Lester Brothers, Inc.

992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lester Brothers, Incorporated and United Brotherhood of Car- penters and Joiners of America, AFL-CIO. Case No. 5-CA- 3162. June 10, 1963 DECISION AND ORDER On March 22, 1963, Trial Examiner James A. Shaw issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. Thereafter, Respondent filed exceptions to the Inter- mediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the en- tire record in this case, including the Intermediate Report and the exceptions, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the exceptions and modifica- tions noted below.' In disagreement with the Trial Examiner, we find that Respond- ent's speech of September 10, 1962, and letter of August 28, 1962, contain neither illegal promises of benefits nor threats of reprisal and are protected under Section 8(c) of the Act. Accordingly, we do not adopt the Trial Examiner's 8(a) (1) findings based upon the speech and letter.' ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Lester Brothers, Incorporated, Martinsville, Virginia, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees concerning their union membership and activities and as regards their testimony to be given in Board 1 Member Leedom, for the reasons expressed in his dissent in Isis Plumbing c8 Heating Co , 138 NLRB 716, would not award interest on backpay m Member Brown, in agreement with the Trial Examiner, would find the letter and speech violative of Section 8(a) (1) when viewed, as they must be, in the context of the general pattern of coercive and intimidatory conduct with which Respondent met the Union's organizational campaign and with which conduct they are inextricably interwoven 142 NLRB No. 114. LESTER BROTHERS, INCORPORATED 993 proceedings in a manner constituting interference, restraint, or co- ercion within the meaning of Section 8(a) (1) of the Act and threat- ening employees with reprisal because of their union membership and activities. (b) Discharging or otherwise discriminating against employees in regard to their hire or tenure of employment or any term or con- dition of employment because of their membership in or activity on behalf of the Union, or any other labor organization, or because they have given testimony in any proceeding under the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Hobert Young immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Martinsville, Virginia, copies of the attached notice marked "Appendix." a Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to its employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3In the event that this Order is enforced by a decree of a United States Court of Appeals, the Order shall be amended by substituting for the words "Pursuant to a Deci- sion and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX 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, as amended, we hereby notify our employees that : WE WILL NOT discharge or otherwise discriminate against em- ployees in regard to their hire and tenure of employment or any term or condition of employment because of their membership in, or activity on behalf of, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, or because they have given testimony in any proceeding under the Act. WE WILL NOT interrogate employees concerning their union membership and activities or as regards their testimony to be given in Board proceedings in a manner constituting interfer- ence, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act or threaten employees with reprisal because of their union membership or activities. 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 United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to Hobert Young immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimi- nation against him. LESTER BROTHERS, INCORPORATED, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in -accordance with the Selective Serv- ice Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. LESTER BROTHERS, INCORPORATED 995 Employees may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, 21202, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and amended charges duly filed on May 4 and 18, and June 20, 1962, by United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel' and the Board, through the Regional Director for the Fifth Region (Baltimore, Maryland), issued a complaint dated August 22, 1962, against Lester Brothers, Incorporated, herein called the Respondent, alleging that Respondent has engaged in and is engaging 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 National Labor Relations Act, as amended from time to time (61 Stat. 136), herein called the Act. In due course the Respond- ent filed its answer in which it admitted certain jurisdictional matters, but denied commission of any of the unfair labor practices. At the hearing herein the General Counsel amended his complaint by way of written and oral motions to amend which were granted. The Respondent's motion to amend its answer, by denying said allegations, was likewise granted? Pursuant to due notice, a hearing was held at Martinsville, Virginia, or October 30 and 31, 1962, before Trial Examiner James A. Shaw. Each party was represented by counsel and participated in the hearing. Full and complete opportunity was afforded the parties to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally on the record at the conclusion of the taking of the evidence, and to file briefs. A brief was received from the General Counsel on December 17, 1962. Upon the record as a whole, and from my observation of the witnesses, I make the following: 3 FINDINGS OF FACT I. RESPONDENT'S BUSINESS OPERATIONS The complaint alleges, the answer admits, and I find that: "Respondent is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the Commonwealth of Virginia, having its principal office and plant in Martinsville, Virginia, where it is engaged in the manufacture, processing and sale of prefabricated houses, lumber and building supplies"; Respondent, in the course and conduct of its business operations as described above, during the pre- ceding 12-month period, a representative period, purchased goods, material, equip- ment, and supplies of a value in excess of $50,000, from points and places outside the Commonwealth of Virginia, and has shipped finished products of a value in excess of $50,000, from its place of business in Martinsville, Virginia, direct to points and places outside the Commonwealth of Virginia. 1 This term specifically Includes counsel for the General Counsel appearing at the hearing herein s For a detailed discussion of the General Counsel's amendments see infra. a The General Counsel in his brief at page 2 (footnote 2) moved that the transcript of the record herein be corrected to read in accordance with his comments in this regard, and his interpretation of the record I have considered his motion very carefully, and quite frankly am unable to fathom its portent to the issues herein. In other words it is not understandable to me. For this reason, I formally deny the motion to amend, and will use my own judgment in Interpreting the record in the light of its entirety. As to the General Counsel's motion to correct the record as found on page 4 of his brief to change line 18 on page 259 to read. "but, possibly, we can't show that" After careful consideration, said motion is hereby granted, and the record corrected accordingly. 712-5 4 8-6 4-v of 142-64 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the circumstances set forth above, I find that the Respondent is and has been at all times material herein engaged in commerce within the meaning of Section 2(6) of the Act 4 II. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Background No proper understanding of the issues herein could be had without reference to a previous Board proceeding involving the Respondent herein. I have reference to Lester Brothers, Incorporated, and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Case No. 5-CA-1717, 131 NLRB 1144; enforced by the United States Court of Appeals for the Fourth Circuit, No. 8455, on March 21, 1962 [301 F. 2d 62]. The hearing in that case was held before Trial Examiner Alba Martin on September 13, and 14, 1960, in Martinsville, Virginia. The per- tinency of this case is the fact that the complaint in the instant case alleges inter aha the following: VII. Respondent, by its officers, agents and supervisors, while engaged in the op- erations described above in pars. II, III and IV, did on or about April 18, 1962, terminate the employment of Hobert Young, and has at all times since said date failed and refused to reinstate said employee to his former or substantially equivalent position because of his membership in, assistance to or activity on behalf of the Union or because he engaged in concerted activities with other employees of Respondent for the purpose of collective bargaining or other mutual aid or protection, and/or because he gave testimony under the Act. VIII. Respondent, by the acts and conduct described in par. VII above, did dis- courage and is discouraging membership in a labor organization by discrimina- tion in regard to hire and tenure of employment or terms or conditions of employment, and by said acts and conduct did engage in and is engaging in unfair labor practices within the meaning of Section 8, subsection (a)(3) of the Act, and did discriminate and is discriminating against an employee because he gave testmony under the Act, and by said acts and conduct did engage in and is engaging in unfair labor practices within the meaning of Section 8, subsection (a) (4) of the Act. [Emphasis supplied.] IX. Respondent, by the acts and conduct set forth in pars. VI and VII above, did interfere with, restrain and coerce its employees, and is interfering with, restraining and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, and did thereby engage in, and is thereby engaging in unfair labor practices within the meaning of Section 8, subsection (a)(1), of the Act. In other words one of the principal issues herein is that Hobert Young, an em- ployee of the Respondent at times material herein, was discharged by it on or about April 18, 1962, because he ". . . filed charges or given testimony under the Act," in violation of Section 8(a) (4) of the Act. An examination of the Inter- mediate Report, which was adopted and approved in toto by the Board, and the decision of the Circuit Court of Appeals for the Fourth Circuit enforcing the Board's Order against the Respondent clearly show that Young was an important witness for the General Counsel in that proceeding. It is for the foregoing reasons that I must of necessity refer to the previous case cited above. In passing I de- sire to point out to all concerned herein, that I am well aware of the fact that I am confronted with a new and separate cause of action in the case at hand. 4 The Board has previously assumed jurisdiction over the Respondent 's operations in Case No 5-CA-1717; 131 NLRB 1144 See also N L R.B. v. Lester Bros , Inc, Case No. 8455, United States Court of Appeals for the Fourth Circuit, decided March 21, 1962 [301 F. 2d 62], of which more anon. LESTER BROTHERS, INCORPORATED 997 In addition to the 8(a)(3) and (4) as regards Young's discharge on April 18, 1962, the complaint as amended at the hearing alleges certain specific acts of interference, restraint, and coercion by the Respondent as violative of Section 8(a) (1) of the Act. Since the dates that these incidents allegedly occurred is of importance in my ultimate disposal of certain issues herein, I feel that these al- legations should be set forth herein below in toto. Consequently they follow below: a. On or about April 27, 1962, and on various dates thereafter, Russell Thomas- son, a supervisor of Respondent, forcibly removed union authorization cards from the person of employees and inspected said cards and threatened employees with reprisals because of their membership in, sympathies toward, affiliation with, and/or activities on behalf of the Union. b. On or about April 27, 1962, and on various dates thereafter, Roy Warren, a supervisor of Respondent, threatened employees with economic reprisals because of their membership in, sympathies toward, affiliation with, and/or activities on behalf of the Union. At the hearing herein the following amendments were added to the complaint: Paragraph VI(c)-On or about August 28, 1962, and September 10, 1962, Lawson Lester, President of Respondent, threatened employees with economic reprisals because of their membership in, sympathy toward, affiliation with, and/or activities on behalf of the Union, or if the Union were to receive a majority of the valid ballots cast in an impending NLRB representation election. Paragraph VI(d)-On or about October 29, 1962, "Russell Thomasson in- terrogated employees with respect to testimony that they had given to the Labor Board or were about to give at a Labor Board hearing, and on or about that date the said Russell Thomasson instructed employees that it was not neces- sary for them to appear in answer to a subpoena issued by counsel for the Labor Board; and, that, on or about October 30, 1962, Wilburn M. Carmichael, interrogated employees with respect to testimony that they had given to the Labor Board or were going to give at a Labor Board hearing in answer to a subpoena issued by counsel for the Labor Board. As indicated above counsel for the Respondent orally amended his answer at the hearing herein to deny the allegations in the foregoing amendments to the complaint. The primary reason for the insertion of the specific 8(a)(1) allegations in the complaint in this section of the report will be apparent below. Suffice it to say at this point