who
is a member of a union is not thereby constituted an "agent" of the union.
I think the word "agent" used . . . in the bill , means an agent under the ordinary
rules of agency , an agent of the labor union, the organization as such The fact that
a man was a member of a labor union in my opinion would be no evidence whatever to
show that he was an agent ( 93 Daily Cong Rec , 4561, May 2, 1947).
At common law, the members of a voluntary association have been held not responsible for
the acts of a fellow member unless they authorized or ratified such acts Frankfurter and
Greene, "The Labor Injunction " ( 1930 ), n. 104 ; McCabe v. Goodfellow , 133 N Y 89 ( 1892) ;
Sweetman v. Burrows, 263 Mass . 349, 161 N. E . 272 (1928 ) ; Malloy v Carroll, 287 Mass.
376, 191 N E 661 (1934 ). The same rule applies to unions. United States v. White,
322 U S 694 (1944) , Hill v. Eagle Glass Mfg. Co., 219 Fed 719 (C C A. 4, 1915), rev'd
on other grounds , 245 U S. 275; Russell & Sons v Stampers , 57 N. Y Masc . 96, 107
N Y. S 303 ( 1907 ) ; Segenfeld v. Friedman , 117 N . Y. Mise 731 , 193 N Y. S. 128 ( 1922)
Fife v. Great Atlantic & Pacific Tea Co , 336 Pa . 265, 52 A. 2d 24 (1947).
PERRY NORVELL COMPANY 247
Marie Moeckel , Charles Morris, Dallas Myrtle, Trancey Neff, Leo
Parsons, Eva Peters, and Hobart Wood have not done so 45
As to United, the record clearly shows that responsible direction
and control of the strike remained in the Committee at all times; it
does not show that United was a co-sponsor of the strike. Although
employees who later became active Committeemen, including Ran-
dolph Johnson, the Committee chairman, initially sought the aid of
United, at no time did United or its locals furnish financial assistance
to the Committee. The record shows that advice given by United's
representatives during the strike was furnished at the request of the
strikers and of the Committee, which remained free to accept or to
reject it. In addition, the record is barren of any evidence that any
representative of United incited, committed, participated in, or even
observed or knew of any of the acts of restraint or coercion which
we have found were committed. Finally, the decision whether to
continue or to end the strike rested at all times with the Committee .40
We are of the opinion, therefore, that, under common-law rules of
agency which the Board is required to apply, these facts establish, at
best, a remote relationship between the Committee and United and do
not lead to the conclusion that the Committee was an agent of United,-
or that United was a co-sponsor of the strike with the Committee."
We shall therefore dismiss so much of the complaint as pertains to
United and those individuals named as its agents.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Committee, and Odell Paugh, P. H. Tyree,
Garnet Perkins, Orben Adkins, James Hicks, and Garnet Davis, set
forth in Section III, above, occurring in connection with the opera-
tions of the Company described in Section I above, have a close, inti-
mate, 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 the Committee and its agents, Odell Paugh, P. H.
Tyree, Garnet Perkins, Orben Adkins, James Hicks, and Garnet
46 The record does not show that Charles Morris and Eva Marie Moeckel were members
of the Committee . In any event , however, they did not engage in any of the conduct
which we have found coercive.
" Thus, Committee Chairman Randolph Johnson testified without contradiction that he
unsuccessfully proposed to J. E . Lunsford, the chairman of Local 613's Executive Committee,
that the latter's committee and a committee of the strikers jointly see Norvell to settle the
strike. At that time he told Lansford , "We will leave all the outside influence out."
4' See United Mine Workers v. Coronado Coal Company, 259 U. S. 344 ( 1922).
41 Cf. Matter of Sunset Line and Twine Company, 79 N. L, R. B. 1487.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis, have violated Section 8 (b) (1) (A) of the Act, we shall order
them to cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Perry Norvell Company, a West Virginia corporation, is engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. United Shoe Workers of America, C. I. 0.; Boot & Shoe Workers
Union, Local 613, A. F. L.; and The Perry-Norvell Shoe Workers
Committee, unaffiliated, are labor organizations within the meaning of
Section 2 (5) of the Act.
