United States Plywood Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1965

153 N.L.R.B. 241 (N.L.R.B. 1965)

UNITED STATES PLYWOOD CORPORATION 241
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 745 5th
Avenue, New York , New York, Telephone No. Plaza 1-5500, if they have any ques-
tion concerning this notice or compliance with its provisions.
United States Plywood Corporation and International Woodwork-
ers of America, AFL-CIO. Case No. 11-CA-2543. June 21,
1965
DECISION AND ORDER
On March 5, 1965, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in certain unfair labor practices as alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision. There-
after, the General Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Exam-
iner's Decision, the exceptions and brief, and the entire record in this
case , and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.-
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the complaint herein be, and it hereby is, dismissed in its entirety.
MEMBER BROWN, dissenting :
The Trial Examiner found that the Respondent lawfully discharged
Woddie Lofton on October 1, and refused to reinstate him along with
1 The General Counsel , with whom our dissenting colleague appears to agree, has ex-
cepted to the Trial Examiner 's credibility findings We do not agree that Dr. Childs'
testimony is self -contradictory on whether Lofton was intoxicated , and Dr. Watson, who
examined Lofton several hours later , testified that he did not make any effort to deter-
mine whether Lofton had taken any liquor Moreover , Lofton was in fact convicted of
a breach of the peace arising from this episode In these circumstances , we see no reason
to depart from our established policy of not overruling a Trial Examiner 's resolutions
with respect to credibility unless the clear preponderance of all the relevant evidence con-
vinces us that the resolutions were incorrect Standard Dry Wall Products , Inc., 91
NLRB 544 , enfd 188 P. 2d 362 (C A. 3).
153 NLRB No. 23.
796-027-66-v of 153-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other strikers on October 20, because on September 26, 1964, he engaged
in the following misconduct : (1) conducting himself in a disorderly
manner at the pay window while on the strikers' pay line; (2) resist-
ing arrest and assaulting two sherriff's deputies; and (3) being intoxi-
cated. My colleagues accept the Trial Examiner's conclusion. I
disagree.
With respect to the alleged disorderly conduct, the Trial Examiner
credited deputy sheriff Livingston, although the latter admittedly was
seated across the aisle facing the door and made no move toward Lof-
ton until directed to do so by deputy Collins at a time when Lofton had
already departed from the pay window and was proceeding to the exit.
On the other hand, the Trial Examiner discounted the testimony of
the three employees, who were close in line with Lofton and witnessed
the incident, on the ground that they were in a hurry to get their
checks and leave and that the consistency of their testimony as to the
conversation which took place somehow indicated they were taking a
"special side of a case." The very physical positions of these witnesses
in the line enabled them, much more clearly than Livingston, to
observe the incident in question. Thus, they were located where they
could hear any conversation. Even if they were in a hurry, those
behind Lofton could not proceed until he had finished his transaction.
In these circumstances, any commotion would necessarily draw their
attention. All of them corroborate Lofton's testimony as to his inquiry
concerning his insurance, Personnel Director Durgin's reply, and his
courteous response thereto and peaceful departure. It is extremely
significant that neither Durgin nor deputy Collins, who was in the
office with Durgin at the time and who directed the interception of
Lofton, testified on Respondent's behalf concerning what occurred at
the pay window. Both were in a position to have special knowledge
of the conversations and to know in what manner Lofton's conduct was
supposed to have been disorderly. This is particularly true as to Dur-
gin who was the other active participant besides Lofton in the matter.
Their failure to testify in these circumstances requires the inference
that they would not have supported the allegations made against
Lofton.
Lofton was through the exit when he was accosted by deputy Living-
ston and brought back into the canteen some 20 feet beyond the office
where he was detained. The very statement of this sequence of events
presents a picture of a man who was peacefully leaving the scene, and
negates any implication of an actor intent on assaulting or coming into
conflict with anyone. Other pertinent factors, as well as the substantial
corroboration by the three employees near him in line, by Union
President Bradshaw and Union Representative Craven, all lend cre-
dence to Lofton's testimony that he was seized from behind and that
he merely attempted to dodge and fend off blows to avoid injury, but
UNITED STATES PLYWOOD CORPORATION 243
did not resist arrest or assault the officers . Thus, Lofton is a man of
56 who weighs only 150 pounds. He has worked for Respondent for
some 10 years without untoward incident prior to the events on the day
in question. He has no criminal record, but rather is a substantial
citizen who is buying his own home in the community in which he
resides . I believe the situation itself and Lofton's age, stature, and
character afford persuasive reason for concluding, as I do, that he was
not the aggressor.
Finally, the Trial Examiner's conclusion that Lofton showed the'
effects of alcoholic indulgence at the time he applied for his paycheck
is based upon the general assertion of Deputy Livingston whose testi-
mony was not corroborated by either Deputy Collins or Personnel
Director Durgin, and upon the self-contradictory testimony2 of Dr.