that the Board's Order in the previous case involving the Respondent herein, set forth specifically certain conduct that the Respondent was to "Cease and desist from." Consequently since enforcement of the Board's Order was granted in toto by the United States Court of Appeals "For the Fourth Circuit" on March 21, 1962, the Respondent was under an obligation to "Cease and desist" from engaging in either like or similar conduct within the meaning of the Act, at all times thereafter, which of course includes the periods of time we are primarily concerned with herein. In the circumstances it is reasonable to assume that the officers and supervisory employees of the Respondent as individuals were aware of the significance of the Board's Order and the decision of the United States Court of Appeals for the Fourth Circuit, dated March 21, 1962. The record shows that at times material herein the Respondent had approximately 265 employees. The record also shows that the following persons were in active charge of the Respondent's operations at times material herein, and are referred to in the record as having in one way or another participated in the incidents we are primarily concerned with herein: Lawson Lester, president; Victor A. Lester, vice president; James Shockley, plant superintendent; Joe Lazenby, assistant plant superintendent; Wilburn M. Carmichael, foreman; Russell Thomasson, foreman; and Arthur Anderson, foreman. In addition to the foregoing, the record contains considerable testimony as regards one Posey Gilbert, Jr., whose importance in my ultimate disposal of the issues herein will be apparent below.5 Suffice it to say at this point that the General Counsel contended at the hearing herein that Posey was a supervisory employee within the meaning of the Act at times material herein. The Respondent contends that he was not a supervisory employee at times material herein, and had not been for at least a year and a half prior to the hearing herein, of which more below. Quite frankly Posey's status was not fully litigated at the hearing herein, insofar as I am concerned. In addition to the vagueness of the testimony regarding his status 5 Posey Gilbert, Jr., will be referred to from time to time as Posey. 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am confronted with the "Decision and Direction of Election" issued by the Regional Director for the Fifth Region, dated August 14 , 1962, in which he found inter alia as follows: 6 The Petitioner, contrary to the Employer, would exclude as supervisor's James Dillon, Frank Turner, Roy Warren, Roy Crews, Mark Sharp, O. C. Minter, Riley Nunn, Leonard Saunders , Posey Gilbert, Jr., Coolidge Clark, Sam Lawrence, James Philpott, John Taylor and Curtis Spencer. [Emphasis supplied.] 7 Although testimony was taken as to the supervisory status of James Philpott, Curtis Spencer, Posey Gilbert, Jr., Leonard Saunders, Sam Lawrence and Coolidge Clark , the record is not sufficiently conclusive to determine their su- pervisory status. Accordingly, no determination is made as to their status and they will be permitted to vote subject to challenge . [Emphasis supplied.] In all the circumstances , and upon the record considered as a whole, I find that at times material herein Posey Gilbert, Jr., was not a supervisory employee within the meaning of the Act. In addition to the foregoing the Regional Director also found that the Roy Warren referred to above was a supervisory employee within the meaning of the Act. For this and other reasons that will be discussed below, I find that Roy Warren was a supervisor within the meaning of the Act at all times material herein. As indicated above the General Counsel offered in evidence "Decision and Direc- tion of Election" in Case No. 5-RC-3871 , dated August 14, 1962. It was admitted as General Counsel's Exhibit No. 6, and "official notice " thereof was taken by me on the record at the hearing herein. The Alleged Violation of Section 8(a)(3) of the Act According to the record herein, the decision of the Fourth Circuit Court of Appeals, and the Board's Decision and Order, in the previous case involving the Respondent, the Union started its organizational campaign among the Respondent's employees back in 1960.8 Its campaign was interrupted by the litigation in the above case and was not resumed until after the decision of the Fourth Circuit Court of Appeals on March 21, 1962. What transpired thereafter is what we are primarily concerned with herein. At the onset of the hearing herein the General Counsel called as his first witness in support of his case-in-chief, Reid Stewart, International representative of the Union, who was in charge of the previous organizational campaign back in 1960, and at all times material herein. According to Stewart's credible testimony the Union renewed its organizational campaign shortly after the Fourth Circuit Court of Appeals entered its decree en- forcing the Board's Order in the previous case. He first contacted certain employees of the Respondent by telephone and arranged to meet with them after working hours on Tuesday, April 3, 1962. On that date he met Charles Craig and Rorer Martin, and they went out to Hobert Young 's home where they remained for about an hour. During the course of the meeting he gave each of those present cards to distribute among the employees , and discussed plans for renewing the Union's campaign to organize the Respondent's employees . During the course of the meeting he gave Hobert Young around 100 cards to pass around among the employees , of which 40 to 45 were later signed by employees of the Respondent and returned to him by Young before he was discharged on April 18, 1962. The next meeting between Stewart and the employees of the Respondent was held on April 17, 1962, at Hobert Young's home . Since I consider the incidents surrounding the meeting of the utmost importance in my ultimate disposal of the issues herein regarding Hobert Young, I feel that the following excerpt from Stewart's credible testimony in this regard should be inserted herein for the consideration of all concerned . Consequently it follows below: A. I had planned a meeting with a few employees of the firm for Tuesday evening, April 17th, and on that afternoon we were to be there around 7:00 or a few minutes thereafter. Q. To be where? $ See General Counsel 's Exhibit No. 6. Further discussion regarding the election and` other matters pertinent thereto will be discussed below. 9 See infra regarding Roy Warren and Posey Gilbert, Jr. 9 See supra for citation of the above cases and other pertient information in this regard. LESTER BROTHERS, INCORPORATED 999 A. At Hobert Young's home, and on that afternoon, I proceeded to Mr. Young's home a bit early-around 6:30 to be exact-and I had occasion to drive down a dirt road to Mr. Young's home. During the course of my driving down this dirt road, I came upon a pickup truck parked in the front of a small building that was being erected and I noticed, as I was blocked there, there were three men around this building, one of which was Hobert Young, who was on the roof, another one was Posey Gilbert, Jr., who was also on the roof, and an- other man, whom I did not know at the time, but I later was introduced to him as being George Gritts. I went on after the truck moved. Q. How long were you stopped there? A. Approximately a couple of minutes-something like that. I went on down the road to Mr. Young's house, which is located, I would say approxi- mately 150 or maybe 175 yards beyond that point, and parked my car in his yard and waited. According to Stewart the following employees met with him at Young's home on the night of April 17, 1962: Hobert Young, Charlie Craig, Rorer Martin, and Elmer Haygood. At this point I desire to point out to all concerned that Stewart in his testimony referred to Posey Gilbert, Jr., as being with Hobert Young on the roof of the small building that was being erected on the property of George Gritts, whom the record indicates was likewise an employee of the Respondent at times material herein. As indicated above Posey Gilbert, Jr., insofar as I am concerned, plays an important role in the ultimate disposal of the issues herein. This is indicated by the following colloquy between the General Counsel and counsel for the Respondent, at the con- clusion of Stewart's testimony: Mr. GUTMAN: Before Mr. Stewart is excused, can we stipulate that Posey Gilbert, Jr., is the same Posey Gilbert, Jr., who was employed by the Respondent at the time the first Lester Brothers case was tried? Mr. BLAKENEY: The Respondent will stipulate that Gilbert has been an em- ployee of the Company steadily for some several years, something like 10 or 11 years. Mr. GUTMAN. Can we stipulate his duties are the same today as they were at the time the first case was tried? Mr. BLAKENEY: I don't know about that. TRIAL ExAMINER: Off the record. (Discussion off the record.) TRIAL EXAMINER: On the record you are excused. According to the record the parties were unable to agree as to Gilbert's status and consequently there is no stipulation regarding this in the record. As a matter of fact the foregoing is all we have in the record regarding Gilbert's status, except the Regional Director's finding in Case No. 5-RC-3871, which has been inserted herein above.9 As indicated above the meeting on April 17, 1962, at Hobert Young's home ended a little after 9 p.m. Hobert Young reported for work as usual the next morning around 7 a.m. Less than 3 hours later he was discharged under circumstances that will be fully discussed below. Before we get into his discharge let us first take a look at his employment record with the Respondent. Hobert Lee Young was employed by the Respondent on April 23, 1957, and worked continuously for it until his discharge on April 18, 1962. During his en- tire tenure of employment he worked in the truss department. At the time he was discharged he was operating a saw, and had been continuously since Janu- ary 1962. In addition to this experience he had previously operated a saw off and on for a period of approximately 11/2 years. For the most part his work on the saw consisted of cutting rafters and ceiling joists for the trusses that go on the top of the prefabricated houses that the Respondent makes. According to the record his work had been satisfactory throughout his entire tenure of employment. As indicated above Young had been most active on behalf of the Union among the Respondent's employees throughout its original campaign back in 1960. In addition he was one of the General Counsel's most important witnesses in the previous case involving the Respondent herein. His activities after the Union re- 9 Though the record shows that the General Counsel did interrogate certain of the Re- spondent's witnesses as regards Gilbert's duties, I am convinced that their testimony contributed little If anything to justify a finding contrary to that of the Regional Director as to Gilbert in the "R" case which has been set forth herein above. See infra for further comment. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sumed its organizational campaign among the Respondent's employees have been referred to above in my reference to Stewart's testimony in this regard. Even so, I feel compelled to reiterate them at this point for reasons which will be apparent below. Suffice it to say at this stage of the report that the concession of counsel for the Respondent regarding the Respondent's knowledge of Young's activities is in my considerate opinion of the utmost importance. For this and other reasons that will likewise be apparent below the following excerpt from Young's credible testimony follows below: Q. (By Mr. GUTMAN.) Was there some contact you had with Mr. Stewart this spring. A. Yes, sir, there was. Q. Tell us when it was and what the circumstances were? A. It was the 3rd of April that Mr. Stewart come to my house and told me that they were going to try to organize the plant at Lester Brothers again and he gave me some cards-some union cards and wanted me to distribute them out and see if I could get them signed, and I think he gave me ap- proximately 100 cards. I carried them to the plant and distributed them out to different people and to a lot of my friends so they would take the cards and get their friends to sign them and bring them back to me and I personally got part of them signed myself. Q. How many cards did you get signed? Mr. BLAKENEY: I think we can shorten this part of the record that might relate to proof of Hobert Young being active in behalf of the union. The company will concede it was aware of such fact both from the circumstances as he testified in the former case you referred to and also , I believe, he acted as an observer, perhaps , for the union, but, at any rate, the point of his being interested in and active on behalf of the union, generally, will not be contested by the company. Mr. GUTMAN: I understand that, and to straighten the record , Mr. Young never acted as an observer. Mr. BLAKENEY: I am mistaken to that respect. Young's account of what transpired on the night of April 17, 1962, at George Gritts' home, where he and Posey Gilbert, Jr., were working together on the roof when Stewart passed by on his way to Young's home is about the same as that of Stewart which has been set forth above. In the circumstances , I see no neces- sity to reiterate it at this stage of the report. Suffice it to say at this point that Posey Gilbert, Jr., had been a supervisory employee at the time of the prior case involving the Respondent herein, and was a leadman at times material herein. His supervisory status at times material herein , insofar as this record is concerned, is, quite frankly , most "hazy." In the circumstances , and in the