3. By intimidatory conduct designed to prevent employees from
working for Perry Norvell Company while a strike was in progress,
the Respondents, The Perry-Norvell Shoe Workers Committee, and its
agents, Odell Paugh, P. H. Tyree, Garnet Perkins, Orben Adkins,
James Hicks, and Garnet Davis, have restrained and coerced these
employees in the exercise of the rights guaranteed them in Section 7
of the Act, and have thereby engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) 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. The other Respondents did not participate in, and are not respon-
sible for, these unfair labor practices.
6. The Respondents have not engaged in unfair labor practices by
(a) the strike which started on August 21, 1947, and (b) the attempt
to dissolve and supplant Boot & Shoe Workers Union, Local 613, as
bargaining representative of the Company's employees.
7. The Respondent, United Shoe Workers of America, C. I. 0., and
its agents, did not threaten employees with discriminatory treatment
as to jobs and as to membership in United, unless the employees joined
United.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, The Perry-
Norvell Shoe Workers Committee, and its officers, representatives and
agents, including Odell Paugh, P. H. Tyree, Garnet Perkins, Orben
Adkins, James Hicks, and Garnet Davis, shall :
PERRY NORVELL COMPANY 249
1. Cease and desist from restraining and coercing employees of
Perry Norvell Company, Huntington, West Virginia, in the exercise
of their right to self-organization, to form, join, or assist labor
organizations, 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,
and to refrain from any or all such activities, as guaranteed to them
by Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the office of the Committee in
Huntington, West Virginia, where notices to members are customarily
posted, copies of the notice attached hereto as an Appendix.49 Copies
of said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by official representatives of The
Perry-Norvell Shoe Workers Committee, and individually by Odell
Paugh, P. H. Tyree, Garnet Perkins, Orben Adkins, James Hicks, and
Garnet Davis, be posted by these Respondents immediately upon re-
ceipt thereof and maintained by them for a period of sixty (60) con-
secutive days thereafter. Reasonable steps shall be taken by these
Respondents to insure that said notices are not altered, defaced, or
covered by any other material;
(b) Mail to the Regional Director for the Ninth Region signed
copies of the notice, attached hereto as an Appendix, for posting, the
Company willing, on the bulletin board of Perry Norvell Company,
where notices to employees are customarily posted. The notice shall
be posted on the Company's bulletin board and maintained thereon for
a period of sixty (60) days thereafter. Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
being signed as provided in paragraph 2 (a) of this Order, be forth-
with returned to the Regional Director for said posting;
(c) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that (a) the Respondents restrained and
coerced employees by the strike which started on August 21, 1947, and
by the attempt to dissolve and supplant Boot & Shoe Workers Union,
Local 613, as bargaining representative of the Company's employees;
(b) United Shoe Workers of America, C. I. 0., threatened employees
with discriminatory treatment as to jobs and as to membership in
49 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted, before the words : "A Decision and Order" the words : "A Decree of the
United States Court of Appeals Enforcing."
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United, unless the employees joined or assisted United; and (c) the
Respondents other than The Perry-Norvell Shoe Workers Committee
and its agents, Odell Paugh, P. H. Tyree, Garnet Perkins, Orben
Adkins, James Hicks, and Garnet Davis, are responsible for the acts
of restraint and coercion found to have been committed.
APPENDIX
NOTICE TO ALL MEMBERS OF THE PERRY -NORVELL SHOE WORKERS
COMMITTEE AND ALL EMPLOYEES OF PERRY NORVELL COMPANY
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 you that :
WE WILL NOT restrain or coerce employees of PERRY NoRVELL
COMPANY, Huntington , West Virginia, in the exercise of their
right to self-organization , to form, join, or assist labor organiza-
tions, 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 pro-
tection , and to refrain from any or all of such activities, as
guaranteed to them by Section 7 of the Act.
THE PERRY-NORVELL SHOE WORKERS COMMITTEE,
By ----------------------------------------------
Title of Officer.
---------------------------------------------
ODELL PAUGH.
---------------------------------------------
P. H. TYREE.
---------------------------------------------
GARNET PERKINS.
---------------------------------------------
ORBEN ADKINS.
---------------------------------------------
JAMES HICKS.
---------------------------------------------
GARNET DAVIS.
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.