Southern Desk Co.

National Labor Relations Board - Board Decisions

Sep 24, 1956

116 N.L.R.B. 1168 (N.L.R.B. 1956)

1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-mitten technicians.' Accordingly, we-shall -include them in' the unit
hereinafter found appropriate.
The switcher-directors are, in fact, regular directors who, in • addi-
tion to being responsible for the coordination and presentation of their
;shows, operate a control panel in order to switch from one camera
,to another or to and from film selections. Any technical work is inci-
dental to their main function-directing. The switcher-directors'
interests clearly lie with the program employees. We shall, therefore,
.exclude them from the unit.4
Upon the basis of the foregoing and upon the entire record, the fol-
lowing employees of the Employer constitute a'unit appropriate for
the purposes of collective bargaining within the meaning of Section` 9
,(b) of the Act:
All radio and television technicians, announcer-audio, technicians,
,engineers, projectionists, and electronic and film cameramen. at the
Employer's South Bend, Indiana, stations and transmitters; excluding
-switcher-directors, office clerical employees, salesmen, announcers, con-
tinuity writers, watchmen, guards, and supervisors as defined in 'the
Act.
[Text of Direction of Election omitted from publication.]
MEMBER,RQDGER8 took, no part in the consideration, of the above De-
'cision and Direction of Election.
3 Port Arthur College, supra
b W. C. A. U ., Incorporated , 88 NLRB 68
Southern Desk Company and United Brotherhood of Carpenters
.and Joiners of America , AFL-CIO, Local Union No . 3043. Case
No.11-CA-884. September X4,1956
DECISION AND ORDER
On April 30, 1956, Trial Examiner Arthur E. Reyman 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
filed exceptions to the Intermediate Report and a supporting brief.'
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
-rulings are hereby affirmed. The Board has considered the Inter-
1 The Respondent 's request for oral argument is hereby denied as the record, including
,the exceptions and brief, adequately presents the issues and the positions of the parties.
116 NLRB No 154.
SOUTHERN DESK COMPANY 1169
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations with the following additions and modifications.
We agree with the Trial Examiner's finding that the Respondent
discharged employee Marvin L. Bumgarner in violation of Section
8 (a) (3) and (1) of the Act.
The complaint- alleges that Bumgarner was discharged because of
his membership in -and -activities on behalf of the Union. The Re-
spondent contends that the sole reason for Bumgarner's discharge was
the latter's inefficiency as 'a boring machine operator. The Trial
Examiner found that the errors charged to'Bumgarner in the opera-
tion of the machine were seized upon by the Respondent as a pretext,
and that Bumgarner was in reality discharged because of his union
activities. The record shows the following facts.
Bumgarner was continuously employed by the Respondent from
August 1948 to May 4, 1955, the date of his discharge, initially as a
helper to a planing machine operator, later as a helper on a boring
machine, and finally-from- December '1953-as a boring machine
operator. He had been a satisfactory employee at least until 2 weeks
before his discharge. He had started at the beginner's rate for help-
ers -and after a number of raises, both merit and general, had reached
a rate of $1.32 per hour, one of the highest rates paid by the Respond-
ent. The confidence of the Respondent in Bumgarner's ability is
demonstrated by the fact that he was the first-and until his discharge
the only employee-assigned to operate a machine which the Re-
spondent had newly acquired at a cost of $10,000. His duties con-
sisted of setting up and adjusting the machine and feeding into it
chair parts such as back rails, stretchers, and back slats. The ma-
cliine would then automatically bore either two dowel holes in the
ends of slats and back rails or make "chucks" at each end of the square
stretchers, i. e., round them off. From the beginning, the new ma-
chine serviced by Bumgarner did not operate satisfactorily. As a
result defective work was frequently turned out. Up to April 1955,
the Respondent attached no blame to Bumgarner's operation of the
machine and gave him no warnings of disciplinary action because of
defective output. On the contrary, upon frequent complaints by
Bumgarner about the machine, Foreman Vaughn and Machinist Ennis
_ made repeated efforts to correct shortcomings in the machine such as
slipping of clamps, vibration, and faulty working of drill heads. New
washers were put on the air cylinders several times and a few weeks
before the discharge the original spur point drills were changed to
drill point drills.
In January 1955, the Charging Union began its campaign to or-
ganize the Respondent's employees. Bumgarner soon became one of
405448---57 '- vol 116-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the protagonists for the Union. He cooperated closely .with Uniop.
Organizer Parker, distributed union,' authorization cards, and ap-
peared as the Union's witness in the representation case (No. 11-RC-.,
728, not reported in printed volumes of Board Decisions and Orders)
in which the Union petitioned the Board for an election among the
Respondent's employees. He was 1 of 2 employees who participated
in a preelection conference with the Employer on April 24 for the
purpose of checking the eligibility lists and also acted as the official
union observer at the election which was held on April 25,,,1955, and
in which a majority of the employees voted against the Union.
During the week preceding the election and the week following the
election, Bumgarner's machine produced three defective lots of chair
parts. At least in one instance, Bumgarner noticed that the machine
was not working properly and reported it to Ennis, the machinist.
Ennis promised to fix the machine but told Bumgarner to run the lot
in the meantime.
On Wednesday, May 4, Bumgarner was called into the Respondent's
office where he was confronted by General Superintendent Parks and
Foreman Vaughn. Vaughn testified that he and Parks told Bum-
garner "that due to the fact that he had apparently had his mind on
something else instead of on his job that he made all these errors and
we could not put up with it any longer and we had decided to let him
go." Bumgarner attempted to explain the errors charged to him and
called attention to the vibration of the machine. His explanations
were not accepted, however, and he was discharged.
The record is clear that the Respondent's officers had knowledge of
Bumgarner's prominent role in the Union's organizing campaign.
There is no dispute that the Respondent was opposed to the Union's
organizational efforts.