light of the Regional Director's finding in the "R" case, which has been inserted above, I find at this point that Posey Gilbert, Jr., at times material herein was not a supervisory employee within the meaning of the Act.lo We now come to the morning of April 18 , 1962. What transpired on that date is of course one of the major problems we are faced with herein, the discharge of Hobert Young. After long and careful consideration and after having read and reread the record herein innumerable times, I am convinced that what transpired on that date is best told in Young's testimony. For this reason I insert the following excerpt therefrom for the convenience of all concerned: Q. (By Mr. GUTMAN.) Hobert, go to what happened that day. A. Well, I went to work as usual that morning and I had an order calling for 14'3/a" rafters to cut and I went to the 14' material that I cut the 14'3/x" rafters out of. The 14' material comes in and sometimes it is an inch or an inch and a half longer than 14 ' when it comes to the plant. Q. Does the lumber come in in one length or are there various lengths of lumber used in the plant? A. Various lengths. TRIAL EXAMINER: You mean it varies in length? The WITNESS: Yes. l°I have considered the testimony In the record in this regard , particularly the General Counsel's Interrogation of Superintendent Shockley, and see no justification for disturbing the findings of the Regional Director for the Fifth Region as to Gilbert's status in Case No. 5-RC-3871. LESTER BROTHERS, INCORPORATED 1001 Q. (By Mr. GUTMAN.) How does it come packaged? A. In bales of about 90 pieces. Q. Are all of the pieces in the bale the same approximate length? A. Yes, they are. Q. What are the lengths of the various bales? A. About 12, 14, 16, 18, 22, 24 and 28-foot. TRIAL EXAMINER: In other words, what you are testifying to is this: Even though they are called 14' boards, nevertheless they will vary in length and some are a little closer to 14' and some are 2 or 3 inches longer; isn't that correct? The WITNESS: Yes, sir. So, I had some 14'3/4" rafters to cut and I had the boy on the fork lift to pick up a bale of 14' two-by-fours with the intention of cutting 14'3/4" rafters from them, but when he carried them to my saw, I meas- ured the top of these two-by-fours and they only measured 141/2" so I couldn't cut 14'3/ " rafters from them, but I had some 14 ' material to cut that day, anyway, so I cut 14' material out of that rick of two-by-fours. Then I went back to the same pack, which was stacked up in about four ricks, to see if the rest of them were long enough to cut 14'3/4" rafters, and I measured the side of them. I couldn't measure on top of them because they were stacked one on top of another and they measured 14'i/a" so I had to cut the 14'3/4" rafters out of 16' material then and as I had been told to do by Mr. Carmichael and Mr. Lazenby. Q. (By Mr. GUTMAN.) Who are these gentlemen? A. Mr. Carmichael is my foreman and Mr. Lazenby is my assistant super- intendent. Mr. GUTMAN: We can stipulate Mr. Carmichael is a supervisor , can we not? Mr. BLAKENEY: Yes. TRIAL EXAMINER : What is his first name? Mr. BLAKENEY : Wilburn Carmichael. TRIAL EXAMINER : Proceed. The WITNESS : So I got the man that operates the small lift to send me a rick of 16' two-by-fours and put them on the truck in order to cut 14'3/4" rafters from and carried them to the saw and I had cut, I think, about 8 or 10 pieces when Mr. Lazenby came to me and asked me why was I cutting those rafters out of the 16' material and I told him that I had measured the 14' two-by-fours and they were not long enough to get 14'3/4" rafters and they were only 14'1/z" and I had to cut them out of the 16' stuff, and he says to me, he says , "You are 1/4" shy," and he walked on off toward the office. The last I seen of him, he was going to the office, and it was about 10 minutes later that Mr. Carmichael came to me and told me to cut some 12' ceiling joists because they didn't need what I was cutting then to make the trusses and they need the 12' ceiling joists and to stop what I was cutting and to cut the ceiling joists and I had cut about 45 pieces of this 16 ' material into 14'3/4" rafters at that time. So I pushed the 14'3/4" rafters I had already cut to one side and I pushed the other half of the 16' material to one side and started cutting and squaring the 12' material. It was about 5 minutes later that Mr. Carmichael came back to me and told me that he wouldn't need me any more and I asked him was he firing me and he said yes and I asked him why and he said for wasting material, and he already had my card in his hand. Q. (By Mr. GUTMAN. ) At this point, had anybody measured the material that you were working on? A. If they did, I didn't see them. Q. Could they have done it without you seeing it? Could anybody have measured the 14' lumber you rejected without you having seen them? A. I didn't see them. Q. Go on. A. And he told me then to come and go with him to the office and I went with him and when we got to the office, he told me to wait in the office and he went down in the plant-I don't know where he went-and at that time, Mr. Lazenby came in the office where I was waiting at and I asked him did he know that Mr. Carmichael had fired me and he said , "Yes. He should have fired you for cutting that stuff-those rafters out of the 16' material." Then Mr. Carmichael came back and Mr. Lazenby told Mr. Carmichael to give him my card and he would send it up to the office so I could get my money. He told him to go back over to the plant and he told me I could get paid at the 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD main office, but I looked up Mr. James Shockley, the superintendent , before I left and I told him that they had fired me for wasting material and I was not wasting material because the 14' two-by-fours were not long enough to cut 14'3/4" rafters and I was doing what I had been told to do, and I asked him if he didn't think the 14' two-by-fours were long enough , would he go over to the plant where I was working on the rafters and measure them himself, and he told me, "I will check them later," and I left and went home. Then I called Mr. Shockley about 20 minutes past 5:00 that evening and asked him had he checked them and he said yes, he had checked them, and he said, "All of them were 14'7/8 " long." Q. Had you ever cut 14'3/4" rafters out of 16' lumber before? A. Yes, many times . [Emphasis supplied.] As indicated above the Respondent 's position is that Young was discharged for cause, in that he "wasted" material by cutting 2-inch by 4-mch by 14-foot 3/4 -inch rafters out of 2-inch by 4-inch by 16-foot material without first securing permission from his superiors to do so. It also contends that there was an ample supply of 2-inch by 4-inch by 14-foot on hand to take care of the order he was working on, and that for this reason it was unnecessary for him to cut the 2-inch by 4-inch by 16-foot lengths. At this point I want to point out that the 2-inch by 4-inch by 14-foot lumber that the Respondent purchases from various lumber companies varies in length, and ordinarily the 2-inch by 4-inch by 14-foot it purchases is at least 7/8 to 1 inch over 14 feet in length. According to the record the average "rick," i.e., a bale of 90 pieces, will contain very few 2-inch by 4-inch by 14-foot that cannot be cut into 2-inch by 4-inch by 14-foot 3/4-inch rafters. Young further testified in substance that when he was first assigned to the "saw," he was told by his superiors that in the event he did not have on hand 2-inch by 4-inch by 14-foot "stuff" that was long enough to cut 2-inch by 4-inch by 14-foot 3/4-inch, that he was to cut them out of the 2-inch by 4-inch by 16-foot lengths; that thereafter on several occasions he had been compelled to cut 2-inch by 4-inch by 14-foot 3/4-inch rafters out of 2-inch by 4-inch by 16-foot lumber; that on such occasions he did not request permission before cutting the 16-foot lengths; and that he had neither been criticized nor reprimanded in the past for using the 16-foot "stuff" to cut 2-inch by 4-inch by 14-foot 1/4-inch rafters.il Young's testimony in this regard was corroborated by Richard Hairston, a fellow worker, who likewise had been a "sawer" for a period prior to Young's discharge on April 18, 1962. According to Hairston he was required to cut 2-inch by 4-inch by 14-foot 3/4-inch rafters out of 16-foot "stuff" on an average of once a week while, he was on the saw, and at no time did he request permission to do so. As I interpret his testimony in this regard he was told to use the 16 -foot "stuff" if the 14-foot lengths were not long enough when he first was assigned to the saw and for this reason he saw no necessity to go to his foreman for permission to use the 16-foot "stuff" every time such an emergency arose.12 On the other hand, the Respondent contended at the hearing herein that the sawers were required to secure permission from their immediate superiors before cutting 2-inch by 4-inch by 14-foot 3/4-inch rafters out of "16-foot stuff." The primary purpose of the rule was in furtherance of its policy against the wasting of materials. In support of its contention that Hobert Young was discharged for cause, it offered the testimony of several of his supervisors and coworkers . Let us first take a look at the testimony of Joe Lazenby, assistant plant superintendent. According to Lazenby he had occasion to pass by Young's working place on the morning of April 18, 1962, and observed that he was cutting 2-inch by 4-inch by 16-foot. He went over to Young and asked him in substance why he ". . . was cutting 2-inch by 4-inch by 14-foot 3/4-inch from the 16-foot?" and he said, "The other is too short," and I said, "Did you measure it?" and he said, "Yes." 13 Lazenby's reaction to Young's statement that the 2-inch by 4-inch by 14-foot on hand were too short to cut the 2-inch by 4-inch by 14-foot 3/4 -inch order is well summed up in the following excerpt from his testimony in this regard Q. And he said in answer to your inquiry that the stack was too short to make 14'3/4 "? al The witnesses referred to stacks of lumber as, "14-foot stuff" and "16-foot stuff" throughout their testimony at the hearing herein 12 See infra for further discussion of Hairston 's testimony , in particular as to a con- versation he had with Foreman Carmichael on the day he testified at the hearing herein. a3 Quotes from Lazenby's testimony. LESTER BROTHERS, INCORPORATED 1003 A. That's correct. Q. So what did you then do? A. It seems kind of absurd to me that anybody would make a statement like that and I went and got the foreman in charge of bringing the lumber in and he and I measured the lumber. Q. Why would it seem absurd to you to make a remark like that? A. Our plant always takes grade marked material and all grade marked material has always been sent in with a I" overlength unless specifically re- quested by the buyer. Q. Is there an occasional piece in there that is not up to standard? A. Yes. Q. And Hobert said he went and looked at the face of the stack and meas- ured the face of the stack next to him and he came to the conclusion there was no lumber there to make 14'3/4 ". Is that a true statement? A. That is what he said, but it is not a true statement, as far as I am con- cerned, because there was no such thing. I measured the stack of lumber, myself. Q. How long have you been at that plant? A. About five years. Q. Had you ever seen a stack of 14' material with 12 to 15 ricks in it that most of it would not produce 14'3/4" rafters? A. No, I have not. Shortly after Lazenby talked to Young he got in touch with Carmichael, the foreman in charge of the department, and asked him why Young was cutting 2,inch by 4-inch by 14-foot 3/4-inch out of 16-foot "stuff." According to Carmichael, he then went over and asked Young why he was cutting the 16-foot stuff, and that "he said that somebody had switched orders on him, or something, .. " 14 What happened thereafter will be discussed below. Suffice it to say at this point that the record is so "fuzzy" and unintelligible that it has been nigh onto impossible for me to separate the wheat from the chaff, and arrive at a logical and sensible conclusion as to just what did happen after Lazenby and Carmichael "discovered that Young was cutting 2-inch by 4-inch by 14-foot 3/4-inch rafters out of 16-foot "stuff." But this issue, like all that are worrisome and pestiferous, must be resolved. That I shall do on the record considered as a whole and let the chips fall where they may. After long and careful consideration of the record as a whole, I find that Lazenby and Carmichael, with the assistance of Foreman Anderson and an employee, John Penn, made a check of the 14-foot "stuff" that was on hand and found that it could be used to cut the 2-inch by 4-inch by 14-foot 3/4-inch rafters. Shortly after this check was made, Lazenby told Carmichael to discharge Young. What happened then has been set forth above in the excerpt from Young's testimony in this regard. According to John Penn, who, with an employee named Rorrer, was assigned by Carmichael to operate the saw after Young was fired, there was a stack of 14-foot "stuff" near the saw that contained 12 ricks, or 1,152 pieces. He was instructed to cut the entire stack and to keep an accurate record of all pieces that were not long enough to make 2-inch by 4-inch by 14-foot 3/4 -inch rafters out of. The result of their check is set forth herein below in the following excerpt from Penn's testimony which is fully credited by me: Did you and Rorrer cut this entire stack or pile of 12 ricks? That's correct. Will you tell the Examiner what lengths did it yield? 14'3/4'p. Were there any exceptions? Were any too short at all? Yes. How much? About 5 or 6 pieces. 