W. T. Carter and Brother

National Labor Relations Board - Board Decisions

Aug 22, 1950

90 N.L.R.B. 2020 (N.L.R.B. 1950)

In the Matter of W. T. CARTER AND BROTHER, A PARTNERSHIP COM-
POSED OF: A. L. CARTER; FRANKIE CARROLL BULLINGTON; MARY CAR-
ROLL KEMPNER; LENA CARTER CARROLL ANDERSON; DOROTHY
TAYLOR AND GERTRUDE TAYLOR OTTO, IN THEIR INDIVIDUAL CAPACI-
TIES AND AS INDEPENDENT EXECUTRICES OF THE ESTATE OF JESSIE
CARTER TAYLOR; AGNESE CARTER NELMS; AGNESE CARTER NELMS,
TRUSTEE FOR HAYWOOD NELMSj JR.; AGNESE CARTER NELMS, TRUSTEE
FOR AGNESE CARTER NELMS (HER DAUGHTER) ; AGNESE CARTER
NELMS, TRUSTEE FOR NANCY CARTER NELMS; FRANKIE CARTER RAN-
DOLPH ; FRANgIE CARTER RANDOLPH AND HUSBAND , R. D. RANDOLPH,
CO-TRUSTEES FOR MRS. AUBREY RANDOLPH SCOTT; FRANKIE CARTER
RANDOLPH AND HUSBAND, R. D. RANDOLPH, CO-TRUSTEES FOR MRS.
JEAN RANDOLPH LONGMAID; LENA CARTER CARROLL; AUBREY L.
CARTER, TRUSTEE FOR AUBREY L. CARTER, JR.; AUBREY L. CARTER,
TRUSTEE FOR THOMAS L. CARTER; W. T. CARTER, JR., A. L. CARTER,
AND J. WINSTON CARTER, TRUSTEES UNDER INSTRUMENT EXECUTED
BY ERNEST ANDERSON CARTER AND MARTHA CATON CARTER, APRIL 4,
1928 ; MRS. FLORENCE THOMAS, INDIVIDUALLY, AND BYRON J. THOMAS,
CARROLL C. THOMAS, PEYTON F. THOMAS, AND TAYLOR W. THOMAS,
AS INDEPENDENT EXECUTORS AND TRUSTEES UNDER THE LAST WILL
OF JACK THOMAS, DECEASED; W. T. CARTER, JR.; W. T. CARTER, III;
VICTOR N. CARTER and INTERNATIONAL WOODWORKERS OF AMERICA,
CIO
Case No. I#-CA-82.-Decided August 22, 1950
DECISION AND ORDER
On November 29, 1949,, Trial Examiner Sidney L. Feller issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. He also found that the Re-
spondents had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and a supporting brief.
90 NLRB No. 257.
2020
RADIO CORPORATION OF AMERICA 2021
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner,2 except insofar as they are incon-
sistent with the Decision and Order herein.
The unfair labor practices prior to September 1948
As described in detail in the Intermediate Report, the Respondents
own or control, in addition to their business facilities, all the property
in and adjacent to the town of Camden, Texas. In sum, Camden is
a "company town," where no large assembly of employees for the
purposes of self-organization can take place except on company
property. On June 29, July 2, July 9, and July 13, 1948, union
organizers attempted to hold open-air meetings for the Respondents'
employees in Camden after working hours. The Respondents chose
to treat the union organizers as trespassers, and prevented the holding
of these meetings. On each of the first three occasions, the Respond-
ents, acting through their managing partner, A. L. Carter, requested
the county sheriff to prevent the holding of any meeting on company
property.' As a result, the Julie 29 assembly was stopped by the
arrest of the organizers shortly after the meeting started.4 On July 2,
the organizers were prevented from even starting a meeting, having
been warned beforehand by the sheriff's deputies that they would be
arrested if they either went off, or stopped in, the streets of Camden.
Consequently, the organizers were restricted on this occasion to driving
through the streets and broadcasting through a loudspeaker, but even
then were followed during most of the broadcast by one of the Re-
spondents' superintendents in a company car.5 On July 9, the organ-
izers were again restricted, by instructions of a deputy sheriff, to the
mobile use of the streets, and this time they were followed by two
The Respondents ' request for oral argument is denied, because the record and the Re-
spondents ' exceptions and brief , in our opinion , adequately present the issues and the
positions of the parties.
. 2 The Respondents' motion to dismiss the complaint, because the parent body of the
Union herein was not in compliance with the filing requirements of the Act at the time of
the issuance of the complaint , is denied . Bethlehem Steel Company, Shipbuilding Division,
and Bethlehem-Sparrows Point Shipyard, Inc., 89 NLRB 341 ; J. H. Butter-Rex Manu-
facturing Co., Inc., 90 NLRII 130.
On July 9, the request was made by one of the Respondents ' superintendents at Carter's
direction.
When consulted about these arrests, Carter took the position that the organizers could
be released only if they agreed not to come back on company property.
On this occasion , Carter also told one of the organizers that he would not permit a
meeting on his property.
2022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company superintendents and the deputy in two company cars. And
on this occasion, the organizers were arrested by the deputy 6 for
simply driving off the road while attempting to make a turn.? On
July 13, the Respondents obtained an ex parte temporary restraining
order from the District Court of Polk County, Texas, which in effect,
prohibited any union meetings on the Respondents' property except
with the Respondents' consent. As a result, the July 13 meeting was
stopped by the arrest of the organizers for alleged violation of the
restraining order. Subsequently, the restraining order was converted,
at the Respondents' request, into a still outstanding temporary
injunction.
At no time during the period in question did the Respondents indi-
cate in any way that they would countenance any stationary 'union
meeting anywhere in Camden. In fact, in his conversation with union
agent Keeter on July 2, Carter indicated that he objected even to the
Union's mobile use of the streets. And, although he testified that he
regarded as trespassers only those persons who had been warned to
stay off the Respondents' property,8 Carter had the organizers ar-
rested for trespass, without any preliminary warning, on June 29, the
very first time that they attempted to hold a meeting in Camden. Con-
sidering these circumstances, the Respondents' other unfair labor prac-
tices, and the entire record in the case, we find that the Respondents'
actual policy, at this time, as to the use of their property for purposes
of union meetings was a policy of absolute exclusion; 9 and that their
controlling purpose in undertaking to prevent union meetings on their
ground was to frustrate the self-organization of their employees,
rather than to safeguard their property against any physical hazard
or insure the comfort of the citizens of the town 10
The Trial Examiner found, and we agree, that the Respondents'
refusal to permit the holding of outdoor union meetings on their prop-
erty, and the various means used by them to prevent such meetings,
violated Section 8 (a) (1) of the Act.
8 As found by the Trial Examiner, it. Is impossible to separate the activities of this
individual , Whitecotton , on this occasion as a deputy sheriff and as a company employee.
Accordingly , although not necessary to support our conclusions herein, we find that White-
Cotton acted as the Respondents ' agent on this occasion.
4 When consulted about these arrests, Carter instructed Whitecotton to file trespassing
charges against the organizers.
8 Carter admitted that no persons except the union organizers involved in this case had
Over been given such warning.
Like the Trial Examiner , we reject the Respondents ' contention that during this period
they sought merely to require that any meetings be held at suitable and safe locations
in Camden.
10 In so finding , we do not rely in any way on the Trial Examiner 's finding that Carter
expressly acknowledged that he was opposed to the Union , which is without sufficient
support in the record.
W. T. CARTER AND BROTHER 2023
It is now well settled that the right of employees to assemble for
the purposes of self-organization, guaranteed in Section 7 of the Act,
is paramount over the bare right of an employer to control the use
of his property, where the two rights conflict 11 And the conflict is
clear in the circumstances of this case, for the Respondents' ground
in Camden was the, only practically feasible locale for any union meet-
ing."' The Respondents' conduct in prohibiting the use of its property
for such meetings created an unreasonable-indeed, an almost ab-
solute-impediment to their employees' exercise of basic rights guar-
anteed in the Act, and was therefore a clear violation of the Act 13.
Moreover, as we have noted elsewhere, the Respondents' exclusionary
policy in this case, and all steps taken by them to enforce that policy,
were motivated by a desire to stop the union organization of their
employees rather than by any bona fide concern to protect their prop-
erty. It is for this additional reason that Members Murdock and
Styles view the Respondents' resort to court proceedings to prevent
the union meetings, no less than the other devices they employed for
that purpose, as an unfair labor practice 14 They do not agree with
the Respondents' contention that their resort to court proceedings was
a lawful exercise of a basic right. The right of a person to resort to
" Republic Aviation Corporation v. N. L. R. B. and N. L. R. B. v. Le Tourneau Company
of Georgia, 324 U. S. 793; N. L. R. B. v. Cities Service Oil Co., 122 F. 2d 149 (C. A. 2) ;
N. L. R. B. v. Stowe Spinning Co., 336 U. S. 226 ; N. L. R. B. v. Lake Superior Lumber Corp.,
167 F. 2d 147 (C. A. 6).
The Respondents argue that the Stowe decision is no authority for the Trial Examiner's
findings in this case because it does not appear that the Union here was denied the use of a
meeting place which the Respondents made available to other applicants in comparable
circumstances . It is true that in Stowe, as the Supreme Court construed the Board's
findings, the unfair labor practices consisted in the employer' s discriminating against the
charging union by denying it the use of a hall which was lent to other users for community
meeting purposes . Nevertheless, we reject the Respondents ' argument . Although the
Supreme Court 's holding in the Stowe case was confined strictly to the facts there present,
the Court's opinion reaffirms the broad principle of the earlier Republic and Le Tourneau
decisions . The applicability of that principle does not depend upon proof of actual dis-
parity of treatment in all circumstances.
32 Like the Trial Examiner , we are of the opinion that the mobile use of the streets which
was permitted the organizers on July 2 and July 9 was hardly the type of effective organ-
izational device that the Act guarantees to employees, particularly in view of the unlawful
interference and surveillance that accompanied it, as hereinafter found. The Court in the
Stowe Spinning case, supra, recognized that the general meeting is perhaps the most
important organizational right guaranteed under the Act.
11 We find no merit in the Respondents ' contention that the State court's decree precludes
ns from making this finding . See Section 10 (a) of the Act; Eppinger & Russell Company,
56 NLRB 1259, and cases cited therein ; and the Serrick Corporation, 8 NLRB 621, enforced
110 F. 2d 29 (C. A., D. C.), affirmed 311 U. S. 72, rehearing denied 311 U. S. 729; Goodyear
Tire and Rubber Company of Alabama, 21 NLRB 306, enforced in part 129 F. 2d 661
(C. A. 5).
is See N. L. R. B. v. Davis Lumber Company, Inc., 172 F. 2d 225 (C . A. 5), enforcing Case
No. 10-C-2271, unpublished Board order dated September 27, 1948. Cf. Corning Glass
Works v. N. L. R. B., 118 F. 2d 625 (C. A. 2) enforcing as modified , 15 NLRB 598. Se-Ling
Hosiery Mills, Inc., 14 NLRB 485, and other cases cited by the Respondents in their brief,
involved injunctive relief obtained by employees against unlawful action, and are therefore
inapposite.
Chairman Herzog dissents from this holding for reasons set forth in his separate opinion.
2024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the courts is not absolute, but is limited, inter alia, by the law of
malicious prosecution and wrongful initiation of civil proceedings.
In essence, this law establishes the broad principle that there is an
abuse of legal process when such process is invoked in bad faith. See
The Restatement of the Law of Torts, Sections 653, 674, and 682. So,
here, the Respondents resorted to court for the purpose of preventing
their employees from exercising their rights under the Act, rather
than for the purpose of advancing any legitimate interest of their own.
We find, therefore, that the Respondents, by refusing to permit
union meetings on their property, by causing peace officers to prevent
such meetings,15 and by securing court orders to prevent such meetings,
have violated Section 8 (a) (1) of the Act.
We also agree with the Trial Examiner's finding that the Respond-
ents engaged in unlawful surveillance by their conduct in following
the union organizers on July 2 and July 9 when the organizers drove
through the streets of Camden broadcasting. 16 In our opinion, how-
ever, this conduct was not motivated solely by a desire simply to
observe these roving meetings, but was also motivated by a desire to
completely prevent even that type of limited meeting. There was no
actual attempt to stop the mobile meeting of July 2, but the July 9
meeting was stopped by the immediate arrest of the organizers for
simply going off the road in making a turn. The latter incident clearly
indicates that the Respondents, in following the organizers, were look-
ing for any pretext, however minor, that might present itself to stop
'SCf. N. L. R . B. V. Aldora Mills, 180 F . 2d 580 ( C. A. 5), enforcing 79 NLRB 1;
N. L. R. B. v. Revlon Products Corp., 144 F . 2d 88 ( C. A. 2), enforcing 48 NLRB 1202 ;
Bibb Manufacturing Company, 82 NLRB 338 ; and Spalek Engineering Company, 45
NLRB 1272.
We do not base this finding , as the Respondents suggest we must, on any theory that the
officers were agents of the Respondents in the technical legal sense. See Sunset Line and
Twine Company , 79 NLRB 1487 ; Smith Cabinet Manufacturing Company, Inc ., 81 NLRB
886. Nor-except as to Whitecotton on July 9-do we subscribe to the Trial Examiner's
reasoning insofar as he implies that the sheriff and his deputies were acting as agents of
the Respondents when they arrested the union organizers and otherwise prevented them
from holding meetings. The peace officers are not before us as Respondents in this case ;
for the most part, they appear to have acted, at least colorably , within the scope of their
official authority . Cf. The Russell Manufacturing Company, Incorporated, 82 NLRB 1081.
16 Like the Trial Examiner , we reject the Respondents ' contention that this conduct was
not unlawful surveillance because the 'Union's circular for the June 29 meeting stated
"everybody welcome," and all other meetings were open meetings . The Respondents could
in no way rely on the express invitation for the June 29 meeting to justify their attendance
at the July 2 and July 9 meetings , and there is no showing in the record that there was
any such invitation promulgated with respect to the latter meetings . Accordingly, the
July 2 and July 9 meetings were, so far as appears , simply open meetings which , for the
reasons stated by the Trial Examiner , we have held cannot lawfully be attended by manage-
ment. See e. g., Indianapolis Wire-Bound Box Company , d/b/a Cleveland Veneer Company,
89 NLRB No . 74. Mellin-Quincy Mfg . Co., Inc., 53 NLRB 366 , and other cases cited by
the Respondents to support their contention , are all distinguishable , because of express
invitations that could be relied on, or because of other extenuating circumstances. In any
event, we, like the Trial Examiner , find that the Respondents ' action in following the
organizers' car on July 2 and July 9 went beyond any privilege that they might have had to
attend these open meetings.
W. T. CARTER AND BROTHER 2025
even that type of assembly.17 In view of these facts, and also in view
of the Respondents' general purpose to obstruct the organization of
their employees, we find that the Respondents' conduct in following
the organizers on July 2 and July 9 was not only surveillance, but also
another means utilized by the Respondents to interfere directly with
the conduct of meetings, and, as such, violative of Section 8 (a) (1)
of the Act.
The unfair labor practices- subsequent to September 1948
1. For the reasons stated by the Trial Examiner, we agree with his
findings that the Respondents discriminatorily selected Woodrow Ray
and S. L. Petty for discharge, in violation of Section 8 (a) (3), and
in the case of Petty, also in violation of Section 8 (a) (4). The
evidence also shows that a few days after his discharge the Respondents
evicted Petty from the company-owned house that he occupied. In
the absence of any other explanation for this eviction apart from the
termination of Petty's employment, we find that the eviction stemmed
from the same discriminatory causes as his discharge, and that such
discrimination in regard to a term and condition of Petty's employ-
ment constituted an additional violation by the Respondents of Sec-
tions 8 (a) (3) and 8 (a) (4) of the Act.19
2. We also agree with the Trial Examiner's finding that a reporter
acting for the Respondents was present at two union meetings after
the close of the first hearing. For'the reasons already stated with
respect to the Respondents' unlawful surveillance of the July 2 and
July 9 meetings, we find no merit in the Respondents' contention that
such use of a reporter was not an unfair labor practice because these
later meetings were also open meetings. In any event, we find that
even if the Respondents were privileged to attend these meetings
because of their open nature, such privilege did not extend to having
a reporter take notes on the proceedings. The recording of the pro-
ceedings by representatives of management clearly would tend to act
as a restraint on the freedom of expression and action by the employees
at the meetings that Section 7 of the Act was designed to protect.
Accordingly, we find that the Respondents' use of a reporter at these
meetings was a violation of Section 8 (a) (1) of the Act.
17 So far as appears, no such pretext had presented itself on July 2.
v Inasmuch as no exceptions have been filed to the Trial Examiner 's findings that the
Respondents have not engaged in certain unfair labor practices alleged in the supplemental
complaint and his recommended dismissal of those allegations , we shall adopt such findings
and dismiss those allegations of the complaint.
19 Abbott Worsted Mills, Inc., 36 NLRB 545, enforced 127 F. 2d 438 ( C. A. 1) ; Indian-
apolis Wire-Bound Box Company, d/b/a Cleveland Veneer Company, supra.
2026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Remedy
It has been found that the Respondents engaged in unfair labor
practices by their refusal to permit the holding of outdoor union meet-
ings on their property, and by the various methods used by them to
prevent such meetings. We shall, therefore, in order to effectuate the
policies of the Act, order the Respondents to cease and desist from
engaging in such conduct, or in any other manner attempting to inter-
fere with or prevent such meetings. We shall, however, as urged by
the Respondents, modify this order to the extent necessary to permit
the Respondents to make and enforce reasonable rules to protect their
property against damage or destruction or other unreasonable use,
provided that neither the purpose nor the effect of such rules is to
interfere with the exercise of rights guaranteed under the Act .20
In addition, a direct consequence of the Respondents' unfair labor
practices was the issuance at the Respondents' request of a still out-
standing injunction which, in effect, prohibits any union meeting on
the Respondents' property except with the Respondents' consent. In
view of the serious consequences that flow from violation of a court
order," this injunction continues to represent a correspondingly seri-
ous impediment to the free exercise of rights guaranteed under the
Act, as herein found. We shall, therefore, in order to cure the effects
of the Respondents' unfair labor practices in this connection, and in
order to effectuate the policies of the Act, order the Respondents to
request the court to vacate the injunction, or to appropriately modify
the injunction in conformance with our Decision and Order herein.
As recommended by the Trial Examiner,. we shall also order the
Respondents to offer Woodrow Ray and S. L. Petty reinstatement
with back pay from the date of their discharges. Since the issuance
of the Trial Examiner's Intermediate Report, however, the Board
has adopted a method of computing back pay different from that
prescribed by the Trial Examiner.22 Consistent with that new policy,
we shall order that the loss of pay be computed on the basis of each
separate calendar quarter or portion thereof during the period from
the Respondents' discriminatory action to the date of a proper offer
of reinstatement. The quarterly periods, hereinafter called "quar-
ters," shall begin with the first day of January, April, July, and Octo-
ber. Loss of pay shall be determined by deducting from a sum equal
20 Cf. N. L. R. B. v. Lake Superior Lumber Corp ., supra, where it was held that reasonable
visitation rules for union organizers might be established to maintain production or
discipline in a lumber camp.
21 As the Supreme Court said in the Stowe Spinning case, supra, ". . . violation of .. .
[a court] order brings the swift retribution of contempt , without the normal safeguards of
a full -dress proceeding."
=F. W. Woolworth Company, 90 NLRB 289.
W. T. CARTER AND BROTHER 2027
to that which these employees would normally have earned for each
,quarter or portion thereof, their net earnings,23 if any, in. other employ-
ment during that period. Earnings in one particular quarter shall
have no effect upon the back-pay liability for any other quarter.
We shall also order the Respondents to make available to the Board,
upon request, payroll and other records to facilitate the checking of
the amount of back pay due.24
Since we have also found that the Respondents discriminatorily
evicted S. L. Petty from a company-owned house, we shall order the
Respondents to offer Petty immediate occupancy of his former or
equivalent living quarters in a company-owned house on the same
terms accorded other employees, and make Petty whole for any loss
he may have suffered by reason of his discriminatory eviction by pay-
ment to him of a sum of money equal to that which he has had to pay
as rental for other living quarters from the date of the eviction to the
date he is offered reinstatement and occupancy in the manner set forth
above, plus such additional expenses as he may have incurred during
said period as a direct result of his eviction, but less the amount he
would normally have paid as rent for his company-owned house
during said period 25
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, the persons set
forth in the caption of this case who comprise the partnership of W. T.
Carter and Brother, Camden, Texas, their agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to permit the holding of outdoor union meetings in
open areas on their property in Camden, Texas, resorting to peace
officers to prevent such meetings, resorting to court proceedings to
prevent such meetings, following union organizers to prevent such
meetings, or in any other manner attempting to interfere with or
prevent the holding of such meetings by their employees, International
Woodworkers of America, CIO, or any other labor organization, ex-
-" By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , Incurred by an employee In connection with obtaining work and working else-
where, which would not have been incurred but for this unlawful discrimination , and the
consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal,
or other work-relief projects shall be considered earnings . Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
24 F. W. Woolworth Company, supra.
'° Abbott Worsted Hills, Inc., supra ; Indianapolis Wire-Bound Box Company, d/b/a
Cleveland Veneer Company, supra.
2028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cept that they may make and enforce such reasonable rules with respect
to the holding of such meetings as are necessary to protect their prop-
erty against damage or destruction or other unreasonable use, provided
that neither the purpose nor the effect of such rules is to interfere
with rights guaranteed under the Act;
(b) Engaging in surveillance of union meetings or other union
activities;
(c) Making use of the services of a reporter to record the proceed-
ings at union meetings;
(d) Discouraging membership in the above-named, or any other,
labor organization of their employees, by discharging or evicting any
of their employees from company-owned houses, or by discriminating
in any other manner in regard to their hire or tenure of employment
or any term or condition of their employment;
(e) Discharging or otherwise discriminating against any employee
because he has filed charges or given testimony under the Act; and
(f) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist in the above-named, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the
purpose of mutual aid or protection, or 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 a con-
dition of employment as authorized in Section, 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Request the court which issued the outstanding injunction that
has the effect of prohibiting union meetings on their property in
Camden, Texas, except with their consent, to vacate such injunction
or to appropriately modify such injunction in conformance with our
Decision and Order herein;
(b) Offer to Woodrow Ray and S. L. Petty immediate and full
reinstatement to their former or equivalent positions, without preju-
dice to their seniority or other rights and privileges;
(c) Make whole Woodrow Ray and S. L. Petty in the manner set
forth in the section entitled "The Remedy," for any loss of pay they
may have suffered by reason of the Respondents' discrimination
against them;
(d) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payments
records, time cards, personnel records and reports, and all other records
W. T. GARTER AND BROTHER 2029
necessary to analyze the amounts of back pay due and the right of
reinstatement under the terms of this Order;
(e) Offer to S. L. Petty immediate occupancy of his former or
equivalent living quarters in a company-owned house on the same
terms accorded other employees, and make him whole for any loss he
may have suffered by reason of his discriminatory eviction in the
manner set forth in the section entitled "The Remedy";
(f) Post immediately at their facilities in Camden, Texas, copies
of the notice attached hereto and marked Appendix A.26 Copies of
said notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by a representative of the Re-
spondents, be posted by the Respondents immediately upon receipt
thereof and maintained by them for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondents to insure that said notices are not altered, defaced,
or covered by any other material; and
(g) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondents engaged in other
unfair labor practices.