In the year preceding the election, Buingarner's machine had fre-
quently produced defective work without any complaint, reprimand,
or disciplinary action being taken against him. Moreover, the record is
replete with evidence showing that other employees in the same depart-
ment had on a number of occasions committed errors which resulted in
considerable monetary loss to the Respondent. Such errors, unlike
those of Bumgarner, were never made the occasion for disciplinary ac-
tion, but were invariably condoned by the Respondent. The record
does not show that the last three errors charged to Bumgarner resulted
in any appreciable monetary loss to the Respondent. On the cgntrary,
the record shows with respect to at least 1 of the defective lots that
the defects were corrected by 2 men working on a band saw for about
50 minutes, at an expense to the Employer of certainly not more than
$3. These facts, taken together with the timing-of the discharge
immediately following the election, the abruptness of the discharge
without prior warning, and the revealing remark of Foreman Vaughn
SOUTHERN 'DESK -COMPANY 1171
with respect to Bumgarner having his mind on other matters, make
it apparent that the Respondent discharged Bumgarner not for the
purpose of promoting more efficient operations, but for the purpose
of eliminating from the scene a known union protagonist, so as to
discourage further union activity of its employees. Accordingly, we
find, in agreement with the Trial Examiner, that the Respondent dis-
criminatorily discharged Bumgarner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Southern Desk
Company, Hickory, North Carolina, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local
Union No. 3043, or any other labor organization, by discharging or
otherwise discriminating in regard to 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 the right to self-organization, to form,
join, or assist United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local Union No. 3043, or any other labor organ-
ization, 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 and protection, and to
refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership
in.a labor organization as authorized in Section 8 (a) (3), of the Act.
2. Take the following affirmative action which the Board finds will •
effectuate the policies of the Act :
(a) Offer to Marvin L. Bumgarner immediate and full reinstate-
ment to his former or a substantially equivalent position without
prejudice to seniority or other rights and privileges previously en-
joyed, and make him whole for any loss of earnings suffered as a re-
sult'of the discrimination against him in accordance with the terms
and subject to the conditions described in the section of the Interme-
diate Report entitled "The Remedy."
(b) Post at its plant at Hickory, North Carolina, copies of the
notice attached to the Intermediate, Report marked "Appendix.'"
2 This notice shall be amended by, substituting for the words "The Recommendations of
Y Trial Examiner" in the caption thereof the words "A Decision and Order ." In the
event that this Order is enforced by a decree of a United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order." •
1172 DECISIONS OF" NAPIO AL LABOR- RELATIONS BOARD
Copies of said notice, to be furnished by the Regional Director for the
Eleventh Region, shall, after being duly signed by an authorized rep-
resentative of the Respondent, be posted by the Respondent immedi-
ately upon receipt thereof and maintained by it for a period of sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all records necessary to analyze the amounts of back pay due and
the rights of Marvin L. Bumgarner under the terms of this Order.
(d) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order, of the steps
it has taken to comply herewith.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10 (b) of the National Labor Relations Act,
as amended ( 61 Stat . 136; 29 U. S. C., Supp. I, Sec . 141, et seq .), hereinafter called
the Act.
International Brotherhood of Carpenters and Joiners of America, AFL-CIO,
Local Union 3043 ( hereinafter sometimes called the Union), on May 24, 1955, filed
a charge against Southern Desk Company , the Respondent herein , asserting that
the Respondent Company "has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a), subsections ( 1) and (3)" of the Act. On
January 27, 1956, the Union filed an amended charge against the Respondent, al-
leging violations of the same provisions of the Act. As a basis therefore, the
amended charge averred that the Respondent,
in order to discourage membership in a labor organization, discriminated
in regard to the hire and tenure of employment and to the terms and conditions
of employment of Marvin L. Bumgarner , on and after May 4, 1955.
By these and other acts and conduct , the Employer interfered with, restrained,
and coerced its employees in the exercise of their rights as guaranteed in
Section 7 of the Act.
After the filing of the charge and the amended charge, the Regional Director of
the National Labor Relations Board for the Eleventh Region , on January 30, 1956,
caused (pursuant to Section 102.15 of the Rules and Regulations of the Board,
Series 6, as amended ) a complaint to be issued against the Respondent . The com-
pl,ipt, alleges that the Respondent has engaged in "and is now engaging in" unfair
labor practices within the meaning of Section 8 ( a) (1) and (3) of the Act, in that
on or about May 4, 1955, it discharged , and thereafter failed and refused to rein-
state its employee , Marvin L. Bumgarner, because of his membership in and activities
on behalf of the Union, and because he engaged in other concerted activities with
other employees for the purpose of collective bargaining and other mutual aid and
protection .' The Respondent interposed timely answer to the complaint , denying
3 The provisions of the Act alleged to have been violated by the Respondent are these :
Rights of Employees
Sec. 7. Employees shall have the right to self-organization , to form, join , or assist
labor organizations , to bargain collectively through representatives of their own
SOUTHERN 'DESK COMPANY - 1173
the contraventions of. the Act asserted against it and praying for the dismissal of
the complaint. On the issues drawn by the complaint and the answer, this case came
on to be heard before the duly designated Trial Examiner, pursuant to notice, at
Hickory, North Carolina, on March 28, 1956, and was closed the following day.
At the hearing, the General Counsel and the Respondent were each represented
by counsel and the Union was represented by an international representative. Full
opportunity was afforded each party to introduce evidence bearing on the issues, to
examine and cross-examine witnesses, to argue orally, and to file proposed findings
of fact and conclusions of law, and to file briefs.
Upon the record as a whole, upon the preponderance of the evidence, and from
his observation of the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Southern Desk Company, is now and at all times material
hereto has been a North Carolina corporation with its principal office and place of
business at Hickory, North Carolina, engaged in the manufacture and sale of public
seating and institutional furniture. In the course and conduct of its business opera-
tions during the calendar year first preceding the issuance of- the complaint herein,
which period is representative of the times material hereto, the Respondent has sold
and shipped finished products valued at in excess of $500,000 from its Hickory,
North Carolina, plant directly to customers located outside of the State of North
Carolina.
