Claridge Logging Co.

National Labor Relations Board - Board DecisionsApr 24, 1963

142 N.L.R.B. 213 (N.L.R.B. 1963)

CLARIDGE LOGGING CO. 213 on the reasons for the employees ' earlier discharges would be "inescapably grounded on events predating the limitations period." 12 On the basis of the foregoing considerations , I find that the General Counsel has not sustained his burden of proving that Respondent violated Section 8 (a) (3) or (1) of the Act, as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclusions of law, I hereby recom- mend that the complaint be dismissed in its entirety. 's Cf. also the following cases decided subsequent to the Supreme Court's Bryan decision : Sheet Metal Workers International Association , AFL-CIO, et at. (Burt Mfg . Co.) V. N.L.R.B., 293 F. 2d 141, 146-47 (C.A.D.C.), union petition for cert. denied 368 U.S. 896; N.L.R.B. v. Plumbers & Pipe Fitters Local Union 214 (D. L. Bradley Plumbing & Heating Company), 298 F. 2d 427 (C.A. 7) ; N.L.R.B. v. American Aggregate Company Inc., and Featherlite Corporation, 305 F. 2d 599 (C.A. 5) ; Borg-Warner Controls, Borg-Warner Cor- poration, 128 NLRB 1035, 1046; Southen Electronics Company, Inc., 131 NLRB 1411 ; Superior Maintenance Company, 133 NLRB 746; Florida All-Bound Boa Company, 138 NLRB 150. Lyman H. Claridge d/b/a Claridge Logging Co . and Montana Carpenters District Council . Case No. 19-CA-9456. April 24, 1963 DECISION AND ORDER On December 27, 1962, Trial Examiner Herman Marx 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 together with supporting briefs. 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 Rodgers, 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 Intermediate Report, the exceptions thereto and supporting briefs, and the entire record in this case, and hereby adopts the Trial Exam- iner's findings, conclusions, and recommendations. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the modifications noted below.' The words "like or related" appearing in the first line of paragraph 1(b) of the Recommended Order are hereby deleted and the word "other" is substituted in their place. The words " like or related" appearing in the second paragraph of Appendix A, in the Notice to Employees, are hereby deleted from that paragraph. 142 NLRB No. 35. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint in this proceeding, issued by the General Counsel of the National Labor Relations Board, alleges that the Respondent, Lyman H. Claridge, an indi- vidual doing business under the name of Claridge Logging Co., has violated Section 8(a)(3) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.; also referred to herein as the Act), by reducing the seniority status of, and laying off, an employee named Harry A. Hill "because of his membership in or activities on behalf of" a labor organization, Montana Carpenters District Council (herein also called the Union); and has by such conduct abridged rights guaranteed employees by Section 7 of the Act, thereby violating Section 8 (a) (1) of the statute. The Respondent has filed an answer which, in material substance, denies the com- mission of the unfair labor practices imputed to him.' Pursuant to notice duly served by the General Counsel upon all parties entitled thereto, a hearing upon the issues in this proceeding has been held before Trial Examiner Herman Marx at Kalispell, Montana. The General Counsel and the Respondent appeared at the hearing through, and were represented by, re- spective counsel ; participated therein; and were afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and sub- mit oral argument. The Union, which filed the charge upon which the complaint is based, entered an appearance through its executive secretary, but did not otherwise participate in the hearing. None of the parties has filed a brief. The Respondent has filed a motion to correct the transcript of the hearing. Neither the General Counsel nor the Union has submitted any opposition. The motion is granted, and the tran- script is amended in the particulars set forth in the motion. Upon the entire record, and from my observation of the witnesses, I make the fol- lowing findings of fact: FINDINGS OF FACT 1. NATURE OF THE RESPONDENT'S BUSINESS; JURISDICTION OF THE BOARD The Respondent is engaged in the business of cutting timber and transporting logs; maintains his principal office at Poison, Montana; and is an employer within the meaning of Section 2(2) of the Act. As the complaint alleges, and the answer concedes, the Respondent is, and has been at all material times, engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act.2 Accordingly, the Board has jurisdiction of the subject matter of this proceeding. II. THE LABOR ORGANIZATION INVOLVED Montana Carpenters District is, and has been at all material times, a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement Except for an annual layoff period of about 6 weeks (in March and April), the Respondent 's work force includes a crew of "fallers" (or "wood sawyers," as they are also called ) who have the function of felling trees and then sawing them into pre- scribed "log lengths," each working in "a strip of timber" or area indicated to him by the crew foreman . The crew has an average complement of about 18, the precise number varying from one occasion to another because of such factors as weather and production requirements. Each sawyer supplies the tools he uses and is paid on the basis of the number of log feet he produces. A portion of what he receives is treated as rental payment by the Respondent for the equipment the employee supplies and uses in his work. The foreman of the fallers is one Walter L. Jones, who entered the Respondent's employ in January 1962, and became falling crew foreman the following April. He had had no experience in woods logging operations prior to his employment by 1 The complaint is based on a charge filed with the Board by the Union on June 12, 1962. Copies of the complaint and charge have been duly served upon the Respondent. 2As the complaint puts it, and the answer admits, "[d]uring its [sic] last fiscal year the Respondent purchased goods and services directly from outside the State of Montana of a value exceeding $50,000." CLARIDGE LOGGING CO. 215 the Respondent, except for work as a faller for a period of about 2 months some 15 years before he entered Claridge's employ. As foreman,,' Jones directs the work of the fallers, is vested with authority to hire and discharge sawyers, and is, and has been at all material times since his designation as foreman, a supervisor within the purview of Section 2(11) of the Act. Jones, in turn, is subject to supervision by the Respond- ent's "woods superintendent," Stanley Heuscher, who is directly responsible to Claridge for all of the enterprise's woods operations. Harry A. Hill, the subject of the allegations of discrimination set forth in the com- plaint, has worked as a faller for about 16 years. He entered Claridge's employ in that capacity in May 1958, and worked steadily for the Respondent as a faller (except for the annual seasonal suspension of logging operations) until June 4, 1962, when Jones laid him off in circumstances to be described later? At the time of his layoff, Hill had seniority of tenure over all but one of the Respondent's falling crew, and led the crew in quantity of production (having done so for a. period not specified in the record). On May 29, 1962, about a week before Hill was laid off, Claridge, accompanied by Heuscher and Jones, met, after working hours, with substantially the entire fall- ing crew. The meeting had been arranged upon the initiative of the fallers, through one of their number, Lester Gore, for the purpose of asking Claridge for an increase in their pay scale. There was agreement among the crew members, prior to the meeting, that they would cease working for Claridge if their wage demand was not met. At the meeting a faller named James Arno acted as the employees' spokesman, having been delegated to do so by the other sawyers, and he presented the group's wage request to Claridge. The latter stated that he would not increase the scale. At one point or another during the course of the meeting, Hill, having in mind an income-tax purpose that needs no further reference here, asked Claridge if he would agree to treat a portion of the employees' compensation as payment of rent for the "pickup" truck they used for transportation to and from their work. Claridge replied that he would look into the matter.4 Following Claridge's rejection of the crew's request for an increase, there was some discussion among the employees (within earshot of Heuscher, if not of Claridge and Jones) as to the course to be followed,, two or three of the crew, including one Norman Davis, pointing out that that question had already been decided; and the upshot of the matter was that Arno informed Claridge that the fallers "were through." Upon conclusion of the meeting, the fallers left for their homes, but most stopped en route for a group discussion of Claridge's attitude toward their request for an in- crease, and, because of his position, decided to seek the aid of the Union. To that end, one to the fallers, Chet Johnson, agreed with the others that he would telephone Robert Weller, a representative of the labor organization. The fallers also agreed among themselves (apparently on this occasion, although the record is not explicit as to the time) to meet as a group on the next workday, Thursday, May 31 (May 30 was Memorial Day and a holiday), at a place called Paradise Camp (the crew's customary assembly point before entering the woods to work) in order, as one crew member, Norman Davis, put it, "to see that no one went on the job without knowing the conditions, we had quit." Shortly after his meeting with the crew, Claridge hired one Richard Smith as a faller, arranging with the latter that he begin work on Thursday, May 31; and on Memorial Day, Heuscher hired