MEMBERS REYNOLDS and MURDOCK took no part in the consideration
of the above Decision and Order.
CHAIRMAN HERZOG, dissenting in part only :
I join unhesitatingly in all portions of my colleagues' decision, ex-
cept one. I would not find that by seeking relief through the duly
constituted courts of the State of Texas, the Respondent violated Sec-
tion 8 (a) (1) of the Act. It may well be that, in granting such re-
lief, a court would be acting inconsistently with governing Federal
law,27 and, indeed, that the Respondent's motive in seeking it here
was to interfere with its employees' rights. Nevertheless, it seems
to me that this Board should accommodate its enforcement of the
statute to the traditional right of all to bring their contentions to the
attention of a judicial forum, rather than hold it to be an unfair labor
practice for them to attempt to do so.
m In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice , before the words, "A Decision and Order ," the words,
"A Decree of the United States Court of Appeals Enforcing."
27 Of course , the Board is not powerless to assert paramount Federal authority directly
when such action is taken by a State court.
2030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National- Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to permit the holding of outdoor union
meetings in open areas on our property in Camden, Texas, resort
to peace officers to prevent such meetings, resort to court proceed-
ings to prevent such meetings, follow union organizers to prevent
such meetings, or in any other manner attempt to interfere with
or prevent the holding of such meetings by our employees, INTER-
NATIONAL WOODWORKERS OF AMERICA, CIO, or any other labor
organization, except as we may make and enforce such reasonable-
rules with respect to the holding of such meetings as are necessary
to protect our property against damage or destruction or other
unreasonable use, provided that neither the purpose nor the
effect of such rules is to interfere with rights guaranteed under
the Act.
WE WILL NOT engage in surveillance of union meetings or other
union activities.
WE WILL Nor make use of the services of a reporter to record
proceedings at union meetings.
WE WILL NOT discharge any employee, evict any employee from
a company-owned house, or otherwise discriminate against any
employee in regard to his hire or tenure of employment or any
term or condition of employment because of membership in or
activity on behalf of the above-named, or any other, labor
organization.
WE WILL NOT discharge or otherwise discriminate against any
employee because.he has filed charges or given testimony under
the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to joint or assist the above-
named union or any other labor organization, to bargain col-
lectively through representatives- of their own choosing, and to
engage in concerted activities for the,purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
W. T. CARTER AND BROTHER 2031
WE WILL request the court which issued the outstanding injunc.
tion that has the effect of prohibiting union meetings pn our
property in Camden, Texas, except with our consent, to vacate
such injunction, or to appropriately modify such injunction in
conformance with the Decision and Order of the National Labor
Relations Board.
WE wnL offer Woodrow Ray and S. L. Petty immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and privi-
leges previously enjoyed, and make those employees whole for
any loss of pay suffered as a result of the discrimination against
them.
WE wuL offer to S. L. Petty immediate occupancy of his former
or equivalent living quarters in a company-owned house on the
same terms accorded other employees, and make him whole for
any loss suffered as a result of his discriminatory eviction.
All our employees are free to become or remain members of the
above-mentioned union or any other labor organization.
W. T. CARTER & BROTHER,
Employer.
By ----------------------------
(Representative ) ( Title)
Dated ---------------------
This notice must remain posted for 60 days from the date hereof'
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Joseph A. Butler, for the General Counsel.
Messrs. Tom M. Davis and Hugh M. Patterson, of Baker, Botts, Andrews and
Parish, Esqs., of Houston, Tex., and Mr. Z. L. Foreman, of Livingston, Tex., for
the Respondents.
Messrs. Paul C. White, of Marshal, Tex., and W E. Keeter, of Dallas, Tex., for
the Union.
STATEMENT OF THE CASE
Upon a charge filed by International Woodworkers of America, CIO, here-
inafter referred to as the Union, the General Counsel of the National Labor
Relations Board,' by the Regional Director for the Sixteenth, Region (Fort
Worth, Texas), issued a' complaint dated July 22, 1948, against the individuals.
whose names are set forth in the heading herein comprising the partnership of
W. T. Carter and Brother, hereinafter referred to as the Respondents, of Camden,.
Polk County, Texas, alleging that the Respondents had engaged in and were
engaging in unfair'labor practices affecting commerce within the meaning of-
'The General Counsel and the attorney representing him at the hearing are referred to.
as the General Counsel, the National Labor Relations Board is referred to as the Board.
2032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a) (1) and Section 2 (6) and (7) of the National Labor Relations
Act as amended, 61 Stat. 136, herein called the Act. The complaint alleges in
substance that the Respondents own approximately 2,200 acres of land in Polk
County, Texas, on which land they own and operate production facilities,
residences for their employees, and community facilities, all of which constitute
the unincorporated town of Camden, Polk County, Texas ; that the Union from
on or about June 25, 1948, attempted to organize the Respondents' employees
and that the Respondents by their officers, agents, and employees from on or
about June 29, 1948, committed the following acts by which they interfered, re-
strained, and coerced their employees in the exercise of the rights guaranteed
by the Act: (1) Kept meeting places and concerted activities of their employees
under surveillance; (2) caused armed employees to be present at such meeting
places and meetings; (3) broke up and scattered meetings of their employees
held for the purpose of self-organization and improvement of working conditions ;
(4) denied to their employees the right of peaceful assembly on their own time
and the right of free speech for the purpose of engaging in union and other
concerted activities ; (5) caused a company employee who also is a deputy
sheriff to falsely arrest union organizers in violation of Federal and State laws ;
(6) unlawfully and maliciously incarcerated and imprisoned union organizers in
violation of Federal and State laws; (7) unlawfully stopped and questioned
union organizers on public highways for the purpose of preventing such organ-
izers from addressing Respondents' employees; (8) threatened union organizers
with physical force and violence if they should not desist from attempting to
address, meetings of Respondents' employees called for the purpose of self-organ-
ization under the Act; (9) used undue display of armed force in making arrests
of union organizers for the purpose of intimidating and terrorizing union organ-
izers and the Respondents' employees; (10) in violation of the Act and the
Constitution of the United. States and amendments thereof, obtained a temporary
restraining order from a local court enjoining union organizers from going upon
the property of the Respondents it being the unlawful and malicious intent of
the Respondents to prevent the union organizers from assisting Respondents'
employees in the exercise of their rights under the Act; (11) the Respondents by
virtue of said restraining order have caused the arrest of union organizers under
body attachments and subjected them to unlawful incarceration and imprison-
ment and have attempted to make such restraining order permanent in violation
of the rights guaranteed by the Act and the Constitution of the United States
and amendments thereof and have caused said organizers and all others 'to
desist from the exercise and enjoyment of'said rights under threat of repeated
arrest and imprisonment unless they so desist?
9 The complaint also contained the allegations that the Respondents interrogated their
employees concerning their union affiliations and urged , persuaded , threatened , and warned
their employees to refrain from assisting , becoming members of, or remaining members of
the Union . These allegations were dismissed at the conclusion of the taking of testimony
at the request of the General Counsel.
During the hearing the undersigned , over objection , permitted the General Counsel to
amend the complaint , to add an allegation , in substance, that the Respondents with full
knowledge of the activities which resulted in the breaking up of meetings of their employees,
the denial to their employees of the right of assembly, and the arrest and incarceration. of
union organizers , approved , condoned , and ratified such unlawful acts and adopted them
as their own and failed to disavow or repudiate them or publicly disclaim responsibility
for them.
W. T. CARTER AND BROTHER 2033
Prior to the hearing the Respondents filed an answer and an amended answer,
the latter instrument being dated August 26, 1948. In their amended answer the
Respondents admit certain jurisdictional allegations and some statements of
fact contained in the complaint. With respect to unfair labor practices, the
Respondents deny the allegations in the complaint but admit that some of their
employees and certain deputy sheriffs of Polk County, Texas, were in the vicinity
of some union meetings. The Respondents further admit that they' did obtain at
the District Court of Polk County, Texas, a temporary restraining order and
later a temporary injunction enjoining certain named union organizers from
unlawfully, and illegally trespassing upon the property of the Respondents and
further allege that after certain union representatives were served with a tem,
porary restraining order, they willfully violated the court order and Respondents
brought the fact of such violation to the attention of the District Judge of Polk
County who thereafter ordered the arrest of the union representatives. The
Respondents by way of further answer allege that they are the owners of certain
tracts of land, facilities, and other property in Polk County, Texas, and that
representatives of the Union, without being invited by the Respondents and
without their consent, deliberately and unlawfully trespassed upon their private
property, that union representatives refused to discontinue said trespass and
the Respondents thereafter requested the duly constituted peace officers of Polk
County, Texas, to enforce the law and prevent such trespasses, that the union
organizers despite warnings by the peace officers refused to discontinue said
trespasses whereupon the Respondents applied for a temporary restraining order
to enjoin such trespasses. Thereafter a temporary injunction was issued from
which the defendants failed to appeal. Said injunction merely prevented the
Union and its representatives from holding meetings upon private property
owned by the Respondents and that the Respondents acted within their lawful
rights and that said Respondents were not guilty of an unfair labor practice
in seeking to obtain relief against willful and unlawful trespass. The answer
further alleges that the Respondents have not made any effort to interfere with
any effort by union representatives to visit employees at their homes or hold
meetings at their homes. With respect to the amendment to complaint the
Respondents orally pleaded a denial. Pursuant to notice, a hearing was held at
Livingston, Texas, from September 1 to September 9, 1948, before the under-
signed, Sidney L. Feiler, the Trial Examiner designated by the Chief Trial Ex-
aminer. The General Counsel and the Respondents were represented by counsel ;
the Union, by representatives. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. After the introduction of all the testimony the General
Counsel moved to conform the pleadings to the proof as to formal matters. This
motion, which was objected to, was granted as to all pleadings. Oral argument
.was then submitted on behalf of the General Counsel and the Respondents and
,they later submitted briefs.
Subsequent to the hearing, the General Counsel moved that the proceedings
be reopened and permission be granted him to serve a supplemental complaint and
that a hearing be held on the allegations therein. The motion was granted.
The supplemental proceedings will be dealt with in another section of this
Report.
Upon the entire record and from his observation of the witnesses the under-
signed makes the following :
903847-51-vol. 90-129
2034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
.The Respondents are copartners having their principal office and place of
business at Camden, Polk County, Texas, where under the trade name and
style of W. T. Carter and Brother they are now and at all times material herein,.
have been engaged in the processing, sale and distribution of lumber, mill sup-
plies, and related products. During the year 1947, the Respondents purchased
mill supplies valued in excess of $250,000, of which sum approximately 10 per-
cent was shipped to the Respondents directly from points outside the State of
Texas, and in that same year total sales were in excess of $1,000,000, of which
sum approximately 30 percent was shipped from the Respondents plant at
Camden to points outside the State of Texas. The Respondents stipulated that
at all times here relevant, they were and are engaged in commerce within the
meaning of the Act and the undersigned so finds.
II. THE ORGANIZATION INVOLVED
International Woodworkers. of America, affiliated with the Congress of Indus-
trial Organizations, is a labor organization admitting to membership employees
of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Prior to September 1948
1. The physical setting in which the unfair labor practices occurred : Descrip-
tion of Camden and the Respondents' property ownership therein and in
adjacent territory
The Respondents own approximately 2,200 acres of land in Polk County, Texas,
on part of which is located the unincorporated town of Camden, Texas! The
area considered part of the town is approximately a mile and one-half square.
Within this area the Respondents own production facilities, several hundred
residences for employees, a hospital, a church, a recreation hall, an office build-
ing, warehouses, and a commissary. They also own premises leased to the
United States Government for post office purposes. There are two schools in
the town, one for Negroes and one for whites, both of which are run by trustees
of the school board. Six of the seven trustees are employees of the Respondents.
There are some private holdings adjoining Camden. On the south from 2
to 5 acres of land are privately owned, and that land is approximately a quarter
of a mile from some Camden homes. On the west, approximately 11/_, miles from
the commissary and approximately a half mile from some of the homes there
are 640 acres of land privately owned. On the east there are some private
holdings approximately a couple of miles away from Camden. The Respondents
also own all property for approximately 2 miles north of Camden. Except for
the above itemized ownership, the Company owns all the property in and adjacent
to the town of Camden.
The main highway into Camden is the State Farm to Market Highway'No. 62.
This road is a hard top road partly through Camden and then continues as a dirt
a The description of the Respondents holdings in Camden and the surrounding - areas Is
based primarily upon the testimony of A. L. Carter, managing partner, and J. G. Collins,
company surveyor.
W. T. CARTER AND BROTHER 2035
road to Highway No, 106. A county road branches off the State highway, passes
by the commissary and continues on through the town of Barnes. There is another
county road leading to the town of Corrigan. There are other roads in Camden
leading to the residences, production facilities, and community facilities owned
by the Respondents. The testimony indicates that these roads have been used by
the public for travel and that the Respondents have not prohibited the public
from using these roads. In particular there is a road leading from the commis-
sary to the post office which has been freely used by the public and has not been
closed to public use.
There are approximately 1,000 persons living in Camden. Respondents employ
approximately 550 employees, but not all live in Camden. A great majorityi
approximately 65 to 70 percent, do live there and pay rent on the houses they
occupy. There are only a few people residing in Camden who are not employed
by the Company. These include 2 ministers, several widows, and some persons
who are not now working. The nearest town to Camden is 6 miles away and the
land between is uncultivated except for 2 farms. Some.of the company houses
have large yards.
The commissary is the commercial heart of Camden. It is the place where the
residents trade and is approximately one-quarter of a mile from the geographical
center of the town. Within a 500-foot radius from it there is located a filling
station, post office, a company office, a railroad depot, and a warehouse. It is the
custom of employees to congregate at the commissary between 6 and 6: 30 p. mn.
The commissary closes at 6: 30 p. m. and generally not many remain in the
vicinity thereafter. There is another store owned by the Respondents on the
south edge of Camden in the Negro quarters with approximately 12 houses
located near it.
In Camden there is no place for a large meeting to be held except on company
property. In the past, political meetings have been held in the town after candi-
dates have requested and received permission from the Respondents to speak.
Trackage and a railroad depot are maintained in Camden by the Moscow,
Camden and San Augustine Railway, a corporate entity owned by the Respond-
ents except for three shares in the hands of other individuals who hold them as
qualifying shares for their positions as directors. There is a dispute as to whether
the railway has a right of way or fee simple title of the land on which its track-
age and other property is located. Part of its trackage runs through the town
and through a street between the commissary and a feed warehouse owned by
the Respondents. This particular section of its trackage was the scene of a
meeting which will be dealt with in detail hereafter.
There are no street lights in Camden but there are lights inside.the commissary,
the filling station, and dwellings. In addition the filling station has some outside
lights which do not light the whole commissary area but do furnish some
illumination to the area between the commissary and the warehouse. Approxi-
mately 11/4 miles from the commissary there is a privately owned store on
private property known as Hall's store. Approximately 100 yards. from it is a
cafe used by Negroes.
2. The course of the Union's organizational drive
a. Preliminaries to the meeting of June 29, 1948
On June 25, 1948, Paul C. White, a representative of the Union, went to Camden
with S. L. Harlan and had handbills distributed to the homes of employees
announcing a union meeting to be held in front of the commissary on the evening
2036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of June 29: The circular stated in part "Open meeting at Camden, Tuesday
night, June 29, in front of the commissary, everybody invited."
Carter learned of the proposed union meeting that same day and communi-
cated with L. D. Kimball, sheriff of Polk County, Texas. He met with Kimball
the next day. Carter testified that he "asked Mr. Kimball if he would try to
see to it that the organizers did not use company property for a meeting." In
amplification of his attitude Carter further testified "I don't say that I am par-
ticularly opposed to the C. I. 0. 1 am opposed to anybody deliberately coming
in and having meetings or talks on company property without saying a word
to the management about it. I certainly don't want to set a precedent that
just anybody can come in any time they want to and use company property for
whatever purposes they want." Carter denied that he had made any requests
to Kimball concerning the use by organizers of public roads but declared that
he had told Kimball that what he did about the public roads was his 'business.
Kimball told Carter that he would assist him "all that he could."
b. The meeting of June 29, 1948
In the late afternoon of June 29, 1948, Kimball drove to Camden with his
two full-time deputies, G. S. Smallwood and Coleman Weeks, and had a further
conference with Carter. Carter told Kimball that the union meeting was sched-
uled for around 7: 30 or 8 o'clock, that White was the union organizer involved,
and Carter described the car that he would be driving. Kimball told Carter
that he thought it would probably be best and would save time and trouble if
he stopped White on the public highway outside Camden and talked to him
about trespassing on Carter's premises. Kimball drove out of town and waited
for White. White drove to Camden accompanied by Harlan and reached there
before 7 p. in. On the way they passed Kimball and his deputies but were not
stopped, since White was driving a car different from that which had been
described to Kimball. White parked near the commissary and he and Harlan
began handing out union cards among the several hundred people assembled
there. White then started to speak from his car but was asked to stand on the
commissary steps. He did so and continued his talk.
Claude Whitecotton, a Carter employee and honsalaried deputy sheriff, drove
out to Kimball and informed him that a meeting was going on in Camden. White-
cotton testified that he did this because earlier that evening Kimball told him
that he was going out on the road to meet the union organizers and that if he
missed them and they got to Camden, he wanted Whitecotton to let him know
of their arrival. Whitecotton took an important part at a later meeting, and
his status and activities will be considered later in this Report.
Kimball, accompanied by Smallwood and Weeks, returned to Camden as soon
as Whitecotton informed them that the organizers were already in Camden. He
drove to the commissary and stopped at the point where White was speaking.
There is a dispute in the testimony as to just what was said and done at that
point but the preponderance of the evidence shows that Smallwood got out of
Kimball's car took White into custody and forcibly put him in the car.
White testified that Kimball said to him "All right, let's go" and that when he
asked where, Kimball replied, "Go to jail," and that Kimball thereupon put him in
his car. White further testified that-he was sure that Kimball did the talking,
but was not sure as to whether Kimball was the person who got out of the car
and forcibly took him into custody. He testified that he was angry at the time
and was not sure as to all the details. He said that he did recall that someone
W. T. CARTER AND BROTHER 2037.,
did get out of the car and grab him and that there was no conversation between
him and that person on the commissary steps at the time he was taken into
custody.
Two other witnesses produced by the General Counsel, Arleigh Shackelford and
David T. Clamon, were in disagreement concerning the details of the occurrence
on the commissary porch. Shackelford testified that he saw Smallwood take
White into custody and that he did not hear Kimball say anything until after
the arrest had been made. He further testified that he was close to Kimball at
the time. Clamon testified that when Kimball drove up to the commissary porch
he called out, "that's enough" and told one of his deputies to "get him." He
testified that Weeks made the arrest.
Kimball denied that he said anything to White as he drove up to the com
naissary. He testified that he told Smallwood to tell White that Carter did not
want him trespassing and that he would have to move off. He did not hear any
conversation between Smallwood and White, but only saw Smallwood bring White
down from the porch and put him in the car. He denied that he ordered Small-
wood to arrest White, but stated that he only told Smallwood to move White.
He testified that Smallwood made the actual arrest. He further testified that
besides Harlan no one in' the crowd of bystanders .was questioned or taken into
custody, and that White was arrested because White "was making the talk up
there."
Weeks, who was in the car with Kimball and Smallwood, testified that he did
not hear Kimball say anything to Smallwood or to White, and that Smallwood
got out of the c'ar, said something to White, then took,him by the arm and put
him in the front seat of the car.
Smallwood testified that on Kimball's instructions he got out of the car and
told White that he was trespassing and asked him to get off. When White replied
that Smallwood would have to take him off, the latter did so and put him in the
car. He corroborated Kimball's testimony that Kimball had not said anything
to White up to that time. Smallwood testified that he had not arrested White
but in effect turned him over to the sheriff to let the sheriff decide what to do. He
testified that White and later Harlan were arrested for trespassing, but admitted
that no one else in the vicinity was questioned or arrested, nor was any check
made as to whether anyone else in the crowd was trespassing.
The undersigned concludes that the weight of the credible evidence indicates
that Smallwood took White into custody and put him in Kimball's car, and that,
except for Harlan, no one else in the crowd was interfered with in any manner.
Harlan also was taken into custody and placed in Kimball's car.' He denied
that he was or had been on the commissary steps and on this point he was corrob-
orated by White, and other witnesses produced by the General Counsel who
testified that White stood on the commissary steps alone:
Kimball testified that at the time he drove up to the commissary porch he saw
Harlan standing on the porch steps handing out handbills and that Harlan
walked back to the car after White's arrest, then Smallwood walked over to
him and brought him back to Kimball's car. Weeks also testified that Small-
wood took Harlan into custody. Smallwood's testimony was that he had asked
White if there was anyone with him and that White had said that it was up to
* Harlan testified that he remained beside White 's car on the evening of June 29, from
the time it was parked until he was arrested , that while there he handed out union cards,
that he did not see White's arrest , but did see him being taken down the steps and being put
into a car . At that point , Harlan testified , he began to put the cards away but Weeks came
up and said , "Let's go." Harlan went with him and was put in Kimball's car.
2038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smallwood to find out. Previously, Smallwood testified, he had seen a man on
the porch handing out literature. He asked that man if he was with White and
when he said he was, Smallwood then told him that Kimball wanted to talk to
him. Harlan then went over and got in the car. Smallwood also testified
that at Kimball's request he looked to see if there was anyone else with White.
Weeks testified that the first time he saw Harlan was when Smallwood came
back to the car with him and that he did not see him distributing handbills.
If Harlan had actually been distributing handbills on the porch when Kimball
drove up, his presence would have been apparent to all the occupants in the
car and there would have been no need for Smallwood's inquiring of White if
there was anyone else with him. In view of the conflict between Weeks'.testi-
mony on one hand and that of Kimball and Smallwood on the other, and from
his evaluation of the testimony of the witnesses, the undersigned concludes that
'Smallwood was the deputy who took Harlan into custody but that Harlan
was not engaged in distributing handbills at the time or immediately prior to
his arrest but was at White's car distributing union membership cards. Kim-
ball testified that Harlan was arrested because he was handing out bills and
also because Kimball thought he was working with the C. I. O.
After White and Harlan had been placed in Kimball's car, the latter pro-
ceeded to drive off. On his way he passed a building adjoining the commissary
which houses the Respondents' offices. Carter was on the porch of that building
and Kimball stopped and motioned, Carter to come over. Carter did so and
there was a conversation at the car. There is sharp disagreement among the
witnesses as to just what was said at that time.
According to White, Kimball asked Carter what he wanted done. Carter
said something to the effect that he did not mind the organizers holding a
meeting if they would ask him about it or not meet on his property, and that he
then said in substance that they should be taken to jail.
Kimball testified that he said to Carter "Mr. Carter, if these fellows agree
to stay off of here, do you want them filed on?"' and that Carter replied, "I
want them to stay off." White declared, according to Kimball, that he would
not stay off and Kimball then drove off.
Weeks corroborated Kimball as to his conversation with Carter but testified
that there, was no further conversation at that time and did not mention any
remark made by White.
Carter testified that when he came over to the car, White started to discuss
the law with Kimball and Kimball then said to Carter that he had taken the men
off the porch. Carter thanked him and told him that he didn't care about making
an arrest as long as they would agree not to come back on the store porch or on
company property where they had no right, that as far as he was concerned they
could be turned loose. He testified that he could not recall Kimball's reply.
Smallwood and Harlan, who were present at the time, could not shed any light
on the conversation.