The Respondent is engaged in commerce within the meaning of Section 2 (6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Local
Union No. 3043 , is a labor organization within the meaning of Section 2 ( 5) of the
Act, admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Union organization effort
J. A. Parker, a representative of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, visited Hickory in the month of December 1954, and
then canvassed the possibility of organizing the employees of the Respondent, or some
of them, into a local union for the purposes of collective bargaining. As a result
of this visit a union campaign was begun in the month of January 1955.2 Cards
authorizing the Union to represent employees were solicited and obtained by Parker
and some of the employees interested in the union movement. Parker met with
various groups of employees at several places. A petition for certification as repre-
sentative of the employees in a claimed appropriate bargaining unit subsequently
was filed by the Union with the Regional Director of the Board for the Eleventh
Region and, after a hearing on the representation question, an election by secret
ballot was ordered and conducted to determine whether or not the employees in
the unit found to be appropriate desired to be represented by the Union. Case No.
11-RC-728, not reported in printed volumes of Board Decisions and Orders (April
7, 1955). The result of the election, held on April 25, was adverse to the Union.
Management of the Respondent appears to have been fully aware of the effort
of the Union to organize and of the concerted activities of employees in support
thereof. For some time, for at least a month prior to the date of the election, the
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection. . . .
Unfair Labor Practices
Sec. S. (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership In any labor
organization.
2 Unless otherwise noted, dates mentioned are for the year 1955.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following notice , posted by management of the Company, appeared on the Com-
pany's bulletin board:
TO ALL EMPLOYEES
Since a Union campaign has again been started up here, many of you have
been asking questions in regard to the following matters. We have decided
to state the Company's position on these subjects as clearly as we can for every-
body alike:
In the first place, it is our definite view that if the Union were in here, it would
work to your serious harm. This in due time we will fully explain to you.
In the meantime we would like to make it clear that it is not necessary, and
it is not ever going to be necessary, for anybody to belong to the Carpenters
Union, or any other Union, in order to work for this Company.
No person will be allowed to carry on Union organizing activities in the plant
during working hours. Anybody who undertakes to do so and who thereby
interferes with his own work or the work of other will be discharged.
We will not tolerate any act by the Union or Union members which is done
with the purpose of causing any trouble in the Plant for employees who are
opposed to the Union. Those who undertake to put such pressure on other em-
ployees will be discharged.
Anybody who tells you anything contrary to the foregoing is not telling you
the truth.
SOUTHERN DESK COMPANY.
A letter, dated April 12, 1955, directed to each employee deemed eligible to vote
in the election, was mailed to him or her on the letterhead of the Company, signed
by Leon S. Ivey, the president of the, Company, which read:
To All Employees of
Southern Desk Company:
As you know the Carpenters Union is now asking for an election here, so
as to decide whether you do or do not want it to represent you. This elec-
tion will be held on Monday April 25.
Most of you were here when another Union tried to come in several years
ago and you will remember that I wrote you a detailed letter before that elec-
tion was held. The Union, of course, didn't like that and it probably will
not like the fact that I am writing to you about the election this time.
It is my feeling, however, that you should not decide any matter as im-
portant as this without studying all sides of it thoroughly and carefully. It
is, of course, your privilege, and it is likewise your responsibility, to make
the decision on this Union question. I simply want to emphasize how im-
portant it is that you think carefully before you decide. The matter is one
that can affect your whole future here and the future of all who are dependent
upon you.
I believe also that you should not try to decide this question on the basis
of what will be to the interest of the Union, nor on the basis of what will
be to the interest of this Company either, but solely on the basis of what will
be to your own best interests. If this Union were to come in here, would it
benefit or harm you? Would it be good for you or bad for you?
I hope you will not only think carefully about the matter but that you will
also discuss it with the members of your family and with any other person
whose judgment you trust. And I ask that you give weight to what I say in this
letter only to the extent that you find it speaks the fact and the truth.
Now one of the, first questions that naturally occurs to you is this: Why are
the Union organizers interested in you? Why are they trying to get you into
the Union? Your common sense tells you the answer: They want some of
YOUR MONEY.
Again, it is for you to decide what you will do with your earnings. But
make no mistake your money is what they are driving at. What they want is
to "check-off" Union dues from your pay check, so that they can get a slice
out of it every pay day.
And what do they say they will do for you? As for wages and earnings-
there are none anywhere around as good as yours. If you look to the earn-
ings in our line -of work anywhere in this entire area, you will find that you
are not below the average and you are not just up to the average-but you are
'above the average.
There are furniture plants not far from here where the men are represented
by this same Union that is now asking for your vote,' and although they have
SOUTHERN DESK COMPANY 1175
had this same Union for years, their earnings are nowhere near as high as
yours. When they get through paying dues to this Union, their take-home-
pay is still further down the scale below yours. How does this Union have
the nerve to claim that it can do anything for you, when it fails to bring
those whom it represents up to where you already are? t
Do you know of any place around here where you could earn more than
you earn in this plant? Do you know of any plant that has this Union where
you would rather work than here?
Do you know of any unionized plant that has working conditions anywhere
near as good as yours. Likewise, when you consider such things as vacations
and vacation pay, paid holidays, insurance, including life, hospital, medical,
sickness and accident coverage, paid for largely by the Company and pensions
and retirement pay and the sharing of Company profits and various other
similar benefits-all of these you have without paying any Union dues to obtain
them.
It didn't require any Union to get these things for you! It won't require
any Union to keep them for you!
As a matter of fact, in no unionized plant in this entire area do the em-
ployees have any such benefits as these. Along all these lines the Union has
absolutely nothing to offer you.
Another thing to think about is the steady work which you have here.
There has been no short time or lay-offs for lack of work in this plant.
There are plenty of places where the people will have the Union, but do not
know when they will work and when they will not work. If a Union is worth
anything at all, why does it not obtain for the people 'whom it represents
steady work and security against lay-offs and short-time?