Childs who was called to examine Lofton in the jail. The Trial Exam-
iner preferred the foregoing testimony to that of Dr. Watson who
examined and treated Lofton in the emergency room at the hospital
and the testimony given by Bradshaw and the several employees who
were in close contact with Lofton in the pay line at the plant that
there was no indication that Lofton had been drinking. Lofton denies
that he had anything to drink that day, and his testimony that he sel-
dom drinks is not contradicted. Nor is Bradshaw's testimony that on
the day in question, except for a short lunch break, Lofton was serving
continuously on the picket line from 7 a.m. until the pay-line incident
sometime after 2 p.m. In my opinion the Trial Examiner's conclusion
that Lofton was under the influence of alcohol is unsupported by the
preponderance of the credible evidence.
In light of the foregoing, I am convinced that Lofton did not engage
in the misconduct for which he assertedly was discharged. Even if he
had, however, the purported conduct was hardly so egregious as to war-
rant Respondent in stripping Lofton of the protection afforded striking
employees under the Act. The strikers' payroll line was, in the cir-
cumstances , an extension of the strikers' protected picket line. Accord-
ingly, I would reverse the Trial Examiner's decision herein, as urged
2 On direct examination , Dr. Childs testified that when he examined Lofton he found
numerous abrasions about Lofton 's head and face, a noticeable lump and contusion on his
scalp above his left ear , and a large bruise across his right shoulder ; "His breath smelled
strongly of alcohol . He was thick tongue in his speech , and Irrational." The Trial
Examiner found no reason to doubt the validity of Dr. Childs ' findings with respect to
Lofton's condition despite the fact that on cross -examination Dr. Childs testified : "I fre-
quently have hay fever ; I at times can't smell things . . . . Perhaps the deputy asked
me if I smelled alcohol on him, and perhaps I told him I couldn ' t, and then made a
closer try, and could smell it then . . . This is hardly consistent with his statement
that Lofton 's "breath smelled strongly of alcohol ." Dr. Childs later indicated he had
told the officer that he "could diagnose alcohol" by the dilated pupils of Lofton, then
admitted that a blow on the head could also cause such a condition . There is no dispute
that one of the deputies struck Lofton on the head with his blackjack while they had him
in the canteen at the plant . In contrast , Dr. Watson who examined and treated Lofton at
the hospital to which the union representative had taken Lofton directly from the jail,
testified that he detected no alcohol in his examination and treatment of Lofton.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the General Counsel, and find that Respondent has, by the discharge
and by the refusal to reinstate Lofton, violated Section 8(a) (3) and
(1) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act.
Upon a charge filed on September 30, 1964,1 an amended charge filed October 13,
and a second amended charge filed October 30 by International Woodworkers of
America, AFL-CIO, herein sometimes called the Union, the General Counsel of the
National Labor Relations Board , on behalf of the Board, by the Regional Director
for Region 11, on December 4, issued a complaint and notice of hearing against
United States Plywood Corporation, the Respondent herein , the complaint alleging
that the Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and ( 3) and Section
2(6) and (7) of the Act. The Respondent filed timely answer to the complaint,
effectively denying that it had engaged in or was engaging in the unfair labor prac-
tices as alleged.
On the issues framed by the complaint and the answer , and pursuant to notice,
this case was heard by Trial Examiner Arthur E. Reyman at Orangeburg, South
Carolina, on January 26, 1965. At the hearing the General Counsel and the Respond-
ent were represented by counsel , and the Union was represented by its Regional
representative . Each party was afforded full opportunity to present evidence rele-
vant to the issues , to call , examine and cross-examine witnesses , to present oral
argument , and to file proposed findings and conclusions , and to file briefs . Briefs
submitted for the General Counsel and the Respondent have been carefully
considered.
Upon the record as a whole, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , United States Plywood Corporation , is now, and has been at all
times material herein, a corporation with a place of business located at Orangeburg,
South Carolina, where it is engaged in the manufacture of plywood . The Respond-
ent, during the 12 months immediately preceding the issuance of the complaint
herein , a representative period , in the course and conduct of its business , purchased
and received at its plant at Orangeburg , South Carolina, materials valued at in excess
of $50 ,000 directly from points outside the State of South Carolina; and during the
same period the Respondent manufactured , sold, and shipped from its Orangeburg,
South Carolina, plant , products valued at in excess of $50,000 to points outside the
State of South Carolina.
The Respondent is now, and has been at all times material herein , an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Woodworkers of America, AFL-CIO, is, and at all times material
herein has been , a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
At midnight , on Wednesday , September 23, certain employees , approximately 475
in number , employed at the Respondent 's Orangeburg plant, ceased work concert.
edly and went out on strike . The strikers returned to work on October 19.