The testimony of all the witnesses is in conflict as to what was-said at this
point. White was not sure of what was said and the undersigned concludes that
the testimony does not establish that there was an affirmative request by Carter
that White and Harlan be jailed. Carter's own testimony, however, ' that he
stated that if the men would agree to stay off company property, they could be
released. as far as he was concerned is susceptible of an interpretation that
Carter .was suggesting that they not be released if they did not make any such
W. T. CARTER AND BROTHER 2039
promise. In any event, Kimball then proceeded to take White and Harlan to the
neighboring town of Corrigan where a justice of the peace was summoned, who
attempted to draw up a complaint at Kimball's request. However, before,
the complaint was prepared Kimball requested that the. matter be dropped and
White and Harlan were then released.
There is again sharp conflict as to what took place at Corrigan and why the
men were released.
White testified that he told the justice of the peace and Kimball that his
rights under Federal law were being violated and that after much argument on
this point, he was released. He further testified that another reason for his
release was that a law could not be found under which he could be charged.
He denied that he made any agreement with Kimball to the effect that he would
not return to Camden until he obtained a Federal injunction, but he did admit
that he said he would try to get such an injunction. He further testified that he
was uncertain as to his right to speak from the commissary steps, and that there
was an understanding that he would not make any more speeches from the com-
missary steps until he obtained an injunction, but he denied that that was the
reason for his release.
Kimball's version was that while the justice of the peace, Vincent, was prepar-
ing the complaint against White on a charge of trespassing, White read from a
book to Vincent and that White told him that he was probably wrong in holding
the meeting at Camden, and said that if he went out there again he would have
a "legal place" to hold the meeting. Kimball thereupon asked the justice of the
peace to dismiss the case. He denied that there was any discussion about Federal
law and an injunction or any statement on his' part that if White dropped any
Federal proceedings, against him he would let him go. He further testified that
he released Harlan when White said that Harlan had nothing to do with "it"
and that he was merely riding with White.
Weeks corroborated Kimball's testimony and testified that he heard Kimball
state in the presence of White, to the justice of the peace, that White had agreed
not to go back to Camden and trespass or cause any trouble until he had a
proper place to meet and that the sheriff thereupon asked the justice of the peace
not to file charges.
J. A. Vincent testified that in his capacity of justice of the peace at Corrigan,
Kimball came to him and said that he wanted to make a complaint against a
man for trespassing. Vincent testified that White, who was present, started to
read some law to him but that the former stopped him and started to write out
a complaint. Kimball and White went outside and returned after a while and
Kimball stated that White had agreed not to go back to Camden any more and
that the matter should be dropped. This statement was made in White's pres-
ence, according to Vincent, and the matter was dropped and White was released.
It is clear from White's own testimony that he was uncertain as to his right
to speak from the commissary porch and there was an understanding that he
-would not make his speech from that porch unless he obtained some sort of
legal sanction. Fundamentally there seems to have been a misunderstanding
between'the sheriff and White as to just, what White would do before going to
Camden again. White testified that he merely agreed to stay away from the
commissary porch as far as speech making was concerned. Kimball, from his
testimony, supposed that White would obtain some sort of federal protection
for any type of speech making on the Respondents' premises. In any event, both
White and Harlan were released.
2040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Other events on June 29
The circular distributed by the Union had announced the meeting at Camden
for Tuesday night, June 29, but had not fixed any hour. At about 7 p. in. two
employees, S. L. Petty and Woody Rosser, walked past.Carter who was on the
porch of the. Respondents' office building. Carter, according to Petty's credited
testimony, asked where they were going and they replied that they were going
to the union meeting. Carter, according to Petty, "told us that he didn't think
there would be any meeting, they had taken care of that, and we could go home."
Petty then continued on to his daughter's home, where he had originally in-
tended to go, because he thought he could hear the meeting from her porch.
Carter testified that he did tell Rosser that he did not think there was going to
be any meeting that evening. ` He placed the time of this conversation at 7: 30
p. in. and testified that in view of his earlier conversation with Kimball he
thought that Kimball had spoken to the organizers and had persuaded them not
to hold the meeting. He testified that since no one had shown up by that time,
he concluded that there would be no meeting.
Superintendent William Weems testified that he heard. Carter's conversation
with Rosser and that Carter stopped Rosser and asked him where he was going.
When Rosser replied that he was going to the meeting, Carter said that he did.
not think there would be a meeting. Rosser, according to Weems, said that he
thought he would go home. Weems believed that Petty was with Rosser at that
time.
Rosser, after he left Carter, met Monroe Freeman, a.night watchman. They;
in turn, met a group of colored employees on their way to the meeting. Accord-
ing to Earl Smith, one of the group, there were about six in the group, and they
were stopped by Rosser and Freeman who told them that Carter said that he
did not want his men down there, that he could tend to his own business. Some
of the group then turned away but Smith and another employee continued on
to the meeting place. Smith could not specify who was doing the talking and
claimed that both Rosser and Freeman did the talking.
• Rosser denied ordering the men away from the meeting. He testified that one
of the men asked him how the meeting was going on and that he replied that he
was going back home, that he was tired and he advised all of them to go back
home if they were tired. He denied quoting any instructions from Carter to
them. Freeman corroborated Rosser's testimony.
Freeman was admittedly a nonsupervisory employee. Rosser, who also ad-
mitted telling the men that there was not going to be a meeting, works as a
machine shop foreman or master mechanic. He is employed in the machine shop
supervising the work of six other full-time men and one part-time worker. The
undersigned concludes that he is a supervisory employee. The conversation
between Rosser and the colored employees had its beginning in the conversation
between Rosser and Carter which had taken place shortly before. Petty, who
was produced as a witness by the General. Counsel, had heard that conversation.
While there was a disagreement among the participants as to just what was said,
there was no mention of any orders given by Carter to Rosser to stop the meeting
or to stop anyone from attending the meeting.
Smith's testimony as- to his conversation with Rosser and Freeman is very
vague. He could not recall who made the statement that Carter did not want the
men to attend the meeting and merely testified that both Rosser and Freeman
were doing the talking. The undersigned concludes that there has been a failure
of proof that Rosser ordered the employees not to attend the meeting.
I
W. T. CARTER AND BROTHER 2041
Mrs. S. L. Petty testified that she passed the office porch between 6 : 30 and 7
p. in. and saw Carter on the porch with Weems , another supervisor, Schoeneman,
and one or two other men whom she could not name but stated that she knew them
as "higher officials ." As. she passed the porch she observed two Negroes come up
and one of the group on the porch asked where they were going, and when they
made no response , the unidentified person on the porch said, accordinging to Mrs.
Petty, that there was not going to be a meeting that night and that they might
as wellgo home. The Negroes then turned around and left. Mrs. Petty continued
on to her daughter 's home and sat on the . porch . She could see the office porch
and testified that she saw 10 or 15 men come up and as they did so, one of the
men on the porch would talk with them and then those individuals would turn
around and leave.
Mrs. Petty testified that she did not know the identity of the two Negroes
who were involved in the first incident or who spoke with them. She, of course,
did not hear the later conversations which she merely observed . As to the later
people who were intercepted , she testified that she knew some of them worked
for the Respondents and named one, Bracewell . She was certain that she saw
Schoeneman go out to speak to some individuals . Bracewell was not called to
testify and George Schoeneman did not testify as to this incident . Weems testified
that he heard Carter speak to several other people that night besides Rosser
but that he did not hear him say anything concerning their leaving on account of
the union meeting." . However, he could not recall what Carter said as far as
the union meeting was concerned.
Carter denied that he talked to any other nonsupervisory employees that
night . besides Rosser and Petty as to whether or not there was going to be a union
meeting.
Mrs. Petty could not identify the speaker who spoke to the two colored em-
ployees at the time of the first alleged incident . While she thought company
officials were on the company porch she also, at one point in her testimony,
stated that she thought Whitecotton , a nonsupervisory employee , might also have
been there . She also did not know whether the colored men were employees of
the Respondents . Under these circumstances , in view of the failure to identify
the speaker on the porch and the failure to identify the persons to whom he
allegedly made the remarks set forth , the undersigned finds that there has been
a failure of proof that the Respondents are chargeable with any violation of the
Act in this incident . As to the incidents later on which Mrs. Petty observed
persons being stopped and spoken to by different people who were on the porch,
there again Mrs. Petty was unable to identify those who were stopped except
vaguely and except in one instance where she named an employee , nor was she
certain as to which of the men on the porch stopped the individuals . On these
occasions she, of course , did not know what was said . Under these circum-
stances, the undersigned concludes that again there has been the failure to
establish any violation of the Act in these incidents.
d. The events of July 2, 1948
On June 29 , at the time of his arrest , White had announced to the assembled
crowd that he would be back at Camden the following Friday, July 2. On the
afternoon of July 2, White and W. E. Keefer, an international representative
of the Union , distributed handbills in Camden announcing a union meeting for
that night in front of the commissary . Carter met Kimball that afternoon in
the neighboring town of Livingston and asked Kimball "if he would again come
2042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Camden to prevent them [the organizers ] from having a.. meeting on: the
store or any other property around." Carter denied asking Kimball 'to take
any action as to any meeting to be held in a public street.
White and Keeter started 'for Camden in the early evening in' a car equipped
with loudspeaker ' equipment.. The car was stopped by Deputies Weeks 'and
iSmallwood on the public highway about a mile .from Camden . The deputies
had parked their car at a 90 degree angle 'on the road and halted White. and
Keeter as they drove up.
Both Weeks and Smallwood testified that Kimball told them that the organ,
'izers were coming back to Camden and that they should see what could be
done to stop them from trespassing They stopped the organizers on the road,
they testified , to try to reason with them . Evidently , although they had not
,received any specific orders from Kimball to that effect , as far as the testimony
.shows, they were following the procedure he had followed on June 29. Weeks
'testified that the organizers were cautioned not to violate the law and that he
told them that there would be no violation of the law if they drove up and down
the streets with their loudspeaker on but stayed off private property and did
not block the streets . Weeks further told them, according to his own testimony,.
that if they got off on private property they would be subject to arrest for
trespassing and if they stopped in the road they would be subject to arrest also.
He denied that he read any Texas statute to them.
Smallwood admitted that he could not recall the whole conversation but
recalled that there was a discussion as to whether there was some . place where
'there could be a meeting without committing a trespass and that there was dis-
cussion about the use of streets. Smallwood recalled that he did see Weeks
with a piece of paper but denies that he heard him discussing the law on barri-
cading a road, but he recalled that there was some talk about blocking of roads
and keeping driving.
White testified that the deputies said that as long as the organizers did not
stop on a highway , they would not be violating the law prohibiting the barricad-
ing of highways , and one of them read the State statute on it to him. Keeter
testified that Weeks said that there could not be union meetings in Camden
and that if they pulled off the highway "they would be arrested for trespassing
and that if they stopped on the highway . they would be arrested for blocking
traffic. Then Weeks showed a copy of an ordnance to them.
Although there are minor differences in the testimony of the witnesses as to
what was said in the conversation on the highway outside of Camden, there is
agreement that the deputies told the organizers that they would be arrested if
they attempted to hold any meeting on the Respondents ' property or stopped in
the streets in Camden.
White then proceeded to Camden driving his own ' car, Keeter following in the
deputies ' car. White parked his car near the commissary and proceeded to
adjust the loudspeaker equipment for broadcasting . The deputies drove up to
his car and gave him some assistance . Keeter testified that Weeks pointed out
Carter to him, who was standing on the commissary porch. Keeter testified that
he went over to Carter and that the following conversation occurred :
Q. What did you say to him, and what did he say, to you?
A. I walked up to Mr. Carter and stuck my hand - out and introduced my-
self and shook hands with him, and he said, "What do you want ?" I told him,
"We come here for the, purpose of having a union meeting tonight and we
don't expect any interference from you or anybody else ." He said, "Fellow,
all I got to say to you is that you are on my property and I don't want you on
W. T.. CARTER AND BROTHER 2043
my property," and, he pointed back to the highway and he -says-just a
minute, I want this clear, "I am not going to argue with you about this, but
I want you off my property," so he was walking. in a general direction to the
opposite end of the commissary porch, and I walked along with him, and we
were at about the center of the porch and I asked him if he knew the rights
and the laws of the United States Government, concerning free assembly
and the. rights of people to organize into unions. He said, "I don't know
the law and I don't want to know the law ; you just get the hell off my prop-
erty," and he pointed back in the general direction of the highway and he
said, "I am telling you to stay off my property." I said, "Mr. Carter, you
don't own everything, do you?" He said, "I own the schools, the churches,
and the highways, and the streets, and you keep off my,property." And, in
closing, I. said, "Well, Mr. Carter, you are a shade green, if you think you
own the people, too," and he said, "Anything else you have to say, I have a
court reporter in my office. Let's go in my office." So I called to Gus Small-
wood, and I said, "Mr. Smallwood, I would like to use you as a witness," so
then, he said-
Q. Who said?
A. Mr. Carter said, "Never mind," so, in closing, I said, "Mr. Carter, we
are going to organize your workers because they need it." He walked in the
opposite direction and I walked off, also.
Smallwood contradicted Keeter in that he testified that he went with Keeter
when the latter went to see Carter and was not called there later. His recollec-
tion as to what was said during that conversation was -very vague. He testified,
"About all that I remember hearing was that Mr. Keeter went up and introduced
himself to him and wanted to talk to him about having a meeting out there,
and Mr. Carter told him he didn't want any meeting of that,- on his property,
didn't want him trespassing, or whatever way you want to fix it, on his property."
Keeter had testified that after Carter had explained his ownership of the property
in Camden, he told Keeter that if Keeter had anything else to say it should be
done in Carter's office where a court reporter was present. It was at that point,
Keeter testified, that he called over Smallwood and asked him to be a witness,
then Carter ended the conversation and Keeter returned to the others and said
Carter would not talk.
Carter testified that Keeter came up accompanied by Smallwood and that
after introducing himself, he suggested that they go to the office, whereupon
Carter said that if the conversation would not be too long, they could talk
right there. Keeter then asked if Carter objected to have a meeting "there."
Continuing his testimony, Carter testified that he replied that he did object and
Keeter then asked if "that" was company property and Carter replied that it
was. According to Carter, there was no clear demarcation of what area was
referred to but Carter testified that he understood that Keeter meant the area
around the store. He denied that he elaborated on the ownership of the Respond-
ent's property in Camden as Keeter had testified. In further testimony Carter
stated that he was not certain as to who suggested going to the company office,
he or Keeter, but he believed that he suggested it. It was at that point, he
testified, that Keeter said that he would like to have a ,,Witness. Carter then
asked him what he wanted and when Keeter asked whether there was objection
to having the meeting there, Carter answered him promptly and left. --He
maintained that Smallwood was there all the time.
Weeks first testified that Smallwood pointed out Carter Ito -Keeter and the
latter walked over to Carter. Later he was uncertain as to whether or not
2044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smallwood went with Keeter at that time . He subsequently testified that
Smallwood was holding a flash light for White and that Keeter was talking to
Weeks shortly before the former left and went to see Carter.
Martin Taylor, Respondent's superintendent of the Hardwood Mill, testified
that he saw the sheriff , the deputy sheriffs, and the organizers working on the
sound equipment and heard Keeter ask Smallwood if he would go with him to
see Carter and that he observed both go over and talk to Carter.
Neither Carter nor Smallwod was very sure of just what had taken place
during the conversation with Keeter . Keeter testified in detail concerning the
conversation . His testimony that Smallwood came over after the conversation
,had started is corroborated by the testimony of Weeks and also by Carter's own
testimony that at one point Keeter said that he would get a witness if they were
going to the office. This would not seem necessary if Smallwood were at his
elbow. While Taylor flatly contradicted Keeter's testimony , the undersigned,
from his evaluation of Taylor 's entire testimony in the hearing , has found his
'testimony not to be reliable . Accordingly , the undersigned credits Keeter's
testimony as to what occurred.
In any event , Carter, Keeter, and Smallwood are in agreement that Carter
stated that he objected to the organizers holding a meeting and that he told
Keeter that the Company owned the property there. Smallwood , in fact, went
further in his testimony and corroborated Keeter's testimony by stating that
- Carter said that he did not want the organizers trespassing on his property.
After Keeter returned to the sound car he and White drove through the streets
of Camden broadcasting . Following instructions they had received from the
deputies , they did not stop on the streets nor did they attempt to hold any meet-
ing. There was no interference with the broadcasting.
.. There is disagreement as to whether or not the organizers were followed by
company officials as they drove through Camden that night . Early in the
hearing White testified that somebody followed them, but he did not know the
identity of that person . He later testified that he learned the identity of the
man who followed them and that that man was Taylor . He further testified
that Taylor was behind them throughout their broadcast , particularly in the
Negro quarters . He was not sure whether Taylor was behind them all the
time when they drove through the white section , but testified that he noticed
Taylor following them in the Negro section and that Taylor honked his horn
a great many times.
. Keeter corroborated White and testified that after they had been driving about
5 minutes , a company car driven by Taylor followed them. He further testified
that the car he observed following them was the car that he had seen Taylor
drive previous to that. He also testified that there was some honking of horns,
particularly in the Negro quarters but he did not know how many times that
was done.
. Taylor denied that he followed the sound car. He testified that he went
home after the incident at the commissary and that he could hear the broadcast
from his home. He testified that he left the commissary about 5 or 10 minutes
after the sound car had started off, that he drove directly to his home and did
not see the car at all . He denied following the car , particularly in the Negro
quarters. Taylor testified that he was in the vicinity of the commissary because
he knew a meeting had been advertised to be held at that place that night. In
view of his later activities as hereafter described and from his evaluation of the
witnesses , the undersigned credits the testimony of Keeter and White, and
finds that they were followed by Taylor.
W. T. CARTER AND BROTHER 2045'
e. The arrests on July 9, 1948
On July 2 the organizers had announced that they would be back in Camden
during the next week. White and Keeter returned on the evening of July 9
and arrived at Camden about 7:30 p. in. The. record does not indicate what
publicity was given as to the exact time and place of the meeting to be held that
night. In any event, Weems learned of the proposed meeting earlier that day
and telephoned Carter who was in another city. At Carter's direction he tele-
phoned Kimball and asked Kimball to keep the organizers off company property..
Kimball replied, according to Weems, that he did not think he or his regular
deputies could come out and suggested that Weems call Claude Whitecotton,
since he had the same authority as any deputy.
Whitecotton is a full-time employee of the Respondents. His principal task
is to patrol timber areas and to prevent unauthorized cutting of timber on
company property. At the Respondents' instance, he had been appointed a
nonsalaried deputy sheriff to aid him in his work. He had had such an appoint-
ment for 10 or 12 years. Prior to July 9 he had made arrests for cutting of timber
on company property, but had not made any arrests for trespassing as such. On
a few occasions he had assisted Kimball in police work but he had not done
this regularly nor did he receive orders from Kimball.
Kimball testified that Whitecotton received no pay from the County and made
no reports to him. Kimball disclaimed any responsibility for Whitecotton's acts
and testified that he did not authorize any arrests made by Whitecotton, nor
did he give him any instructions.
Weems testified that he summoned Whitecotton to the company office and
"I told him that the men were supposed to come back that night and that we
didn't want any meetings held on company property, that we were expecting
him, as a deputy sheriff, to keep them from trespassing on company property."
When the organizers reached Camden .they were met by Whitecotton who
introduced himself as a deputy sheriff and told them that he "would like for
them to carry on the speaking like they had on the previous night when the other
deputies were there, to keep the road open, keep on the road, and not get off
on company property." The organizers then proceeded to drive their car up
and down the Barnes Road passing the assembled crowd, which was grouped
mainly in the vicinity of the commissary, and addressing them my means of the
loudspeaker in the car.
The organizers were followed by Whitecotton who rode in a company car op-
erated by Taylor. There is a dispute in the testimony as to whether White-
cotton and Taylor followed the organizers as soon as they started driving, but
there is no dispute that they followed the organizers for several circuits. Taylor
testified that he did not know why he followed the car, but that Whitecotton
entered his car and he then followed the organizers, driving close to their
car. Whitecotton testified that he followed the organizers because he. had in
mind that they had stopped once for a short time and that if they stopped again
he would caution them to move on.
There is a conflict in the testimony as to whether or not there was a con-
tinuous honking of the horn in Taylor's car which had the effect of interfering
with the broadcast by the organizers. White testified that there was almost a
continuous blowing of the horn which made it hard for the speaker to be
understood and that it was done particularly when the organizers were passing
the point where a crowd was assembled. White further testified that he thought
Whitecotton drove Taylor's car part of the time, although he was not sure
2046 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
of this point, and he testified he believed he saw Whitecotton blow the horn
while he was driving the car.. Keeter also testified that there was horn blowing
from the car in back of them.
Employee Shackelford testified that he was watching the cars driving back and
forth in front of the crowd and that he did not recall any horn blowing except
by one woman motorist. On the other hand, McCarty, an employee, testified
that there was horn blowing from the car in which Whitecotton was riding,
which interfered with the speaking. -
Henry M. Rabun, a C. I. O. representative in the State of Texas, testified
that he got to Camden while the organizers were driving up and down the road
and that he followed them in his car. He also testified that the organizers were
followed by a car from which there was a honking of the horn.
Agatha Nerren testified that she drove her car into Camden on July 9 and
found that her way was blocked by the car of the organizers, which was stopped
at the railroad track near the commissary. She blew her horn and followed the
organizers' car for a short distance until she came to her lodgings. She testi-
fied that she could hear the speaking from that point but could not hear any
horn'honking, although she admitted she was not paying close attention.
Whitecotton testified that he did not recall Taylor honking his horn and
that he did not believe he heard any horn honking except by Miss Nerren.
Taylor denied that he did any horn honking.
The record shows that the organizers' car was followed very closely by Taylor.
Furthermore, there is no dispute over the fact that the organizers' car was
going very slowly. The undersigned concludes from the testimony that there
was some horn honking from Taylor's car. However, the very sharp conflict
among the participants, as well as among the bystanders, as to just what horn
honking took place and its nature and extent, impels the conclusion that it is
impossible to deduce from the testimony that there was such prolonged and
continuous horn honking from which' it could be concluded that there was an
effort to interfere with the speaking by the organizers.
Shackelford also testified that Assistant Superintendent George Schoeneman
followed the organizers and Taylor in a company car. His testimony was cor-
roborated by Rabun who testified that he came on the scene while the organizers
were driving up and 'down the road and that he observed that they were being
followed by'two cars.
Schoeneman did not testify at this hearing. He testified at the reopened hear-
ing concerning allegations that he engaged in surveillance. He denied that he
attended any union meeting after September, but gave no testimony as to this
incident. The undersigned credits Shackelford's testimony as corroborated by
Rabun and which stands undenied by Schoeneman.
The organizers on all their trips in front of the assembled crowd had followed
the practice of driving along the Barnes Road and turning at road forks at each
end of the road. On their last trip White was driving the car. The car stalled
on the railroad track near the commissary and White backed it into Taylor's
car. He then proceeded ahead and before he'had gotten to a fork in the road,
he decided. to turn. According to his testimony, which the undersigned credits,
he was unable to make a turn in the road, which is a dirt road at that point,
because he was so closely followed by Taylor. When White drove off the road,
Whitecotton jumped out of Taylor's car, raised his gun and halted White.
Whitecotton testified that he told the organizers that they were trespassing
and that he would have, to take them into custody. Then, according to White-
.cotton, the organizers argued as to whether or not the land they were on be-
W.T. CARTER AND BROTHER 2047
longed to the Respondents, and that Whitecotton then told them that to satisfy
them he would take them to Carter's office so that he could tell them that they
were on company property.