I do not mean to be boastful for the Company in reminding you of these
matters. This, however, is a time to look at the facts. And the facts are that
you folks who work in this plant are up on the very top level for our line of
work in this entire area. The total benefits' that you have are not surpassed
anywhere around here: The plain and undeniable truth is that this Union
has not got for its members what you now have without a Union.
I want you to know too that most of the money made by this Company
throughout all the years has been turned back into higher wages and more
benefits for you and into the improvement and modernization of this plant-
instead of being paid to the stockholders and owners of the Company. Union
organizers often try to make it-appear otherwise. But the truth is as I have
stated it to you.
After all, who do you believe is really more interested in your welfare-
we who have lived and worked here with you through-the years or these agents
who come from somewhere else looking for Union dues? Do you think you will
do better to follow us whom you know, who operate this plant, furnish these
jobs and meet the payroll, or the Union organizers who are here today and gone
tomorrow? Where do you think it is best to place your trust? You should
never lose sight of the fact that it is the Company which creates these jobs
and keeps them going-not any Union.
Bear in mind that a Union can promise anything but carrying out its promises
is a very different matter. If this Union were in here, there would still be only
one way it could try to force us to do anything that we are not able or willing
to do and that would be by pulling you out on strike. I hope you will realize
that this Company has no intention of yielding to any such pressure as that-
ever.
I am not saying that if the Union were to come in here, this sort of thing
would necessarily happen. I certainly hope that it would not and we would
certainly do our utmost to prevent it from occurring. I do know, however,
that WHERE UNIONS ARE IS WHERE STRIKES GENERALLY OCCUR.
Everybody knows that! And everybody knows that strikes mean trouble and
dissension , strife and misery, lost work and lost pay. From time to time we
have all heard of the trouble that has come with Unions at other places-
trouble that very often winds up in violence and bloodshed.
We are hearing about strikes all around now. People stand day after day
and week after week on picket lines, while their expenses meantime continue,
their grocery bills mount and obligations pile up on their homes, their automo-
biles, their furniture and all their other belongings. And generally when the
Union,gives us those strikes and tells the people to go on back and get their
jobs if they can, what is the net result for them? What does the Union gain
for the people who are involved in these strikes? The answer as a rule is
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absolutely nothing except trouble and misery and bitterness, debt and regret.
It won't do to assume that all this couldn't happen right here.
I hope it will be clearly understood that those who join and vote for a Union
would never get any advantages over other employees. Those who join or
belong to a Union are never going to receive any preferred treatment over those
who do not belong.
You can depend and rely on this also:-It is not necessary, and it is not ever
going to be necessary, for anybody to join this Union, or any other Union, in
order to hold a job with this Company. Anybody who tells you anything con-
trary to this is not telling you the truth.
If the Union were in here, who would be the men who would run it anyhow?
Who would be the shop stewards and committeemen who would handle every-
body's affairs? Are they persons whom you consider to be capable of handling
your problems and into whose hands you are now ready to entrust your
business and your welfare?
Up until now you have always been free to come in and settle with us per-
sonally any problems you might have. But if this Union were to come in here,
this freedom and this legal right, which you now have, would be taken away
from you and placed entirely in the hands of the Union.
Remember that it is important for you to take an active interest in this
matter. You may have been told, or you may have the idea, that if you don't
want the Union, then you should just keep hands off and let those who do want
the Union vote for it and bring it in here if they wish. Now that is a very
misleading and mistaken idea. For if the Union were in here, then it would
represent those who do not want it as well as those who do want it. To illus-
trate this:
There are approximately 425 persons eligible to vote in this election.
But if, for example, only 300 go and vote on the election day, then a
majority of these who vote, that is 151, would control the entire result.
Thus if these 151 voted in favor of the Union, then the Union would not
only represent the 151, and not only the 300 who voted, but the entire 425
who are eligible to vote.
So when the election is held you can see the importance of everybody voting.
Don't stand aside on the idea that the outcome won't affect you. It will affect
YOU. Take a hand in the matter . Help make it go the way you want it to
go. Otherwise, you may find yourself saddled with a Union you do not want.
BY ALL MEANS VOTE IN THIS ELECTION.
The voting arrangements will be simple. The voting place will be at the East
end of the Finishing Room. The voting hours will be from 7:30 a. m. to 10:00
a. m.-on the date mentioned at the beginning of this letter, that is, Monday
April 25 You merely go to the voting place and there you will be handed a
ballot. Then you go into a private booth which will be provided there and
mark an "X" on the ballot-either under "Yes", for the Union, or under "No",
against the Union. Then you fold the ballot and drop it in the ballot box.
You do not sign your name in any way. Nobody is entitled to know and
nobody will know how you vote.
Bear in mind that you will be free to vote entirely according to your own
judgment on the election day. You can vote against the Union even though
at some time or other you may have signed a Union card.
I hope you will think about all of these matters carefully. As things now
stand you have a steady job at good wages, an up-to-date plant to work in and
a good community here to live in. We all hope to make things even better.
There would certainly seem to be no good reason to bring this Union in here,
and pay dues to it, and at the same time run the risk of tearing apart everything
that you now have.
I have been sincere in telling you before, and I am sincere in telling you
again, that if you will give careful thought to all these matters, I believe you
will surely come to the conclusion in your own good judgment:-That you stand
to lose if this Union were to come in here and that you stand to gain by keeping
it out!
Sincerely yours,
(Signed) LEON S. IvEY,
SOUTHERN DESK COMPANY.
The notice and the letter, the General Counsel contends, constitute indicia of com-
pany hostility toward the Union and its employee adherents. The Respondent claims
that it had the right to post the notice and circulate the letter, and that the posting
SOUTHERN DESK COMPANY 1177
and circulation were permissible and the content of each privileged under Section
8 (c) of the Act 3 The Trial Examiner at hearing sustained objections made on
behalf of the Respondent to the admission of the notice and the letter in evidence,
on the ground of privilege, on a literal application of the wording of Section 8 (c)
that such expressions shall not constitute or be evidence of an unfair labor practice.