The complaint alleges that the Respondent discharged Woddie J. Lofton on Octo-
ber 1 and thereafter failed and refused to reinstate him because he had "joined or
assisted the Union , or engaged in other concerted activities for the purpose of col-
lective bargaining or mutual aid or protection and/or had participated in the strike
..."; that on or about October 15 he had made an unconditional offer to return to
1 Unless otherwise shown , all dates hereinafter mentioned are for the year 1964.
UNITED STATES PLYWOOD CORPORATION 245
his former or substantially equivalent position of employment; and that on or about
October 20, and at all times since, the Respondent has failed and refused to reinstate
him.
The fact of Lofton's discharge is admitted. The reason therefore is detailed in a
separation report signed by the Respondent's personnel director on October 1:
-Discharged-
While in a line receiving their payroll checks between 2 & 3 p.m. on Saturday,
September 26, 1964,-Woddie Lofton conducted himself in a disorderly manner.
He resisted arrest and assaulted the two law enforcement [officers] present
(Chief Deputy Brabham Collins and Deputy Fulton Livingston, both of the
County Sheriff's Office). As attested to by both officers, he had been drinking
heavily.
Such conduct is in direct violation of Company rules.
According to the uncontradicted testimony of Union Regional Representative
James A. Craven, his request, made to Robert Neylon, industrial relations manager,
that Lofton be returned to work after the other strikers had returned on October 20,
was refused.
Lofton, employed by the Respondent for about 10 years, was a member of the
Union, went out on strike, and participated in the picking of the plant.
The theory of the General Counsel's case was explained by counsel in his opening
statement:
The factual background of this case, Mr. Examiner, is relatively simple. Last
year the United States Plywood Corporation, which is the Respondent in this
case, a union was certified; there were negotiations; at some point in the nego-
tiations, there occurred a strike by the employees at the plant. It is the Gen-
eral Counsel's understanding that somewhere between 400 and 500 employees
went out on strike. The employees who went out on strike included the
alleged 8(a)(3) and (1) in this case, Mr. Woddie J. Lofton. Shortly after
the strike began, there was an agreement between Respondent and the union
representative that the men who had gone out on strike would be paid for the
time that they had worked; the regular pay day, it is my understanding, would
have been Friday, September 25, 1964; the men were, however, paid between 2
and 4 o'clock on the afternoon of September 26, 1964, which would have been a
Saturday. The alleged 8(a) (3) and 8(a) (1) in this case, Mr. Woddie J. Lofton,
was in the line of employees who were going to be paid on that particular after-
noon.
Now, it is General Counsel's theory in this case that the evidence will show
that Mr. Lofton, by asking questions about his insurance there at the pay win-
dow, violated no law; that when the sheriffs seized hold of Mr. Lofton, they
were acting outside the purview of their duties; that the sheriffs were there at the
request of Respondent, and were acting as Respondent's agents in this capacity;
that when the sheriffs took Mr. Lofton back into the rear of the plant and
worked him over, that they were again outside the purview of any legal capacity
they had, to do such as that; and that when Respondent comes along and dis-
charges Mr. Lofton on the alleged ground that he had been drinking heavily,
which we are prepared to show is not the case , and that he was resisting arrest,
which we are also prepared to show is not the case, why, it is our contention,
that Respondent has discharged Mr. Lofton for a reason which not valid under
the Act.
As noted, the strike began on a Wednesday. The following Friday being a regu-
lar payday, the strikers were not at work, so that arrangements were worked out
on Saturday morning, September 26, for the strikers to receive wages due them
between 2 and 4 p.m. at a window in the personnel office at the plant. It was agreed
between Edmund H. Durgin, the Respondent' s personnel director, and representa-
tives of the Union, including M. L. Bradshaw, president of the local union, that the
men would form a line in single file at the side of the road outside the personnel
office, move forward into the personnel office, receive their pay, and then turn and
go outside , passing through on the oposite side of the double doors through which
they had entered. It was understood that although the men could each wear a
picket sign or placard hung around his neck, that other than identifying himself to
receive his check, he would not otherwise say or do anything to interrupt the
procedure.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Deputy Sheriffs Livingston and Bizzell were dispatched to the plant by Chief
Deputy Collins (Durgin having requested plant protection) and upon their arrival,
Bizzell remained outside on the street while Livingston was briefed by Durgin con-
cerning the pay procedure.2 After this, Livingston talked to Bradshaw, who con-
firmed what Durgin had told Livingston. Collins arrived soon after. When Durgin
started handing out paychecks to individual employees, Collins was seated a few
feet from him, behind the counter that divided the room, while Livingston and
Bradshaw were seated near each other in the outer part of the room, observing the
single line of men as they filed in front of Durgin, received their checks passed to
them by Durgin through the open part of double sliding glass counter windows,
turned and passed through the other side of the double doors through which they
had entered, and prepared to pass the sign or placard they had been wearing to men
on the line who had not been supplied with one.
Before Durgin started handing out checks a large number of persons, variously
estimated to be about a hundred or more than 300, were on the street outside of the
personnel office. Bradshaw assumed the responsibility of forming the pay line, and
was assisted by several stewards. He was the first one in line and the first one to
be paid. He then took a chair near where Deputy Sheriff Livingston was seated.