another faller, Jerry Syth, agreeing with the latter that he report for work on the following Monday, June 4. On the evening of Memorial Day, Johnson telephoned Hill and informed the latter that he had spoken to Weller, the Union's representative, and that Weller had asked him to inform the fallers that they were eligible for membership in the Union even if they had quit, but that "it (affiliation with the Union, presumably) would be much easier and simpler if we would simply go back to work, if we could." Hill S There is a vague suggestion in the record that Hill worked for Claridge in one or more periods before May 1958. Whether that is so does not materially affect the issues. ' Heuscher testified that two other fallers, Hank Dietrick and Chet Johnson, also spoke "about . . . getting their . . . pickup rent, if it could be arranged." Neither Hill nor Jones supports that testimony, each stating in effect that he does not recall that anyone but Hill said anything on the subject in question. I see no need to resolve the matter, for a determination whether Dietrick and Johnson made any reference to "pickup rent" would not materially affect the results in this proceeding. In fact, although both the General Counsel and the Respondent adduced evidence of what Hill said at the meeting, I perceive no materiality in his remarks there, for the record does not warrant a finding that what Hill said had any connection with his layoff. `216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conveyed the information to two fallers with whom he usually rode to work, and the three agreed to go to Paradise Camp together on the morning of May 31 with a view to resumption of their work. Substantially the entire falling crew, as well as Foreman Jones, came to Paradise Camp that morning, all but two of the fallers bringing their working equipment with the intention of resuming their work. The fallers and Jones remained in the Paradise Camp area for awhile, some of the men "milling and talking," and Jones, as he testified, "standing there amongst the men"; and then those who had come equipped for work, numbering 17, including Hill, proceeded to their respective worksites in the woods and performed their customary duties. The two who came without their equipment were Norman Davis and his "riding partner," Maurice Kelly, and they were thus unprepared for work. They had not been informed of Weller's suggestion that the crew return to work, and it is evident that they, unlike the other fallers, came to Paradise Camp pursuant to the original plan that the crew meet there "to see that no one went on the job without knowing the conditions." Davis became angry when he learned, upon his arrival, of the change of plan be- cause, lacking necessary equipment, it put him in the position of being needlessly un- employed that day at a time the bulk of the crew was working; and while the crew was still in the Paradise Camp area, he sought an explanation from Hill, asking the latter "what was going on." Hill replied that Johnson had called Weller, and that the latter had advised that the fallers would find it "easier to petition the union for affiliation" if they returned to work. During this conversation, Foreman Jones was standing about 6 feet from Hill and Davis, and facing in their direction. An important question in this proceeding is whether it is likely that Jones overheard the discussion. That issue will be con- sidered and decided at a later point. Hill worked as usual on Friday, June 1, the falling crew that day numbering 19. He also worked on the next regular workday Monday, June 4, when the crew num- bered 21, including the newly hired sawyers, Smith and Syth.5 Hill, as noted earlier, was laid off by Jones on June 4. Both gave testimony as to what took place on that occasion. With one exception to be noted later, there is no conflict worthy of mention between their accounts, and I find, upon the basis of sub- stantially undisputed evidence, that at about 3 p.m. on June 4, Jones told Hill that the latter was being laid off as of the end of the day; that Hill asked for the reason; that Jones stated that because the falling crew had quit (on May 29 after Claridge rejected the request for an increase ), he had made out "a new seniority list," and that he had put Hill at the bottom of the list; that Hill asked Jones whether the latter "thought I [Hill] was born yesterday"; and that that substantially ended the discussion.e The evidentiary conflict mentioned above arises from the fact that Jones testified that in laying off Hill he told the latter that the Respondent "had a good supply of logs, timber down" (or, in other words, that the state of production necessitated a reduction of the crew); and that, in contrast, Hill denies that Jones made any ref- erence to the log supply on hand. One may note, in passing, that whether or not Jones expressly alluded to the supply as a basis for the layoff, such a purported reason is implicit in his statement