W.T. Smith Lumber Co.

National Labor Relations Board - Board Decisions

Sep 14, 1948

79 N.L.R.B. 606 (N.L.R.B. 1948)

In the Matter of W. T. SMITH LUMBER COMPANY aln,d INTERNATIONAL
WOODWORKERS OF AMERICA, C. I. O.
Case No. 15-C-1065.Decided September 14,1948
DECISION
AND
ORDER
On January 8,'1947,1 Trial Examiner Charles W: Schneider issued
his `Intermediate'-Report in the 'above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the Complaint be'
dismissed, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, counsel for the Board and the Union, respectively,
filed exceptions to the Intermediate Report and supporting briefs;
and counsel for the Respondent filed a rebuttal brief. `
On July 19, 1948, the Board 2 rescinded its previous grant of the
Respondent's request for a hearing 'for the purpose of oral argument:
At the same time the Board afforded all parties an opportunity to'
submit within 15 days, if desired, supplemental briefs or written'
arguments setting forth the matters that would have been covered in
the oral argument. No such briefs or arguments have been filed.
The Board has reviewed the rulings of 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 briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
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
' The Intermediate Report Is incorrectly dated January 8, "1946."
2 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the Board has dele-
gated Its powers in connection with this case to a three-man panel consisting of the under-
signed Board Members [Chairman Herzog and Members Murdock and Gray.]
79 N. L. R. B., No. 82.
606
W. T. SMITH LUMBER COMPANY " 607'
Relations Board hereby orders that the complaint issued herein against
the Respondent, W. T. Smith Lumber Company, Chapman, Alabama,,
be, and it hereby is, dismissed.
INTERMEDIATE REPORT
'Mr. Thomas S. Adair, for the Board.
Mr. Bentlenj Byrnes, of New Orleans, La., and Mr. Calvin Poole, of Greenville,
Ala., for the respondent.
Messrs. Jerome A. Cooper and Lucien DeSheles, both of Birmingham, Ala., for
the Union. -
STATEMENT OF THE CASE
Upon an amended charge filed by International Woodworkers of America,
C. I. 0., herein called the Union, the National Labor Relations Board, herein
called the Board, by its Acting Regional Director for the Fifteenth Region (New
Orleans, Louisiana), issued its complaint dated August 30, 1946, against W. T.
Smith Lumber Company, Chapman, Alabama, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and notice of hearing thereon were
duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that, beginning in July 1945, the respondent: (1) interrogated employees con-
cerning their union membership and activities; (2) promulgated working rules
for the purpose of hindering union activities; (3) prohibited conversation and
solicitation concerning the Union; (4) prohibited the dissemination of union
literature; and (5) about July 26, 1945, discharged and thereafter refused to
reinstate Joe Tom Parrett because of his activities on behalf of the Union.
Upon due notice a hearing was held on September 18, 19, and 20, 1946, at
Greenville, Alabama, before the undersigned Charles W. Schneider, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board, the -re-
spondent, and the Union were represented by counsel and participated in the
hearing. 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 opening of the hearing, over objection by the respondent, the complaint was
amended to allege that on September 11, 1945, the respondent discharged and
thereafter refused to reinstate Emma Jean Parkman because of her activities
on behalf of the Union. During the course of the hearing the respondent filed
its answer in which it admitted certain jurisdictional and other allegations of
the complaint, but denied the commission of any unfair labor practices.
At the close of the evidence ruling was reserved by the undersigned upon a
motion by the respondent to dismiss the complaint. This motion is disposed of by
the following findings and recommendations. Counsel for the Board and for the
respondent argued the issues orally before the undersigned, and thereafter
submitted briefs.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINQ$ OF 1'4cT
I. THE BUSINESS OF THE RESPONDENT
W. T. Smith Lumber Company is an Alabama corporation having its principal
office and place of business at Chapman, Alabama, at which location it is engaged
in the manufacture of lumber. During 1945, a representative year, the re-
spondent purchased raw materials and supplies valued in excess of $500,000, of
which approximately 2 percent was shipped to the Chapman plant from sources
outside the State of Alabama. During the same period, the respondent manu-,
factured and sold finished products valued in excess of $1,000,000, of which
approximately 60 percent was shipped and transported to points outside the State
of Alabama. It is conceded that the respondent is engaged in commerce within
the meaning of the Act.