Taylor remained in his car but testified that he heard Whitecotton say that he
was arresting the .organizers for trespassing and also that he: would take them
to the company office and let Carter tell them it was his property that they were
on. As they started for the office, Taylor drove off and got there before them.
He testified that he had no conversation with Carter but merely stayed in the
office and waited until the organizers and Whitecotton got there.
Keeter testified that Whitecotton told him and White that they were under
arrest and further, that he would take them to Carter's office to find out what
Carter wanted to do with them or wanted done with them.
. Rabun, who joined the group shortly after White's car was stopped,, testified
that he heard Keeter tell Whitecotton that it was against the law to arrest them
for organizing and that Whitecotton replied they would have to see Carter.
There is a very sharp conflict in testimony as to what occurred in Carter's
office. According to Carter-White, Keeter, Rabun, and Whitecotton came into
his office unannounced. Carter asked them why they had come in and White-
cotton replied that the men wanted to be told whether or not the property around
the feed warehouse [the point where White's car had been stopped] was company
property. Carter replied that it was. Carter further testified that there might
have been some discussion with White and Keeter as to the law applicable but
Carter said that he was not interested in arguing the law. Rabun then asked
what they were being charged with and Whitecotton replied, "trespassing."
Rabun said something to the effect that that would be accepted and the group then
left.
Carter. denied that he had directed the arrest of the organizers or that he
had authorized or instructed Whitecotton to arrest them or to draw up a com-
plaint against them. Whitecotton, according to Carter, said that he had stopped
the men behind the warehouse and the men wanted to know if that was company
property. Weems, who was present in Carter's office, corroborated Carter.
Whitecotton testified that at the time he took the organizers into custody
they questioned whether or not they were on Carter's property and that he told
them that to satisfy them he would take them to Carter's office and that Carter
would tell them that they were. Whitecotton further testified that when they
got to the office Carter asked what they wanted, that Whitecotton asked whether
or not he owned the property behind the feed warehouse, Carter replied that
he did and that Whitecotton then said, "Let's go." He further testified that
there was some conversation between one of the men and Carter but he could
not recall it. Whitecotton further testified that it seemed to him that the
organizers, when they went off the road, were in the process of making a turn
to get back on the road and that he stopped them while they were attempting
to do so. He also testified that he did not know why they went off the road
but that when they did so, even though he did not know whether Carter wanted
them arrested for trespassing, he felt it was his duty to enforce the law and
arrest them for trespassing, even though he had previously made no arrests
of anyone for going off the roads in Camden.
Keeter testified that when they got to Carter's office the latter asked Keeter
what lie was doing there and Keeter stated that he was forced in there by
Whitecotton. Carter then asked Whitecotton why he had brought them into his
office and Whitecotton said that he wanted to know what to do with them, to
which Carter replied, according to Keeter, that if they were trespassing he
2048 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should file charges . Rabun "then asked some questions , Keeter testified, and
Whitecotton took them away.
Rabun testified that he spoke to Whitecotton in Carter 's office and that Keeter,
White, and Carter were arguing but he did not pay much attention to their
argument . White did not testify in detail concerning the conversation in
Carter's office.
Whatever impression the organizers may have had as to the property owner-
ship in Camden prior to July 2, there is no question but on that date they were
clearly informed that the Company claimed ownership of all land in Camden
except the public roads . They were so informed by Carter and by the deputy
sheriffs who told them they , could not leave any of the roads without risking
arrest for trespass . They did not at,that time dispute the ownership of any of
the property in Camden and abided by the-ruling made by the deputy sheriffs.
On July 9, Whitecotton in effect repeated the directions that the deputy sheriffs
had previously given. Again the organizers did not dispute the asserted property
ownership by the Company and followed Whitecotton 's instructions at least for
a time. Under these circumstances it seems strange that they would seek to
argue the ownership of the particular piece of land on which their car was
stopped when they went off'the road , and even more strange that Whitecotton
purely to accommodate them and put their minds at ease, would take them to
Carter in order to have him assure them of the Respondents ' ownership of the
land in question . On the other hand, this was the first arrest that Whitecotton
had made in Camden for trespassing . Previously he had arrested persons whom
he had caught cutting timber belonging to the Respondents . This was a new
situation and it was logical for him to either seek further instructions or at
least some reassurance that he Was pursuing the correct course. The undersigned
in view of these factors , and from his evaluation of the witnesses , credits
Keeter's testimony as to what occurred at the time Whitecotton stopped the
organizers and during the conversation in Carter 's office.
Whitecotton took Keeter, White , and Rabun to Livingston where County
officials prepared a trespassing charge which Whitecotton signed. The organ-
izers agreed to come back on the date set for trial and were released on their
own recognizance . The case has never been brought to trial.
f. Legal proceedings and subsequent arrests
Carter testified that prior to July 13 he heard that another union meeting
was scheduled for that night. He communicated with company counsel and
discussed the advisability of securing an injunction . On July 13, 1948, the
Respondents applied to the district judge of the local court for a restraining
order. The application for the order was signed by counsel for they Respondents
with an attached acknowledgment sworn to by Carter that the allegations in
the petition were true and correct . The petition complains of the activities of
White, Keeter, Harlan , and Rabun. It describes the ownership of land by the
Respondents and alleges "As the owners of said lands , plaintiffs are entitled
to the exclusive possession of and to the right to select those who will be invited
thereon." The petition further alleges that "the plaintiffs have not granted to
defendants or to any of them any rights in and to said lands above described,"
and also that the defendants had not asked plaintiffs for any rights in and to the
lands. Other allegations in the petition are that on June 29, July 2, and July 9
the defendants came on the lands of the plaintiffs and set up sound equipment,
emitting loud noises and "have generally made themselves obnoxious to plaintiffs
and plaintiffs ' invitees ; that the plaintiffs have called to the defendants ' attention
W. T. CARTER AND BROTHER 2049
the fact that they_ were trespassing and have asked them to desist, but that
the defendants have continued ; that peace officers have warned the defendants
against further trespassing, but that defendants have continued, and that it is
clear that they will continue to do so; that on July 9 amplification from the car
of the organizers disturbed religious worship ; ` that the defendants, seeking to
take advantage of the inadequacy of the legal relief available to the plaintiffs.
have threatened and announced that on July 13, 1948, they will again come
on the plaintiffs' land to continue trespassing and that immediate and irrep-
arable' damage will result to the plaintiffs unless prompt injunctive relief is
granted." The petition concludes with a prayer for relief that "the Court
grant a temporary Restraining Order without notice, enjoining and restraining
said defendants from trespassing upon the lands and premises of plaintiffs herein-
above described and that upon hearing, said temporary Restraining Order be
made into a permanent injunction."
On the same day an em parte order was issued by the court containing findings
that the trespasses and invasions of plaintiffs' property were irreparable and
would continue unless immediately prevented ; that the legal remedies available
to the plaintiffs were inadequate ; that unless the order were granted on the
same day the trespasses would continue, and that there was no opportunity
for the defendants to be notified of the filing of the petition before the evening
of July 13, and that the plaintiffs had filed the required bond. The injunctive
provisions of the order are as follows: "I, W. B. Browder [the District Judge]
grant plaintiffs' application for temporary Restraining Order ; and the defend-
ants named above, their agents, attorneys, and persons in active concert or
participation with them, I hereby restrain and enjoin, until further orders of
this Court, from trespassing upon the lands described in the above Petition,
save and except in the course of traveling upon any public roads, streets, or
thoroughfares crossing said lands." The order was to. remain in effect not to
exceed 10 days from the date and hour from its issuance unless extended, until
further action of the court following a hearing set for July 22, 1948, at Livingston.
An injunction writ was prepared by the court clerk, to which was attached
copies of the petition and order.
Carter testified that he was present in the clerk's office when copies of the
writ were delivered to Deputy Sheriff Weeks and that he told Weeks that the
organizers were expected in Camden that night, namely the 13th. He denied
giving Weeks any instructions or asking him to make any arrests.
Weeks testified that he received the writ from the court clerk and after Carter
told him that the organizers were expected in Camden that same night, he left.
for Camden. He did not find any organizers in Camden and went back to meet
them on the public road outside Camden, taking Whitecotton with him. When
the now familiar sound"car'used by the organizers drew near, Weeks stopped
it and served a copy of the writ on Keefer and another union representative with
him named Dloon. The four stood in the road talking, according to Weeks,
when Taylor drove up and said that the other parties were in Camden. Weeks
and Whitecotton then drove to Camden.
Taylor testified that he was in the company office around 7: 30 p. m. when
George Schoeneman, a supervisor, came in and remarked that there was a man
5 This was corroborated by E. G. Rice who testified that the broadcast interfered with
religious worship. This occurred when the organizers drove by a church when they were
not permitted to conduct a meeting on the Respondents' property.
903847-51-vol. 90-130
2050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the store porch about to (make a speech. Taylor left the office. and drove out
on the highway where he had seen Weeks a little earlier. At that time, accord-
ing to Taylor, Weeks had said he was trying to stop some men, that he had an
injunction to serve on them before they reached Camden. Taylor testified that
when he learned some men were in Camden he thought they were the people
Weeks was trying to serve. Weeks testified that he did not know Taylor knew
that he was on the highway.
Keeter testified, and the undersigned credits his testimony, that Weeks told
him that there would be no union meeting that night, that he was serving a
restraining order upon him and that if Keeter violated it he would be arrested.
Weeks had been preceded into Camden by Robert Oliver, regional director
of the C. I. O. and State director of the C. I. O. organizing committee, Carl A.
McPeak, assistant State director of the C. I. O. and of the C. I. O. organizing
committee, Rabun, White, and Paul Rosenfield, a United Press reporter. They
arrived in Camden shortly after 7 p. in. and met a crowd which again was
assembled in the vicinity of the commissary.
According to Oliver, after some preliminaries, he got up on the railroad track
between the commissary and the feed warehouse and began to talk to the crowd
which was assembled around him. He had been speaking for a few minutes
when he noticed an individual, later identified as Weeks, speaking with White.
Oliver understood or thought that Weeks was a peace officer and noticed that
he was armed. Continuing his testimony, Oliver related that Weeks put some-
papers in his left hand. Oliver put them in his pocket. Weeks then said that
Oliver had better stop talking or he would have to arrest him. Oliver replied
that be had a right to talk and Weeks again asserted that he would arrest him
if he did not stop talking and also told him that he had better read the papers.
Oliver handed them back to Weeks and said that he did not have time to read
the papers, that he was trying to make a speech and that he would have an
attorney read them in the morning. Weeks again handed the papers back to
Oliver and said that he had better read them, and told him that it was an in-
junction enjoining him from making a speech. Oliver continued to talk. At
that point, according to Oliver, Weeks pulled him from the track and when
Oliver said. that he. wanted to take time to read the document, Weeks -refused
to give him any further time and took him over to his car.
Actually, Oliver had been served with a copy of the injunction writ.
White, according to Oliver, 'walked along with him and Weeks on the way to
the car and Weeks told White to get in the car. also, that he was under arrest.
McPeak walked up and Weeks asked him, whether he was with the."C. I. O.,
gang," and when McPeak said that he was Weeks also told him to come along.
Rabun testified that he asked Weeks if he was under arrest and Weeks told
him that he was. and Rabun also got in the car. Oliver testified that he kept.
on speaking because he thought that he could not be enjoined from making a.
speech.
White corroborated Oliver. He testified that Weeks told him that if he did not
stop Oliver from talking he would have to arrest Oliver. White refused to take
any action and Weeks handed him a copy of the injunction writ. White saw
Weeks hand another, copy to Oliver and then arrest Oliver and later White,
McPeak, and Rabun. White testified that he was not engaging in any activity at"
the time of his arrest, but was just listening to the speech.
Rabun gave testimony similar to White's. He testified that he saw Weeks serve
copies of some paper or serve papers on White and Oliver and that he heard
Oliver say that he was served with a writ which he was informed prohibited him
'W.. T. CARTER AND BROTHER 2051
from -making a speech, but that Oliver continued talking and that it was at that
point that Weeks, after Oliver said he would have his attorney look at it in the
morning, took him into custody. He also heard Weeks tell Oliver to get into
Weeks' car and also heard him take White into custody. Rabun also testified
that he was taken into custody.
McPeak testified that he spoke to Oliver while Oliver was under arrest and that
Oliver game him his copy of the writ which McPeak then showed to Rosenfield.
They were looking at it when Weeks asked McPeak "Are you with this C. I. O.
gang?" When McPeak said he was, Weeks then arrested him. McPeak testified
that he was never served with a copy of the injunction writ and never partici-
pated in the meeting. Rabun also testified that he was not served with a copy
of the writ.
Weeks' version of what occurred does not differ substantially from the testi-
mony of the organizers. He testified that he told White that the paper which
he had served upon him was an injunction restraining him from being there and
unless he got his friend off the property, he would be forced to arrest him. White
said to go ahead and then Weeks took Oliver into custody. At that point, Weeks
testified, Oliver asked why he was being arrested and Weeks told him for tres-
passing. As to 11IcPeak, Weeks testified that _McPeak took Oliver's copy of the
writ from him and that. Weeks told him that the writ restrained everyone and
that he was to consider himself under arrest. Another person came up, Weeks
continued, and Weeks asked him if he was in the group. When that man said
yes, Weeks told him that he was restrained too and that he should get in the car.
Weeks testified that he arrested the group for trespassing and violating the
injunction in his presence. He also testified that the plan of stopping the organ-
izers on the road and the later arrests were his own decisions. Weeks stated that
he thought the purpose of the papers was to stop trespassing, but he did not read
the restraining order or the papers attached to it. In later testimony, Weeks
placed White and Rabun on the railroad track and testified that he arrested them
for trespassing because he thought all the property in the vicinity belonged to the
Respondents. Later on, he testified he arrested them for trespassing and vio-
lating the injunction. Rabun, he admitted, was down by the car in the public
street. He admitted that he only served White and Oliver in advance of their
arrest. He testified that as to the others, he arrested them for criminal trespass.
In later testimony he contradicted his earlier version of what occurred by stating
that he arrested the men for trespassing, not for violation of the' injunction, and
that Rabun was on the railroad when he arrested him and not on the public street.
He further admitted that he made no effort to arrest anyone else for trespassing
in the large crowd which was assembled, but'testified that he arrested these four
because they were the only ones who identified themselves.
The undersigned found Weeks' testimony as to the circumstances of the ar-
rests on July 13 to be contradictory and evasive, and finds and concludes that
Oliver was the only organizer on the railroad track at the time he was arrested
and that White, Rabun, and McPeak were arrested under the circumstances re-
lated by them in their testimony ; that White and Oliver were the only ones
served with copies of the injunction writ, and that Weeks arrested all four for
violation of the injunction writ which he understood to prohibit any trespassing-
on the land owned by the Respondents.
. Weeks drove the four organizers to the county jail and locked them up. They
were released that night on orders of the district judge who has issued the re-
straining order and no charge was filed against them.
2052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carter testified that,on the morning of July 14 Taylor told him that he had:
seen the organizers standing on the railroad track the night before trying to
make a speech and had seen Weeks serve them with the injunction writ. Carter-
asked Taylor if he would make an affidavit to that effect and when Taylor said!
he would, Carter took Taylor to the Respondents ' attorneys at Livingston and
an affidavit was prepared which Taylor signed.
. The purpose . of the affidavit , Carter testified , was to bring the -violation of
the restraining order to the attention of the court . The affidavit set forth the-
allegations that the writ was served upon White , Keeter, Harlan , and Rabun by
Weeks and that McPeak and Oliver, after service of the writ on them, returned
to Camden in violation of it, and that Keeter aided and abetted them in violating:
the writ.
Taylor, in prior testimony , stated that he saw Weeks take hold of Oliver and'
then went home. He was very uncertain as to the details of his signing the
affidavit. He did not remember whether it was drawn up when he got there or
later. He stated that he read it before he signed it, but made no corrections..
He admitted that he was not sure that Harlan was served with the restraining;
order, and the evidence is clear that Harlan was not in Camden on the night
of the 13th . He also was not sure whether he actually saw Rabun . served:
He also admitted that Oliver and McPeak were already in Camden when they
were served . It is clear that Taylor swore to matters which did not happen.
or which he did not see happen , and the undersigned has considered this factor
in the resolution of conflicts concerning Taylor's testimony which arose during
the hearing.
On the basis of Taylor 's affidavit a writ of attachment was issued on July 14,:
for the arrest of White, Keeter, Oliver , McPeak , and Rabun for a hearing on
July 22, 1948 . The court clerk issued the writ to the sheriff on that same day,
directing their arrest for an alleged contempt in disobeying the commands of the
writ of injunction.
Keeter and White were arrested by Deputy Sheriff Smallwood on July 15,
were placed in the county jail at Livingston , and were released the next day in,
the custody of their attorney for appearance on July 22, 1948 . The hearing was,.
by agreement of all parties , adjourned until July 26, 1948 , when the hearing was
held.
On August 2, 1948, the District Judge issued a temporary injunction restrain-
ing White , Keeter, and Rabun and those acting in concert with them "from enter-
ing without the consent of plaintiffs , or trespassing, upon the lands hereinabove,
referred to, and particularly described in plaintiffs ' Petition , save and except.
the lawful use of any public roads , streets or thoroughfares crossing said lands;*
provided , however, nothing in this Order shall be construed to prevent said.
defendants , or any of them , or those acting in concert with them , from entering,
the homes or residences of persons who live on said lands , and consent to such
entries." The defendants did not appeal and their time to do so has expired.:
The.Issues
The General Counsel and the Respondents both submitted briefs setting forth.
in detail their contentions as to the law and the facts in this case . Their main..
contentions are as follows : The General Counsel contends that the Respondents,
by refusing to permit their employees to meet on company-owned property for
the purpose of holding union meetings on their own time, where no other suitable
property in the community was available for that purpose, interfered with the
exercise of the rights guaranteed employees under the Act. The Respondents.
W. T. CARTER AND BROTHER 2053
contend that they have not denied their employees the right to peacefully assem-
ble and speak freely witli respect to their self-organization or unlawfully denied
union organizers access to such employees.
The General Counsel contends that the Respondents were directly responsible
for the acts of the sheriff and, in the alternative, condoned and ratified such acts
and adopted and approved them, such conduct being violative of the Act. The
Respondents contend that they did not cause the arrest of'the labor organizers
and had nothing to do with their imprisonment.
The General Counsel contends that the act of the Respondents in seeking and
obtaining a restraining order was violative of the Act. On the other hand, the
Respondents contend that resort to a court of competent jurisdiction to obtain.
.a temporary restraining order or injunction does not constitute an unfair labor
practice.
The General Counsel also raised the question,of title to the land on which the
railroad tracks are situated.
The Respondents also set forth in detail their denial that the Respondents com-
mitted any acts of surveillance of union meetings or activities of the Union or
-union organizers in violation of the Act.
Conclusions
1. As to the union meetings
While there is a good deal of conflict in the testimony as to what occurred
at the union meetings, the respective positions of the Union and the Respondents
are clear.
The Union, in furtherance of its campaign to organize the' employees of the
Respondents, sought to hold open-air meetings in the unincorporated town of
Camden where the land is wholly owned by the Respondents. The meeting place
was announced to be at the commissary, the commercial center of Camden. Only
two meetings were actually conducted on the Respondents' land near the com-
missary. Others were confined to talks over a loudspeaker in a moving auto-
mobile traversing the public highway and other roads in Camden.
The Respondents from the very beginning were opposed to the holding of any
union meetings in Camden. While Carter in part of his testimony sought to
indicate that the Respondents objected only to meetings held.at the commissary,
it is clear from his own testimony and that of Sheriff Kimball, Deputy Smallwood,
and Keefer, as well as the affidavit submitted in support of the Respondents'
application for a restraining order, and other factors herein, that the Re-
spondents' position went much further and encompassed opposition to any open-
air union meetings on their land in Camden.
It must also be remembered that this is not a contest, of rights between the
Respondents and the Union. The complaint alleges that the Respondents by
certain activities, including those directed towards preventing union meetings
at Camden, have interfered with, restrained, and coerced their employees in the
exercise of their rights guaranteed under the Act.' The resolutions of the issues
rests primarily upon an evaluation of the respective rights and obligations of
the Respondents and their employees under the Act.
6 Section 7 of the Act provides , in part, "employees shall have the right to self-organiza-
tion, to form , join, or assist labor organizations , to bargain collectively through representa-
tives of their own choosing , and to engage in other concerted activities for the purpose of
collective bargaining , or other mutual aid or protection."
2054 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
Further, the physical setting in which the alleged unfair labor practices oc-
curred.plays a crucial role in this situation. In a town or city of some size there-
usually are plenty of places where union meetings may be held and there is no
need or requirement that an employer's property be subjected to any use,
for union meetings. However, the situation in Camden is entirely different.
The Respondents own every foot of ground in Camden and a good bit of the sur-
rounding territory. There are some private holdings outside of Camden, in-
cluding a general store and a cafe. The Union was unable to secure permis-
sion to use the space outside the store and according to the uncontradicted testi-
mony of. one of the union organizers the cafe was unsuited for indoor meetings,.
Therefore, as far as outdoor meetings were concerned,.the practical alterna-
tives were either to hold them in Camden or in some field a substantial distance,
from Camden, if permission could be obtained from the owner.
Carter acknowledged that he was opposed to the Union. The action of the
Respondents in seeking to bar union meetings in Camden stems from this
attitude. The Respondents do not claim that the union meetings interfered'
with any business activity, but -rely primarily on their ownership' interests'
to give them the right to prevent any union meetings.
It has been recognized that the rights of the inhabitants of company-owned'
towns pose problems which cannot be -settled by resort solely to the law of real
property.. The case of Marsh NO. Alabama, 326 U. S. 501, deals With certain.
aspects of the problem. In that case a distributor of religious literature was
convicted of violating a section of the Alabama Code making it a crime to
enter or remain on. the premises of another after having been warned not to,
do so. The defendant had insisted on distributing literature in a company-
owned town after having been requested not to do so. The following passages
from the opinion of the Supreme Court in reversing.the conviction are relevant-
here
We do not agree that the corporation's property interests settle the ques-
tion? The State urges in effect that the corporation's right to control the,
inhabitants of Chickasaw is coextensive with the right of a homeowner to
regulate the conduct of his guests. We cannot accept that contention.
Ownership does not always mean absolute dominion. The more an owner,,
for his advantage, opens up his property for use by the public in general,.
the more do his rights become circumscribed by the statutory and constitu-
tional rights of those who use it: Cf. Republic Aviation Corp. v. Labor,
Board, 324 U. S. 793, 798, 802, n. 8.
We do not think it makes any significant constitutional difference as'
to the relationship between the rights of the owner and those of the public-
that here the State, instead of permitting the corporation to operate a
2 We do not question the State court's determination of the issue of "dedication."'
That determination means that'the corporation could, if it so desired, entirely close
the sidewalk and the town to the public and is estopped to reclaim possession of, and
the public's holding the title to, or having received an irrevocable easement in', the
premises. Demopolis v. Webb, 87 Ala. 659, 6 So. 408;, Hamilton v. Town of Warrior,.
215 Ala. 670, 112 So. 136 ;. Town of Leeds v. Sharp, 218 Ala. 403, 405, 118 So. 572 ;
Forney v. Calhoun County, 84 Ala. 215, 4 So. 153 ; Cloverdale Homes v. Cloverdale;.
182 Ala. 419, 62 So. 712. The "dedication" of a road to the public may also be decisive
of whether, under Alabama law, obstructing the road constitutes a crime, Beverly v.