5 or 6 pieces? Yes, sir. And the rest of the whole stack made 14'3/4 " rafters? Right. And you and Rorrer cut it off? Correct. Penn further testified as to the procedure sawers follow when they are required to cut certain lengths of lumber out of a stack of ricks. Since this procedure is one of the most important issues herein, and the further fact that Penn was an 24 Quotes from Carmichael's testimony at R. 178. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD experienced sawer, I feel that it would benefit all concerned to insert below the following excerpt from his testimony on cross-examination in this regard: Q. Mr. Penn, when you measure lumber to find out whether you have 14' available, do you measure every piece in the stack or how do you go about that? A. What you do, you take the tip end and measure and find the right length. You measure the two-by-fours and set the saw up. Q. What do you measure? I know your measure two-by-fours, but how do you go about it, mechanically? A. You have to know, first, what you have to cut. Q. Then what do you do? A. Take a tapeline and measure it off. Q. What do you measure? A. You measure the two-by-fours. Q. Where do you find the two-by-fours to measure? A. In the rick. Q. How many do you measure in the rick? A. You run the tapeline and measure down. You don't have to measure all but just one. Q. If it wouldn't measure correctly, would you assume all of the ones in the rick were short? A. No. Q. What do you do? A. Lay it aside and measure another one. Q. You pick up the piece of lumber and measure the next one? A. Yes. Q. Wouldn't you, at times, measure the pieces that are on the outside of the rick'' A. No. The way the rick is most of the time, there is 96 in the rick and it is sitting on the floor truck and you run a tapeline and measure it from the top as they are sitting on the truck. Q. By measuring one and finding it measured up, could you assume from that that every piece in the rick was sufficiently long enough? A. If you find one short piece, no. Q. If you found one piece long enough, would you assume all were long enough? A. You would have to set your saw up to start cutting. Mr. GUTMAN: That is all. The importance of the above testimony is that Young contended that when he measured the same stack of 2-inch by 4-inch by 14-foot lumber that it was not in his opinion long enough to cut 2-inch by 4-inch by 14-foot 3/4-inch rafters, and that this was the reason he went over and cut them out of the 16-foot stuff. From the foregoing I am convinced and find that Penn's account of the condi- tion of the 2-inch by 4-inch by 14-foot "stuff" in the stacks that were near the saw which Young was operating is by far not only the most intelligible in the record in this regard, but accurate in the light of the record as well. In the circumstances I find that 2-inch by 4-inch by 14-foot lumber was available for Young to cut his order for 2-inch by 4-inch by 14-foot 3/4-inch rafters from on the morning of April 18, 1962 I also find that Young's use of the 2-inch by 4-inch by 16-foot lumber to cut the 2-inch by 4-inch by 14-foot 3/4-inch rafters was neither deliberate nor intentionally wasteful but was due solely to an error in judgment. This find- ing is predicated upon the record as a whole, particularly the testimony of Hairs- ton, Penn, Carmichael, and Young, himself, that the 2-inch by 4-inch by 14-foot stuff is stacked in ricks or bales of approximately 90 pieces each, and that the only way a sawer can ascertain which rick to cut his order from is by measuring the 2-inch by 4-inch by 14-foot's that are on the outside or on top of the stack. This is precisely what Young did, but due to unforeseen and unexplainable cir- cumstances he measured the short 2-inch by 4-inch by 14-foot that could not be used to cut the order for 2-inch by 4-inch by 14-foot 3/4-inch rafters. In other words his error was human, and not with "malice aforethought." In other words it was an error in judgment. Another factor that has disturbed me considerably is the testimony in the record by witnesses for the Respondent as to the absence of the other lengths of 2 by 4's that Young testified that he cut on the morning in question. Accord- ing to the record, particularly from Young's credible testimony on both direct and cross-examination, it was the custom to post or "hang" an order near the saw LESTER BROTHERS, INCORPORATED 1005 every morning on which was listed the sizes that the sawer was to cut during the day. According to Young these orders were posted by John Penn who worked in the same department with Young , and who likewise was under Carmichael's su- pervision . There was an "order" at Young's working place on the morning of April 18, 1962, which called for four or five different lengths of 2 by 4's he was to cut on the day in question . According to Young they were as follows: ( 1) 2-inch by 4-inch by 14-foot joists. (2) 2-inch by 4-inch by 14-foot 1/2 -inch rafters . (Young did not cut this order because he had a sufficient stock of this size on hand to fill the order.) (3) 2-inch by 4-inch by 14-foot 3/4-inch rafters. (4) 2-inch by 4-inch by 28-foot rafters. ( 5) He was unable to recall what this order called for. Young's testimony stands uncontradicted and undenied in the record and is fully credited . The only testimony in the record offered by the Respondent to refute Young's testimony regarding this is, quite frankly, so vague and "hazy like" that it is almost unintelligible and as far as I am concerned of no probative value what- soever. For example, the witnesses were queried as to whether or not they saw this size or that size 2 by 4 "stuff " around the saw that Young operated on the day in question , to which their standard answer was , "I didn't see any" or in similar phraseology. As to Young's record with the Respondent as indicated above he had worked for the Respondent approximately 5 years at the time he was discharged . During this entire period he worked under the supervision of Foreman Carmichael, who cited three instances on which he reprimanded Young for misconduct on the job. One was for staying too long in the toilet ; on another occasion ". . . he was grumbling about cutting braces and saying that some of the white men in there had a better showing than he did. He said he had to do more work than the white fellows or something like that"; and a third occasion regarding smoking on the premises . As to his overall record over the years , Carmichael further testified on direct examination as follows: Q. Did you ever have occasion to get after him in any way further about his performance? A. No, sir, I think that is all that I remember. Q. Did you ever have occasion to get after him about his attendance on the job? A. No, sir. Q. Did you ever have occasion to get after him for disregarding the com- pany rules in any way. A. No, sir, I don't think I ever got after him about that. Q. Do you recall any instance about smoking? A. On one occasion we had to get after him for smoking and going be- tween the buildings out there. Q. When was that? A. That was along about the same time this order incident happened in the rest room. Q. What did he say about that when you got after him? A. He said that others smoked or something like that, and he went on. Q. Do you try to keep them from smoking out there? A. Yes, sir. Q. And these incidents you have told us about , you say were roughly in the period of some 60 days before he was discharged? A. Yes, sir. I would say something like that. It was just before he went back on the saw-before we put him back on the saw. An examination of the Board's Decision and Order in the prior case shows that it adopted in toto the findings and conclusions of Trial Examiner Alba Martin, who presided at the hearing therein and issued the Intermediate Report on April 4, 1961, upon which the Board's action in this regard was predicated . Since one of the issues that we are faced with herein is the allegation in the complaint that one of the reasons for Young's discharge by the Respondent on April 18, 1962, was be- cause he gave testimony under the Act in the prior case , consequently I must of necessity consider portions thereof herein. An examination of the Intermediate Report and the decision of the Fourth Circuit Court of Appeals clearly shows that Young was one of the most important witnesses for the General Counsel in that proceeding. The Trial Examiner in that case found that Young was an honest wit- ness. His credibility findings in this respect were approved by the Board and the 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD court in their decisions . In fact, the Circuit Court of Appeals refers to Young's testimony on several occasions in its decision . The decision of the Fourth Circuit Court of Appeals was "Decided March 21, 1962." Less than 30 days later Young was discharged by the Respondent . Was the court's decision a motivating factor in the Respondent's discharge of Hobert Young on April 28, 1962? This is one of the major questions which is before me. My ultimate findings and conclusions in this regard will be disposed of below. At this point I feel compelled to point out to all concerned herein that I have been greatly impressed by the similarity of the routine followed by Lazenby and Carmichael prior to the discharge of the named discriminatees in the previous Board case and of Hobert Young in the instant case . In the prior cases and the case at hand we find this routine. Lazenby "discovers" the alleged misconduct , notifies Carmichael, and instructs him to discharge the employee. This same "old routine" was followed herein in the discharge of Young. What puzzles me is this, why is it that Carmichael, who was in active charge of the department in both the prior case and the instant case and in constant touch with the employees under his supervision, did not observe the misdeeds and errors of the discriminatees before Lazenby did on his routine trips over the plant? What prompted Lazenby in the case of Young and the dischargees in the prior case to go right to their working places "out of the clear blue sky," so to speak, and "discover" the misconduct of the employees involved in both proceedings? i5 As I see it, my final disposition of the case as to Young is dependent upon my overall appraisal of the entire record and my findings as to the specific allegations in the complaint regarding violations of Section 8(a)(1) of the Act. My reason- ing in this regard will be apparent below, in that section of this report styled "Over- all Conclusions and Findings as Regards the Alleged Violations of Section 8(a)(3), (4), and (1) of the Act." As indicated and discussed above, one of the most important issues that we are faced with herein is the allegation in the complaint that Young was discharged be- cause he gave testimony under the Act in this prior case, in violation of Section 8(a)(4) of the Act. In such a state of the pleadings, I, of necessity , will be compelled to refer to the record in that proceeding, including the Board 's Decision and Order and the decision of the Fourth Circuit Court of Appeals enforcing the Board's Order on March 21, 1962. An examination of these decisions clearly shows that Young was an important witness at the hearing in the prior case, and that his testimony was fully credited by the Trial Examiner who heard the case. While it is true that the hearing in the prior case was held in September 1960, nevertheless this factor insofar as I am concerned is of little, if any, importance for the simple reason that the Respondent 's conduct after the court's decision dispels the illusion that the Respondent had forgotten or forgiven Young's role in that proceeding. My reasoning in this regard will be apparent below. That the Union was not deterred by Young's discharge in its efforts to organize the Respondent's employees is amply demonstrated in the record. This is evidenced by the fact that several of the employees met with Stewart, the International representative of the Union, who was in active charge of the campaign on the night of April 26, 1962. The next morning an incident occurred that the Gen- eral Counsel contends was in and of itself violative of Section 8(a) (1) of the Act. I have reference to the testimony of Raymond M. Strader, who testified regarding an incident that happened the morning after a union meeting on April 26, 1962. The incident in question involved one Dewey Donovant, a fellow employee, and Foreman Russell Thomasson. His testimony in this regard was as follows: Q. Did anything happen the next day at the plant? A. I saw Mr. Thomasson talking to Q. Is that Russell Thomasson? A. Yes. Q. And you saw him talking to whom? A. Dewey Donovant. Q. Is he another employee out there? A. Yes. I saw him talking to Mr. Thomasson that morning, I think, about 10 minutes to 9.00. Dewey went in that morning and he had those union cards in his shirt pocket and I saw Mr. Thomasson reach up and pull some- thing out of his pocket and then, directly, I saw him give them back to him. 1s See the comments of the Fourth Circuit Court of Appeals in its decision in the prior case as regards the procedure followed by the Respondent in the discharge of Martin See supra for citation of case. LESTER BROTHERS, INCORPORATED 1007 Q. You say "directly." What do you mean-when? A. I couldn't be exact on the time. I was pretty busy out back there ruling ricks. Q. What did you say he gave back to him? A. The cards-the yellow cards. Mr. GUTMAN : Nothing further. Mr BLAKENEY . No questions. TRIAL EXAMINER S You are excused Strader's testimony as to the above incident was corroborated by Elmer M. Hay- good, another employee. Significantly, neither Strader nor Haygood were in a position to hear what if anything