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 respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
During the early part of July 1945, the Union began an organizational drive
among the respondent's employees The first meeting was held on July 14. On
August 13, 1945, the Union and the respondent` entered' into an agreement for a
consent election. In the election, which was held on September 12, 1945, an
overwhelming majority of the employees voted for the,Union, and it was there-
after certified by the Board's Regional Director as the representative of the
respondent's production and maintenance employees and truck drivers, but ex-
cluding, among others, clerical and supervisory employees. Thereafter the
respondent and the Union executed a collective bargaining contract which was
in effect at the time of the hearing in the instant case
During the period of time in which the above-related events were taking place,'
certain incidents occurred which the Board and the Union contend constituted
unfair labor practices. Thus, during the month of July the respondent promul-
gated a set of working rules, allegedly for the purpose of interfering with the
Union campaign. On July 26, 1945,' Joe Tom Parrett, an employee of the re-
spondent, was discharged for the stated reason that he had violated the rules by
engaging in union activity on company time, and on September 11, Emma Jean
Parkman was, discharged for the stated reason of non-cooperation. The Board
and the Union contend that Parrett and Parkman were discriminatorily dis-
charged for union activity, and that these discharges and the enactment and
enforcement of the working rules constituted unfair labor practices. The facts.
with respect to these issues are as follows.
The enactment of the rides
Prior to July 1945, no comprehensive set of rules regarding employee conduct
had ever been adopted by the respondent or communicated to the employees.
When it learned of the union drive, the respondent retained John J Curren,,
a private labor relations consultant, to advise it. Curren had formerly been a
Field Examiner for the Board Thereafter, meetings of the respondent's super-
W. T. SMITH LUMBER COMPANY 609
visors were held on several occasions, at which meetings the supervisors were
told that the' respondent's policy towardb the union,drive was' one of complete
'neutrality The supervisors were further instructed to make no statements and
•take no action which might influence the employees with respect to the Union.
At Curren's first meeting with Floyd McGowan, the respondent's president,
-about July 12 and 13, McGowan told Curren that the Union campaign was
'causing a lot of unnecessary talking, and inquired as to how the problem should
be handled. Upon Curren's advice a set of rules regarding employee conduct
`was drafted. These rules, as revised and approved by Curren, were then
printed and posted by the respondent ' They stated in part as follows :
Violation of any the following regulations will constitute proper cause
for severe disciplining which may result in discharge of the guilty employee.
19. NEGLECT OF DUTY
Engaging in activities other than assigned or designated work on cbm-
paiiy s time, including unnecessary conversation, loitering, unauthorized
solicitations, circulation of petitions, balloting, distribution of hand bills,
or other literature.
25 SOLICITATION
Solicitation of memberships. pledges, subscriptions, or the unauthorized
collection of money or circulation of petitions. or conducting any outside
business on the company's working prenuseC
Pinticipation in any wganizational activity of any kind on company
time without permission of the Superintendent
30 VISITING
Visiting and excessive talking during working hours Entering depart-
ments other than where assigned to woik without proper authorization by
supervisors.
The purpose of these rules, according to the testimony of McGowan and Curren,
was, in substance, to protect company time from inordinate devotion to activity
'(including union activity) other than work.
Prior to the enactment of the rules, the employees had customarily talked about
all subjects during working hours, and no restriction had apparently been placed
on such conduct President McGowan's testimony was that there had been no
slackening in production or efficiency of the employees prior to the adoption
of the rules.
There is conflict in the evidence as to the exact time when the rules were
posted in the plant, but they were distributed for posting on July 24, and at
least one set was' posted near the time clock about noon on that day.