The line continued to move smoothly. Lofton said he thought that there were
50 or 75 men ahead of him, and he moved in line for about a half hour before he
reached the window. Up until then it appears other than necessary words exchanged
by Durgin and the men he was paying, and the turning and moving of the men,
everything was quiet. When Lofton presented himself, the consequence on which
this case arose occurred.
The Arrest of Lofton
Accounts vary as to what was said by Lofton when he reached the pay window
and what transpired immediately thereafter. He testified:
Well, when I marched to the pay window Mr. Durgin asked me my name, and
I said W. J. Lofton. He pushed me my check, and I said "Mr. Durgin, would
you check on my insurance one day?" and he said, "I'll get to it later," and I
said, "Thank you," and I turned and walked off.
He said that as he turned and walked to the door and started to step down on two
outside steps, Livingston "grabbed me in the belt, right in the belt, and then the
collar, right back there, like that" (indicating); that he asked "what's wrong?"; that
Collins (or Livingston?) said "you son of a bitch, you are going with us"; that
"when they grabbed me they pulled me around, and took me right back in the office
where I came out, right on down to the canteen." 3 He went on to relate that in
the canteen, Collins "caught me behind the back, he grabbed me behind the back,"
Livingston put a handcuff on one arm, held the other cuff-"and while I was hold-
ing his hand in the cuff, that's the time he started hitting me with the blackjack."
He disavowed scuffling with the officers, stating:
. until he started hitting me on the side of the head, then I started shoving
them back and dodging back and forth . . . I remember twice, he hit me the
first time right on the corner and the last time right on the top, that one got
me kind of dizzy, I got a bruise on the shoulder, I don't know whether he hit
me or throwed me down, but I know this shoulder was wrenched.
According to Lofton, he was in the canteen with the two officers for about 5 or
10 minutes when Bradshaw came in and told the officers "let him alone, if you all
want to carry him to jail, I believe he'll listen to you, if that's what you want to do
with him." Lofton said the officers asked "if we can't do nothing with him, how
in the hell can you say you can do anything with him" Bradshaw, said Lofton,
then asked him if he would go to jail if the officers wanted him to go and he said
that he would, "turn me loose," and they put a handcuff on the other hand and he
sat there until he was taken to jail by the officers in an automobile. He said he was
in jail for approximately an hour, when Bradshaw and another person raised bail
and he was released.
2 When the strike began, State and local law enforcement officers, as well as men from
the sheriff's office, were on duty in and around the plant and adjacent roadways. Their
number had been greatly reduced by September 26.
3 The canteen is placed as being at the opposite side of the personnel office from the
double doors the men were using, around a corner and down a hall about 20 feet, and so
out of sight of the men in the pay line.
UNITED STATES PLYWOOD CORPORATION 247
According to the testimony of Union Representative Craven, he came into the
canteen and was told by Bradshaw, "They have been beating this man"; that "his
[Lofton's] clothes were quite disheveled, he had some blood on the front of his shirt,
he also was handcuffed."
Lofton denied having had partaken of any alcoholic beverage on that day, stat-
ing that although he would not say that he would not take a drink, the last drink
he had "was the fourth of July"; he said he drinks maybe a half a pint or a pint a
year but that he does not drink whiskey enough "to make any difference." He
denied having any whiskey in his possession at or before the time of his arrest on
September 26.
Three witnesses were called to testify in support of Lofton's assertion that after he
asked Durgin about his insurance he thanked him and turned away. McClinton
Jackson, an employee for 22 years, said he was about the fourth man behind Lofton
in the line; that he saw Durgin hand him his check and "he turned around and asked
him about his insurance, and Durgin said `I'll have to look into that matter later'
so Mr. Lofton said, `I'll look forward to it then, thank you, sir,' and he walked off."
John L. Oliver, an employee for about 5i years and assistant pastor of a local
church, said be was just ahead of Lofton and ". . . heard Mr. Lofton, he said some-
thing concerning his insurance, asked Mr. Durgin about his insurance, and Mr.
Durgin replied he would look into the later, and he says, all right sir, and he walked
on...." Govie McDonald, employed 16 years, said he was directly behind Lofton
. and he got to the window and he told Mr. Durgin his name, and he asked about
the insurance has been cancelled, Mr. Durgin, and he said yeah, and he said thanks,
and he turned away." On cross-examination, McDonald said "Mr. Durgin said he
would see about that later, and he walked away."
Jackson's knowledge of the interception of Lofton by Livingston was limited.
Concerning what happened after Lofton left the pay window, Jackson testified:
Well, after he got to the steps, after he said what he did and got to the steps,
one of the officers said to the other one, he said "what did he say? Bring him
back here." And Mr. Livingston got up, I guess it was Mr. Livingston, Mr.
Collins is the only one I know personally, and so this officer got up and caught
him as he started down the second step, he was about two steps down, and he
caught him in the building by his arm and Mr. Bradshaw was there then, and
he told me, "go on out, go on out," and so I went out, and that's about all I
could see after I got outside.