There being no claim made herein that these writings or either of them and the
publication thereof constitute proscribed activity, the Trial Examiner now reverses
his ruling made at hearing, and accepts the evidence fpr the limited purpose of a
showing, as offered by the General Counsel, of employer antipathy or hostility toward
the Union. As will appear below, the Trial Examiner does not accept the conten-
tion that hostility of Company against Union, overt, can be found on the mere fact
that the Respondent wrote, posted, and circulated the notice and the letter. Without
further showing of company animus by connected proof, the Trial Examiner must
find that the notice and the letter each represented an expression of view and man-
agement opinion on the nature of the benefits, if any, to be derived by its employees
through union representation and collective bargaining.
The Company, by the notice and the letter, held out no promises of benefits nor
did it make any threats of reprisal. In the absence of language in either which can
be construed as a threat or as an intimation that economic pressure would be used,
the letter by itself cannot be regarded as an unlawful attempted means of persuasion
to discourage union membership or activity among employees of the Respondent.
However, the notice and the letter may be noticed in whole, if other activities of the
Employer, concurrent or subsequent, indicate a planned course of action by the
Employer to discourage concerted employee activities, for mutual benefit.
Section 8 (c) of the Act specifically prohibits a finding that an uncoercive speech,
whenever delivered by the employer, constitutes an unfair labor practice. Living-
ston Shirt Corporation, 107 NLRB 400, 405; F. W. Woolworth Co., 102 NLRB 581,
,584; Avildsen Tools and Machines, Inc., 112 NLRB 1021, 1025; N. L. R. B. v.
Virginia Electric and Power Company, 314 U. S. 469.
The legislative history of the Act shows that the Congress intended that em-
ployers be free to express their views or policies with respect to union organization.
In House Conference Report No. 510 on H. R. 3020 (p. 45) it is written:
Both the House bill and the Senate amendment contain provisions designed
to protect the right of both employers and labor organizations to free
speech. . . . The purpose is to protect the right of free speech when what the
employer says or writes is not of a threatening nature or does not promise a
prohibited favorable discrimination.
And see Senate Report No. 105 on S. 1126 (pp. 23, 24).
. if, under all the circumstances, there is neither an expressed or implied
threat of reprisal, force or offer of benefit, the Board shall not predicate any
finding of unfair labor practice upon the statement. The Board, of course, will
not be precluded from considering such statement as evidence.
It would seem, then, that Section 8 (c) should not be applied too literally, but
that writings such as the notice and letter here under consideration, if privileged,
cannot be considered as constituting or being evidence of an unfair labor practice, but
may be considered in the whole context of the case as an indication whether or not
they show company hostility to the Union. The Trial Examiner, therefore, expressly
finds that the notice and the letter each is privileged under Section 8 (c), but may
be admitted in evidence for the purpose of assessing the activities of the Employer
upon the whole complex of the case.
B. The discharge of Bumgarner
On May 4, Marvin L. Bumgarner was discharged from the employ of the Company,
the given reason being that his work as the operator of an automatic wood-boring
machine was not satisfactory.
Bumgarner was employed by the Respondent in August 1949 as a planer, and
shortly thereafter was assigned a job as an operator on a boring machine. At the
time of discharge, he had been the operator of a boring machine for approximately
2 years. He had been assigned to this particular machine at the time it was pur-
8 Section 8 (c) provides:
The expressing of any views, argument or opinion , or the dissemination thereof, . . .
shall not constitute or be evidence of an unfair labor practice . . . if such expression
contains no threat of reprisal or force or promise of benefit. I I •
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chased (at a cost of approximately $10,000), sometime during the latter part of
1953, and continued to operate this machine until his discharge. Until about a
month before his discharge, there had been no complaints against his work or the
quality of the finished material produced by him from his machine. During his
employment his rate of pay rose from $0.70 to $1.32 per hour, including merit as
well as general increases. For a number of months prior to his discharge, Bumgarner
had experienced frequent mistakes made on the machine, and some material had had
to be reworked because pieces would come out in mismeasurement form, so that
they would not properly fit Into other pieces of a chair on assembly of parts. Bum-
garner contends that the machine had caused continual trouble in the production
of chair and desk parts during all of the time he worked on it, principally because
of vibration and the slipping of clamps intended to hold the wood part in place
during processing. He does not deny, but affirms, that defective rails and stretchers
(chair parts), were produced from his machine and he is frank to say that the de-
fective parts produced caused his immediate superior considerable concern.4
The errors charged by the Company to Bumgarner principally were in connection
with three different lots of chair parts, the kind of chairs being specified by num-
bers. Style 1117-A and No. 1112 were the descriptions given chair parts on
which, it is claimed, Bumgarner performed defective work which could be laid
to him through carelessness or ineptitude in the operation of the boring machine.
On an operation on the No. 1112 chair, the machine operator by use of the auto-
matic machine bored dowel holes on the ends of back rails to be fitted into other
parts of the chair (posts or back racks). It is said that during about the third week
in April, some 2,500 chairs came through Bumgarner's machine; the holes on them
that were bored were not bored deep enough on one end of the back rails, and that
each of these parts had to be brought back and cut off. Bumgarner was supposed
to bore the holes to the correct depth so that the dowels would not stick out too
far, and in order to check the proper depth he was supposed to either measure the
depth of the hole or stick a dowel in it to see that the dowels did not project out too
far. To measure the depth of the dowel hole he used a rule. In connection with this
2,500 lot, it appears that the mistakes as to the depth of the dowel hole were mostly
on one end of the rail.