The discharge of Parrett
Joe Parrett, an electrician, was headquartered in the electrical shop However,
.his work, which included care of the lights and telephone equipment, required
him to cover all parts of the plant. Parrett displayed no interest in the Union
before the first meeting on July 14. He attended that meeting; however, became
interested, signed an application card, and assisted in securing the applications
,of others. Thereafter a number of employees requested advice from Parrett
about the Union and be recommended that they join it Following aL m6etirig
610 DECISIONS OF: NATIONAL LABOR , RELATIONS BOARD
^ on Ju1y, 21 several employees approached Parrett about becoming a candidate
for the office of president. Parrett indicated a willingness to do so. , ,
:'; On Tuesday, July 24, 1945, at.around 11 a. m., Parrett appeared at the telephone
switchboard in the main office of the plant and asked the switchboard operator,
.Lucille Walker, to. test-ring the phone at the No. 2 mill. Walker did so and
,found that the phone was operating satisfactorily. Walker and Parrett, then had
a,conversation about the Union which lasted 10 to 15 minutes. Parrett had no
,work to do at the switchboard at that particular time.'
During this conversation Parrett explained the benefits of union organization
to Walker. He also invited her to attend a union meeting later on in the week
and said that he would bring application cards to the office later for the office
employees to sign. He further stated that he knew that he should not be talking
about the Union during office hours!
As Walker and Parrett were talking, Olive Spann, the office manager, came out
of her office. Either because of Parrett's "furtive" manner, or because she knew
that he had previously spoken to other girls, outside the plant, about it, Spann
immediately suspected that Parrett was talking to Walker about the Union.
Spann then went into the office of Auditor Shepard, to whom she voiced her
suspicions. When Parrett left, Spann called Walker into Shepard's office and
asked her whether Parrett had been talking to her about the Union. Walker
told Spann that he had, and related the conversation. In answer to a question
by Spann as to what business had brought Parrett to the switchboard, Walker
said that she did not know, since there was nothing wrong with the telephones
to her knowledge.
On the following day Spann reported the incident to President McGowan, who
said that he would consult Curren. On the next day, July 26, when Curren
visited the plant, McGowan related the occurrence to him and asked what action
should be taken. At Curren's suggestion Spann secured an affidavit from Walker,
1 The finding that Parrett had no work to do at the switchboard is based on a resolution
of conflicting evidence. Parrett's testimony was that he was working there Thus he
testified that, at the request of Chief Engineer Thesing, his supervisor, he repaired the line
to the No. 2 mill telephone, which was out of order, that he then went to the office and
had Walker test-ring the phone, which she found in order; that, as he was leaving, Walker
asked him to repair a plug on the switchboard ; and that while he was attempting to make
this repair something was said about the Union which led into a conversation Thesing,
Walker, and Office Manager Spann denied that the No 2 phone was out of of der that
morning. Thesing denied assigning Parrett to repair the phone line Spann (who wit-
,uessed the conversation) and Walker denied that Parrett did any work on the switchboard.
Parrett's daily work reports, which were later introduced in evidence, do not disclose that
he did any work either on the No. 2 phone or on the switchboard on July 24, the only day
on which the incident could have occurred. The undersigned concludes that the weight of
the evidence is contrary to Parrett's testimony.
The findings in this paragraph are based on the testimony of Walker. There is little
material conflict between Parrett and Walker as to the substance of the conversation, the
differences being mainly as to which of them initiated it, and whether Parrett's role was
an aggressive one, as Walker testified, or, as Parrett testified, purely passive in that he
merely answered questions put by Walker. While Parrett denied that he asked Walker to
-join the Union, and also denied telling her that he had been warned about discussing the
Union on company time, Walker did not testify that he had ; and her testimony as to the
statements related in the text is not specifically denied. Insofar as the differences in their
versions may be material, it is likely that Walker's version is more accurate, since, despite
his contrary testimony, Parrett had no apparent reason to go to the switchboard except
to talk to Walker about the Union. In addition, as is disclosed hereinafter, 2 days later
Walker made a written statement of the occurrence. This statement is in accordance with
-the above findings. _ „
W. T: `SMITH` I.UMB'ER COMPANY 611
who was assured that Parrett would not' be informed of it. The 'affidavit 'stated
as follows :
Tuesday morning about 11: 15 Joe Tom Parrett came in the office and asked
me,,to. ring the #2 yard telephone to see if it rang hard. I told him I did
not know that anything ,was .wrong with it as I had not reportedF anything
and Mr. Waller had not tried to get, me.