was said during the course of the incident by either Donovant or Thomasson . When this factor is considered in the light of the fact that Donovant did not testify at the hearing herein , then obviously a trier of the facts would, in fairness to all concerned , ordinarily ignore it as trivial and in- consequential . Even so, findings of fact must be predicated upon the record con- sidered as a whole. So is it here. In the circumstances let us look at the testimony of Foreman Thomasson regarding the above incident. Thomasson admitted he pulled cards out of Donovant's "hip pocket," but that this practice was commonplace and occurred at least four or five times a day. In ex- planation of this routine, which at first blush seems most unusual to the "un- initiated," he testified that Donovant carried "floor talley cards " around in his hip pocket at all times during working hours , and that it was his practice to pull them out of his pocket five or six times a day "to figure on the time ." He further testified that there was an unsigned union card mixed up with the tally cards . In essence that was his testimony in that regard. It is to be noted that Strader testified that Thomasson pulled the cards out of Donovant's shirt pocket. His testimony in this record was "demonstratively" cor- roborated by Haygood 16 in the course of his testimony at the hearing herein as to the same incident. So here we have three witnesses testifying about the same incident-two of them said that Thomasson pulled the "Union cards" out of Donovant 's shirt pocket; Thomasson , the third witness said he pulled them out of the hip pocket. Later on a witness for the General Counsel , Robert J. Foley, testified that Thomasson pulled some union cards out of his "hip pocket" on the same day, about 7 a.m . The im- portance of Foley's testimony and that of Strader and Haygood is not what pocket the cards were in at the time Thomasson pulled them out, but the date the incident occurred and what transpired thereafter that concerns us in disposing of the issues herein A summation of Foley's testimony follows below. According to Foley, he too attended the union meeting on the night of April 26, 1962 He corroborated the testimony of Strader, as to the passing around of union cards to those present at that meeting , and that he too was given some cards by Stewart to pass around among the employees in the plant. What happened when he reported for work the next morning , April 27, 1962, is best told in the following excerpt from his testimony which is fully credited for reasons which will be dis- cussed below: Q. Did anything happen in the plant the following day? A. Yes. I went to work at 7 00 a m., as usual, and around 11:00 a m. in the morning, Mr. Thomasson, the foreman , came around to where I was working, and I had been working and straightening up on the rack, and he pulled out my union cards-I had them in my right hip pocket-he pulled the union cards out and looked at the top three They were blank and he handed them back to me. Q. Did he say anything to you? A. Yes, sir. He asked me : "Boy, what are you doing with these damn things" Q. Did anything else happen that day" A. It was quitting time and I was walking toward the clock and Mr. Thomasson was walking by the side of me and he asked me when was I go- ing to give him the union cards and I told him I didn't want to get rid of them. Thomasson denied that he pulled cards out of Foley 's pocket, but he did admit talking to him about union cards. His testimony in this regard was as follows: to By pulling a package of cigarettes out of his left shirt pocket in the mode and man- ner which he testified was used by Thomasson when he extricated the cards from Dono- vant's pocket 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I never pulled a card out of his pocket. One day, I walked up to him and saw him with some cards and I said, "What are they?" and he said, "Union cards," and I said, "How about giving me one to sign?" and he said, "See me at 12:00." Since Thomasson was not queried by counsel for the Respondent regarding Foley's testimony as to what happened near the timeclock on the evening of April 27, 1962 (it stands uncontradicted and undenied in the record), for this and other reasons, I credit in toto his testimony in this regard, and find that Thomasson's remarks to Foley, when considered in the light of the record as a whole, con- stituted interference with, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. Foley also testified on cross-examination about voluntarily quitting his job with the Respondent on or about May 3, 1962. His reason for quitting was because . . Mr. Thomasson shoved me. That was the reason I quit . ... His testimony regarding the circumstances that led up to his quitting the job is, in my opinion, of the utmost importance because it clearly shows the overall attitude of the Respond- ent toward the concerted activities of the employees at times material herein, and gave us a picure of the "prevailing atmosphere" around the plant at times we are concerned with herein, despite the decision of the Fourth Circuit Court of Appeals on March 21, 1962. The importance of my observation in this regard will be apparent in the ultimate disposal of the issues as to Hobert Young.17 In the cir- cumstances we are faced with herein, particularly about the Respondent's overall attitude toward the efforts to its employees to exercise their rights under the Act, I feel that the following excerpt from Foley's testimony in this regard should likewise be inserted below: Q. (By Mr. GUTMAN.) Describe what happened leading up to the time you quit. What caused you to quit? A. I quit because Mr. Thomasson shoved me. Q. Tell what happened. A. It was around 20 minutes to 3:00 in the afternoon and Mr. Thomasson came around where Raymond Strader and I were working and sit down and watched us work for about 10 minutes and we were behind and he came up and shoved me out of the way and grabbed a handful of flooring and said, "The damned old union ain't in here yet and I know you can do the job faster than this." Q. How long after that incident in which he pulled the cards out of your pocket did this occur? A. This occurred, if I am not mistaken, on May 3rd. Q. And the card-pulling incident was when? A. April 27th. Q. In that interim between April 27th and May 3rd, had he ever said any- thing to you about the union? Had he ever mentioned the word "union" to you? A. No, sir, not that I can think of. Foley's testimony as to the above incident stands uncontradicted and undenied in the record. For this reason and the further fact that he impressed me as an honest and fearless witness his testimony in this regard is fully credited by me. Even though the foregoing incident is not specifically alleged in the complaint as violative of Section 8(a)(1) of the Act, nevertheless, I am convinced that the overall allegation of violations of Section 8(a)(1) is broad enough to encom- pass it. In the circumstances, I find that by the activities of Thomasson on May 3, 1962, as described above in Foley's credible testimony, the Respondent herein further engaged in conduct violative of Section 8(a)(1) of the Act. From all of the foregoing regarding the activities of Foreman Russell Thomas- son, I am convinced and find that he engaged in conduct violative of Section 8(a) (1) of the Act, except as to that portion of section VI(a) of the complaint that alleges ". . . forceably removed union authorization cards from the person of em- ployees," i.e., concerned with the pulling of cards out of Dewey Donovant's pocket For reasons indicated above, the testimony about this particular incident is too vague and "hazy like" to predicate specific findings therein 18 On the other hand 17 See supra regarding my comment about my intent to dispose of the case as to Young in the light of the record considered as a whole 19 The General Counsel stated on the record that he had served a subpena on Dewey Donovant prior to the hearing herein, and that ". . . he failed to answer the subpena." See page 139 of the record. See also the testimony of the witness, Loftin B. Williams, LESTER BROTHERS, INCORPORATED 1009 we have the Foley incident which I have discussed and disposed of at some length above, which is within the purview of the allegation in paragraph VI(a) of the complaint. In all the circumstances discussed, described, and found above, I am convinced and find that the General Counsel has by a "preponderance of the testi- mony taken" at the hearing herein substained his allegations in paragraph VI(a) of the complaint, and that by such conduct the Respondent engaged in activities violative of Section 8(a)(1) of the Act. Further evidence of the Respondent's animus toward the effrontery of it employees to exercise their rights under the Act and the role of Foreman Thomasson in promulgating its ideas in this regard will be discussed and disposed of below. Suffice it to say at this stage of the report that his role in the Respondent's efforts to forestall its employees in their efforts to exercise the rights guaranteed them in Section 7 of the Act persisted right up to the first day of the hearing herein, which is discussed later. Further evidence of the Respondent's antipathy toward and concern over the resumption of the Union's effort to organize its employees after the Fourth Circuit Court of Appeals decision on March 21, 1962, is found in the testimony of witnesses Haygood, Reed, and Brown regarding the activities of Foreman Roy Warren. Let us first consider the testimony of Reed and Brown, both of whom were present at the time the following incident occurred. Raymond M. Reed, who at the time of the hearing herein had been employed by the Respondent for a little over 4 years, testified as to an incident that occurred about 6:45 a.m. on May 2, 1962. According to his testimony in this regard, which is fully credited by me, he and several other employees were standing near the timeclock discussing the Union when Foreman Roy Warren walked up and said " . .. that before Lawson Lester would let a union come in there, he would close the plant down." Later on cross-examination Reed testified that Warren also said during the course of the same conversation, ". . . I would like to see a company union come in here and that would be all right." That Warren's remarks had an effect at least on Reed is evidenced from the following excerpt from his testi- mony on cross-examination: Q. Did any of the other boys say anything to him? A. No. We were just talking. We were interested in union labor and Roy walked up and made his first statement and concluded with the second statement. Q. He didn't make the statement out of a clear blue sky, did he? A. Absolutely. Q. In other words, the subject of the union was not up to him at all? A. That was the definition we had gained from his speech that they did not want any union in there and we were not talking to Roy in the first place. Q. But you were all discussing the union? A. We were discussing the union, yes. Q. And he came up and heard you discussing the union? A. Absolutely right. Q. And then he volunteered these remarks you just told us? A. Yes. Q. And you all didn't say anything to him one way or another? A. That's right. Q. And the other fellows were Donald Brown and John Adams? A. Right. Q. And no one else said anything at all? A. There were some others there , but I couldn't tell you who they were scattered all around . There were three of us who were in on the conversation at the time Roy walked up and the others were standing around and whether they heard anything or not, I don't know. [Emphasis supplied.] Reed's testimony regarding the above incident was fully corroborated by the credible testimony of Henry D. Brown who was present at the time the incident occurred. Foreman Roy Warren's testimony regarding the above incident is, to say the least, most vague and unconvincing as is well illustrated in the following excerpt from his testimony: beginning at page 207. 