On this point, the Reverend Oliver testified:
Well, what happened when I was passing my sign, he was right behind me,
pretty close, and I turned side ways and I saw an officer, Mr. Livingston, pulling
him in; and just about a moment Mr. Collins joined him, and we were still
walking on, because we couldn't tarry to see what was happening, and I walked
on.
McDonald was not questioned on this point, nor was Durgin. Each was called to
testify by counsel for the General Counsel.
Union President Bradshaw, who was in the room with Deputy Sheriff Livingston,
testified on direct examination that after Lofton had asked Durgin about his insur-
ance and Durgin had replied that he would see about it the following week, Lofton
thanked him, got out on the first step of the door when Collins told Livingston
"catch that guy"; that Livingston had not said anything up to that point but then
left his chair, grabbed Lofton, catching him by one arm and the back of his trousers;
within a few seconds Collins joined Livingston, "assisted him in trying to arrest Mr.
Lofton," and then the officers "took him and rushed him into the back room, back
in the canteen area." Bradshaw said that when this occurred the pay line slowed
down for a few moments, there was "a lot of mumbling among several of the people
that was gathered from the window back out to the door"; that he got up from
where he was sitting, went to the door and "got them moving on out, getting the
pay line moving back in, just normal, like it always was " He then went back to
the canteen. When he arrived at the canteen, he said Collins had hold of one of
Lofton's arms and Livingston had a cuff around his left wrist and he had his hand
"at the other end of the cuff, holding on with one hand, and beating him on the top
of the head with a slapjack." He then told Collins that if he would turn Lofton
loose and wanted to take him to jail he, Bradshaw, "can get him to go to jail."
According to him, Collins replied, asking "what the hell can you do with him, when
two sheriff's deputies can't handle him7; that he said to Collins 'just go ahead and
turn him loose, and if you want to take him to jail,' I says, `he'll go to jail with you.' "
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He then instructed Lofton that if the officers wanted to take him to jail to go with
them and that Lofton consented to go. Bradshaw confirmed the fact that he had
placed Lofton on the picket line at about 7 o'clock that morning, that he picketed
steadily until about noon with only a break approximately every hour for 2 to 5
minutes and a break for lunch. During the time Lofton was picketing, Bradshaw
said, he did not detect the smell of whiskey on Lofton's breath or notice that he
had been drinking.
From his cross-examination, it is not clear from Bradshaw's testimony that he
was near Lofton when the latter was stopped by Livingston:
Q. Yes; now, you went into the hallway, you got paid, then you sat down
with Mr. Livingston; why were you there with Mr. Livingston?
A. I was not in there with Mr. Livingston.
Q. Why were you in the hallway?
A. I was in the hallway to see that nothing didn't go on, and everything went
on, and everybody got paid, and there was no disturbance whatsoever, that
would occur inside the plant area.
Q. Is that pretty much the same reason you were on the picket line almost
constantly outside?
A. No, sir. That was my duty out on the picket line, and I stayed on the
picket line the biggest portion of the time; it was every seldom that I ever left
there.
Q. And as these people were coming in, did you pay attention to what they
were saying in the line?
A. The only thing those people were suppose to give when they went in to
the pay window was to give their name and receive a check and go back to the
door.
Chief Deputy Collins was not called to testify either for the Respondent or the
General Counsel, although present in the hearing room after each party had rested,
when counsel for the General Counsel asked the record to reflect his presence and
the fact that he had not been called by the Respondent, and the reply of counsel for
the Respondent that he "is here upon the call of any person who wishes to call him,
either party."
Deputy Sheriff Fulton Livingston testified that at the time Durgin started to hand,
the checks to the men in line, he was sitting in the aisle facing the door through
which the pickets entered and that each individual picket came to the window, gave
his name and name only, received his check, and immediately turned around and
went out the door that they came in. Collins was seated inside the office where
Durgin was issuing the checks. Livingston testified that Lofton came to the window,
gave his name, and stated to Durgin that he wanted to get his insurance straight,
that Durgin told him he would have to get that straight later, that he was only pay-
ing off on that day and would "get it straight when he came back to work." He
said that Lofton demanded two or three times that he wanted to "get it straight
now," and at that time Collins told him through the window to hush, and go on out.
He said that at that time Lofton cursed and said he would do what he "damn"
pleased, whereupon Collins opened the door leading into the hall, came out of the
office and asked Livingston to stop Lofton "which I did"; then when Lofton was
asked to get out of the line and sit in the chair until the rest of the pickets were paid,
Lofton refused to sit down and said he would do what he "damn" pleased. "He
cursed Mr. Collins directly, I don't remember what he cursed Mr. Collins for; then
we started to place him under arrest." Lofton refused to be placed under arrest and
then, because Livingston considered that the situation could turn into an explosive
one, and to keep from having trouble with the rest of the pickets-
We took Lofton around the corner into a room known as the canteen, where
he at that time still refused to be placed under arrest, he refused to be hand-
cuffed, he fought Mr. Collins and myself, and I would say it was possibly 20
minutes before he submitted to arrest.