He then asked me what I thought about the Union. I told him I didn't
know anything about it but Emma Jean' had mentioned it, to me. He went,
on to ask me if I was satisfied and told me all about how it'wonld help me.
He told me there was going to bee a meeting ,at, some school. house Saturday
night and asked me if I would be interested in going. He told me this was
not supposed to,be discussed during office hours and that lie would bring
some cards to the office for everybody to, fill out. 1,He also told me that'if
I didn't join now I would,eventually, have to, and it' would cost more.
Curren advised the discharge' of Parrett, telling 'McGowan that if he -did not
enforce the rules on this occasion he would be unable to.do so thereafter.
Either on that day or later McGowan asked Chief Engineer Thesing whether
'Parrett had been sent to make any repairs on the telephone lines. Thesing told
McGowan that'he,had not. , , I , • ,
Upon the direction of McGowan, Parrett was' given a discharge notice,by
Superintendent Adams, who told him that he was being discharged for union
activity, and that affidavits had been secured against him. Parrett asked Adams
for the affidavits. Adams replied that they were in the office. Parrett then saw
the paymaster who denied knowledge of the affidavits. From there Parrett
went to the main office where he asked Spann whether-she knew anything about
them. Although she had secured the statement from Walker, Spann told Parrett
that she knew nothing about it. Parrett then saw President McGowan and
Curren and asked for an explanation of his discharge. They told him that he
had violated a company rule forbidding organizational activity on company time.
Parrett denied the accusation, inquired where and how the violation had sup-
posedly occurred, and asked to see the affidavits. Curren and McGowan refused
to give him any details, stating that the affidavits were confidential. After some
argument Parrett finally said that he guessed that he had "stuck [his] neck out,"
,.and asked for a recommendation. McGowan replied that since his work was
excellent he would be given one which Parrett later received. Curren told
Parrett that the respondent had "nothing against" either him or the Union, but
that it expected a full day's work for a full day's pay, and that if Parrett felt
that he had been wronged, he could file a charge with the Board. .The interview
'then terminated 4
Parrett's separation notice gave rule 25 as the reason for his discharge,
-"Participation in organizational activity on company time without permission
'from the superintendent."
The warning to Parkman
Emma Jean Parkuian was a friend of Parrett's. Walker's affidavit, which
has been set out above, referred' to the fact that Parkman had mentioned the
3 A reference to Emma Jean Parkman whose discharge is discussed hereinafter.
' The finding as to Parrett 's statement that he had "stuck (his] neck out" is based on
the testimony of Curren and McGowan Parrett's testimony was that he said that if he
,,bad stuck his neck, out he "should pay for it Otherwise there is,no•substantial conflict as
to the gist of the conversation . , .,,,, „ , ,,, ,. 1
,612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union to Walker. Following the .discharge of Parrett,,and on the same after-
noon, Parkman was called into the office of Curren and questioned as to the
.extent of her conversation with Walker Parkman said that she had merely
mentioned the ,Union in passing. Curren then told `3'alkei that~,s'be -was- free'
to join the,Union or not to' join it, but that' it was contrary to company rules
to talk about the Union on company 'time.' 'Curren further said, in substance,
that Parkman was subject to discharge for`her offense, but'that she was only
being warned, because it'was deemed that a warning would be sufficient. Park-
man replied that she had not known that the rules were applicable to office em-
ployees.6
On August 13 the respondent and the Union executed a consent election agree-
ment which excluded clerical employees, among others, from the election unit.