'Since the General Counsel has a remedy to correct the implications that tend to arise from such situations , I deem further comment in this regard unneces- sary. See infra regarding the disposition of paragraph VI(d) of the complaint herein 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. He testified about a conversation -in which he was present and others were present and that you made a remark about Mr. Lester closing the plant down. Do you remember such a conversation. A. No, sir. Q. Do you recall any incident that he may be referring to? A. The only one I know he could be referring to, we were talking there that morning and we had been talking about several different things, and I made the remark that if Mr. Lester ever pulled out from that company, they might as well shut the doors. Q. What were you talking about-if Mr. Lester pulled out? A. What I meant was if Mr. Lester left from down there and went some- where else, the company would just go under. Q. What had raised any question that Mr. Lester might pull out? A. We were just discussing that it led to one thing or another. Q. Had the stock of the company recently been sold to National Homes? A. Yes. Q. And you knew that? A. Yes, sir. Q. And Mr. Lester was staying on just to manage the company? A. Yes, sir. Upon the record as a whole, and from my observation of the witnesses who testified at the hearing herein, I discredit Warren's "indirect" and evasive denial that he made the statements attributed to him by Reed and Brown and as indicated above credit their testimony in this regard in its entirety. In the circumstances, I find that Warren's statements to the employees on the morning of May 2, 1962, constituted interference, restraint, and coercion within the meaning of Section 8(a) (1) of the Act. In passing, I desire to point out to all concerned that Warren's reference to the status of Lawson Lester in the above excerpt from his testimony should be con- sidered in the light of Lester's activities during times material herein which will be thoroughly discussed and disposed of below. There yet remains another incident involving the conduct of Foreman Roy Warren that occurred around the same time as the above incidents. I have reference to the testimony of Elmer W. Haygood regarding a conversation he overheard between Foreman Warren and Noel Ramsey, a fellow employee, in the "snack bar" on April 27, 1962. According to Haygood he was seated alone at a table next to Warren and Ramsey and heard Warren say to Ramsey, "Do you know what would happen if we got a union in here? Mr. Lester would close the plant." Warren and Ramsey admitted, in substance, that they were together in the snack bar on the day in question, but denied that the Union was mentioned in their conversation. Their version of what transpired and was said at the time in question has been most difficult to fathom According to their testimony they were discussing the possi- bility of the Respondent's cutting down its "working time" during the coming winter as it had done during 1961-62, when it had at times only worked 3 days a week. Since the conversation we are concerned with occurred on or about April 27, 1962, a little over a month after "winter" was "officially" over, and well into the spring- time, it is most difficult for me to visualize a situation where two normal persons would sit down and worry about next winter, when its official arrival was at least 8 months in the "offing." Normally, most of us would be thinking about the "flowers that bloom in the spring" and the summertime, that was only a few weeks away, not the "miseries" that have accompanied the last two or three winter seasons across this land of ours. In all the circumstances and my overall appraisal of both Warren and Ramsey at the time they testified, when considered in the light of my findings as to Warren's credibility as a witness, I am convinced and find that he made the remarks attributed to him by Haygood on April 27, 1962; and that his remarks to Ramsey when considered in the light of the whole record herein, con, stituted interference with, restraint, and coercion within the meaning of Section 8(a)(1) of the Act-19 I also find that Warren's remarks, either standing alone or considered in the context of the whole record, were part and parcel of the Respond- ent's determination to forestall its employees in their efforts to exercise the rights guaranteed them in Section 7 of the Act. More as to the Respondent's goal in this regard follows immediately below. We now come to the activities of Lawson Lester, the Respondent's president. during the time we are concerned with herein. As indicated above the Regional Director for Fifth Region issued his "Decision and Direction of Election" in Case No. 5-RC-3871, on August 14, 1962. Thereafter on August 28, 1962, the Respond- 19 See Texas Industries , Inc.; et al., 139 NLRB 265 LESTER BROTHERS, INCORPORATED 1011 ent, by Lawson Lester, sent an 8-page letter to all 80 of its employees, in which, to put it mildly, he expressed the Respondent's opposition to the Union?° As I see it the primary purpose of the letter was to remind the employees that it would be to their personal interest to reject the Union as their agent for the purposes of collec- tive bargaining in the forthcoming election that was scheduled for September 12, 1962. Thereafter on September 10, President Lester called the employees together and spoke to them about the coming election, which was to be held 2 days later. As far as I am concerned the speech and the letter speak for themselves, and in all fairness should be considered in their entirety and not by lifting a paragraph here and there out of context. In all the circumstances that we are confronted with herein, I honestly feel that the speech to the employees should be considered in its entirety by all con- cerned herein, for the primary reason that it portrays the attitude of the Respondent over the years toward the efforts of its employees to exercise their rights under the Act. With that in mind I attach President Lester's speech of September 10, 1962, as Appendix B. I have taken this action after long and careful consideration and realize that it will encumber this, an already too cumbersome, report. I have selected the speech for insertion herein because I feel that it is in most respects cumulative of what was in President Lester's letter to the employees of August 28, 1962. An- other reason for appending the speech hereto is because it was made after the Fourth Circuit Court of Appeals entered its decision on March 21, 1962, enforcing the Board's Order in the previous case. When all these factors are taken into con- sideration, then my ultimate disposal of the case as to Hobert Young will be more understandable to all concerned herein. A third reason is because the speech am- plifies in no uncertain language the problems that we are faced with in reaching a final determination of the issues we are confronted with herein. As indicated above I feel that the "speech" speaks for itself, and further elabora- tion is unnecessary. After long and careful consideration of the entire record herein, I am convinced and find in agreement with the General Counsel that the letter and speech of Lawson Lester to its employees on August 28 and September 10, 1962, constituted (as alleged in his oral amendment to the complaint, paragraph VI(c)) interference with, re- straint, and coercion within the meaning of Section 8(a) (1) of the Act.21 It was in the light of all of the foregoing that the hearing herein was heard before me on October 30 and 31, 1962. What transpired at that time, insofar as certain witnesses that the General Counsel had subpenaed to appear and testify are concerned, was the predicate for the oral amendment to paragraph VI of the complaint, which has been set forth in toto above. Suffice it to say at this point that the amendment concerns certain conduct of Foreman Russell Thomasson and Wilburn M. Car- michael involving the interrogation of the witnesses referred to above before they appeared at the hearing herein. As far as I am concerned, the most serious allegations concerns Foreman Russell Thomasson. According to the credible testimony of Raymond M. Strader, he was subpenaed by the General Counsel to appear at the hearing herein as a witness. On the morning he was to appear he went to his foreman, Russell Thomasson, and dis- cussed the matter with him. In the course of their conversation Thomasson said, " . You don't have to go if you don't want to as it is not legal." Even so, Strader did appear and, as indicated, testified at the hearing herein. Thomasson not only admitted that he engaged in the foregoing conversation with Strader but that he told him in substance that "you don't need to come up here at all," meaning, of course, to appear at the hearing herein in answer to the General Counsel's subpena. His testimony on direct examination in this regard is most in- teresting. Consequently the following excerpt therefrom follows below: Q. He testified in this case about you speaking to him yesterday morning, I believe it was, in connection with his coming to this hearing. Do you recall talking to Mr. Strader within the last day or so? A. He came up to me and asked about coming up to me and I said, "You don't need to come up here at all." Q. Where was this? A. At the plant. Q. When? 20 See General Counsel's Exhibit No. 5 n See the decision of the Fourth Circuit Court of Appeals regarding similar statements by Lester at a meeting of employees that was considered by the Board and the court In the prior ease For citations see supra See also Texas Industries, Inc ; et at, 139 NLRB 365. 712-548-64-vol. 142-65 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I believe it was yesterday morning. Q. Was anybody present except you and him-just you two? A. I don't remember. I believe there were some around close by. Another incident of the Respondent's concern over the appearance of its em- ployees at the hearing herein who had been subpenaed by the General Counsel is found in the testimony of Richard Hairston 22 According to Hairston's testimony he went to Carmichael on the morning of October 30, 1962, and told him that he had to appear at the hearing herein in answer to a subpena from the General Counsel. In the course of their conversation, Carmichael interrogated him regarding what he had told the investigators for the Board, and endeavored to get him to testify to the contrary at the hearing herein. Even a cursory examination of the record herein indicates, at least to me, that the primary object of the interrogation of Hairston on cross-examination was to cast doubt on his testimony on direct examination and to becloud the issues herein as to Hairston's testimony in regard to past practice in the cutting of 2-inch by 4-inch by 14-foot 3/4-inch rafters when there were no 2-inch by 4-inch by 14-foot lengths on hand. In my opinion, Carmichael's attempt to have Hairston testify contrary to his pretrial statements to the Board representative who investigated the charges herein against the Respondent prior to the issuance of the complaint, and thereafer, was unquestionably unlawful interference not only with the rights of employees but of their rights as citizens of the United States of America as well. In the cir- cumstances, I find that Foreman Carmichael's interrogation of Hairston regard- ing the testimony he was about to give at the hearing herein constituted interference with, restraint, and coercion of the rights guaranteed employees in Section 7 of the Act, and hence violative of Section 8(a) (1) thereof 23 In passing, I desire to again point out that Hairston impressed me as an honest and forthright witness, and that I credit his testimony not only as to the above incident, but also as to his experience as a sawer in the truss department, and in particular regarding the custom and practice that prevailed therein prior to the dis- charge of Hobert Young on April 18, 1962 An example of the vigorous cross-examination that Hairston was subjected to at the hearing herein is found in the following excerpt from his testimony 24 Q Didn't you tell Mr Carmichael this morning that you had told the Labor Board man two different tales? You told him first that you had to get permission and on another occasion, you told him that you didn't have to get permission, or was it the other way around? A. I told Mr Carmichael that he asked me if I took 14'3/4" out of 16' two-by-fours, and I told him yes. Q. What did you tell him about permission-anything? A. He asked me did they give you permission and I said I asked for it the first time. Q Didn't you tell Mr Carmichael this morning that you had told the Labor Board man two different stories on the subject of getting permission? Didn't you tell Mr. Carmichael more specifically that on one occasion you told the Labor Board man that permission was not necessary and on another occasion you told the Labor Board man permission was necessary and that you had to get it every time? A. I dont' remember telling Mr. Carmichael that, no. Q You did tell him? A. Not that. I didn't tell him what you just repeated. Q I want you to tell us what you did tell Mr. Carmichael on the subject of telling different stories to the Labor Board A. I don't remember telling the Labor Board any stories. All I told him this morning, he asked me what had I told him and I said that the man had asked me had I ever cut 14'3/4" stuff out of 16' and I told him yes. Mr. Carmichael asked me did I get permission and I told him yes, the first time. See supra as to Hairston's testimony regarding the case of Hobert Young. 