He said that while Collins and he were struggling with Lofton, Bradshaw came in
and he asked Bradshaw to go outside and send some other officers in to help subdue
Lofton "where we wouldn't have to hurt this man." He said that Bradshaw returned
when Collins and Livingston had Lofton on the floor and Lofton was handcuffed
by one arm and that Bradshaw then told Lofton to "go ahead and let them put you
in jail, I'll get you out as soon as you get in." He said that Lofton then submitted
to arrest, that a handcuff was put on his other arm, and he was transported to and
placed in the county jail. Livingston said on cross-examination Lofton "was hitting
at myself and kicking at myself and Mr. Collins so much, I couldn't tell you how
UNITED STATES PLYWOOD CORPORATION 249
many times I hit him"; that during the course of the struggle, Lofton tried to bite
him, was kicking and hitting, and at one time Lofton hit Collins, knocked his glasses
off, and Collins was pushed to the floor.
Although Lofton, according to his testimony weighs 150 pounds and is 56 years
of age, he is, from my observation, quick and wiry, and I have no doubt that in the
scuffle with Livingston, 35 years old and weighing approximately 185 pounds, he
could cause enough trouble to require the exercise of force to restrain him.
After Lofton was jailed, Chief Deputy Sheriff Collins called a doctor to examine
Lofton to determine if he had any serious injury.
Dr. Paul E. Childs, engaged in the general practice of medicine, examined Lofton
at the jail. Dr. Childs testified-
He had numerous small abrasions about his head and face, he had one noticeable
lump in his scalp, about 2 inches or so above his ear on the left side, and a large
dark bruise across the top of his right shoulder. His breath smelled strongly
of alcohol. He was thick tongue in his speech, and irrational. I asked him,
because he was hostile and belligerent, or appeared to be hostile and belligerent
when I first saw him, I asked if he had any objection to me examining him, and
he had no objections, so I proceeded to help him take off his shirt, and checked
him over, and in the process of examination at two different times he insisted
he was hurt; he wanted a doctor; and I told him that I was a doctor, and that
I had come to help him and do what I could for him; and this appeared to satisfy
him for a few minutes, and again a few minutes later he insisted he was hurt,
he needed a doctor.
Dr. Childs said he required no treatment other than painting the abrasions with anti-
septics. At the conclusion of Dr. Childs' cross-examination, I could find no reason
to doubt the validity of his findings with respect to the condition of Lofton when he
examined the latter.
After Lofton was released from jail, Bradshaw, accompanied by Craven, took him
to the emergency room at Bamberg Hospital, where they were seen by Dr. Michael
C. Watson, who said Lofton was accompanied by someone identified as being with
a labor union . Dr. Watson testified:
No, sir, he [the union official] said he did not live here, it seemed like he lived
in North Carolina somewhere. I got the idea he was just here temporarily. The
reason this happened to impress itself upon me, is that I asked him if he were
looking for someone just to give medical testimony, that I was not interested in
examining the patient; but if he was interested in the patient's welfare and really
thought something was wrong with him, I would be glad to treat him medically;
but I did not want to spend my time giving medical testimony.
Q. Did you treat him medically?
A. He did not require any extensive treatment; I cleaned up his abrasions and
I believe he had had tetanus immunization, so he did not need that. I had some
X-rays made which were negative.
Q. You said you detected no alcohol at that time?
A. That's right.
Q. When did you detect alcohol?
A. I didn't.
Q. Did you make any check for the purpose of checking alcohol?
A. No, sir.
It is clear that Lofton was placed under arrest at the plant, charged by the officers
before a magistrate, and released on bond arranged or provided for by the Union
through Bradshaw or Regional Representative Craven. He was found guilty by a jury
on January 25, 1965, the day before the hearing herein, of a violation of title 16,
section 558, Code of Laws of South Carolina, 1962,4 of which I was asked to take
official notice. That case related to Lofton's arrest on September 26.
4Title 16, section 558, Code of Laws of South Carolina, 1962, provides:
Any person who shall (a) be found on any highway or at any public place or public
gathering in a grossly intoxicated condition or otherwise conducting himself in a
disorderly or boisterous manner, (b) use obscene or profane language on any highway
or at any public place or gathering, or in hearing distance of any schoolhouse or
church, or ( c) while under the influence , or failing to be under the influence of in-
toxicating liquor, or without just cause or excuse, discharge any gun, pistol, or other
fire arm while upon or within 50 yards of any public road or highway, except upon
his own premises , shall be guilty of a misdemeanor.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Responsibility of the Respondent
The Complaint alleges that Phil Adams, plant manager, and Edmund H. Durgin,
personnel director , "have been and are now agents of Respondent at its Orangeburg,
South Carolina, plant, acting on its behalf... but does not allege that either one as
such agent is responsible for the acts complained of. The name of Adams was not
mentioned in the testimony except to be identified, and that of Durgin only to the
extent related above. As noted, counsel for the General Counsel in his opening state-
ment said that when Lofton was arrested, the deputy sheriffs ". . . were there at the
request of Respondent, and were acting as Respondent's agents in this capacity...."