On the same day Curren again called Parkman into the office. According, to
her testimony, Curren told her that she was a confidential employee; that she
was not eligible to join the Union even if the office force was organized; and
further told her that any information she acquired -in the office was confidential
and not to,be disclosed. Parkman replied 'tha't she understood the latter. ,
Curren's testimony as to this interview was that certain information respect-
ing a check for an insurance claim had "leaked out" of the office, and that
Parkman and the respondent's cashier were the only persons who could have
been the source of the leak ; that he told Parkman of the incident ; that Parkman
'became angry at the suggestion that she might be .involved, and stated that the
'respondent was "after her" because of the Union; and that in denying the latter
,accusation he pointed out that Parkman was not eligible to vote in the coming
,election because clerical workers were excluded Curren further testified that
Parkman was called in `because the, Union organizational drive was going on
and we didn't want company information going into that plant We didn't
want the Union to get a look at the books " . The cashier was not questioned.
Both Parkman and Curren impressed 'the undersigned as inherently truthful.
It seems unlikely, however, that Curren, in view of his background, would have
stated categorically that Parkman was ineligible to join the Union Parkman,
in,her anger, could readily have misunderstood or failed to recollect accurately
the precise context of Curren's statements with respect to eligibility. It is
therefore found that Parkman was mistaken in her testimony to the effect that
Curren told her she was permanently ineligible to join the Union because
of her confidential position.
The discharge of Parkman
On September 11, 1945. the day before the consent election, Parkman was.
discharged for the stated reason of,non-cooperation. The circumstances under
which the discharge occurred were as follows :
The respondent operates a hotel or rooming house. in Chapman, in which a
number of employees reside. Parkman had lived in the hotel for some 4 years,
occupying the same room. This room and the one adjacent to it had a connecting
,bath. They were the only rooms in the hotel so situated. Parkman did not
occupy her room on week-ends, however. On Friday she customarily went to her
home, some 20 miles away, returning to Chapman on Sunday night.
The town of Chapman 'has a community church, with a non-resident pastor
who comes to .the town monthly to,hold services. On these visits the pastor is
6 The above findings as to Curren 's warning to Parkman are based on the testimony of
both, which is substantially in agreement.
W. T. SMITH LUMBER COMPANY 613
housed at the hotel. Sometime prior to September 1945, thedncumbent tminister
.had°41ied • and a new pastor, a Reverend Knost, was appointed . His first service
, in the - new pastorate was -held on September 9. Sometime idgring , the-- wpek,of .
September 2, Parkman and the occupants of the adjoining room .were , asked,
whether they would mind being moved -to other quarters in the hotel over Satur-
day night, September 8, in order to accommodate Reverend Knost and this-family.
;The occupants , of'the other room acquiesced . Parkman, howei er, convinced that
..the request was made in order to - inconvenience her, announced her intention of
. giving ,up.,residence in the hotel and moving to her home. On Friday afternoon
-Park ian ,did,moVe-• As she was•carry;it g her- belongingsfrom the.hotel;she voiced'
some angry comments concerning the request for her room. In particular
-she said that if the other rooms in the hotel were not good enough for the,
minister they were-not good-enough for her. These comments were overheard
, by a group of people sitting on the ,porch, among whom was Reverend Knost, who.
had arrived that afternoon . He approached Parkman and apologized , stating
that she had not wanted to inconvenience anyone. She replied that she hoped
,that he'd enjoy the room since he was putting her out. She further said, however,
that she didn't blame Reverend Knost, but intimated that President McGowan.
was deliberately attempting to inconvenience her by requiring her to give up
.her room. All the witnesses to the scene testified that Parkman was angry and
,her manner sarcastic , and that the incident caused considerable embarrassment
On the, following Monday, it was reported to President McGowan by the. manager
of the hotel. McGowan thereupon called in Parkman and discharged her.