23 See Teras Industries, Inc ; et al , supra -4I desire to point out to all concerned that I have no criticism of counsel's cross- examination of Hairston That was not the purpose of my comments and findings regarding the Hairston episode My sole purpose in this regard was to dispose of the issue in the light of the record as a whole. The right of cross-examination is of course fundamental and essential to the survival of our legal system Only by the right of cross-examination can we, the people, be assured of a fair disposal of our legal problems Insofar as I am concerned the more vigorous the cross-examination, the better for all concerned, as a means to arrive at the truth of the matters at issue. So is it here. LESTER BROTHERS, INCORPORATED 1013 Q. Then you say that you did not tell Mr. Carmichael anything about giv- ing two different versions to the Labor Board? You didn't tell Mr. Carmichael anything to that effect? A. No. Q. Do you understand my question? A. I think so. Q. You did not tell Mr. Carmichael that you had given two different stories or two different versions to the Labor Board? A. 1 just told you what I told Mr. Carmichael. Q. Will you answer my question? A. No, I didn't tell him two different stories. Mr. BLAKENEY: That is all. At this point I desire to point out to all concerned that I am well aware of the fact that this report may be considered most burdensome by the insertion of excerpts from the testimony of certain witnesses who testified at the hearing herein, nevertheless I am convinced that such a procedure was necessary for the follow- ing reasons. In the first place we are, in reality, concerned with a situation that has existed for at least 3 years. During this period the Board has sanctioned a settlement agreement to attain the stated purpose of the Act, to promote industrial peace; it has issued a cease and desist order, in a prior case, which was approved in toto by the Fourth Circuit Court of Appeals on March 21, 1962, and yet in spite of all of the foregoing we have a Respondent that, insofar as I am concerned, has continued to engage in the same sort of conduct that it was charged with originally in the first case 25 The importance of Hairston's testimony will be apparent below in my ultimate disposal of the issue as to Hobert Young. Suffice it to say at this point that Carmichael's interrogation of Hairston, as to the matters he had discussed with the General Counsel prior to the date he testified at the hearing herein, shed considerable light on the Respondent's contention at the hearing herein that it had a rigid rule in regard to the cutting of 2-inch by 4-inch by 14-foot 3/4-inch rafters out of 16-foot "stuff," that was in force at all times material herein. Overall Conclusions and Findings as Regards the Alleged Violations of Section 8(a)(3), (4), and (1) of the Act We now come back to the case as to Hobert Young, the alleged discriminatee herein. Quite frankly the case as to Young has perturbed me no end. Neverthe- less, after long and careful consideration of the many facets to this issue, I am convinced and find that Hobert Young was discharged by the Respondent on April 18, 1962, because of his membership in, and activities on behalf of, the Union; and because he gave testimony under the Act in the prior case and that by its action in this regard the Respondent engaged in conduct violative of Section 8(a) (3), (4), and (1) of the Act. Many factors have entered into my reasoning in this regard; each in its turn will be discussed below. To begin with the concession of counsel for the Respondent at the onset of the taking of testimony at the hearing herein as to the Respondent's knowledge of Young's union activities at all times material herein has been a most persuasive factor to me in disposing of this pestiferous issue, particularly in view of the fact that neither the General Counsel nor the Respondent chose to call Posey Gilbert, Jr., as a witness at the hearing herein. In such circumstances, I of course cannot rely on the fact that Posey was with Young, on the night before he was fired, on the roof of a neighbor's house when Stewart drove by in his car to Young's home, as a source of the Respondent's knowledge that the Union had again started its campaign to organize the Respondent's employees. To do so would require the building of inference upon inference ad infinitum, which I cannot and will not do as a predicate for a fact. This was one of the primary reasons for my decision to dispose of other factors involved in the case at hand before disposing of the issue as to Young. In other words I felt that it was the more logical to set forth a picture of what we are faced with herein before disposing of the case as to Young. A further factor was the fact that Young was fired within less than a month after the Fourth Circuit Court of Appeals handed down its decision en- forcing in toto the Board's Order in the prior case.26 Normally, one would ex- pect, not only the Respondent herein, but all other "persons" as well, to take cognizance of the seriousness of a decision of a United States Court of Appeals, 25 See Board's Decision and Order in Case No. 5-CA-1717, 131 NLRB 1144. 26 See supra for citations and comment in this regard. 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but such is not the case here. This is well illustrated by the conduct of the Re- spondent herein from its president down to those in the lower echelon of its su- pervisory staff at all times material herein and after the Fourth Circuit Court of Appeals enforced the Board's Order in the previous case, on March 21, 1962.27 It is in the light of this "atmosphere" that I will dispose of the case as to Young. I have given long and careful consideration to the Respondent 's contention that it discharged Young because he wasted materials in the mode and manner described at great length above. I have also given serious consideration to its contention that Young and other "sawers" were required to secure permission from their foreman before they cut 2-inch by 4-inch by 14-foot 3/4-inch rafters out of 2-inch by 4-inch by 16-foot "stuff." I also understand the purpose of the rule against waste, and the reasonableness thereof when considered in the light of the nature of its business and the raw materials used to fabricate its finished product. On the other hand, I have found above that both Young and Hairston had cut 2-inch by 4-inch by 14-foot 3/4-inch rafters out of 2-inch by 4-inch by 16-foot "stuff" on several occa- sions in the past and that they had never been reprimanded for doing so. I have also found that the 21-inch blocks that were left alter the 14-foot 3/4-inch rafters were cut off the 16-foot "stuff" was used to make braces for the 2-inch by 4-inch by 28-foot rafters that the Respondent also used in the manufacture of its houses.28 In addition I have found above that both Young and Hairston had used their own judgment in the past when they were faced with a situation that required them to cut 2-inch by 4-inch by 14-foot 3/4-inch rafters out of 16-foot "stuff"; and that in such instances they did not first request and secure permission from their foreman to do so. The gist of their testimony in this regard was that it was their under- standing that having once been told by their foreman to cut 2-inch by 4-inch by 14-foot 3/4-inch out of 16-foot "stuff" when the regular 14-foot "stuff" was not available that it was not necessary for them to get permission to use the 16-foot "stuff" each and every time 14-foot "stuff" was not available. This was the pro- cedure that they had followed for a considerable length of time before Young was discharged on April 18, 1962. Upon all of the foregoing as to the Respondent's rule against waste and Young's cutting 2-inch by 4-inch by 14-foot 3/4 -inch rafters out of 16-foot "stuff," which it contends was the reason for his discharge, I find as follows. In the first place I find that there was a rule that a "sawer" should first secure permission to cut the 16-foot "stuff" when the 14-foot "stuff" was unavailable. On the other hand I find that though Young and Hairston had not followed the rule in the past, it was due to their misinterpretation thereof, and that regardless of their shortcomings in this regard they were neither critized nor reprimanded for their breach of the rule in question by any of their supervisors. This brings us up to what I consider a more important factor herein. According to the record, there would be a piece or block of 2-inch by 4-inch about 21-inch long left over which naturally would drop down on the floor near the saw, and would be in plain view of any interested person who had occasion to be around Young's working place. In such circumstances, then why was it that the Respondent never "caught up" with Young's derelictions in this regard until the morning he was fired? This brings us up to my reference to the "old routine" as practiced in the past by Lazenby and Carmichael in the discharge of certain employees in the prior case. Let us now take a look at the following excerpt from the decision of the Fourth Circuit in the prior case. On the morning of June 3, Martin, reported to his gable end table at seven o'clock, the usual time to begin work. A short time thereafter, Foreman Car- michael approached the table where Martin and his co-workers were construct- ing a sweep-type gable end. Carmichael watched the men for about five minutes, then walked away without making any comment. Shortly afterwards Lazenby came by and silently watched the men for several minutes. About fifteen minutes later, at 8:30 a.m., Lazenby called Martin and his co-workers into his office and handed them their time cards marked "unsatisfactory work." No further explanation for the firing was given them." [Emphasis supplied.] Insofar as I am concerned we are faced herein with virtually the same "routine" that was used by the Lazenby-Carmichael " team" in the performance of their "Act" in the prior case when other employees of the Respondent were discharged. The only "switch" from the "old routine" is that here it was Carmichael standing by with Lazenby making the "check" on Young. 97 See footnote 26, supra 21 See supra. LESTER BROTHERS, INCORPORATED 1015 That the Respondent was perturbed regarding the discharge of Young and in par- ticular regarding the reasons it had advanced for its actions in this regard is well illustrated in the testimony of Hairston, which has been discussed at considerable length above. This incident has been a most compelling and persuasive factor to me in my ultimate disposal of the case as to Young. I have reference to Carmichael's concern over the testimony that Hairston was about to give or might give at the hearing herein as to the practice or custom of the sawers at times material herein, particularly the use of independent judgment by Young and himself when they were unable to find 2-inch by 4-mch by 14-foot "stuff" to cut 2-inch by 4-inch by 14-foot 3/4-inch rafters out of. Before we go any further in this section of the report , I desire to point out to all concerned that I am well aware of the age-old maxim that an inference may be drawn on a fact but not upon an inference ad infinitum ? Insofar as I am concerned the most potent fact we are faced with herein is the decision of the Fourth Circuit Court of Appeals on March 21, 1962. The Respondent was well aware of the significance of the Circuit Court's decision, and that by virtue thereof that the Union would in due course renew its campaign to organize its employees. (Quite frankly one would be most naive to ignore the significance of the court 's decision upon the Respondent in this regard .) In such circumstances it is reasonable to infer from all of the past conduct of the Respondent and from what happened after the court's decision that it would and in fact did resort to the same sort of tactics it had in the past to forestall the Union in its organizational efforts. The Respondent admittedly was well aware of the fact that Young was one of, if not the most, out- standing union adherent and/or supporter among its employees . In the circum- stances, I am convinced that its first reaction to the court's decision and what would inevitably flow therefrom , was to resort to the same tactics it had used in the past to frustrate and restrain its employees from attempting to exercise their rights under the Act, by "getting rid" of Young by any means within its power, fair or foul, at its first opportunity. That opportunity arose on the morning of April 18, 1962, which it seized upon to carry out its determination in this regard , in the circum- stances described, discussed, and found herein above. From all of the foregoing, I am convinced and find that the Respondent's con- tention that Hobert Young was discharged because he wasted materials was mere pretext and that the real reason or motive for its action in this regard was because of his role as an outstanding leader of the union movement among its employees which he had so clearly demonstrated as a witness for the General Counsel in the prior case of which it was well aware, not only visually at the time he testified but as a matter of public record in the decisions of both the Board and Fourth Circuit Court of Appeals, which legally, physically, and technically were before it at all times material herein. In all of the circumstances described , discussed, and found above, I deem further comment unnecessary as to the Respondent's violation of Section 8(a) (3), (4), and (1) of the Act. In conclusion, I find upon all of the foregoing that the Respondent by discharg- ing Hobert Young on April 18, 1962, engaged in conduct violative of Section 8(a) (3), (4), and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take cer- tain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent discharged Hobert Young on April 18, 1962 Accordingly, it will be recommended that the Respondent offer Young immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole for any loss of pay suffered by reason of the discrimination by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of reinstatement , less his net earn- 29 See supra as to my comment regarding Posey Gilbert, Jr 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -ings during such period, in accordance with the formula prescribed in F. W. Wool- worth Company, 90 NLRB 289, together with interest on such sum, such interest 'to be computed in accordance with the formula prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact , and upon the entire record in the cease, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating with respect to the hire and tenure of employment of Young, thereby discouraging membership in the Union, the Respondent has en- gaged in unfair labor practices within the meaning of Section 8 (a)(3) and (4) of the Act. 5. By interrogating its employees who were subpenaed to testify at the hearing herein regarding the testimony they were to give in response to said subpenas, and stating to said employees that they were not required to comply with said subpenas, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8 (a) (i) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] APPENDIX B Memorandum : SEPTEMBER 10, 1962. To: All Employees of Lester Brothers, Inc. From: L. L. Lester, Jr. Subject: UNION I have asked that you come together so that I may have the opportunity of talking with you for a few minutes about the matter which is now up for decision here-a subject which I believe is of interest to you-a subject which I know is important to all of you. In talking with you, I am going to refer to some