It is true that Durgin took the precaution, not unusual in strike situations, to request
the office of the sheriff to provide protection. Beyond this, there is not a scintilla of
evidence to provide an inference that Collins and Livingston acted as the agents of
the Respondent. On the contrary, Livingston testified that he was informed by
Durgin how he and Bradshaw "had decided to pay the pickets that had refused to get
their checks the week before;" and emphatically stated that "we went out there to
protect the people on both sides."
The General Counsel, I find, has failed to carry the burden of proof that the actions
of Collins and Livingston can in any way be attributed to the Respondent or its
agents. Cupples Company Manufacturers v. N.L.R.B, 106 F. 2d 100, 114, 116
(C.A. 8); Reliance Manufacturing Company v. N.L.R.B., 125 F. 2d 311, 315
(C.A. 7).
The Application of the Burnup and Sims Doctrine
In support of his theory of this case, the General Counsel relies upon N.L.R B. V.
Buinup and Sims, Inc., 379 U.S. 21. There, the Court held that Section 8(a)(1) of
the Act, making it unlawful to discharge an employee for engaging in protected
activity, was violated when the employer discharged two employees who were under-
taking to unionize other employees, because of statements found to have been falsely
attributed to them to the effect that the union would use dynamite to get in if it did
not acquire necessary authorizations, whatever the employer's motive and notwith-
standing a question of its good faith; and that Section 8 (a) (1) of the Act, making
it an unfair labor practice for an employer to interfere with, restrain, or coerce
employees in the exercise of guaranteed right of self-organization is violated if it is
shown that the discharged employee was, at the time, engaged in protected activity,
that the employer knew that it was such, that the basis of the discharge was an alleged
act of misconduct in the course of that activity, and that the employee was not, in
fact, guilty of that misconduct Burnup and Sims does not support the General
Counsel's theory of this case as reflected by the actual facts. There, Mr. Justice
Douglas, for the Court, wrote:
Section 7 grants employees, inter alia, "the right to self-organization, to form,
join, or assist labor organizations." Defeat of those rights by employer action
does not necessarily depend on the existence of an antiunion bias. Over and
again the Board has ruled that § 8(a) (1) is violated if an employee is discharged
for misconduct arising out of the protected activity, despite the employer's good
faith, when it is shown that the misconduct never occurred. See, e.g., Mid-
Continent Petroleum Corp., 54 NLRB 912, 932-934; Standard Oil Co., 91 NLRB
783, 790-791; Rubin Bros. Footwear, Inc., 99 NLRB 610, 611. In sum, § 8(a)
(1) is violated if it is shown that the discharged employee was at the time
engaged in a protected activity, that the employer knew it was such, that the
basis of the discharge was an alleged act of misconduct in the course of that
activity, and that the employee was not, in fact, guilty of that misconduct.
The Court found it unnecessary to reach the questions raised under Section 8(a) (3).
In the instant case there is no doubt that the Respondent knew that at the time the
cause for discharge arose Lofton had been engaged in a protected activity and that
the Respondent knew it was such; and that the basis of the discharge was an alleged
act of misconduct in the course of which, so far as his fellow strikers were concerned,
was protected activity. The question now remains open whether Lofton was guilty
of the misconduct charged.°
5 In footnote 2 to the opinion of the Court in Burnup and Sims, 379 U.S. at 22, it
is stated:
As an alternative ground for its finding that the Act had been violated , the Board
held that Pate's allegation was merely "seized up[on]" by the Respondent as an
"excuse" for the discharges of Davis and Harmon. 137 NLRB 766, 772-773. The
Court of Appeals, however, rejected without discussion this suggestion of the exist-
UNITED STATES PLYWOOD CORPORATION 251
Livingston was a forthright witness and I credit his testimony over the testimony
of Lofton and the rather vague testimony of Bradshaw , in respect to what occurred
at the very moment of Lofton's arrest and the actions of Lofton in resisting arrest.
On the basis of the testimony within the record, it is shown that there was a large
crowd of strikers assembled outside the personnel office and the line was formed from
those strikers who were awaiting their turn to be paid . Bradshaw had noted that
in the early days of the strike there was considerable patrolling of peace officers in
the vicinity of the plant and at the plant premises . That the Union representatives
anticipated possible trouble at the plant may be inferred from the fact that Craven,
prior to September 27 had wired the attorney for the Company ". . . you're nuts if
you expect strikers to claim payroll checks at company personnel office" and the
subsequent careful arrangements worked out between Bradshaw and Durgin regarding
the method of payment and the time when payment was to be made . I do not ques-
tion the judgment of Collins and Livingston in whisking Lofton out of sight in antici-
pation of possible trouble when a commotion was raised by Lofton . I accept the
affirmative testimony of Livingston and Dr. Childs that Lofton showed the effects of
alcoholic indulgence at the time he applied for his paycheck and engaged in conver-
sation with Durgin concerning his insurance.