On the day that, Parkman was discharged three employees were called to the
,office and told by Curren that reports had been made to the effect that they had
.been threatening other employees unless they voted for the Union. The three
denied these reports. They were then told that they were free to join the Union
or to vote for it and that their rights in that respect would not be interfered with,
but that the respondent wanted to be sure that all employees were afforded a
,free choice - .
On the following day the election was held At the request of the respondent-
the Board agent conducting the election addressed the employees, telling them
that the election was by secret ballot : that no one would know how they voted ;
and that they were free to vote as they pleased.
The Union won the election by a majority of over 90 percent.
Subsequently the respondent and the Union negotiated a collective bargaining,
contract which was in effect as of the time of the hearing. In this contract
the company rules referred to above were incorporated, and the Union therein
agreed to cooperate in their enforcement.
Conclusions
As has been indicated , the Board alleged that the plant rules were adopted
and enforced by the respondent for the purpose of interfering with the Union's-
organizational drive. In the alternative , the Board contends that the rules,
were, in any event, unreasonable impediments to legitimate union activity.,
Finally, the Board contends that Parrett and Parkman were discharged for
their union activity.
There are factors which suggest the correctness of the Board 's assertions.,
These are the following. -
One of the reasons for the enactment of the rules was admittedly to limit-
union discussions . Although there are vague assertions in the record to the,
effect'that unnecessary conversation . on company time is-as always, understood,
809095-49-vol. 79-40
,6'14 DECISIONS` OF NATIONAL LABOR RELATIONS BOARD
to, be prohibited; it is clear that no such' restrictions had ever'lieen announced
'to the employees. - The rules were-not published until the Union began'to organize.
The organizational drive did not adversely affect production: There' was no
appareut turmoil. In short, as President; McGowan testified, the situation was
-entirely, normal' 'Two days after the rules had been posted, and without other
warning,' Parrett was subjecfed'to the drastic I penalty of discharge for ,a viola-
tion of the rules which had occurred only' several 'hours ^after' they had first been
posted. That Parrett's' union activities; however unpronounced; had been, suffi-
cient to attract some attention, 'is evident-1 from; Spann's, immediate"suspicion
sas to the, subject of his conversation with Walker; apparently based on her
`knowledge of prior solicitation by him on! his own' time. In) discharging Parrett
`no hearing was -afforded him' He, was given rio opportunity to defend himself
'or'to advance an explanation, although he denied' the charges against him.
'The respondent' refused' even to' inform' him specifically of what he' had done
-that had constituted,a violation of the rules Walker's statement, made ex parte,
and upon assurances that its' contents'2oould not be revealed to Parrett, was
accepted as the sole basis of the discharge: The 'arbitrary manner in which
the discharge was effected 'is alone sufficient 'to' make' it highly suspicious. At
best the procedure does not reflect it personnel' policy of high order. ' ' '
Immediately after Parrett's separation, Parkman, against whom the only
,charge was that she had "mentioned" the Union to Walker, was called into the
office and warned by Curren about talking about 'the Union on company time.
Nothing was said to Walker. Other employees who, according to Parkman,
had spoken unfavorably about the Union on company time were not warned.
While it is not shown that these latter comments were brought to the attention
of the respondent, so far as the record discloses only those persons who had
spoken in favor of the Union were questioned, or warned.
While Curren testified that the rules were not intended to prohibit mere talk-
ing about the Union unless it interfered with production, there was nothing in
Walker's affidavit to indicate that Parkman's statement to Walker interfered
with production or, indeed, even indicating that it was made on the respondent's
premises.
In addition, while Curren also testified that the rule against excessive talking
applied equally to all subjects of conversation, several of the respondent's super-
visors testified that they interpreted it as applying only to union conversation .6
Further supporting the Board's theory is Curren's action in calling in Parkman
in August and warning her about the disclosure of confidential information.
Curren's testimony makes it clear that Parkman was selected for the warning
-partially because he suspected that she was interested in the Union.