On another operation, Bumgarner chucked some 2,500 stretchers for the 1117-S
chairs, and in this lot it was found that one end had been chucked too small on the
front stretcher and on the back stretcher of the chairs .5
The third lot of chairs concerns some 2,500 top back slats for the 1117--S-on
this lot it was found that the holes bored for dowels were not deep enough and con-
sequently the dowel had to be sawed. On April 29, the Friday before Bumgarner's
discharge, when the dowel holes bored on the 1117-S parts were found not deep
enough which would result in the shoulder of the top back slat not fitting snugly to
the post of the chair, Bumgarner had called on a machinist, as he had previously,
and mentioned the vibration of the machine and Ennis, the machinist, had in-
formed the foreman of the machine department, J. Harold Vaughn, Bumgarner's
superior then and at all of the times Bumgarner worked as a boring-machine operator,
that the machine was vibrating. Vaughn then told Ennis that it would be all right
to go ahead and run the lot on that day.
It is shown that some months prior to May 4, a spur point had been used to drill
the dowel hole and that in an effort to make a tighter fit the use of the spur point
had been discontinued and in its place a drill point was used.
It seems clear enough that Vaughn knew that Bumgarner had difficulty from time
to time with his machine long prior to the time it was decided to terminate Bum-
garner's employment because of unsatisfactory work.
The Respondent contended at the hearing that the vibration could not have re-
sulted from the fault of the machine unless the machine bearings were loose Fore-
man Vaughn testified, regarding Bumgarner's carelessness or ineptitude, as follows:
Q. Mr. Vaughn, if a man has a Bell 124 machine adjusted and in operation
and shuts it down for the night or for any other reason, when he comes back and
starts up his machine and goes back to production, what is the customary
procedure?
A.The customary procedure is to do one piece and see if it is right or if he
finds anything wrong why check it and do another piece and keep correcting
his machine until he finds that it is doing the job correctly and then proceed.
4 Bumgarner was responsible for setting up his machine ; it appears by implication that
he was not responsible for repairs or replacement of parts.
5In setting up the machine for the chucking operation, the machine operator has a
template used to travel chucks in to see if they are of the correct diameter.
SOUTHERN DESK COMPANY 1179
Q. And is it the responsibility of the operator to make constant check on the
quality of it?
A. Yes. He is supposed to check on it as he progresses as long as he oper-
ates it occasionally to see that nothing is moving or slipping to cause him to do
a lot of bad work. I
In connection with the operation of the machine and the cause of vibration, Foreman
Vaughn further testified:
Q. (By Mr. Smith.) Mr. Vaughn, there has been some testimony concerning
the vibration on the Bell 124 machine; what controls or causes or corrects or
lessens vibration on a machine of that kind?
A. Well, the spacing of the bearings on the spindle on which the chuck head
is attached will determine the possibility of vibration. If you have a chuck at
the end of the spindle and you have a bearing here and a bearing there, and the
two bearings are tight and the spindle runs through the bearing, there is no way
for that piece to vibrate. If you had a chuck head with two bearings right
close together, and one bearing in it and the chuck stuck out right much from it,
why you would have a tendency for a possible vibration. Of course that would
be on the stretcher and not the machine, the chuck then would have a
tendency to vibrate as it is cut. But if you have the bearings set a reasonable
distance apart it would tend to make the chuck head right where there could not
be any vibration, and this new 124 Bell machine is the latest machine on the
market as far as making chairs is concerned . . . and it is so designated that
the motion forward in order to make the chucks going on a setoff giveaway that
controls the air cylinder and there is not strain whatever on the spindles that
hold the chuck. The way that the cylinder pushes the cylinder head forward a
different set of ways to the spindle, the motor is attached to pull the power of
the chuck head so that it is physically impossible, I would say, for those chuck
heads to vibrate on the new machine like we used to have trouble with the old
machine doing that we have in the factory.
Foreman Vaughn expressed the opinion that machine vibration could not have caused
the poor results obtained in the lots of parts of chairs which had to be reworked
after leaving Bumgarner 's machine. Owen F. Sprugel , who replaced Bumgarner
as the operator of the boring machine, testified that he had had no trouble in the op-
eration of the machine or in the production of perfect parts; that occasionally the
air pressure would go down which would have a tendency to reduce pressure on
the spindle; and that this condition was easily remedied by stopping the machine
for a few minutes and letting air pressure build up. There is further testimony in
the record from Vaughn that Sprugel's work has not been cause for any complaint
against him since he succeeded Bumgarner as the machine operator.
John H. Brittain, a former employee of the Company, testified that he worked on a
machine in the machine room in proximity to Bumgarner, and that he handled some of
the material after Bumgarner had worked on it. He said that he knew that Bum-
garner's machine "never did work right"; and that he had overheard a conversation
between Bumgarner and Vaughn in which it was agreed that they would change to a
drill point hole rather than continue making the spur point hole. John H. Lowman,
who also worked in the machine department, testified that he was able to observe
Bumgarner at work and that he was a good employee. Earl Buehler, who worked
on a bandsaw which eventually clipped dowels off the back slats and rails so that
such materials could be ready for assembly into a chair, testified that not all of the
dowels which had been worked on by Bumgarner had to be clipped and that some
of them were of the proper length. He referred to the defective work for which
Bumgarner was fired.
Lowman testified that a number of other employees had performed badly de-
fective work without punishment from, the Company; he referred to a number of
church pews which had been ruined and to masonite improperly cut on the bandsaw
by either George Deaton or Boyd Franklin, responsible for that work. Buehler testi-
fied to having cut masonite by bandsaw improperly and that he as well as Deaton were
then admonished by Vaughn to be more careful.
Bumgarner and Buehler both testified that Vaughn engaged in unusual surveillance
of Bumgarner while the latter was,at work just prior to his discharge . Buehler testified
that he saw Vaughn watching Bumgarner's machine from a catwalk leading off to
Vaughn's office, which was a small cubby hole hung some 6 or 7 feet against the wall
above the floor of the machine room . Vaughn admitted that from time to time- he
did come out on the catwalk'and look at men at work or not at work , as the case
might be , explaining that it had been his experience over the years that "any time -1
1180 DECISIONS OF NATIONAL LABOR- REIJATIONS BOARD
see a group of men gathered together talking , the better way is to just stand up and
watch those fellows until they catch your eye and when they see you are watching
them they will break up and go back to work . I found that this is more pleasant than
to just slip out and go to raising cain about it, and I found it is a very effective way
to keep them from grouping up and talking all the time ." He denied that he picked
out Bumgarner specially for observation . Brittain , Lowman, and Buehler were
straightforward and direct in their testimony.