The principle to be applied here, I think, is directly stated by the Board in Burnup
and Sims, Inc, 137 NLRB 766, at 772:
The Rubin Bros . doctrine establishes that when , in the course of protected activ-
ity, employees are accused of misconduct and a respondent takes action affecting
their employment tenure based on the belief that the employee has engaged in
misconduct , such an honest belief would be an adequate defense to a charge
of discrimination for refusing to reinstate such employee unless it affirmatively
appears that such misconduct did not in fact occur.
I find that Lofton engaged in misconduct which justified the action of the Respondent
in discharging him. The misconduct occurred at a time when Lofton, as an economic
striker, was still an employee of the Company and was on company premises.°
The strikers in the pay line, including Lofton, were at that very time engaged in
the Section 7 guaranteed right to engage in concerted activities , and when each
accepted his paycheck he was wearing a picket sign, to which the Company did not
object. Lofton 's conduct must be separated from that lawful protected activity-
his improper conduct was not extinguished simply because he was there with other
strikers . Nor was he discriminated against within the meaning of Section 8(a)(3)
and (1 ) because of the presence of other strikers who did not engage in conduct
beyond proper concerted activity.
I find that the General Counsel has failed to prove the allegations of the complaint.
Concluded Findings
The only other possible open question is whether the Respondent seized upon for-
tuitous circumstances to discharge an employee because of his union activities. Other
than joining in the strike and engaging in picketing with many other strikers , Lofton's
union activities apparently were not particularly intensive or of the kind to draw
attention to himself . There is no showing that he was a union officer, a member of
any committee , or involved in any situation such as soliciting union membership,
which might have caused the Respondent to single him out. His testimony concern-
ing his meekness when he asked Durgin about his paycheck is suspect in the face of
Livingston's testimony . The testimony of Jackson , Oliver, and McDonald is of not
much help, because they so obviously were in a hurry to get their checks and leave;
and the time each one was at the pay window and in the room was so short, they
ence of anti -union bias , 322 F 2d 57 , 59, 61 . In its petition for writ of certiorari the
Board expressly stated that " the propriety of this action [ by the Court of Appeals]
is not questioned here " In light of this concession it is unnecessary for us to deter-
mine whether the Board ' s alternative finding of a discriminatory motivation is sup-
ported by substantial evidence.
6 As the Court in N L R B. v. Burnup and Sims , Inc., noted in footnote 3 of -its opinion,
379 US, at 23.
The Rubin Bros . case made a qualification as to burden of proof Prior thereto the
burden was on the employer to prove that the discharged employee was in fact guilty
of the misconduct . Rubin Bros said that "once such an honest belief is established,
the General Counsel must go forward with evidence to prove that the employees, did
not, in fact , engage in such conduct ." 99 NLRB at 611.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were hardly aware of the commotion described by Bradshaw. The demeanor of
each, in reporting the question asked by Lofton, the answer of Durgin, and the
"thank you" of Lofton, was,the same as that of any witness who takes a special side of
a case, and hears little and observes less of that part which supports the opposite side.
Notwithstanding Lofton's testimony that he had not been drinking on the day of
his arrest and had not had a drink since the preceding Fourth of July, I accept the
testimony and opinion of Dr. Childs to opposite effect. Dr. Watson, who examined
him at 5:30 or 6 p.m., would only say that he did not detect any evidence of "inges-
tion of alcoholic content at that time." This was several hours after Dr. Childs had
examined Lofton.
On the basis of the foregoing findings of fact, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not engaged in and is not now engaging in unfair labor
practices as alleged in the complaint.
4. The complaint herein should be dismissed.
RECOMMENDED ORDER
It is recommended that an order be entered herein dismissing the complaint.
Retail Store Employees Union , Local 444, Retail Clerks Interna-
tional Association , AFL-CIO and Agents and Organizers Asso-
ciation, Petitioner. Case No. 30-RC-3 (formerly 13-RC-9123).
June p21,1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Donald B. Milan. The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.' Thereafter,
the Employer involved herein filed a brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
Upon the entire record in this case,2 the Board finds :
1. The Employer is a voluntary, unincorporated association and is
one of the approximately 300 local labor unions chartered by the Retail
Clerks Association, AFL-CIO, herein called RCIA, affiliated there-
with. The Local's office and headquarters are in Milwaukee, Wisconsin,
with a membership of approximately 5,500 employees engaged in the
i This case was transferred to the Board by the Regional Director for Region 13.
2It was stipulated by the parties that all pertinent parts of the record In Retail Clerks
International Association, AFL-CIO, 153 NLRB 204, also Issued this day, be made part
of the record.
153 NLRB No. 16.