State, 28 Ala. App. 451, 185 So. 768, and'whether certain action on or near the road
amounts to a tort. Thrasher v. Burr, 202 Ala. 307, 80 So. 372. But determination
of the issue of "dedication" does not decide the question under'the Federal Constitution
here involved.
a a a • s, t a
W. T. CARTER AND BROTHER 2055
highway, permitted it to use its property as a town, operate a "business
block" in the town and a street and sidewalk on that business block. Cf.
Barney v. Keokuk, 94 U. 5.,324, 340. Whether a corporation or a munici-
pality owns or possesses the town, the public in either case had an identical
interest in the functioning- of the community in such manner that the
channels of communication remain free. As we have heretofore stated,
the town of Chickasaw does not function differently from any other town.
The "business block" serves as the community shopping, center and is freely
accessible and open to the people in the area and those passing through. The
managers appointed by the corporation cannot curtail the liberty of press
and religion of these people consistently with the purposes of the Consti-
tutional guarantees, and a state statute, as the one here involved, which
enforces such action by criminally punishing those who attempt to dis-
tribute religious literature clearly violates the First and Fourteenth Amend-
ments to the Constitution.
Many people in the United States live in company-owned towns.5 These
people, just as residents of municipalities, are free citizens of their State and
country. Just as all other citizens they must make decisions which affect the
welfare of community and nation. To act as good citizens they must be in-
formed. In order to enable them to be properly informed their information
must be uncensored. There is no more reason for depriving these people of
the liberties guaranteed by the First and Fourteenth Amendments than
there is for curtailing these freedoms with respect to any other citizen.'
In the bituminous coal industry alone , approximately one-half of the miners in
the United States lived in company-owned houses in the period from 1922-23. The
percentage varied from 9 percent in Illinois and Indiana and 64 percent in Kentucky,
to almost 80 percent in West Virginia. U. S. Coal Commission, Report 1925, Part III,
pp. 1467, 1469 summarized in Morris, The Plight of the Coal Miner, Philadelphia
1934, Ch. VI, p. 86. The most recent statistics we found available are in Magnusson,.
Housing by Employers in the United States, Bureau of Labor Statistics Bulletin No.
263 (Misc. Ser.) p. 11. See also United States Department of Labor, Wage and Hour
Division, Data on Pay Roll Deduction, Union Manufacturing Company, Union Point,
Georgia, June 1941 ; Rhyne, Some Southern Cotton Mill Workers and Their Villages,
Chapel Hill, 1930 (Study completed under the direction of the Institute for Research
in Social Science at the University of North Carolina) ; Comment, Urban Redevelop-
ment, 54 Yale L. J. 116.
6 As to the suppression of civil liberties in company towns and the need of these
who live there for Constitutional protection, see the summary of facts aired before the
Senate Committee on Education and Labor, Violations of Free Speech and Rights of
Labor, Hearings pursuant to S. S. Res. 266, 74th Cong., 2d Sess., 1937, summarized
in Bowden, Freedom for Wage Earners, Annals of The American Academy of Political
and Social Science, Nov. 1938, p. 185; Z. Chafee, The Inquiring Mind (New York,
1928), pp. 173-174; Pamphlet published in 1923 by the Bituminous Operators' Special
Committee under the title The Company Town ; U. S. Coal Commission, Report, supra,
Part III, p. 1331.
In the case of N. L. R. B. v. Stowe Spinning Co., 336 U. S. 226, the Supreme
Court upheld a finding by the Board that a respondent had violated the Act by
discriminatorily refusing to permit the use of a company-owned hall fora union
meeting in a company town. In the course of the opinion, the Court made this
reference to the situation in company towns :
We mention nothing new when we notice that union organization in a
company town must depend, even more than usual, on a hands-off attitude
on the part of management. And it is clear that one of management's chief
weapons, in attempting to stifle organization, is the denial of a place to meet-
2056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We cannot equate a company -dominated North Carolina mill town with the
vast metropolitan centers where a number of halls are available within easy
reach of prospective union members.
As to the respondents' contention that their property rights were being inter-
fered with , the Court said :
The philosophy expressed in the Fifth Amendment does not affect the view
we take. The Wagner Act was adopted pursuant to the commerce clause,
and certainly can authorize•the Board to stop an unfair labor practice as
important as the one we are considering . Respondents are unquestionably
engaged in interstate commerce within the meaning of the Act.
At this point , the Court quoted the following language which first appeared
in N. L. R. B. v. Cities Service Oil Co., 122 F. 2d 149 (C. A. 2 ) and which was
cited in Republic Aviation Corporation v. N. L. R. B. and N. L. R. B. v. Le Tourneau
Company of Georgia , 324 U. S. 793:
It is not ... every interference with property rights that is within the
Fifth Amendment . * * * Inconvenience or even some dislocation of
property rights may be necessary in order to safeguard the right of collective
bargaining.. . .
In the Republic Aviation and Le Tourneau cases, the Court upheld Board
rulings that company rules restricting union activities of employees on company
premises , but on their free time , under the circumstances of each case, were
violative of the Act . Most important , the Court approved the approach of the
Board to the problems presented as requiring an evaluation of conflicting rights
and policies , saying :
These cases bring here for review the action of the National Labor Rela-
tions Board in working out an adjustment between the undisputed right
of self-organization assured to employees under the Wagner Act and the
equally undisputed right of employers to maintain discipline in their estab
lishments . Like so many others, these rights are not unlimited in the sense
that they can be exercised without regard to any duty which the existence
of rights in others may place upon employer or employee . Opportunity to
organize and proper discipline are both essential elements in a balanced
society.
The Court remarked also, in passing :
Neither of these [cases ] is like a mining or lumber camp where the employees
pass their rest as well as their work time on the employer 's premises, so
that union organization must proceed upon the, employer's premises or be
seriously handicapped.
The cited cases indicate that in cases involving a clash between established
property rights and rights existing by virtue of the Act , an evaluation of these
rights is necessary in order to determine which of these rights is entitled to
primary weight or importance with due regard to the facts in each case. In
cases involving company towns , the courts have noted that unrestricted appli-
cation of an owner's right to use his own property and to pick and choose those
who might enter upon it and what they might do, would sometimes seriously
interfere with the exercise of fundamental constitutional rights, the communica-
tion and exchange of ideas, and the exercise of rights guaranteed under the
Act.
In the present case, the Respondents do not contend that the holding of out-
door union meetings in Camden interfered with any business operations , but rely
W. T. CARTER AND BROTHER 2057
on their legal title as full justification for the asserted right to prevent union
meetings on their property. The balance of interests clearly lies in favor of
implementing the rights of the. Respondents' employees under the Act by per-
mitting them to attend union meetings in the town where they live and work.
In that way, they may, if they choose, listen to a point of view other than that
of their employer so that they can more intelligently exercise their rights under
the Act.
The only possible danger to its property to which the Respondents were able
to allude was that when meetings were held in the vicinity of the commissary
and warehouse there was danger that smokers in the crowd might, by dropping
lighted cigarettes, cause a fire which might destroy valuable property. Noth-
ing in the relief which will be recommended will prevent the Respondents from
making and enforcing reasonable rules for the protection of their property pro-
vided that the purpose and effect of those rules is not to interfere with the rights
guaranteed under the Act.
The Respondents further point out that at no time did the Union request their
permission to hold meetings and that on the one occasion when Keeter, a union
representative, spoke to Carter, he merely informed him that a union meeting
would be held, but did not request his permission to hold the meeting. This
case is different from those where a union representative, seeks to visit seamen
on a ship or lumberjacks working in a temporary lumber camp where, it has
been held, an employer may make reasonable rules for visits by union repre-
sentatives' In those situations, employees live in a small, confined area which
is also their place of work. It has been decided that in those situations reason-
able visitation rules may be established to maintain production or discipline.
This is far different from a settled, permanent community of a large area, such
as the town of Camden, with established production facilities, permanent houses,
community educational, religious, and business facilities, and large open areas.
In such a situation, the holding of outdoor meetings after working hours, such
as was attempted here, raises no problems of production or discipline. The un-
dersigned concludes that it was not a prerequisite to the holding of the union
meetings, that the Respondent's permission be first sought and obtained.
The Respondents point out that, except for the period when the restraining
order was outstanding, union organizers were not interfered with in using the
streets of Camden and visiting employees in their homes. However, visits to
workers homes and individual solicitation, while recognized forms of organiza-
tional activity, are by no means effective substitutes for the open meeting where
a large group may be addressed at one time and, equally important, listeners may
maintain a cloak of anonymity and need not take any action which they might
feel would prejudice their individual job security. The general meeting is per-
haps the most important organizational device and is a recognized part of the
rights guaranteed under the Act.'
The undersigned has already considered the contention of the parties as to
the necessity of using meeting places in Camden and has set forth in detail the
facts of land ownership in and around Camden. The undersigned concludes,
contrary to the contention of the Respondents, that there were no suital 1e meeting
places available close to the areas where employees lived and worked except in
Camden and that the barring of union meetings in Camden would be a serious
interference with the rights of those employees under the Act.
' N. L. R. B. v. Lake Superior Lumber Corp., 167 F. 2d 147 (C. A. 6).
8 Thomas v. Collins, 323 U. S. 516, 533; Stowe Spinning Co., 70 NLRB 614, 622, affirmed
336 U. S. 226.
2058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The additional contention by the Respondents, that the Union could have held
meetings in the yards of employees, does not impress the undersigned. Each
employee who lived in Camden occupied his house as a tenant-at-will and, of
course, derived his livelihood from the Respondents. The difficulty and dis-
advantages of arranging union meetings under such circumstances is obvious
and this alternative, even if it did exist, furnished no suitable substitute for
meetings on open ground.
The undersigned concludes that the Respondents, by refusing to permit the
holding of outdoor union meetings on its property in Camden, Texas, and taking
steps to prevent such meetings, has violated the Act.
With reference to Whites use of the commissary porch, the General Counsel
contends that White was on the porch as a matter of right because he had been
asked and invited to speak from there by persons at the meeting, presumably
employees of the Respondents who resided in Camden. The argument leads to
the conclusion that in similar situations in the future, union organizers could
use buildings or other facilities of the Respondents as vantage points from which
.to address an audience. The undersigned cannot agree. As has been pointed
,out before, the gist of the leading cases is that there must.be a balancing of the
conflicting rights of private property and those under the Act when a clash
occurs. What is being considered here are problems raised in connection with
attempts by the Union to hold outdoor meetings. The record does not establish
that the use of the commissary porch was a necessity to the holding of a meeting.
It was merely convenient in that White could thereby be above the eye-level of
his audience. Other methods can easily be found at any future meetings to
permit any speaker to speak from a convenient height. It does not appear that
the use of any building facilities is necessary to the holding of any outdoor
meetings. Any advantages of convenience which might be derived from the use
of porches or parts of buildings for meeting purposes are clearly outweighed by
the possible disadvantages to the Respondents. Accordingly, the undersigned in
the relief to be directed, will confine the areas in which union meetings will be
protected from interference by the Respondents to open ground in Camden.
The General Counsel further contends that the Respondents have discrim-
inated in the granting of permission to hold public meetings on their property in
that in the past the Respondents have granted permission to candidates for public
office to hold political rallies in Camden, but have refused to allow union meet-
ings. However, according to Carter's undisputed testimony, political meetings
were held on the Respondents' property after permission had first been sought
and obtained. The union meetings were not arranged on this basis. The under-
signed concludes that the basis of the Respondents' violation is interference with
the rights of their employees rather than discrimination in permitting one type
of meeting while refusing permission for union meetings under. comparable
circumstances.
During the hearing, the General Counsel challenged the Respondents' claim
of ownership of the land on which are placed the tracks of the Moscow, Camden,
,and San Augustine Railroad. As previously related, an address by a union rep-
resentativp was made on the tracks near the commissary on July 13 and the
representative was arrested there.
. The question of title depends primarily upon the construction of a right-of-way
deed issued by the Respondents to the M. C. & S. A. Railway. The undersigned
deems it unnecessary to resolve this question. Even if the construction placed
upon the deed by the Respondents' were' accepted, namely, that the Respondents
have title to the land on' which the railroad trackage is located, under the con-
W. T. CARTER AND BROTHER 2059
rclusions previously set forth, their conduct as to this land and all other land in
Camden was violative of the Act. The question if title would only be of relevance
here if it were determined that the Respondents were not violating the Act
with respect to the use of their own property in Camden. Then, it might be
contended, that they were improperly seeking to interfere with the use of prop-
erty in which they had no ownership.
2. As to the responsibility of the Respondents for the acts of the peace officers
The General Counsel contends: (1) That the Respondents started the chain
of events which led to the activities of the peace officers in arresting the union
organizers and preventing their holding union meetings; (2) that there is no
crime of trespass or criminal trespass defined in the Penal Code of Texas and
that the peace officers had no authority to arrest the organizers ; (3) and that the
Respondents are responsible for the activities of the peace officers and also have
condoned and ratified their acts.
The Respondents contend that they are not responsible for the activities of
the peace officers who were public officials and that the Respondents made no
request that any arrests be made. Even if it were assumed that the peace
officers acted in error, the Respondents argue, they were acting in their official
capacity and not as agents of the Respondents.
There is no dispute that Sheriff Kimball was approached by Carter who told
him of the first proposed union meeting and asked him to keep union organizers
off company property in Camden. The Respondents having sought assistance
hi keeping organizers off its property now seek to avoid any responsibility for
steps taken to. carry out their request. The undersigned cannot agree with this
contention. It was the responsibility of the Respondents not to violate the Act.
They sought to prevent union meetings in Camden in violation of the Act. The
acts of the peace officers at their request were an effective implementation of
the Respondents' purpose. The Respondents, through their supervisory officials,
'arter, Weems, and Taylor, had full knowledge of the activities of the peace
officers and effectively cooperated with them. Under these circumstances, the
undersigned concludes that the Respondents by requesting the assistance of
peace officers, in keeping union organizers off their property in Camden, thus
preventing union meetings, have interfered with the rights of their employees
under the Act.' The undersigned further finds that the Respondents are respon-
sible for the activities of the peace officers directed toward carrying out the
request of the Respondents and that such activities which included the taking
into custody of organizers and instructing them that they could not hold any
meetings on company property in Camden, were violative of the Act. It is fur-
ther found, that the Respondents having instigated the activities of the peace
officers had a duty to act to prevent violations of the Act by the officers and
that the Respondents have condoned and ratified their activities in preventing
union meetings in Camden.
What has been said of the activities of the full-time county peace officers
applies with even more force to the acts of Claude Whitecotton, Respondents'
employee and nonsalaried deputy sheriff. Whitecotton was told by Weems on,
July 9 that the organizers were expected back and that the Company expected him
'9 N. L. R. B. V. Revlon Products Corp., 144 F. 2d 88 (C. A. 2), enforcing 48 NLRB 1202;
N. L. R. B. v. Grieder Machine Tool cl Die Co., 142 F. 2d 163 (C. A. 6), enforcing 49
NLRB 1325 (certiorari denied, 323 U. S. 724) ; Spalck Engineering Compan7/, 45 NLRB
1272; Aldora Mills, 79 NLRB 1.
2060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a deputy sheriff to keep them from trespassing on company property. White-
cotton then proceeded to interfere with the organizers' efforts to hold a meeting.
He received the unsolicited assistance of Taylor and followed the organizers in
Taylor's car-a company-owned car. As soon as the organizers left the road, he
pounced upon them. It is impossible in this instance to separate Whitecotton's
activities as a deputy sheriff and as a company employee-as the Respondents
contend. Weems' language was phrased in the language of an order which he
did not expect Whitecotton to disobey. Taylor assisted him at the commissary.
The undersigned concludes that the Respondents are liable for Whitecotton's
interference with the holding of a union meeting,since he took such action at
the Respondents' express request while in their employ. Even if it could be con-
sidered that Whitecotton acted solely in his official capacity, then his case would
be on the same footing as those of the other peace officers for whose acts the
Respondents have been held responsible.
3. As to the legal proceedings
Much of what has been said as to the responsibility of the Respondents for
the acts of the peace officers applies with equal force to the consequences flow-
ing from the commencement of court proceedings against the union organizers.
The petition for the temporary restraining order indicates clearly that the
Respondents resorted to court proceedings to keep the organizers out of Camden.
While the temporary restraining order and the temporary injunction did not go
as far as the Respondents requested, they were successful in obtaining orders
barring the holding of meetings on company grounds in Camden. In this way, the
Respondents, as in the case of their resorting to the help of peace officers, im-
plemented their desire to prevent union meetings in Camden and thus successfully
interfered with the rights of their employees under the Act:
The Respondents argue that resort by a citizen of a State to a State court of
competent jurisdiction to obtain injunctive relief cannot constitute an unfair labor
practice and that the Board cannot review a court order declaring certain acts
an infringement of Texas law.
However, what is involved in this proceeding is not a review of court findings
as to alleged trespasses of union organizers. What is involved is an evaluation
of the conduct of the Respondents. The Respondents were and are under the
obligation of acting in accordance with the requirements of State and Federal
laws. This is a nondelegable obligation. In attempting to keep union organizers
out of Camden and to prevent union meetings there, they were violating the
Act in that they were seriously interfering with the rights of their employees.
The decrees of the State court were not an adjudication of the rights of the
parties under the Act. The Board has exclusive original jurisdiction over viola-
tions of the Act. State courts have jurisdiction over violations of State law,
but where, as here, activities constitute' violations of Federal law, the Federal
law is supreme.
The undersigned concludes that the Respondents' resort to court proceedings
was motivated by their desire to prevent union meetings and other union activi-
ties on their property in Camden and was violative of the Act m
10 The case of N: L. R. B. v. Davis Lumber Company, Inc., 172 F. 2d 225 (C. A. 5),
enforcing Case No. 10-C-2271 ( unpublished ) Board's order September 27, 1948, dealt with
a situation similar to that in this case. In the Davis case, the Respondent resorted to a
State court and secured an injunction against union organizers restraining them from
participating in any way in the prosecution of. any charges against the Respondent before
the Board and from claiming before the Board that their union was authorized to represent
the employees of the Respondent.
W. T. CARTER AND BROTHER ' 2061
4. As to the surveillance of union activities
The undersigned has found that Taylor followed union organizers on July-
2, 1948, when they drove through Camden on union business. It also is un-
disputed that on July 9, 1948, Taylor proffered unsolicited assistance to
Whitecotton and closely followed the organizers in his car while they were at-
tempting to address employees of the Respondents. George Schoeneman indulged
in the same conduct by following Taylor's car. The effect of Whitecotton's
activities has been dealt with in a preceding section.
The Respondents, contend that there was no violation of the Act by any
surveillance of union meetings because: (1) The Union's circular for the meet-
ing of June 29 stated "everybody welcome," (2) White, a union organizer, testi-
fied that Carter or any of his agents was included in the invitation, and (3)
that meetings open to the public cannot be the object of surveillance within the
meaning of the Act.
These defenses are not applicable to the activities of Taylor on July 2 in
following organizers through Camden. They do relate to the activities of
Taylor and George Schoeneman at the July 9 meeting. The undersigned does
not agree with the contentions of the. Respondents. It is settled law that manage-
ment representatives who attend a union meeting after an -express invitation can-
not be guilty of surveillance. Here there was no such invitation, but the Re-
spondents rely on the general invitation. The consideration upon which is based
the rule against the attendance of supervisory officials at union meetings of
their nonsupervisory personnel is that such attendance has a coercive effect and
interferes with the free expression of opinion of rank-and-file employees and,
also, that problems of self-organization and related matters at union meetings
are for the employees to decide without employer participation.
These policy considerations require that an employer and his representatives
refrain from attending any union meeting of his nonsupervisory employees un-
less expressly invited. While the public might attend an open meeting, an em-
ployer is not in the position of an outsider and cannot classify himself with that
group."
Neither is the construction placed upon the notice of meeting by the union
organizers of binding significance here. The notice speaks for itself.. White's
testimony that under its terms Carter was invited is of no more binding signifi-
cance than if he had testified to the contrary. The nature and extent of the
invitation contained in. the notice are primarily questions of law.
Finally, apart from the general principles of law argued by the Respondents,'
it must be noted that Taylor and George Schoeneman did more than attend the
July 9 meeting and passively listen to what went on. Taylor closely followed
the organizers in a company-owned car and Schoeneman followed Taylor in
another car. The undersigned concludes that Taylor and George Schoeneman
engaged in surveillance and interference with a union meeting in violation of
the Act and also that Taylor's conduct in following the organizers on July 2 was
another violation of the Act ofthe same character.
Footnote 10-Continued
The Trial Examiner found that the Respondents' purpose in resorting to the court
proceeding was to interfere with the rights of its employees under the Act and was violative
of the Act. Enforcement of the resulting order against the Respondent was granted.
11 The Respondents place reliance on the case of Mellin-Tumey Mfg. Co.; Inc., 53 NLRB
366. The Intermediate Report in this case does contain language supporting the Re-
spondents ' contention . This particular issue was not specifically considered by the Board
in its decision and the undersigned does not feel that there has been a binding decision by
the Board on this issue.
2062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
B. Unfair labor practices-subsequent to September 1948
1. The reopened proceeding
By motion, dated March 9, 1949,' the General Counsel moved for leave toa
file a supplemental complaint based on a supplemental charge and requested
that the hearing be reopened so that the issues presented might be litigated.
On March 15, the undersigned issued an order to show cause why the motions
should not be granted.
A reply, containing objections, was filed by the. Respondents on March 18. On,
March 30, the undersigned issued an order granting the motion and setting the
date of the reopened hearing. At the request of counsel for the Respondents,
the hearing was postponed 1 week.
In the supplemental complaint, dated April 5, 1949, the General Counsel by
the Regional Director for the Sixteenth Region alleges that the Respondents
have engaged in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1), (3) and (4) and Section 2 (6) and (7) of the Act. With
respect to unfair labor practices, the complaint alleges in substance that the
Respondents: (1) Discharged S. L. Petty, J. R. Windham, and Woodrow Ray,,
and failed and refused to reinstate them and former employee Clabe McCarty
because of their union activities and also, in the cases of Petty and McCarty,.
because they had testified as witnesses for the General Counsel in the prior
proceedings; and (2) by the activities of certain officers, agents, and employees,
since the date of the last hearing, have expressed disapproval of the Union,
interrogated employees concerning their union affiliation, threatened and warned
employees to refrain from union activities, and engaged in surveillance of
employees in their union activities or their activities as prospective witnesses.
for the General Counsel.
The Respondents in their answer, dated April 8, 1949, admit that they are
engaged in business that affects interstate commerce, aver that Windham, Ray,
and Petty were laid off for cause and pursuant to a reduction in force, and deny
that they have committed any unfair labor practices.
Pursuant to the order issued by the undersigned, a hearing was held at Living-
ston, Texas, from April 26 to April 30, 1949, before the undersigned. Appear-
ances were made by the same representatives for the same parties as in the,
prior proceeding. Full opportunity to be heard, to examine and cross-examine
.witnesses, and to introduce evidence bearing on the issues was afforded all
parties.
At the outset of the proceedings, argument was heard on written and oral
objections of the Respondents to the reopening of the proceeding. The objec-
tions were overruled. The Respondents then pressed objections addressed to,
the complaint itself. These objections were overruled except that the under-
signed directed the General Counsel to furnish a bill of particulars as to certain:
allegations in the complaint of unfair labor practices allegedly committed by
officers, agents, and employees of the Respondents.
Permission was granted the General Counsel to amend the complaint to add.
an allegation that on or about January 13, 1949, Respondents through their
officers and agents spied on the activities of Paul White, a union organizer, and?
kept him under surveillance.