On May 4, William H . Parks, general superintendent , sent for Bumgarner; the latter
went to Parks' office and in the presence of Vaughn was told that it had been decided
that Bumgarner, and not his machine , was at fault for production of defective
.parts and that it had been decided to terminate his employment . At this time Bum-
garner was shown a sample of each kind of defective part which had come from
his machine . At that time, he did not deny that the pieces shown him were not
properly fabricated.
Bumgarner was a strong union adherent . He attended union meetings during
the organization campaign , he distributed blank authorization cards and returned
100 or more of such cards, completed by employees , to Parker , and appeared with
Parker and others at the hearing before a hearing officer of the Board in the
representation proceeding (Case No. 11-R-728). He acted as an observer for the
Union at the balloting on April 25. There can be no question concerning the
,knowledge of management about his union activities ; it is plain that his supervisors
were well aware of his favorable feeling for and energetic activities on behalf of the
Union.
On the day before the election, Parker, together with Bumgarner and 1 or 2 other
employees on behalf of the Union, met with company representatives at the offices
of the Company to go over the payroll list to determine an eligible list of voters.
At that time , Parker testified that one Dean, then personnel manager of the Com-
pany (but no longer employed ), said that there would be no other election. The next
day, and at the counting of the ballots , Leon S. Ivey, president of the Company, is
said to have expressed surprise at the close vote, at which time Parker told him what
'Dean had said the day before , " that there would be no other election ." From this,
apparently , it is expected to be inferred that the Company would take recourse to
means to avoid any other such proceeding , and later made good on the implied threat
by discharging Bumgarner, a firm union member , in an effort to discourage further
union activity among other employees of the Company.
The stated reason of the Company for discharging Bumgarner is succinctly given
by William H . Parks, general superintendent:
On May 4th , which was the day that the back slats on the 1117-S chairs were
called to my attention , Mr. Harold Vaughn and I had a conference , discussed
the various aspects and frequent errors, the number and seriousness of the er-
rors and we concluded that it was necessary and under the responsibility of our
jobs to the Company to do something about these particular errors. We con-
cluded that we would call Mr. Bumgarner into my office and if he did not
have any sufficient reason , which he had not up to that time given to Vaughn, a
discharge was in order . Mr. Bumgarner was subsequently called to my office,
and he admitted the errors which I had an example of at the time in my
office and did not give us any reasonable explanation or as I recall any explana-
tion at all and he was discharged on May 4th.
Counsel for the General Counsel argues with force that only a motive to elimi-
nate an active union adherent can explain the Respondent 's sudden decision to dis-
,charge this employee. He says that the record shows that up until the time Bum-
garner became active in the Union and all during the time he worked for the Com-
pany, he was an exemplary employee, who had been able to increase his rate of pay
and who had been put in charge of the expensive and intricate automatic boring
machine that he operated continuously for approximately a year prior to his dis-
charge. He says that after Bumgarner 's active participation on behalf of the
-Union in the organization campaign , and the Union's defeat in the election of April
25, the mistakes which were made on Bumgarner 's machine , which had previously been
-made and condoned by the Respondent, apparently became intolerable . He points
out that the Respondent meted out to Bumgarner the most extreme form of disciplinary
action possible . His argument that Vaughn was constantly aware of trouble that
Bumgarner was having with his machine long before the last 2 or 3 weeks in April
, is supported by the record.
That the Company was opposed to the Union in principle clearly is demonstrated
-by,the posting of the notice after organizational efforts were begun , and the mailing
of the letter to its employees on April 12 . This the Company freely admits; how-
SOUTHERN DESK COMPANY, 1181
ever , on its , behalf, it says that its opposition to the Union , had nothing to do.with
the discharge of Bumgarner.
The critical questions to be decided here are ;whether in the circumstances the
discharge of Bumgarner had the inherent effect of discouraging union membership;
and also the deciding of the very important , question of whether the. Company has
shown adequate reason for his discharge.
Concluding Findings
The record of Bumgarner as an employee must have been considered good by
the Respondent at least up until the second or third week in April . He had started
work at the bottom and had progressed to a point where he was a relatively high
paid machine operator . No fault had been found with his work prior to that time;
he had never been warned that his work was inferior or unsatisfactory . Vaughn
as well as the machinist had spent considerable time with Bumgarner trying to work
out irregularities in the working of the automatic boring machine to which he was
assigned . The drastic action of discharge was invoked by the Company against
him only after he had been active in union affairs-in organizing , in appearing at the
Board hearing in the representation case, and in acting as an observer at the union
election. After the Union lost the election, it well could be, and the Trial Examiner
believes, that the reasons as described above were found for the discharge of Bum-
garner in order to discourage further union activity and to get rid of one of the most
active of the union adherents among the employees of the Company.
In reaching this finding, the Trial Examiner has carefully considered the other
corollary evidence introduced by the General Counsel bearing on the case as a
whole. The fact that other employees made serious mistakes in the doing of their
work , and were not disciplined therefor; and the fact that , considering the large vol-
ume of chair parts worked on by Bumgarner during the day, the damage done and
attributed to his carelessness or negligence on the three lots of chairs figuring in his
discharge were negligible in the whole which leads the Trial Examiner to believe that
the decision to get rid of Bumgarner was made only after his union proclivities were
known. Had the errors for which he eventually was held responsible been as im-
portant to the Company as their representatives say, then Bumgarner should have
been discharged many months before he was.
In reaching the findings and conclusions set forth herein , the Trial Examiner has
given very little weight to the content of the notice and the letter of the Company.