All these factors cast suspicion upon the respondent's motives in establishing
and enforcing the rules, in questioning Parkman about union activity, and in
discharging her and Parrett. However, there is also evidence that the respond-
-ent's motives were legitimate.
Thus, President McGowan and his two brothers (also officers in the firm)
testified that they decided upon a policy of neutrality as soon as they learned
of the union drive, that they scrupulously endeavored to follow this policy, and
that Curren was retained in order to insure full compliance with the law. As
has been related, the supervisors were specifically instructed on several occasions
to make no statements or to take any action which might influence the employees.
The absence of contrary evidence suggests that these instructions were followed.
Supervisors Davis and Thesing There are, however , no apparent instances of actual
enforcement of this interpretation by these supervisors
"W.- T. SMITH. LUMBER COMPANY `6'15
iThe' rules were enacted • upon Curren's' advice and collaboration;' Parrett was
discharged and Parkman warned, upon his recommendation. The, undersigned
.sees mo'substantial basis , for- discrediting the testimony of the. McGowans, and
=there is ono apparent basis for concluding that Curren was actuated by a. desire
to interfere with the union's activities. .. I ,
Probable cause existed ifor the discharge of.both Parrett, and Parkman. ,The
-Boaid h'as 'held.that'an employer may,, proNiided his,motives are non-discrimina-
tory, prohibit union activity on working time.' In the instant case the respondei)t
-did-prohibit such activity. Parrett left his place of work -to solicit Walker
-during the working time^of both... Although Parrett testified that he;went to, the
switchboard on an, assignment, the undersigned has found,to the contrary. , While
it is probably, literally true that. Parrett did not ask. Walker, in so many words,
-to join the Union, it seems clear that he left his place of work and went to the
.switchboard, for the sole purpose of .interesting Walker in. the Union, and, that
he was engaging in solicitation. Had Parrett been unaware, of the rule, it could
-not have been validly enforced against, him. An employer may not,discipline
employees for union activity even on company time without reasonable notice
that such activity is prohibited. ,
While Parrett denied knowledge of the, rule, the undersigned infers the con-
trary. Thus, Parrett did not specifically deny having stated to Walker that lie
should not be discussing the Union on company time. Although informed by
Curren that he had been discharged for violation of the rule prohibiting union
activity on company time, the testimony does not reveal that he denied knowledge
of such a rule. He merely denied the truth of the accusation. In addition, he
ultimately admitted to McGowan and Curren that he had "stuck [his] neck out,"
which the undersigned construes as an admission that he had engaged in organi-
zational activity on company time with knowledge that it was prohibited. What-
ever. the validity of other portions of the rules and the methods of enforcement,
Parrett engaged in union activity on company time though aware that it was
forbidden. The circumstances of his discharge, while suspicious, do not warrant
the inference that this conduct was seized upon as a pretext for separating him
because of his union activity.8
Persuasive ground also existed for the discharge of Parkman. The request
for the use of her room was not, under the circumstances, unreasonable, since
it was the most adequate accommodation for the minister and his family. The
supposition that the request was made for the deliberate purpose of incon-
veniencing Parkman and provoking resentment which might lead to an incident
providing pretext for her discharge, is not persuasive. The occupants of the
adjoining room had likewise to be discommoded. Parkman's room was required
for only 1, or at the most 2, nights. She would not have used the room in any
-event, since she intended in accordance with her usual custom to spend the
week-end at her home. Similar provision has been made for the minister on his
subsequent visits to Chapman. Parkman's resentment of what she, undoubtedly
honestly, regarded as a discrimination directed at her, resulted. in a scene at
the hotel which, according to the witnesses, created considerable embarrassment
and was humiliating to the Reverend Knost. In any event it was so reported to
McGowan, who testified that it was solely because she had created this scene
7 Peyton Packing Company, 49 N. L. R. B. 828.
' There was dispute as to whether the rules were posted in the electrical shop on July 24
or on July 25. This dispute need not be resolved The rules were posted elsewhere on
July 24, Parrett having admittedly seen them at noon. In any event, it is inferred that
Parrett must either have seen or been informed of them prior to his conversation with
Walker.
s
,616 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
that he discharged Parkman. Under the :circumstances the undersigned is not
'prepared to say that the incident was seized .upon by,'McGowan as a pretext.