12 All dates hereafter are in 1949, unless the contrary is.indicated.
W. T. CARTER AND BROTHER 2063
The General Counsel then moved for a bill of particulars as to part of the
answer: The motion was denied:
The undersigned also permitted the General Counsel to further amend the
complaint to add the allegations that Carter, in October 1948, told certain colored
employees that he had observed their attendance at union meetings and would
discharge every colored employee he caught at a union meeting, and secondly,
that the Respondents discriminated against Ray by refusing him suitable living
quarters in Camden, although such quarters were available.
All the amendments were granted over objection and the Respondents entered
oral denials of these allegations.
It was stipulated by the parties that although the volume of the Respondents'
sales were lower than at the time of the prior hearing, the Respondents were still
engaged in commerce within the meaning of the Act.
The parties also renewed their stipulation that the Union is a labor organization
admitting to membership employees of the Respondents.
2. The alleged failure to reinstate Clabe McCarty
Clabe McCarty was employed by the Respondents from May 1945 until July 10,
1948. The issues raised by the termination of his employment are outside the
scope of the complaint here, but the circumstances under which be left the Re-
spondents' employ have a bearing on the allegation of the alleged discriminatory
refusal to reinstate him and for that purpose they will be reviewed here.
According to McCarty, there was one toilet in the area where he worked which
had been used exclusively by white employees. However, there had been some
use made of it by colored, employees. McCarty told Assistant Superintendent
George Schoeneman of this, and Schoeneman promised to provide separate facili-
ties. Shortly before his termination, McCarty stopped a colored employee, Charles
Freeman, from using the toilet. McCarty testified that he did not threaten
Freeman, but Freeman testified that McCarty threatened him and swore at him.
McCarty further testified that he told Freeman's foreman, Sanford, to keep Free-
man away from the toilet or there would be trouble.
McCarty was then summoned by his foreman, J. C. Johnson. According to
McCarty, Johnson said that he was causing confusion. McCarty said he did not
believe him. When Johnson added that he had caused Schoeneman to "jack up"
Sanford, McCarty again replied that he did not believe him.
Continuing his testimony, McCarty testified that he had noticed a slip with
his name on it on Johnson's desk. He told Johnson that to save further talk
he should hand over the slip. Johnson did so. McCarty testified that he asked
Johnson for the slip because he felt that he was going to be discharged and did
not want to be abused by Johnson.
Johnson testified that he had had complaints of McCarty's activities and that
he summoned McCarty to tell him to mend his ways or he would be discharged.
He further testified that he had prepared the discharge slip in advance and
intended to give it to McCarty if he did not promise to mend his ways. He
denied that the slip was on his desk, but otherwise his testimony as to what
occurred was in substantial agreement with that of McCarty. Johnson denied
that he knew of any union activities of McCarty or that they played.any part
in his decision to discipline McCarty.
McCarty testified that he attended the union meeting of July 2, 1948, saw
George Schoeneman there, and spoke with him. Several days later, according
2064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to McCarty, they met again and McCarty "told Schoeneman that he looked like a
union man. Schoeneman replied that he "stuck" with a man who stuck with him:
McCarty, continuing his testimony, stated that at that point he told Schoene-
man that that was the reason he had signed and sent in a union card.
McCarty saw Schoeneman at the July 9 union meeting, but they had no con-
versation. McCarty testified as a witness for the General Counsel at the prior
hearing on September 3, 1948. His testimony dealt primarily with the events at
the union meetings he attended. He also appeared as a witness for the Union
at the court proceedings.
After he quit the Respondents' employment on July 10, 1948, McCarty con-
tinued to live in his company-owned house. The Respondents, by letter, finally
requested him to move by October 4. On October 2, McCarty had a conversation
with Schoeneman. It is this conversation which forms" the basis for the charge
of alleged discrimination.
According to McCarty, he told Schoeneman that he needed a few more days
for moving beyond the limit set. Schoeneman said that he could have the
additional time. McCarty then said that he would like other work for the Re-
spondents. Schoeneman told him that he could not use him in any job 'and
when McCarty asked him why, Schoeneman replied, according to McCarty, that
the former had been too active in the Union.
Schoeneman denied that he knew that McCarty was a union member prior to
McCarty's testimony to that effect in September 1948. Schoeneman further
testified that he had heard that McCarty had testified that he was a member of
the Union and also knew that he had testified for the Union at the Board and
court proceedings. He denied that he had ever had any discussion concerning
the Union with McCarty nor did he recall seeing the latter at any union meetings.
According to Schoeneman, in his last conversation with McCarty, the latter,
after asking for and receiving an extension of time to move, declared that he did
not think that he had had a fair deal in view of his length of service. Schoene-
man then asked him if he had not quit. McCarty admitted that he had. Schoene-
man then told him that he did not need more men, but wanted possession of the
house.
Accepting McCarty's version of the circumstances under which he terminated
his employment on July 10, 1948, there is no substantial evidence that McCarty's
union membership or activities played any part in Johnson's decision to discipline
him. Nor is there a prepondenrance of evidence indicating that McCarty was
constructively discharged. Whether or not McCarty was unjustly treated at the
time, the evidence indicates that McCarty quit and that his union activities were
not involved.
Both Schoeneman and McCarty agreed that the question of McCarty's re-
employment was discussed and that he was refused reemployment. The dis-
agreement between them is as to the reason assigned by Schoeneman for not
-reemploying him. The undersigned has evaluated the testimony of these
witnesses in the light of their entire testimony and from his observation of them
while testifying. McCarty's testimony as to important circumstances relating
to his original quitting was contradicted by employee witnesses whose testimony
the undersigned found reliable. Schoeneman's testimony as to his dealings with
McCarty impressed the undersigned as accurate and truthful. Accordingly, the
undersigned credits his testimony that he did not refuse reemployment to
McCarty because of his union activities and that he did not give McCarty that
as a reason. Further, the undersigned credits his testimony that he told McCarty
W. T. CARTER AND BROTHER • 2065
that he had no need of any men at that time. Schoeneman testified without
contradiction that at that time he had no need of more men nor were any hired.
Accordingly, the undersigned concludes that there has been a failure of proof
that McCarty was refused reemployment because of his union activities or be-
cause he testified in prior Board proceedings.
3. The discharge of J. L. Windham
J. L. Windham was employed by the Respondents from January 29, 1946, until
January 8, 1949. From May 1947 until his discharge he worked in the yard of
the Hardwood Mill. His principal duties were to perform the carpentering
work required in building, repairing, and maintaining dollyways-wooden run-
ways over which lumber was transported to and from different points in the
yard. He usually worked with one helper and, at times, had several assistants.
He was paid at an hourly rate and received 2 cents more than the minimum pay
of yard employees.
Windham joined the Union in July 1948 and attended several meetings. In
September," Taylor summoned Windham to his office and, according to Windham,
told him that he had heard that Windham had talked about the Union to other
men, that if he had other reports that he or anyone else talked about the Union
it would mean their jobs, and that Carter did not want organized labor at the
plant. Windham denied that he had talked about the Union. The next day,
Windham continued, Taylor made a public announcement to the men not to talk
about the Union or it would mean their jobs.
Windham testified that after his discussion with Taylor, the latter was not
as friendly towards him as he had been, but he could only give inconclusive
evidence of this change in attitude. As far as the record shows, there had been
no specific criticism of his work before December 1948. In that month, Taylor
found fault with Windham's construction of a dolly-way. Windham testified
that he followed instructions but that Taylor , in effect, kept changing his mind.
In any event , the dolly -way construction was placed in charge of another em-
ployee, Harvey Emsoff , who completed it with Windham's assistance.
On January 8, 1949, Windham was summoned to Taylor's office and was told
by him that he had to discharge him.14 There was no further discussion at that
time.
Windham made prompt efforts to secure other employment. He testified that
they day after his discharge he saw a Mr. Aiken, a section foreman on the Moscow,
Camden and San Augustine Railroad which, as previously noted, was owned by
the Respondents and run as part of the Respondents' operations in and around
Camden." Continuing his testimony, Windham declared that Aiken told him
that he could use him if he got a release from Taylor and reported for work the
following Monday."
13 Windham testified that this incident occurred in October . However, Taylor , by restort-
ing to payroll records, fixed the time of the incident as in September and testified that it
could only have taken place that month. His testimony is credited.
14 Two other employees , S. L. Petty and Woodrow Ray, were also discharged that day.
Their cases will be discussed later.
15 Aiken was not in the employ of the Respondents at the time of the hearing and did not
testify.
16 The Respondents had a rule designed to prevent men shifting from job to job. In
substance , this rule required all supervisors who wished to hire a man who had been work-
ing for the Respondents to secure a release or, as some witnesses called it, a transfer from
the man ' s previous supervisor before assigning the man to new work.
903847-51-vol. 90-131
2066 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Windham saw Taylor on January 10 and asked for a release so that he could;
take a position with the railroad. Taylor replied, according to. Windham, "You,
wait awhile-I will see them fellows, you have been causing too much union
activity around this place, Camden." Windham then went home.
In the afternoon, Windham saw Aiken and was referred by him to Weems.
Windham could not locate Weems that day and made no further attempt to see
him, nor did he have any further dealings with Taylor. He did not receive any
employment with the Respondents or the railroad. He also made an application
for, employment at the Pine Mill, but was told there were no vacancies.
The Respondents' answer alleges that Windham was laid off for cause and
pursuant to a reduction in forces. Carter testified that for some time prior to
January 1949, demand for the Respondents products had been falling off and that
he had instructed all supervisors to economize in the use of personnel.
Taylor testified that in January 1949 he found that he had a surplus of men in
the yard. This was partly due to the return of Harvey Emsoff and two other
workers to yard duty. Emsoff, according to Taylor, had regularly been in charge
of carpentering work in the yard, but during Windham's employ there, he had
been engaged in repairing the Hardwood Mill, that work had been completed, and
Emsoff was available for his regular duty. Taylor testified that-in his opinion
Emsoff was the better carpenter.
Emsoff testified that he had been employed by the Respondents for approxi-
mately 23 years and that he did carpentering and other skilled work for the
Respondents. He testified that he had supervised Windham's work and that
the latter was not a first-class carpenter, but the best that could be obtained at
the time he was hired. He further testified that at the time of the hearing he was
performing Windham's work with the assistance of a man who had 6 or 7 years'
experience with the Respondents and who was a better carpenter than Windham.
Taylor also testified that there were different assignments that yard employees
were, called upon to perform and that the more valuable employees were those
who could perform a variety of ,tasks. He further testified that Windham could
not do a variety of the tasks as well as those employees who were retained. -
Several yard employees and former employees gave their opinion as to Wind.-
ham's ability and work habits. G. B. Treadway testified that in his opinion
Windham was not a good carpenter and was hard to get along with. Andy
Barfield, who had assisted Windham, testified that Emsoff was the better
carpenter and that Windham was contentious. L. M. Phillips also testified that
Emsoff was a better carpenter. Lewis Lang testified that Windham was difficult
to deal with. On the other hand, Harry Emsoff testified that he had worked.with
Windham in 1947 and that Windham was a good worker and obtained good work
from his assistants. Ottis King also testified that Windham was a good worker.
Taylor admitted that he had good reason to believe that Windham was a union
adherent from September 1948 and that he personally was opposed to the Union.
He further testified that he had received a complaint from an employee that
Windham was aggravating him by arguing with him about the Union and solicit-
ing him to join (there was no'rule against the employees talking while at work).
Taylor spoke to Windham who denied the charge. Taylor did nothing further
although, he testified, he believed Windham. Several days later Taylor received
another report from the same employee who originally complained of Windham's
activities, that Windham was again soliciting for the Union. ; It was then, Taylor
testified, that he made a public announcement to the employees not to discuss
the Union while at work. He admitted that he might have had the opinion
then that Windham was an active member of the Union. However, he denied
W. T. CARTER AND BROTHER 2067
that any suspected union activities of Windham had had anything to do with the
decision to discharge Windham or that he had told Windham that Carter would
not have organized labor at the plant.
Taylor also contradicted Windham's testimony as to his conversation with
the latter when he asked for a release. Windham did ask him for a release,.
Taylor testified, but at the time Taylor was busy with certain boiler repairs and
told Windham to see him in a few days. Windham never spoke to him again
with reference to a release and Taylor did not take the initiative even though
he found out several weeks later of Windham's application to Aiken.
In March, Taylor had another conversation with Windham in the presence of
Ernest Schoeneman. The latter had formerly worked for the Respondents as a
supervisor and was then being temporarily employed in a supervisory capacity.
According to Windham, Taylor asked him to repeat what their conversation had
been at the time Windham asked for a release. When Windham repeated the
conversation in accordance with his prior testimony in this proceeding, Taylor's
only comment, according to Windham, was that he did not recall what had been
said.
Taylor testified that he told Windham that he understood that Windham had
made the statement that Taylor had refused him a transfer. Windham replied
that he had been refused a transfer. Taylor then asked Windham to repeat
the prior conversation as he recalled it. Windham stated that Taylor had said
he would see Windham in a day or two, but had never done so. Taylor replied
that Windham was mistaken, that he, Taylor, had told Windham to come back
in a day or two. Windham then replied that he must have misunderstood
Taylor. Ernest Schoeneman corroborated Taylor's testimony.
The composition of the yard crew and the number of men employed are addi-
tional factors to be considered in the resolution of the issues raised as to the dis-
charges herein. Taylor's own records of the yard crew show 18 employed in
December 1948, 20 in January 1949, and 18 in February 1949. Of this group, 6
worked regularly as stackers ; that is, they stacked lumber in the yard as it came
from the mill. The witnesses were in general agreement that stacking was very
arduous work and constituted a specialized task to which the general yard
employees were not regularly assigned. Stackers also were paid on a piecework
basis and not at an hourly rate as other employees. It also appears that one other
worker was hired in January as a trainee for the position of lumber inspector.
This also was a specialized occupation which was not performed by general yard
employees. Windham and the other two dischargees, therefore, were part of a
group of approximately 13 among whom the selection for discharge was made.
Although the number on the payroll, did not fluctuate markedly in the 3 months
considered at the hearing, there was testimony that absences and quitting were a
substantial item in the total number of days worked. No figures were introduced
'as to this factor. However, Taylor's testimony stands undenied that the only
new employees hired after the discharges were stackers, a lumber inspector
trainee, and one general yard employee, Andy Barfield 17
As to Barfield, the undersigned finds, according to his credited testimony, that
Barfield had worked for the Respondents over a 10-year period, but had been
working as a full-time employee only since September 1947. He secured a leave
of absence from the Respondents for the purpose of having an operation and left
14 There was testimony that the special employees at times were seen -doing the work of
general yard employees . However, there is no proof that these employees did not perform
their special tasks regularly and did other work only occasionally.
2068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in August 1948. After recuperation he returned to work on January 10, 1949.
Barfield, during his employment, assisted Windham in carpentering work.
Taylor testified that he retained Barfield rather than Windham, because he
considered Barfield the better all-around worker.
There is one other worker whose employment record was relied on by the
General Counsel. Claude Warren testified that he was.first employed by the
Respondents on August 10, 1948, that he worked until Christmas and left, without
giving any notice, to take care of some ill relatives and that he returned to work
in February and had encountered no trouble in going back to work. Taylor
testified that Warren had been absent from December 21, 1948, until February 7,
1949, that he presumed Warren was coming back and therefore kept him on the
payroll. He further testified that he preferred Warren to the men he discharged.
Warren is 21 years old. He testified that he had had no yard experience before
his employment with the Respondents.
Conclusions
There was no challenge to the Respondents allegation that their volume of
business was on a downgrade trend at the time of the discharges. The testimony
does show that the general work force at the yard had been augmented by the
return of Emsoff, two others, and also there was the prospective return of
Barfield. There is no substantial evidence that the reduction in force was under-
taken-to accomplish a discrimination under the Act. Basically, the issue pre-
sented here is an alleged discriminatory selection of employees to be laid off.
Harvey Emsoff was a skilled carpenter and the testimony establishes that
when Windham and Emsoff worked together, the latter was in charge of the
job. Since there is no proof that more than one carpenter was needed in the
yard, it was logical and reasonable to replace Windham with Emsoff who had
much more seniority and who, according to the preponderance of the evidence,
'was'more skilled.
Emsoff needed a helper, a position for which Windham was qualified. How-
ever, Emsoff testified that he did have a helper who had longer tenure than
Windham and who was a better carpenter. While Emsoff's sympathies as indi-
cated in his testimony were clearly with the Respondents, his testimony on this
point .remains unchallenged.
As to the general group of yard employees from which Windham was selected
for discharge, there is testimony concerning two of those employees with whom
Windham may be compared, Barfield and Warren. Windham was clearly a bet-
ter carpenter than Barfield or considered such by the Respondents since Barfield
did carpentering work under Windham's direction. However, the necessity of
carpentering work by either of them had been largely obviated by Emshoff's
return. There is meagre objective evidence as to their respective capabilities
for general work in the yard. Taylor's opinion was mainly based on his sub-
jective evaluation of the men.
As to Warren, here again Taylor's opinion preferring Warren was not substanti-
ated by reference to any objective standard. Warren is a young man and did not
have as much experience as the other dischargees. However, the different tasks
in the. yard did require strength and some agility. The undersigned cannot
conclude that a more experienced man was, per se, to be preferred to a younger
man who might be able to work. harder. In summary, no objective testimony
appears in the record from which it may be concluded that Windham was a better
general workman than the men who were retained.
W. T. CARTER AND BROTHER 2069
Finally, the General Counsel's case rests on the statements Windham testified
Taylor made to him as evidencing bias and discrimination against him. The
first such remark, according to Windham, was in September 1948 when Taylor
told him that Carter would not have organized labor in Camden. Also, Wind-
ham testified that when he asked Taylor for a release, Taylor told him to wait,
that he would see those who had offered him a position, and that Windham had
been causing too much union activity in Camden.
Windham testified that when Taylor made the latter remark, he did not make
any reply, but merely walked away. It appears strange that Windham would
not make any protest when he, in effect, was apparently being deprived of an
employment opportunity. Nor did he attempt to have further discussion with
Taylor when he encountered difficulty in securing the position for which he had
applied. He made an effort to see Weems, but did not continue efforts to see him.
It might be argued that Windham saw no point in pursuing the matter further
since he felt he could not be successful. However, Windham's testimony as to
his later conversation with Taylor in March 1949 also contains strange elements.
It is hardly likely that Taylor would have accepted Windham's accusation that
he had made a highly discriminatory statement with the matter-of-fact reply that
he could not recall what had been said and without doing or saying anything fur-
ther. Also, as the Respondents contend, it is highly unlikely that Taylor having
played an important part in a prior Board proceeding recently concluded would
have openly admitted discriminatory practices.
Taylor's testimony was corroborated in part by Ernest Shoeneman. The
undersigned found Taylor's testimony that he did not refuse Windham a transfer
because of his union activities inherently more credible and from his evaluation'
of the testimony of the witnesses, credits it. The undersigned also credits
Taylor's denial that he told Windham that Carter would not allow organized
labor in Camden. Despite Taylor's admitted animus towards the Union and his
knowledge in September 1948 that Windham had probably been talking in favor
of the Union, the undersigned is not persuaded that the -preponderance of the
evidence establishes that Windham's discharge 4 months later was due to the
latter's union membership or activities.
4. The discharge of Woodrow Ray's
Woodrow Ray was employed by the Respondents at different times between
February 11, 1946, and his final discharge on January 8, 1949. He is a son-in-law-
of Clabe McCarty whose case has previously been considered. Ray lived in
McCarty's house when the latter resided in Camden.
Ray testified that he was discharged from the Pine Mill in the summer of 1948.
Sam Martin, his supervisor at the Pine Mill, testified that Ray was discharged:
because he was inefficient, not dependable, and noncooperative. No issue has
been. raised. as to this discharge.
In the fall, Ray secured a transfer and obtained employment in the yard crew
at the Hardwood Mill. On January 8, 1949, he was working with S. L. Petty.
when he and Petty were discharged by Taylor who told them that he could not
use them any more:
Ray' testified that he joined the Union about June 20, 1948, attended its meet-.
ings, occasionally helped White adjust sound equipment, and talked about the
Union while at work.
18 Ray and S. L. Petty, the dischargee whose discharge is. specifically. dealt with in the
nest section, worked together. Much of the material in this section, however, is also
applicable to Petty's case.
' 20_70 DECISIONS -,OF NATIONAL LABOR RELATIONS BOARD
.- Continuing his testimony , Ray testified that at . the time of his discharge he
asked .Taylor for a release and Taylor replied that he would give him and Petty
releases if they obtained other jobs . On the following Monday, Ras, spoke
with Aiken , the section foreman on the M. C. & S . A. Railroad who played a part
in Windham 's case. Aiken told Ray that he could use him if Windham were un-
successful in obtaining a release. Ray testified that he then went to Taylor and
asked him whether he had given Windham a release. Taylor replied that he
had not given Windham a release and would not give one to Ray. When Ray
asked his reason for such action, Taylor replied, according to Ray, "You, S. L.
Petty and Windham have been too active in the union."
Taylor flatly denied that Ray had ever asked for a transfer or that he had
ever told Ray that he , Petty, and Windham were too active in the Union.
Taylor further testified that Ray had at one time worked at the Hardwood Mill
and had quit , that Taylor had hired him in the fall of 1948 and had warned him
at that time to do his work and accept all assignments.
The reason why Taylor felt that there should be any reduction in the yard
staff has been dealt with in the course of the discussion of Windham 's case.
Taylor testified that he selected Ray for discharge because Ray accomplished a
small amount of work, and could only perform a limited number of tasks, and
had a poor attendance record. He also stated as an additional reason that he
had found Ray and Petty sorting different kinds of lumber improperly 3 to 5 weeks
before their discharge . He denied that any union activities of Ray had anything
to do with the decision to discharge him.
R. U. McCurley , yard foreman , testified that he discussed the prospective dis-
charges with Taylor about 1 week before they were made and that he and Taylor
were in agreement as to who could be spared . McCurley also stated that he felt
Ray could be spared because he was not skilled and was not dependable:
When McCurley was asked to itemize the different tasks that Petty could not
perform, he listed the following which he also indicated applied to Ray also :
1. Stacking lumber.
2. Walking stacks-that is, taking lumber from stacks and loading it on
buggies to be hauled away by trucks called jitneys.
3. Operating jitneys.
4. Telling the difference between different kinds of woods.
As to the list furnished by McCurley , the undersigned has the following com-
ments. There was general agreement in the testimony that the job referred to as
stacking lumber was a recognized specialty which the yard crew was not expected
to perform except in emergencies . Stackers received piece rate wages for their
work which was acknowledged to be arduous . There is no testimony that Petty
and Ray walked stacks and McCurley 's testimony stands uncontradicted on this
point. Taylor testified that usually one or two men did this work . As to the
operation of jitneys , Taylor testified that jitney drivers were considered special-
ists and those who operated jitneys usually did that work regularly . As to the
final point raised by McCurley , inability to distinguish different kinds of wood,
there is only one specific instance of such an error mentioned in Taylor 's testi-
mony and none in McCurley ' s. The undersigned infers from this paucity of
supporting data either that Petty and Ray had no need to distinguish different
kinds - of wood or that they did so successfully.
In later testimony , Taylor, testifying from his own records, stated that Ray's
attendance record in November 1948 was as good as some of the men and better
than others , for December it was about as good as any of the employees , and that
W. T. CARTER AND BROTHER 2071
he missed 11/ days in January 1949. There also was testimony by George
Schoeneman, a supervisory, and other witnesses that there generally is •a good
deal of absenteeism among lumber workers and most of them as Ray, are paid on
an hourly basis for time actually worked.