notes which I have here. This is for the reason that I want to be entirely clear and definite in what I say to you-and also in order that there may be no doubt or question as to what I do say. The time is almost at hand for you to decide whether you want to bring the Car- penters Union AFL-CIO into the Plant or not. Tomorrow, Wednesday, September 12th is the day of decision. Which way will you choose? The first thing I will do is to explain the Notice of Election to you. In order to make your decision carefully and intelligently, you must look at the facts. Union organizers can say anything and promise anything. They do not have to back up what they say to you. They are here today and gone from here tomorrow. What we say to you we are responsible for. What we say to you-we can back up and we will back it up. I believe it is only natural for people to vote for what they think will genuinely work to their benefit-but if you will think carefully and weigh this matter thor- oughly, you will surely come to the conclusion that if the Union were to get into this operation, the result would not be to benefit you but to harm you and to harm you seriously. It is not mainly the interest of this Company-it is mainly your own interests-which are at stake in this election. Why do I say this? Because I foresee the trouble that would come if this Union were to get in here. And that trouble, when it came, would hurt you worse than it would hurt the Company. Unions have brought strikes and trouble elsewhere. There is every possibility that they would bring the same thing here. Sometimes the question is raised:-If the Union is a bad thing for the employees of a Company, why is the Company concerned about that? The answer is that if a Union brings trouble to you, it brings trouble to the Company, also. It hurts you and the Company at the same time. To keep this business going is truly to our own interests. When a Union pulls people out on a strike and stops the work in any operation, it costs employees just as truly as it costs the Company. Your interests LESTER BROTHERS, INCORPORATED 1017 and the Company's interests are in the same boat on this matter. Do you see any good reason to risk sinking that boat? Sometimes people have the idea that all they need to do is vote for the Union and immediately and automatically it will bring many benefits of various kinds. There is no truth in that. In fact, just the other day you received a letter from the Union outlining the rates of pay that National Homes is paying at Lafayette, which I admit looked very good on paper, but what they did not tell you is just as important as what they told you. They did not tell you how many days the Lafayette plant was closed last year whereas you worked every week here at Lesco. They did not tell you how many employees work at the Lafayette plant which is basically about the same number workers as Lesco, and the Lafayette plant pro- duces about four (4) times as many houses . Automation is the answer! It has always been the policy of Lesco to make available more jobs for more people. They did not tell you if the orders gave out at 10 :00 A.M. in the morning, they were off the rest of the day, whereas we here at Lesco make a job for the balance of the day. They did not tell you how our good colored brothers are missing from the em- ployment at Lafayette. They have only three ( 3). We here at Lesco have bet- ter than 25 %. We have always used the policy of a man 's merit and ability and not his color. Yes, they failed to tell you the whole story. They only pointed out the rosy side. They didn't give you the cost of living up in the Chicago area. For example, I was in Chicago a few months back and I got in conversation with a colored taxi driver, and he told me he was paying $110 .00 per month rent for him and his wife for one room. Now let's not try to kid one another. Everything is more or less on a par or equal basis in various localities. I have all down through the years been with the working man. When you get right down to it, that's all I have ever been. I worked on the farm until I started working with logging, lumbering, houses, etc. and I have never known anything but work; therefore, I am constantly thinking of you all, but the plain truth is that the rate of pay must be in accordance with the territory in which you operate. To say it real simple. The prices of our houses must be competitive with other houses built in our operating area, or we are just plain out of business. I could promise, you $10 an hour, but if there is no money to pay you with or no work to perform, you still wouldn't be getting anywhere. I might at this point tell you just what this amounts to. For example, all of us worked hard the first six (6) months of this year, and by working together, the Company made a little profit . As a normal practice, I do not give out the profit figures, but in this instance so that you may understand , our profit for the first six (6) months of this year was $37.00 per house. I know none of you would want to work for a company that wasn't making something , because they could not pay you very long to say the least. We are in the process now of producing the catalogues for the houses for '63, and we trust that we will be able to get a little more in '63, thus pass most of it along to all of you good members of the Lesco Family. If this Union were to get in here, there would still be only one way it could try to force this Company to do anything that we are not willing or able to do. That would be by pulling you out on strike. We want you to know that this Company has no intention of yielding to any such pressure as that-either now or hereafter. It is our hope that you will realize-while there is yet time-that you have nothing to gain by going down that road' It is important for you to consider what you have as matters now stand-without your having to pay Union dues and without any Union having power and control over you. It is also a fact-and we have checked carefully on this that your earn- ings are up on the top level for our line of work in this entire area. The other benefits which you have-such as vacations and vacation pay and paid holidays and life insurance and hospitalization insurance, both for yourselves and your families, on which the Company pays the major part of the cost, together with sickness and accident coverage over and above your workmen 's compensation, and the like-you will not find any better among any of the Companies in our line of business-either Union or non-Union. These facts you should not forget . Nor should you overlook the fact it is the Company which provides these things-not the Union! Certainly also you should not forget the steady work which you have had here without a Union. You have not had short workweeks nor short pay checks at this Plant. Even when our business has not been good , we have continued to operate steadily in order to keep full pay checks going to you and into your homes. Do you 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD know of any unionized Company that does that ? These things you ought to keep in mind. Now let's consider why it is that the Union organizers are here among you. You know the answer to that. They are not here because they love you . They are here because they want some of your money . They are in business to get money from working people . In their September 8th greetings they did not tell you how much money the members in Lafayette were paying in local dues, international dues, assess- ments, and in addition thereto, initiation fees. The drive they are putting on here is for the purpose of getting a slice out of your pay check; somewhere in the neighbor- hood of a quarter of a million dollars-in next 10 yrs. REAL MONEY! In this connection, there is another thought which I believe you should bear in mind. The Union which is trying to get you into its corral is, as you of course know, the Carpenters Union, AFL-CIO. You know the local organizers of the Union, but do you know the men at the top-the men who run this Union? Do you know who they are? Do you know anything about them? Do you think it wise to align your- self, give your name, your money and your support to an organization led by men who are strangers-and will continue to be strangers to you? I will tell you something about this Union which you perhaps did not know. The President-the head man-of this Union, the Carpenters Union, was not long ago convicted in Courts of his home State for criminal felony and has been sen- tenced to serve a term in the penitentiary. Did you know he had been up before the rackets committee? Mr. Hutchinson was asked about the Carpenters Union expenditures of $300,000 on a paper praising him and his father, the late Carpenters Union President. The clipping from the paper further states that he is a reputed millionaire and inherited a huge fortune largely amassed by his father from union funds, including orange groves and a race track in Florida. Now he is the man who would be your "leader" if you were to get into the Car- penters Union. Is this the leadership that you now want to line up with? Do you want to be under the control and domination of such men? Do you want them- unknown to you-to be able to determine when you will work and when you won't work? Is this where you want to trust your future and the future of your families? You now have freedom that you should value. No Union takes any money out of your pay check. No Union tells you when you will work and when you won't work. No Union controls your decisions nor dictates to you what your course of of action shall be. You don't have to look far to find people who have fared very poorly indeed under Unions-right here in Martinsville and in the Martinsville area. Those people tried out the Union and found to their regret that they were better off when they did not have it. And some of those jobs are now closed down and out of business. Did the Union protect those People? You know that the Union did not protect them! Is it a wise thing to follow the same course and put yourself under the control of the Union, so that it can lead you down the same road where it has led others? It intrigues me to watch these professionals figuratively "brain wash" some of you good people in the Lesco Family. They are good, because that's their business. I hope you will remember the fact that you may have signed a Union card at some time or other has no bearing upon your right to vote as you see fit in this election. You should vote as you believe to be wise and best in the light of the whole matter as you now see it. You are completely free to vote against the Union regardless of the fact that at some time or other you may have signed a Union card. And, re- member you will never have to belong to a Union to work at Lester Brothers, and, also remember that the Law of the State of Virginia guarantees you the right to work on the job of your choice. Bear in mind that it is only genuine cooperation between you and the Company which can mean the success of this business and the assurance of jobs and future security for yourselves and your families here. No Union creates these things. A Union often tears them down! Perhaps you do get irritated at times with certain people. I suspect we all do. But it is not the part of wisdom or justice to take our feelings towards a few people out on all our fine Lesco Family friends and their families. Security for you and your families can never be accomplished by our pulling apart here-but only by our pulling together! Keep in mind this fundamental question :-"What is it that I may expect if this Union were to get in here?" The answer-and you should not ignore it nor over- look it-the answer is TROUBLE! That is what Unions have brought elsewhere- strikes, lost work, lost pay, lost jobs-debt and regret-bitterness and misery. Do you see any good reason to risk all of that here? Think about these things carefully. Think about them earnestly . Then make up your mind and vote. Vote as you believe will be best for your future and the future BLUMEL IGNITION CO. 1019 of your family-best for the peace and welfare of yourself and of those who are dependent on you. This matter is a personal matter with me , for if you vote for the Union at Lester Brothers it means you are voting against me. You would actually be voting for Hutchinson & Stewart in preference to voting for James Shockley and Lawson Lester. I can not believe this is what you really want. By all means vote in this election tomorrow! Blumel Ignition Co. and International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local 436. Case No. 8-CA-2977. June 10, 1963 DECISION AND ORDER On April 10, 1963, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in this case, including the excep- tions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted below. ORDER The Board adopts as its Order the Trial Examiner's Recommended Order, with the modification noted below.' IInterest at the rate of 6 percent per annum shall be added to the backpay of Leslie Smith, to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. For the reasons set forth in the dissenting opinion in Isis, Member Rodgers would not award interest. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10 (b) of the National Labor Relations Act, as amended, 29 U.S.C., Section 151, et seq., herein called the Act. The International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local 436, herein sometimes called Local 436 or the Union,' ' The name of the Union was amended at the hearing to be Excavating , Building Mate- rial Construction Drivers and Race Track Employees Local 436 , affiliated with the Inter- national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America. 142 NLRB No. 109.