It is therefore found that the evidence does not support the allegation that
Parrett and Parkman were discharged because of their activity on behalf of
the Union.
While the questioning of. and warnings to, Parkman are also suspicious, they
do not, standing alone. warrant the conclusion that they constituted unfair labor
practices. The questioning of the three employees who were alleged to have
made threatening remarks is not susceptible "of the construction that- it inter-
tfered-w4thitheir organizational rights. While, as'has been-indicated; only persons
'who spoke favorably of the Union were questioned and warned, there is no evi-
dence that expressions of contrary sentiment were brought to the attention of
the respondent. There is thus no substantial evidence of discriminatory en-
forcement of the rules. As has been seen, Curren's testimony was that the rules
were not intended to inhibit casual conversation, but only such conversation as
interfered with production. and there is no evidence that it was otherwise en-
forced.'
Under other circumstances, certain of the rules might, as contended by the
Board, have constituted unreasonable impediments to self-organization and
consequently been invalid. Thus rule 25 prohibited the following:
Solicitation of membership, pledges, subscriptions, or the unauthorized
collection of money or circulation of petitions, or conducting any outside
business on the company's working premises.
Participation in any organizational activity of any kind on company time
without permission of the Superintendent.
Without reference to other possible objections, such as the fact that it enables-
.the superintendent to enforce restrictions selectively, this rule would appear,
on its face, to prohibit union solicitation and dues collection on the employees'
own time-an invalid restriction in the normal circumstance. The respondent
contends, however, that both paragraphs of this rule are to be read together and
that, thus construed, the rule Is entirely inapplicable to the employees' own time.
But the undersigned finds it unnecessary to construe any of the rules at the
present time As has been indicated, following the election the Union executed
a collective bargaining contract with the respondent in which the above rules
were included and in which the Union agreed to cooperate in their enforcement.
It is found that the rules are enforcible as presently interpreted.'' Whether
rule 25 would be plainly invalid, or invalid because of ambiguity, if charges,
were filed by a labor organization which did not contract for its enforcement,
need not be determined here since the issue is not presented. Similar observa-
tions are applicable with respect to rule 19, which has been set out heretofore."
It is found that the evidence does not sustain the allegations of unfair labor-
practices, and it will therefore be recommended that the coinplaint be dismissed
in its entirety.
Upon the basis of the foiegoing findings of fact and upon the entire record in
the case, the undersigned makes the following.
It is to be assumed that the mistaken interpretations of Davis and Thesing to the effect
that union conversation was singled out for prohibition, while conversation on other topics
was tolerated, have now been corrected
10 See Famous Barr Co., 59 N L R B 976; North American Aviation, Inc, 56 N. L. R. B.-959
11 Burroughs-Wellcome 6 Company, 68 N. L. R. B 175.
W. T. SMITH LUMBER COMPANY 617
CoNCLusIoNS of LAW
1. The operations of the respondent, W. T. Smith Lumber Company, consti-
tute trade, traffic, and commerce among the several States, within the meaning
of Section 2 (6) and (7) of the Act.
2. International Woodworkers of America, C. I 0., is a labor organization,
within the meaning of Section 2 (5) of the Act.
3. The respondent has not engaged in unfair labor practices , within the mean-
ing of Section 8 (1) and (3) 'of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
iunndersigned recommends that the complaint against W. T. Smith Lumber Com-
pany, Chapman, Alabama, be dismissedan•its entirety
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations , file with the Board, Rochambeau Building, Wash-
ington 25, -D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
xecord or proceeding ( including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
.thereof ; and any party or counsel for the Board may, within the same period,
-file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board, filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203.39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
CHARLES W. SCHNEIDER,
Dated-January 8, 1946. Trial Examiner.