A group of employees and former employees gave their evaluations of Ray's
work. J. Bryant testified that he had worked with Ray, that he did not con-
sider him dependable and would have discharged him before terminating any
of the other yard employees. Harry Emsoff had worked with Ray in 1946. He
testified that he considered Ray an average worker. L. M. Phillips, a truck
driver, testified that he observed Ray and Petty as he drove around the yard
and would have laid them off first. Harvey Emsoff maintained that Ray was
not dependable, that on one occasion when displeased with an assignment he
walked off the job.
. G. B. Treadway testified . that Windham and Ray were bad workers and he
would have laid them off first. Lewis W. Lang, Jr., at first designated Petty
and Ray as the two worst employees, but then changed his testimony to designate
Windham and Ray.
There was extensive testimony concerning conversations between Ray and
representatives of the Respondents after his discharge. After McCarty moved
from a company house in Camden, Ray, who had lived with him, moved into a
house owned by Harvey Emsoff. According to Emsoff, Ray moved out of the
house in January 1949 telling Emsoff that there was no point in staying on and
that he had not asked for a transfer since he had previously been discharged
from the Pine Mill and a transfer would not do him any good. Ray denied
making any such statement.
Continuing his testimony, Emsoff testified that in March 1949 Taylor told him
that Ray had asserted that Taylor had refused him a transfer. Emsoff then
told him of his earlier conversation with Ray and Taylor asked him to speak
to Ray about it.
Emsoff was driven to Ray's place of work by Phillips on March 4. Emsoff
testified that Ray told him that he had not filed any charge with the Board
and that he had not requested a transfer, but he refused to make a statement
to that effect.
Phillips agreed with Emsoff that Ray denied making any statement to the
Board that he had asked for a transfer and been refused, but would not sign
a statement to that effect. However, Phillips testified that Ray asserted that
he had asked Taylor for a transfer. When Phillips asked Ray what Taylor
had said, Ray replied, "Mr. Taylor didn't say much." Phillips further recalled
that when Emsoff asked Ray whether he did not recall saying that there was
no use in his applying for a transfer, Ray made no reply.
Ray testified that Emsoff wanted him to sign a statement to the effect that
he had nothing to do with the case, but that he refused to do so. He gave no
further details as to the conversation.
After Emsoff made a report of his conversation, Carter, Taylor, and employee
J. G. Collins drove to Ray's home.19 Ray was in his car when they arrived and,
at Carter's request, came over to Carter's car. There is sharp disagreement
as to the conversation that ensued. Ray's version of the conversation was as
follows
A. Me and my, wife was fixing to go to Leggett to mail a letter. Up
drove Mr. Carter and Mr. Taylor and Mr. Pete Collins. Mr. Carter got out
19 Carter testified without contradiction that in a prior discussion with Board representa-
tives he asked whether there was any objection to his interviewing persons who had com-
plained of activities of the Respondents and was told that there was no objection.
2072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the car and walked around and says, "Have you got time to talk to me,"
I believe that is what he said, and I said yes. We walked on around by his
car, and, let's see, what kind of a mess had I made. I told him I hadn't
made any mess, and he said I made out a statement to Mr. Green that I
went to Taylor for a transfer, which I haven't even seen Mr. Green ; I don't
even know the man.
Q. Go ahead.
A. And I told Mr. Taylor that he knew damn well that I did go after the
transfer and he refused me. Mr. Carter called me a liar. Well, that made
me mad, and I called him a liar, and I says, "You know damn well you
fired us on account of the union, and you know you did." He was. mad, and
he said, "Yes, by God, I fired you on account. of the union and I will fire the
next one."
Ray further testified that Carter told him that he had better go to Camden to
straighten things out or he would be sorry.
Carter denied making any statement that Ray had been discharged for union
activities or his relationship to McCarty or that Ray had been warned to come to
Camden to straighten things out. He testified that the substance of the con-
versation was as follows :
A. Well, when Mr. Ray come over to the car, I simply asked him, told
him that I understood he had made certain statements to one of the in-
vestigators for the Labor Relations Board, and in the statement he had
claimed that he had asked Mr. Taylor for a transfer, and he said yes, he
did ask Mr. Taylor for a transfer. I think it was at that point that Taylor
was sitting in the back seat of the car,, but he was leaning over on the back
of the front seat. The window there was open. Mr. Taylor, I think at that
point, asked Mr. Ray to please look him in the eye and make such a state-
ment, and Mr. Ray did look him in the eye and made the statement again.
Then I asked Mr. Ray, "Mr. Ray, did you also say when Mr. Taylor refused
your transfer that he further said, 'I am firing you because you are a member
of a CIO and because you are Mr. McCarty's son-in-law and because we
don't. want any CIO members and we expect to operate this mill forever
without a CIO organization,' " or words to that effect, and he said yes, he
did make that statement, Mr. Taylor did make that statement to him. I think
Mr. Taylor said, "Mr. Ray, you know I didn't make any such statement,
and you didn't even come and ask me for a,transfer." I think it was about
that point Mr. Ray said, "I know why I was fired, I was fired because I was
a member of the CIO, that is the reason they fired me." I said, "No, Mr.
Ray, we found it necessary to let out some men, and you have a very bad
work record and you were one of the three over there that were let out."
Then I asked Mr. Ray, I told Mr. Ray that these charges would probably
come to a hearing, I didn't know when, but all the witnesses would be under
oath, and if he was a witness, did he expect to testify under oath that Mr.
Taylor in addition to refusing him a transfer told him that he was being
fired because he was a member of the CIO, and because he was Mr.
McCarty's son-in-law and because that we didn't want a CIO there and we
had operated. fifty years without one, and expected to continue without one.
He said, "Yes, I expect to testify to that." I don't think there was anything
else said much. I got back in the car and he went on towards his car and
we drove on back to Leggett.
Taylor and Collins corroborated Carter. On,the other hand; Mrs. Ray, who was
sitting in Ray's car , supported Ray's version.
W. T. CARTER ANA BROTHER 2073
It is undisputed that at the time of the conversation , Ray's car and Carter's
were on opposite sides of the road, that Carter stood on the right side of his
ear, Ray was in front of the ear, and Taylor remained seated in the car. As to
the distances between the cars, Mrs. Ray estimated it at 5 to 6 feet, Carter's
opinion was 30 feet, Collins estimate was 25 to 30 feet, and Ray testified that
he had later measured the distances between the points where he recalled the cars
,had been parked and that those points were 18 feet apart . Carter testified that
the conversation was carried on in an ordinary conversational tone except at one
or two points when Ray raised his voice . Ray's testimony was that Carter and
he both became excited . T. M. Blasingame testified that at the time he was 70 to
100 yards behind Ray's house which was about 50 feet from the road , that he
heard some loud talking and heard Ray say, "You 're damn right," but he could
not distinguish anything else that was said.
Conclusions
There are inherent improbabilities in Ray 's testimony that Carter declared that
Ray and the other dischargees had been discharged for their union activities.
Carter had come to see Ray for the purpose of securing some evidence or admis-
sion from him to support the Respondents' contention that there had been no
discrimination against Ray . Under such circumstances , it was highly unlikely
that Carter , even in a sudden fit of anger, would have openly admitted three
cases of discrimination . Ray's testimony was corroborated by that of his
wife. Yet Mrs . Ray at the time of the conversation was sitting in a car which
was between 18 and 30 feet away from Carter 's car , according to the estimates
of the other witnesses . It is by no means clear that she could have heard the
entire conversation . The undersigned , from his evaluation of the witnesses,
credits Carter's version of the conversation as supported by Taylor and Collins.
The undersigned also credits Taylor 's denial that he refused Ray a transfer
telling him that he, Petty, and Windham had been too active in the Union.
The undersigned therefore concludes that there were no admissions by the Re-
spondents ' officials of discriminatory motives in discharging Ray and the other
two dischargees . Resort must be made to the underlying factors in Ray's case
to determine whether there was a discriminatory discharge.
A highly significant fact is that when Taylor and McCurley attempted to detail
the specific shortcomings of Ray, they failed to substantiate their general criticism
of his work . Taylor testified that Ray had been guilty of excessive absenteeism.
Yet after he consulted his own records , he testified that Ray's attendance record
in November and December 1948 was good.
Taylor also testified that Ray and Petty loaded lumber on boxcars, stacked
lumber in the shed , and performed other tasks. He did not attempt to itemize
those tasks that Ray could not perform . McCurley attempted to do so and listed
four tasks. Two of these, stacking lumber and driving jitneys were not jobs
customarily performed by the general yard crew . A third task , walking stacks
was an assignment which , according to Taylor , seldom required more than two
men. McCurley also claimed that Ray and Petty could not tell the difference
between different kinds of wood. Yet only one instance of such a mistake was
furnished . Clearly if they really could not distinguish the different kinds of
wood in the yard and it was necessary for them to do so, many instances of
such mistakes would have occurred and certainly they would have been repri-
manded. Yet Ray's testimony that he never received any specific criticism
stands undenied . Under these circumstances , the inference arises that factors
other than his work record entered into the decision to discharge Ray.
2074 DECISIONS -OF -NATIONAL LABOR RELATIONS BOARD
..The evidence indicates that Ray's prior work record before his last assign-
ment was not a good one . However, the almost complete failure of -proof as to
the allegations of poor work in his last : assignment _outweighs : -any inferences
that might be drawn from his prior record. • .
There -is- conflicting - testimony by -persons. who worked, in, the : yard as - to
Ray's ability . This testimony was colored for the most part by the bias of the
witnesses for or against the Union or for or against the Respondents .: To the
extent that this testimony merely- constituted a subjective. appraisal of Ray unt
supported by reference to specific examples of conduct praised or criticized, the
undersigned has placed little reliance •on • it. The only witness who furnished a
specific instance was Harvey Emsoff who testified that Ray on one occasion did
not like an assignment and walked off the job . Neither Taylor nor McCurley
relied on any such alleged conduct as entering into the determination to dis-
charge Ray.
The Respondents urge that if there was any intent to discriminate against
Ray because of his union membership and activities and relationship to McCarty,
Taylor would have refused Ray employment in the fall of 1948, since by that
time McCarty had testified in the prior Board proceeding and Ray had been a
member of the Union for some time and had been attending . its meetings 2°
Taylor who made the final decision to discharge Ray, was opposed to the Union.
He had taken an active part in efforts to interfere with the organizational cam-
paign . In view of Taylor's attitude ` towards the Union and the failure to sub-
stantiate the allegations of poor workmanship made against Ray, the undersigned
concludes that the preponderance of the evidence establishes that when Taylor
found that he had a surplus of labor in January 1949 instead of a need for help
as in the fall of 1948, he was influenced in the selection of Ray for discharge by
the latter 's union activities and close relationship to a witness who had testified
in a prior Board proceeding . The discharge of Ray, in the opinion of the under-
signed, was violative of the Act.
5., The discharge of S. L. Petty •
S. L. Petty was employed by the Respondents continuously from November 1,
1946, until January 8, 1949. Except for an 8-month period in 1947 he regularly
worked with the yard crew at the Hardwood Mill, where his principal tasks were
loading box cars and stacking lumber in a shed . He testified that Taylor twice
complimented him on his work in 1948 and, a few days before his discharge,
McCurley told him and Ray, with whom he was then working, that they were
doing a good job. Petty also asserted that he had never received complaints con-
cerning his work.
Petty joined the Union in the summer of 1948 and, according to his testimony,
attended all but two of the union meetings. As previously related, he and his
wife had testified at the prior proceeding as witnesses for the General Counsel..
As to his discharge, Petty testified that on January 8 Taylor summoned him and
Ray to his office and told them that he could.not use them any more. Petty asked
if they could obtain transfers and Taylor told them that he would give them
transfers, but did not think it would do them any good.
20 The Respondents clearly knew of Ray's relationship to McCarty. Ray testified that
he saw supervisors at the union meetings. Other testimony also establishes that super-
visors attended these meetings . The Respondents have maintained that supervisors were
within their rights in, attending the meetings.
W. T. GARTER AND BROTHER = 2075
Petty further testified that he made efforts to secure other employment. He
applied to George Schoeneman on the 17th, but was refused. He also applied to
Sam Martin, foreman at the Pine Mill, on January 9, and was told by him that he
could use Petty, but could not hire him. Petty also talked to Carter on January
18 and was told by Carter that he could not use him. Petty also was refused by
Carter a week later?' °
Schoeneian denied that Petty ever asked him for employment after he was
laid off. However he admitted that he did not know Petty very well at the time
and it is clearly possible that the conversation took place. The undersigned
credits Petty's testimony. Carter testified that he did not think that Petty
applied to him for reemployment, but he was not sure. The undersigned accepts
Potty's version.
Sam Martin denied Petty's testimony. He testified that he told Petty that
he had all the labor he needed. He denied that he had any instructions not
to hire Petty and asserted that he hired no new employees until 'a month later.
Petty gave several conflicting versions of his conversation with Martin, and
at some points in his testimony supported Martin's version. The undersigned
credits Martin's testimony. As to all of Petty's applications for reemployment
there has been no showing that there were vacancies at the time of his applica-
tion from which he was discriminatorily barred. The basic issue here is as to
whether he was discriminatorily selected for discharge by Taylor 2$
Taylor testified that Petty was selected for discharge because there were
only a limited number of tasks he could perform and that he was not physically
able to do some tasks. He further testified that Petty had told him that he had
a hernia condition 3 or 4 weeks before his discharge and that he, Taylor, con-
sidered it bad practice to have a man working with that condition. Taylor
further mentioned the incident previously related where he had found Petty
and Ray mixing up wood and not distinguishing the different kinds.
Taylor could not recall specifically criticising the work of either Petty or Ray
and stated that he probably had complimented Petty on his work in an effort to
encourage him.
Taylor also testified that Petty and Ray loaded box cars, put lumber in a shed,
and stacked green lumber. He thought that they performed other tasks at
times.
McCurley corroborated Taylor and testified that Petty was discharged be-
cause he could only do a few jobs-that he was not physically able to perform
some tasks and was not able to do others, and that it was advantageous to have
yard employees who could perform a variety of tasks. The details which Mc-
Curley furnished.as to Petty's inability to perform tasks have been considered
and evaluated in connection with Ray's case.
Again, as in the case of the other dischargees, men who had worked with Petty
were asked to evaluate his ability.
Phillips testified that Petty was a poor worker from his observation of him.
On the other hand, King testified that he had worked with Petty and that he was
21 Petty also told Carter in these conversations that he needed 'a, hernia operation to
correct injuries received while at work . He was paid a sum of oney to defray the
expenses of the operation.
zz Petty admitted that he had signed an application for unemployment compensation
which listed lack of work as the reason for his discharge. He testified that he did not give
that reason when he was interviewed for unemployment compensation . However, it is
not necessary to resolve this question since his personal opinion as to whether or not he was
discriminated against is immaterial.
2076. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a good worker. Lang testified that Petty and Ray were poor workers, but when
he was asked what two workers he would have laid off first, he named Windham
and Ray.
Conclusions
Petty's case resemblesoRay's except that it is stronger. As in Ray's case, there
is almost a complete failure of proof as to the specific allegations of lack of
versatility. In addition, Petty had a record of 18 months work in the yard with
no dispute over the claim that he never received specific criticism of his work but,
in fact, was complimented.
The only reason for the discharge as advanced by the Respondents which
requires further consideration is Taylor's testimony that one of his reasons for
selecting Petty for discharge was that he learned from Petty several weeks before
the discharge that Petty had a hernia and that he, Taylor, did not consider it
good practice to have an employee with such a condition working in the yard.
Petty, as far as the evidence shows, continued with his usual tasks after telling
Taylor of his condition and there is no proof that he could not have continued
in his accustomed duties. The answer of the Respondents made no specific refer-
ence to Petty's physical condition. In view of these circumstances, the failure
of proof as to the specific tasks which it was claimed Petty could not perform,
and the other factors relating to Petty's work record, the undersigned concludes
that this assigned reason was an additional pretext relied upon to justify Petty's
selection for discharge.
Petty and his wife had taken an important part in the prior Board proceeding.
Taylor had also testified there. Petty also openly participated in union activi-
ties. In view of Taylor's antiunion animus, Petty's good work record over a
substantial period of time, Petty's participation in the prior Board proceedings
and union activities, the failure of proof as to work which Petty could not per-
form, the undersigned concludes that the preponderance of the evidence estab-
lishes that Petty was selected for discharge because he gave testimony in a prior
Board proceeding and participated in union activities.
6. The Respondents' use of a reporter at union meetings
The complaint further alleges that the Respondents, since the previous hear-
Jug, had a reporter present at union meetings. Carter admitted that the
Respondents employed a reporter to take notes at union meetings prior to the
previous hearing, but denied that the Respondents had ever employed or author-
.ized the employment of a reporter for that purpose since then. Carter testified
that a reporter was last employed on August 23 and 25, 1948.
Several witnesses for the General Counsel testified that a reporter was present
at union meetings, in the late fall of 1948.
Ottis King testified that he saw Z. Foreman, an attorney ,for the Respondents,
in a car with ;a reporter at a union meeting at the triangle and that he saw the
reporter making notes. He first testified that this,meeting was late in Septem-
ber, but then admitted that he was not sure of the date and that it might have
been in August. His entire testimony reveals that he was unsure of the date of
the meeting.
Mrs. Petty testified that she attended a union meeting at the triangle with
-King and some, other people and that she noticed a man in a lighted car taking
notes, that one of those in her group identified another man in the car as Fore-
man.' She could not fix the month when this occurred,,but she testified .that it
must have been after the previous hearing since no meetings were held at the
W. T. CARTER AND BROTHER 2077
triangle until after that hearing . She admitted having had some conversation
with someone , whom counsel identified as Foreman , at the prior hearing, but
denied that she knew his identity until she was told it at the triangle. She
further testified that she was upset at the prior hearing and did not have a clear
picture of the person with whom she was speaking then. She was positive that
the meeting took place after she had testified.
White corroborated Mrs. Petty and testified that he saw a reporter with Fore-
man and another man at a meeting in the first week in October.
Petty also testified that he saw a reporter at union meetings after the last
hearing.
Carter, as afore -mentioned , denied that Foreman ever brought a . reporter to
Camden after September 1, or that the Respondents authorized or paid for such
services after that . Foreman did not testify . On the last day of the hearing,
Carter testified that Foreman had been ill for several days and was unable to
testify.
White further testified that 2 days after the triangle meeting described above,
he conducted another union meeting for colored employees , that the same re-
porter was present, and that he, White, remarked : "If this reporter who takes
down my speeches wants to take down my speech at Indian Village when I show
the movie tomorrow night, he will have to sneak inside." White testified that
he had not shown any movies at the place called Indian Village before the prior
'hearing. He fixed the date . of this meeting as occurring in the first week in
October 1948 . Petty and Mrs. Petty testified that they attended a meeting
where White made the alleged remark to the reporter who was present. Petty
fixed the date as in the latter part of September or the beginning of October.
Mrs. Petty , as afore-mentioned , fixed the date as after the last hearing.
Conclusions
White's testimony on this point was given in convincing detail, referred to
events which were susceptible to verification by reference to others , and was
supported by the testimony of other witnesses . The Respondents admittedly had
a reporter present at union meetings before the prior hearing . After an evalua-
tion of all the testimony, the undersigned concludes that the evidence estab-
lishes that a reporter acting for the Respondents was present at • two union
meetings after the close of the prior hearing.
7. The alleged surveillance of union meetings
The complaint alleges that the Respondents through their officers, agents, and
employees , including Taylor and George Schoeneman, since the end of the
previous hearing ( September 9, 1949 ), have kept union meetings under surveil-
lance.
Several Board witnesses testified that Schoeneman drove by union meetings
in a car. Ray testified that he saw Schoeneman drive by one union meeting
which was being held at the intersection of the Moscow road and the Barnes
road. At that point the Barnes road branches off from the Moscow road and
continues through Camden .. It is the most important road through the town.
At the intersection there is a piece of, ground known as "the triangle" where
some union meetings were held . Continuing his testimony , Ray testified that he
did see Schoeneman drive by once in a jeep, but was unsure whether Schoeneman
drove by more than once . He also was uncertain whether the meeting took
place in August or September 1948, but he did recall White stating over a loud-
2078 DECISIONS : OF NATIONAL LABOR RELATIONS BOARD
speaker that whoever was in the jeep should stop or go on and stop harassing
the meeting. The car, according to Ray, was being driven slowly and its lights
.would shine on the audience as it turned down the Barnes road. Ray further
testified that on this same night he saw a jeep being driven by the meeting place
several times but did not see the driver on these occasions.
is. Ray testified that she saw Schoeneman pass a union meeting three times.
.She fixed the date of the meeting as October 22, 1948, the day before the Rays
moved from Camden. On this occasion, she testified, she saw Schoeneman drive
by the meeting in a jeep three times in such quick succession that she concluded
that he made the trips without stopping. She admitted that from the place
where she was sitting she could not have kept the jeep in view all the time. She
further testified that on Schoeneman's last trip she heard White say that he
wished the man in the "JJ" car would either stop and listen to his speech or stop
harassing him and the workers during the meeting. Schoeneman never came
back, she testified. Mrs. Ray attended other union meetings, but did not observe
any similar incidents.
Petty testified that he saw Schoeneman drive by a meeting in a jeep at the
triangle twice within an interval of approximately 10 minutes between the trips.
Petty could not fix the date of the meeting but stated that it was at the end of
September or beginning of October 1948. He further testified that he saw Weems
drive by this meeting or the next one.
The night after the triangle meeting, Petty continued, he attended a meeting
in the Negro quarters along the Moscow road and saw Weems and Schoeneman
each pass that meeting twice. Schoeneman, he testified, drove by the meeting
only a few minutes after lie had first passed. Petty heard White ask that one of
the cars be driven on, that it interfered with the meeting. He also testified that
he never heard White mention a "JJ" car, although he heard him ask that cars
be driven on. Petty further stated that Taylor drove by every meeting he at-
tended and that he attended all but two.
Mrs.. Petty corroborated the previous witnesses in that she testified that at
one meeting which took place after September 1948, she observed Schoeneman
pass the meeting several times driving a jeep and that these trips all occurred
within a short space of time. She also heard White ask the driver not to inter-
fere with the meeting.
White conducted all the union meetings during the fall of 1948. He testified
that at a meeting at the triangle in the first week in October a driver in a jeep
drove by the meeting three or more times, weaving his car and shining his head-
lights on the crowd. Finally White announced that the driver of the jeep with
the "JJ" license should stop and hear the meeting or stop harassing the crowd.
White testified that he understood that jeeps in Camden with "JJ" license
plates belonged to the Respondents.
A few days after the meeting at the triangle, White held another meeting
for colored employees on the Moscow, road. On this occasion, he testified, a
jeep with the same driver who had driven through the prior meeting, drove
rapidly through this meeting four or five times. White testified that he did not
know the identity of the driver.
Schoeneman denied that he had ever driven through any union meeting more
,that one time. He admitted that on one occasion he drove by union meetings
either on his way home or going to work, but denied attempting to harass
meetings. • He also testified that he drove 'a company jeep in 1948, but asserted
that it did not bear a "JJ" license. He did own an Oldsmobile automobile whose
licenses plates started with those letters. He further testified that the Re-
W. T. CARTER AND BROTHER 2079
spondents owned three jeeps licensed for road operation at the time, but that
there were approximately five other jeeps kept in Camden.