As the court said in Hartsell Mills Co. v. N. L. R. B., 111 F. 2d 291 (C. A. 4), the
question of discrimination is a pure question of fact , and in passing upon it the
Board may give consideration to circumstantial evidence as well as to that which
is direct , and that direct evidence of a purpose to violate the statute is rarely ob-
tainable. The court went on to say that where the finding of the Board is supported
by circumstances from which the conclusion of discriminatory discharge may legiti-
mately be drawn , that finding should not be disturbed . The Trial Examiner has
applied this rule here. See also N. L. R. B. v. San Diego Gas and-Electric Co., 205
F. 2d 471, 474 (C. A. 9), where the court in effect said that the fact that an employee
had been in the employ of the employer for about 3 years and, was discharged for
alleged unsatisfactory work ,2 weeks after his union activity- began , of itself makes
the discharge suspect.
The Board, in Chronicle Publishing Company, 112 NLRB 519, 520, has held
that evidence of independent violation of Section 8 (a) (1) of the Act is not a pre-
requisite for a finding of a Section 8 (a)(3) violation . This principle is not dis-
turbed by the decision of the Seventh Circuit Court of Appeals, 230 F. 2d 543 (deny-
ing the Board 's petition for enforcement of its order ). In Radio Offlcers' Union of
the Commercial Telegraphers Union, AFL v. N. L. R. B., 347 U. S. 17, 45-52, the
Supreme Court of the United States laid down the principle that recognition that
specific proof of intent is unnecessary where employer conduct inherently encourages
or discourages union membership is but an application of the common -law rule that
a man is held to intend the foreseeable consequences of his conduct . On the facts
in the instant case, the Company must reasonably have foreseen that the abrupt
discharge of Bumgarner would naturally result in discouragement of union and
other concerted activities of other of its employees for the purpose of collective
bargaining or other mutual aid or protection.
By discriminatorily discharging Bumgarner , the Respondent violated and is in
violation of Section 8 (a) (3) of the Act; and such discharge had the natural and
necessary effect of interfering with , restraining , and coercing other employees in the
exercise of the tights guaranteed to them in Section 7 of the Act, in violation of
Section 8 (a) (1). The Trial Examiner so finds.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. -THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent on May 4, 1955, discriminatorily dis-
charged employee Marvin L. Bumgarner and that it has since failed to reinstate
him to employement. It will therefore be recommended that the Respondent be
ordered to offer him immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority and other rights and privileges.
It shall also be recommended that the Respondent make whole Bumgarner for any
loss he may have suffered because of the discrimination against him by payment
of a sum of money equal to the amount he normally would have earned as wages
from the date of the discrimination to the date of the offer of reinstatement, less his
net earnings during said period, with back pay computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. It will
therefore be recommended that the Respondent be ordered to cease and desist from
in any manner infringing upon rights guaranteed to its employees by 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. Southern Desk Company is an employer within the meaning of Section 2 (2) of
the Act, and is engaged in commerce within the meaning of Section 2 ( 6) and (7)
of the Act.
2. United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Local
Union No. 3043, is a labor organization within the meaning of Section 2 (5) of the
Act.
3. By discriminating with respect to the hire and tenure of employment of Marvin
L. Bumgarner, thereby discouraging the free exercise of rights guaranteed by Sec-
tion 7 of the Act and discouraging membership in and activities for the above-men-
tioned 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.
4. By interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed by 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.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES -
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union
No. 3043, or in or on behalf of any other labor organization of our employees,
by discriminating in any manner in regard to hire, tenure, or any term or
condition of employment.
WE WILL offer to Marvin L. Bumgarner immediate and full reinstatement to
his former or substantially equivalent position without prejudice to any seniority
or other rights previously enjoyed, and make him whole for any loss of earn-
NEW YORK SHIPPING ASSOCIATION, INC. 1183
ings as a result of the discrimination against him as set forth in the Intermediate
Report and Recommended Order issued by the Trial Examiner of the National
Labor Relations Board.
WE WILL NOT in any manner interfere with , restrain , or coerce our employees
in the exercise of 'the right to self-organization , to form labor organizations,
or to join or assist the above-named or any other labor organization , 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 engaging in any or all such ac-
tivities , except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment
in conformity with Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members of any labor organization except to the extent above stated.
SOUTHERN DESK COMPANY,
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.
New York Shipping Association , Inc. and its member employers I
and International Brotherhood of Longshoremen , AFL-CIO,'
Petitioner and International Longshoremen 's Association,
Independent.' Case No. 2-RC-8388. September 04, 1956
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 I. L. Broadwin, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error, and are hereby affirmed 2
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning
of the Act.
i New York Shipping Association , Inc., International 'trotherhood of Longshoremen,
AFL-CIO, and International Longshoremen 's Association , Independent , are hereinafter
described as the Association , IBL, and ILA, respectively.
2 IBL moved for an order by the hearing officer directing the Association to make avail-
able to the Board and to IBL and ILA copies of the eligibility list of employees , and for
a further order directing an investigation of the persons named thereon to determine
whether "said persons are employees and entitled to vote as eligible employees of said
employers in any election conducted for certification of representatives ." The hearing
officer denied the motion on the representation of counsel for the Association that an
eligibility list of all employees who worked 700 hours or more in the year ending June 30,
1956, will be submitted shortly after the close of the hearing . We affirm this ruling.
The hearing officer denied a request by IBL that administrative notice be taken of certain
testimony by Thomas J. Smith at the Board hearing in 1953 , and rejected an offer of
proof by IBL of this testimony . The hearing officer also denied IBL ' s request that
administrative notice be taken of the Regional Director's report on challenges in Case
No. 2-RM-556 (not reported in printed volumes of Board Decisions and Orders) based
on no parte affidavits and investigation . As in reaching our determinations herein, we
have not only considered the record in this case but have taken official notice of all prior
Board proceedings involving the parties herein , we find that IBL has not been prejudiced
by these denials.
116 NLRB No. 157.