Weems denied any surveillance of union meetings. He testified that on oc-
casion he passed -meetings on the Moscow road on his way to visit his parents
in Moscow, but denied driving through any meeting several times or returning
a few minutes after passing a meeting.
. Taylor testified that he never drove through a meeting twice in the same
night and only drove by a meeting when he had to use the road.
r Employees Bryant, Treadway, and Lang corroborated Schoeneman, Weems,
and Taylor, and testified that at meetings they attended they did not notice any
driving back and forth by any supervisory official. Treadway testified that he
attended most of the meetings; the other two witnesses attended several.
Conclusions
Taylor, Schoeneman, and Weems admitted that they had passed union meet-
ings, but denied that they had engaged in any surveillance. As to Weems and
Taylor the evidence does not contain sufficient detail to establish that they
passed meetings an excessive number of times or engaged in conduct which
might constitute interference or surveillance. In appraising their conduct it must
be kept in mind that union meetings were held on roads which constituted the
main traffic arteries to and from Camden.
As to Schoeneman, witnesses did supply detailed information concerning his
alleged activities.. The witnesses for the General Counsel who supplied the most
complete detail were certain that at a meeting at the triangle there was inter'-*
ference with the meeting by a driver in a jeep bearing a "JJ" license. plate..
Some of them identified Schoeneman as the driver. However, Schoeneman de-
nied that his company jeep bore a license plate with those letters and his testi-
mony on this point was not contradicted. While he admitted that his Oldsmo-
bile car bore a license plate with those letters, it could hardly be mistaken for a
jeep. Although it was theoretically possible for Schoeneman to borrow another
jeep and use it as alleged, the failure, to trace ownership or possession of such
a jeep to Schoeneman casts doubt on the identification of him as the driver
who interfered with a meeting at the triangle. His alleged activities at a
succeeding meeting for colored employees depends to a large extent on the
identity of the driver at the triangle meeting. Upon a consideration of all the
evidence the u.ndersibned is not persuaded that the charge against Schoeneman
has been established by a preponderance of the evidence and fuither concludes
that the evidence does not establish that supervisory officials, after the prior.
hearing, engaged in surveillance or interference with union meetings.
8. The questioning of Windham and the announcement of the rule forbidding
discussion of the Union
The complaint alleges that the Respondents violated the Act in that Taylor
questioned Windham as to union membership and activities and threatened to
discharge Windham and other employees if they engaged in union activities.
Windham, as previously related, testified that in October 1948, Taylor told
him that he had reports that Windham was talking about the Union. When
Windham denied this, Taylor replied, according to Windham, that if he heard
Windham or any other employee discussing the Union while at work, that person
would be discharged . The next day , Taylor made an announcement to the same
effect to' all the yard employees.
2080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Windham further testified that he had had an argument with another em-
ployee, Hudson Clay, but denied that it was concerning the Union. He noticed
Clay going to Taylor's office before he was summoned. On further questioning,
he testified that he could not recall whether Taylor had said that he had received
a complaint that Windham had been soliciting for the Union or that an em-
ployee had complained that he had been bothering him. He again could not recall
whether or. not Taylor had told the yard employees that he did not care whether
they were for or against the Union.
Taylor testified that in mid-September 1948, Clay complained that Windham
was arguing about the Union, soliciting for it, and aggravating him. Taylor
told Windham of the complaint and Windham denied that such an argument had
taken place. Taylor testified that he then told Windham that he did not want
him or any other employee to have any discussions for or against the Union
while at work. Taylor further testified that several days later he had another
and similar complaint from Clay and then made a general announcement to the
yard crew that there had been some argument on the job for and against the
Union, that it was not his business whether they were for or against the Union,
but that if they discussed it while at work they would be discharged.
Taylor's version of the announcement he made to the yard crew was corrobo-
rated by several' employees, including Ray., Windham was uncertain as to im-
portant elements in his talk with Taylor as well as his announcement. The
undersigned credits Taylor's testimony as to the background leading up to his
discussion with Windham, his talk with Windham, and his announcement to the
yard crew.
Taylor further testified that he believed Windham's denials of Clay's first com-
plaint, but did not know whom to believe when he received the second com-
plaint. He did not check with Windham again. He admitted that there was no
rule against employees talking while at work, but testified that he did not want
arguments since they might interfere with work and cause friction. After he
made the announcement, Taylor received no more complaints.
Conclusions
In his questioning of Windham, Taylor was doing no more than investigating
a complaint of interference with work on the job. Such questioning is not viola-
tive of the Act even though Taylor was asking Windham in effect whether the
Union was the subject of the discussion and what was said.23
As to the rule laid down by Taylor, the standard by which its validity may be
judged has been set forth in the Peyton Packing case' where the Board declared :
The Act, of course, does not prevent an employer from making and
enforcing reasonable rules covering the conduct of employees on company
time. Working time is for work. It is therefore within the province of an
employer to promulgate and enforce a rule prohibiting union solicitation
during working hours. Such a rule must be presumed to be valid in the
absence of evidence that it was adopted for a discriminatory purpose.
[Emphasis supplied.]
The no-solicitation rule in the Peyton Packing case was a general one pro-
hibiting all solicitation. However, it has been held that a rule limiting only
24 W. T. Smith Lumber Company, 79 NLRB 606; The Pure Oil Company ( Heath Re-
finery), 75 NLRB 539.
24 Peyton. Packing Company, Inc., 49 NLRB 828, 843, enforced 142 F. 2d 1009 (C. A. 5)
certiorari denied, 323 U. S. 730.
W. T. CARTER AND BROTHER 2081
union discussion during working time may be valid,25 although freedom to en-
gage in other solicitation or discussion has also been held, in the absence of
special circumstances, as strong evidence tending to prove that the limited rule
was adopted for discriminatory purposes 2a
The credited testimony shows that Taylor received a complaint from Clay
concerning Windham's activities. He obtained Windham's version. When he
received another complaint from Clay he announced to yard employees that they
were prohibited from engaging in discussion of the Union during working time.
Taylor, from the complaints he had received, had reasonable cause to believe
that union discussion and solicitation was causing dissension among the em-
ployees. He was entitled to take action reasonably calculated to maintain
efficient operations. He was not obligated to select any specific remedy. He
chose to announce a prohibition against talking for or against the Union during
working hours. This rule was wide in scope in that it went beyond the pro-
hibition of solicitation while all other discussion and solicitation was not
interfered with. On the other hand, the rule was made applicable only to the
yard employees, the small group at whose place of work the Clay-Windham
incident had occurred. There had been dissension over the Union while no,
similar incidents had occurred on other subjects. Under these circumstances,
the undersigned concludes that the testimony does not establish that the rule,
against talking concerning the Union was adopted for a discriminatory purpose..
9. The alleged spying upon Paul White
The complaint alleges that on or about January 13, 1949, the Respondents
spied upon the activities of White. This allegation relates to certain incidents,
which occurred while White was visiting Windham at his home in Camden.
The exact date was fixed as January 22.
On that date White accompanied by Windham drove toward the latter's home.
White found the road to Windham's house impassable and, at Windham's sug-
gestion, White parked his car off the road and they walked the rest of the way.
Certain facilities of the Hardwood Mill were in the general area where White
parked his car, but there is a conflict in the testimony as to how near White's
car was to a Hardwood Mill shed . The area itself was not fenced or marked.
Taylor. testified that instructions had been given to watchmen not to allow.
parking in the mill area without further investigation and that these instruc-.
tions had been issued before the union campaign . He also testified that he saw-
the parked car about 6 p. in., but did not know it belonged to White, although
he admitted that he thought it might be White's car. He then went in search,
u Boeing Airplane Company ( Wichita Division ) v. N. L. R . B., 140 F. 2d 423 ,435 (C. A.
10) where the Court reiterated the standard laid down in the case of Denver Tent f
Awning Co. v. N. L. B. B., 138 F. 2d 410 (C. A. 10) that the Act does not
proscribe the right of an employer to forbid by rule or regulation , solicitation on its,
property and its discharge of an employee for violation thereof , provided the rule on
regulation is promulgated in good faith and bears some reasonable relation to the.
efficient operation of the plant or 'business and is not merely a device to obstruct or.
impede self organization.
See also , Dallas Tank 4 Welding Company, Inc ., 51 NLRB 1315.
26 N. L. R. B. v. William Davies Co ., 135 F. 2d 179 ( C. A. 7), enforcing as modified (on
other grounds), 37 NLRB 631, certiorari denied 320 U. S. 770; N. L. R. B. v. McLain
Fire Brick Co., 128 F. 2d 393 (C. A. 3 ), enforcing 36 NLRB 1 ; The Letz Company, 32.
NLRB 563 . See also, Standard-Coosa-Thatcher Company, 85 NLRB 1358.
903847-51-vol. 90-132
2082 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
of Reece Scott , the night watchman , and told him and another employee , Arthur
Brock to "step off" the distance from the car to various points. He did this, he
testified , because he thought he might need witnesses to prove the location of
the car.
Scott testified that he had instructions since August 1947 not to allow park-
ing in the Hardwood Mill area , that he first saw White 's car at about 5 : 30 p. in.
and that it was 6 steps from a company shed. Scott continued on his rounds
until he met Taylor at about 6 p. in . Then at Taylor 's request he took measure-
ments which established , according to Scott, that White's car was substantially
off the road and close to the shed . Then, at Taylor 's direction , be went to Wind-
ham's house , the only house in the area , inquired for the car owner, and asked
him to move the car . At White' s request he accompanied him back to the car
and watched him drive away. Brock and Taylor also were present, according
to Scott, but were not near the car.
Brock corroborated Scott. He also testified that after he had made his measure-
ments he asked Taylor whose car it was and that Taylor replied that it was
White's.
Petty,' who had worked as a night watchman before Scott , testified that he
had never had instructions to prohibit parking in the Hardwood Mill area and
that he saw cars parked there. Mrs . Petty, Ottis King, and Harry Emsoff also
testified that they had seen cars parked in that area . Windham further testi-
fied that on . occasion other visitors to his home had parked where White had
parked his car.
Conclusions
The undersigned credits Scott's testimony that he did have instructions to pre-
vent parking in the Hardwood Mill area. However, this rule seems to have been
honored more in the breach. Scott, himself, testified that after he saw White's
car he did nothing about it until he received instructions from Taylor. The
undersigned also credits the testimony that there had been other parking in
that area. Nevertheless, there is no proof that Taylor himself knowingly per-
mitted such parking even though the watchmen might have done so.
The undersigned concludes from the testimony and Taylor's conduct in having
measurements made and witnesses present that he knew the parked car belonged
to White. White's..car was a Crosley car and as far as the evidence shows,
there was no similar car in Camden. White had been driving this car through
Camden for months and it was'well known to the residents of Camden including
Taylor.
However, there is no proof that Taylor came upon the car other than by
.accident.. There.is no substantial proof that he had kept the car or White under
surveillance on this occasion. The car was on company property near produc-
tion facilities. There is no proof that White was interfered with on any other
occasion when he attempted to visit employees in their homes. Under these
circumstances, the undersigned concludes that there has been a failure of proof
that Taylor on this occasion was spying on White or that Taylor's conduct in
requiring White to move his car from company property adjoining production
facilities was violative of the Act 27
27 White also testified that when he reached his car four or five men surrounded him and
one of them demanded to know what he was doing 'on company property, but that they left
when White reached for a gun. This incident is not encompassed in the allegation of
spying. In any event, the weight of the credible evidence of the witnesses refutes White's
testimony that persons other than Taylor, Scott, and Brock were present.
W. T. CARTER AND BROTHER ., 2083
10. The alleged discriminatory refusal of living quarters to Woodrow Ray
The complaint alleges that the Respondents discriminatorily refused Ray living
-quarters in Camden. In the summer of 1948, when Ray's father-in-law, Clabe
McCarty, terminated his employment with the Respondents, Ray was living
with McCarty in a company-owned house which had been rented to McCarty.
As afore-mentioned, McCarty vacated the house in October.
Ray testified that after McCarty received final notice to move, he spoke to
-George Schoeneman and asked him whether he could rent McCarty's house, but
that Schoeneman told him it was already "spoke for." A few days later, Ray
then asked to rent another house situated on the Barnes road and Schoeneman
told him that he would check with William Weems, his superior, and let him
.know whether the house was available. Ray testified that lie was not given
that house, but that that house was only occupied for a short period in November
and then remained idle up to the time Ray was discharged. The house McCarty
.had lived in was occupied by a new tenant continuously. Ray, failing to secure
living quarters in Camden, had to move to another house away from the town.
Later in his testimony, Ray testified that when he asked Schoeneman for the
.house on the Barnes road, the latter told him it was already rented. He also
testified that the house did not have running water and he was not certain how
many different families lived in the house between October 1948 and January 1949.
Ray testified that he also applied to Weems in the summer of 1948 for a house,
but was not successful. This occasion was before he was discharged from the
-Pine Mill. His next application, as far as the record shows, was in October.
Schoeneman testified that Ray asked him for McCarty's house at the time
McCarty moved and that Schoeneman told Ray that the house had been promised
to another employee, Matthews 28 A few days later, Schoeneman continued,
Ray asked for the house on the Barnes road which was empty. Schoeneman
told Ray that the house was being held for logging employees. Schoeneman
denied that he knew that Ray was a union member at the time of these con-
versations, but he did know of Ray's relationship to McCarty and of McCarty's
testimony in the prior Board proceeding.
Schoeneman denied that Ray had any priority right to McCarty's ,house be-
;cause he had lived there. He cited as a similar instance a case where a company
.employee had been required to move from a house rented to his mother-in-law
when his mother-in-law moved and the Respondents needed the house for a
,prospective employee who demanded a house in Camden as a condition of his
-employment.
Weems denied that Ray had ever asked him for a house. lie further testified
that the house on the Barnes road was kept for logging employees because it
was a considerable distance from town and better suited to their needs. He
testified from his records that a logger appeared on the rent list for the house
in the first week in November 1948. He was succeeded by another logger.
Weems admitted that there was no company rule requiring the house to be
-occupied by loggers, but stated that in the past that house had,been occupied
primarily by loggers. He also testified that the house had been promised to a
logger early in October. Schoeneman did not tell him of Ray's application, he
asserted.
21 Schoeneman further testified that Matthews had been waiting for a house for 6 to 10
months and was -forced to live out of Camden during this time.
2084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
The example Schoeneman gave of an employee who was required to move under
circumstances similar to those in Ray's case is not an exact parallel. On the-
other hand, there is no proof of any custom or practice whereby employees such.
as Ray had any priority rights to houses in which they. resided with another
employee or person, and which were rented to those other persons. There is
no proof that a house had not been promised to Matthews before Ray's request
was received. Under these circumstances, the undersigned concludes that there
has been a failure of proof that the Respondents discriminated against Ray in.
refusing to assign McCarty's former house to him.
The only vacant house in Camden at this time was the house on the Barnes
road. While the Respondents' witnesses admitted there was no rule requiring:
that the Barnes house be rented only to loggers, there is no proof that this was
not done in practice. Weems maintained that the house had actually been prom-
ised to a logger in early October, but the evidence does not clearly establish,
whether this arrangement was made before Ray applied to Schoeneman. While
the matter is not free from doubt, the undersigned is not persuaded that the
evidence discloses that Ray was discriminatorily refused available housing in.
Camden.
11. The alleged threats to employees
The complaint alleges that Carter, in October 1948, summoned certain coloredk
employees to his home, told them that they, had been seen at union meetings,
and threatened to discharge them if they were caught at future meetings. The-
General Counsel produced one witness, Kelly Freeman, who testified concerning
this allegation. Freeman denied that he had ever been present at any meeting:
at Carter's house when Carter made any threats as alleged and that he never
heard Carter make any threats. This section of the complaint is not supported
by any evidence.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the operations described in Section I, above, have a close,
,intimate, and substantial relation to trade, traffic, and commerce among the
several States, and such of them as have been found to be unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents have engaged in certain unfair
labor practices it will be recommended that they cease and desist therefrom
in order to effectuate the policies of the Act.
It has been found that the Respondents discriminatorily discharged Woodrow
Ray and S. L. Petty. It will be recommended that the Respondents offer them
immediate and full reinstatement to their former or substantially equivalent
positions; B without prejudice to their seniority or other rights and privileges,.
and that the Respondents make them whole for any loss of pay they may have
suffered by payment to each of them of a sum of money equal to the amount each
v The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
W. T. CARTER AND BROTHER 2085
would normally have earned as wages from the date of the discrimination against
him to the date of the Respondents' offer of reinstatement, less his net earnings
during such period 80
It has also been found that the Respondents at the outset of the Union's or-
ganizational campaign took action, in violation of the Act, calculated to and
which actually did prevent the holding of outdoor union meetings in Camden, a
company-town wholly owned by them. It has further been found that the Re-
spondents' supervisors engaged in .surveillance of certain union activities and
meetings and a reporter attended union meetings to take notes of the proceed-
ings on behalf of the Respondents.
The scope of the unfair labor practices disclose a purpose to defeat self-
organization among the employees and generally to interfere with, restrain,
and coerce the employees of the Respondents in the exercise of their rights
under the Act. The undersigned is convinced that if the Respondents are not
restrained from committing such conduct the danger of their commission in the
future is to be anticipated from the policies in the past and the purposes of the
Act will be defeated. In order, therefore, to make effective the interdependent
guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor prac-
tices, and thereby to minimize industrial strife, which burdens and obstructs
commerce, and to thus effectuate the policies of the Act, the undersigned will
recommend that the Respondents cease and desist from in any manner infring-
ing upon the rights guaranteed in Section 7 of the Act."
Upon the basis of the foregoing findings of fact and upon the entire record
in the case the undersigned makes the following :
CoNcLUsIONs OF LAW
1. International Woodworkers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of Wood-
row Ray and S. L. Petty, thereby discouraging membership in the Union, the
Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act. The discrimination against Petty
was also attributable to his testimony in a prior Board proceeding and such
conduct constituted and continues to be a violation of Section 8 (a) (4) of the Act.
3. By such discrimination, and by the other unfair labor practices set forth in
Section III and summarized in Section V of this Report, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. It has not been established that the Respondents committed the following
alleged unfair labor practices :
(a) Discriminatorily refused to reinstate Clabe McCarty;
(b) Discriminatorily discharged J. L. Windham;
(c) In violation of the Act, questioned Windham concerning his union mem-
bership and activities and forbade discussion of the Union during working time ;
(d) Kept Paul White, a union organizer, under surveillance;
8° Crossett Lumber Company, 8 NLRB 440. 497-8.
81 May Department Stores v. N. L. R. B., 326 U. S. 376 ; Entwistle Manufacturing Com-
pany, 120 F. 2d 532 (C. A. 4), enforcing, as modified, 23 NLRB 1058; The Gould Mersereau
Company, Inc.. 75 NLRB 784; Tygart Sportswear Company, 77 NLRB 618.
2086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e)" Kept union meetings under surveillance;
(f) Discriminatorily refused Ray living quarters in Camden;
(g) Threatened certain employees with reprisals if they attended union meet=
ings.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law the
undersigned recommends that the persons set forth in the heading of the com-
plaint, comprising the partnership of W. T. Carter &Brother, Camden, Texas,
their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of America, affil-
iated with the Congress of Industrial Organizations, or any other labor organ-
ization of their employees, by discharging or refusing to reinstate any of their
employees or by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employment ;
(b) Discharging or otherwise discriminating against an employee because he
has filed charges or given testimony under the Act ;
(c) In any manner, attempting to interfere with or prevent the holding of
outdoor meetings in open areas on their property in Camden, Texas, by their
employees, the Union, or any other labor organization, for the exercise of the
activities set forth in Section 7 of the Act ;
(d) Engaging in surveillance of union meetings or activities;
(e) Making use of the services of a reporter to ascertain what occurred at
union meetings ;
(f) In any other manner interfering with, restraining, or coercing their
employees in the exercise of the right to self-organization, to form labor organ-
izations, to join or assist International Woodworkers of America, affiliated with
the Congress of Industrial Organizations, or any other labor organization to
bargain collectively through representatives of their own choosing, to engage'
in concerted activities for the purpose of mutual aid or protection, or to refrain
from any or all of such activities, except that such right may be affected by an
agreement requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Woodrow Ray and S. L. Petty immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges ;
(b) Make whole Woodrow Ray and S. L. Petty for any loss of earnings that
they may have suffered by reason of the Respondents' discrimination against
them, by payment to each of them of a sum of money equal to the amount which
each normally would have earned as wages from the date of the discrimination
against him to the date of the Respondents' offer of reinstatement, less his net
earnings during such period ;
(c) Post immediately at their facilities at Camden, Texas, copies of the notice
attached hereto marked Appendix A. Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region, after being signed by the
Respondents or their representatives, shall be posted by the Respondents and
maintained by them for sixty (60) consecutive days thereafter in conspicuous
places including all places where notices to employees are customarily posted.
W. T. CARTER AND BROTHER : 2087
Reasonable steps shall be taken by the Respondents to insure that said notices
are not altered, defaced, or covered by any other material ; and
(,d) :Notify the Regional Director for the Sixteenth Region in writing within
twenty (20) days from the receipt of,this Intermediate Report what steps the
Respondents-have taken to comply therewith.
It is also recommended that unless the Respondents shall within twenty (20)
days from the receipt of this Intermediate Report notify said Regional Direc-
tor in writing that they will comply with the foregoing recommendations the
Board shall issue an order,requiring the Respondents to take, the action afore-
said.
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act as summarized in the section entitled, "Conclusions of
Law," subsection 5. •
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the
date of service of the order transferring the case to the Board, pursuant to
Section 203.45 of said Rules and Regulations, file with the Board, Washington
25, •D..C., an original and six copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and six copies of a brief in support thereof ; and
.any party may, within the same period, file an original and six copies of a brief
in support of the Intermediate Report. Immediately upon the filing of such state-
ment of exceptions and/or briefs, the party filing the same shall serve a copy
thereof upon each of the other parties. Statements of exceptions and briefs shall
designate by precise citation the portions of the record relied upon and shall be
legibly printed or mimeographed, and if mimeographed shall be double spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required'by'Section 203.85. As further provided in said Section
203.46 should any party desire permission to argue orally before the Board, re-
quest therefor must be made inwriting to the Board within ten (10) days from
the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions , and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 29th day of November 1949.
SIDNEY L. FEILER,
Trial Examiner.
APPENDIX A
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 National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discharge any employee or otherwise discriminate against
any employee in regard to his hire or tenure of employment or any term or
condition of employment because of membership in or activity on behalf
2088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of International Woodworkers of America, C. I. 0., or any other labor
organization.
WE WILL NOT discharge or otherwise discriminate against any employee
because he has filed, charges or given testimony under the Act.
WE WILL NOT in any manner, attempt to interfere with or prevent the
holding of outdoor meetings in open areas on our property in Camden, Texas,
by our employees, the above-named union or any other labor organization,
for the exercise of the activities set forth in Section 7 of the Act.
WE WILL NOT engage in surveillance of union meetings or activities.
WE WILL NOT use the services of a reporter to ascertain the occurrences at
union meetings.
WE WILL NOT in any other manner interfere with, restrain, or coerce-our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the above-named union or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from any or all
such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER Woodrow Ray and S. L. Petty, immediate and full rein-
statement to their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously enjoyed, and
make those employees whole for any loss of pay suffered as a result of the
discrimination against them.
All our employees are free to become or remain members of the above-named
union or ony other labor organization.
W. T. CARTER & BROTHER,
Employer.
By ------------------------------
(Representative) (Title)
Dated ------------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.