that Hill was at the bottom of "a new seniority list." In any case, it would serve no useful purpose to resolve the conflict, for the question whether the layoff was rooted in an unlawful motivation does not hinge on such a resolution. One may assume that Jones told Hill that the log supply on hand was the reason for the layoff, and, moreover, one may accept as fact testimony by Heuscher that he instructed Jones at about 2 p.m. on June 4 to lay off "one or two" fallers (without mentioning Hill or any other faller by name ), and the question of Jones' motive in selecting Hill for the bottom of "a new seniority list," and for layoff, would still remain. That issue will be resolved at a later point. One June 22, 1962, Jones telephoned Hill and offered to "put him back to work at his same status." Hill in effect declined the offer. There is no dispute that the offer, as the General Counsel put it at the hearing, was "complete and unequivocal," and I find that such was the case. 0 Working on Saturday is optional with the sawyers . Only four worked on Saturday, June 2. 6 Jones admittedly told Hill that he had prepared "a new seniority list" and had placed Hill at the bottom. The foreman, however, unlike Hill, does not quote himself, in terms, as saying that he had made up the new list because the crew had quit on May 29. I think it likely that he made a statement to that effect, noting, in that connection, that he testified that he decided to make up a new seniorft'- liet because "when the whole crew quit, I felt I could hire them back at any status that I rleased to." CLARIDGE LOGGING CO. 217 B. Discussion of the issues; concluding findings The General Counsel maintains , in substance , that Jones overheard Hill's remarks to Davis regarding union affiliation on May 31; concluded from these that Hill was engaged in union activity; and for that reason arbitrarily put Hill at the bottom of "a new seniority list" and proceeded to lay him off. As support for his position, the General Counsel stresses Hill's long employment tenure and the timing of the layoff which came on Hill's second workday after May 31. The Respondent, on the other hand, claims in its answer that Hill was laid off "when it became necessary for the ( enterprise ) to reduce its cutting crew," or, in other words, that the layoff was a reduction in force necessitated by the supply of processed logs on hand. That claim, as indicated previously, does not quite meet the issue, for the material question is not whether the Respondent's production require- ments necessitated or justified a reduction of the falling crew by the layoff of a sawyer, but rather, why Hill was chosen for the reduction. For the Respondent's version of the reason , one must look to Jones' testimony, for both Claridge and Heuscher claim, in effect, that they did not select Hill for the layoff, and Jones asserts that the selection was his decision. As an initial step toward determination of the reason for the choice, it may be noted that Jones does not specifically deny that he overheard Hill's remarks to Davis on the morning of May 31, asserting, instead , that he does not recall the conversa- tion, but putting that aspect of the matter aside, there are various factors that lead me to conclude that Jones overheard the discussion. One of these is that Davis ' anger very likely made him a focus of attention among those within earshot . This conclusion is credibly supported by a member of the falling crew, Warren Holman, who testified to as much , stating that Davis was "pretty mad," that "we were all listening ," and that he (Holman ) heard the conver- sation and had no difficulty doing so (while at a greater distance from Davis and Hill than Jones ). Bearing in mind Davis' anger, its cause , and the fact that Jones was facing toward Davis and Hill, and was about 6 feet from them, I believe it quite likely that the foreman was among those who were listening . And taking into account my appraisal of the respective tones of voice of Davis and Hill, while they testified, and my estimate of Jones' capacity to hear at a distance of about 6 feet, while he was a witness , I am persuaded that the foreman was not only listening but that he heard what was said. What is more, a total view of the record leaves me in no doubt that Hill's remarks to Davis led the management , in the person of Jones at least , to believe or suspect that Hill had engaged in union activity, and laid him off for that reason. The implausibility of Jones' explanation of the choice of Hill for layoff takes me far along the road to that conclusion, as will presently appear. Hill, as the undisputed evidence establishes, is a sawyer of many years of ex- perience , had been steadily employed (except for the annual suspension of operations) by the Respondent for some 4 years prior to the layoff, had worked for the Re- spondent longer than any other sawyer except one, and, since entering the Respond- ent's employ in 1958, had never previously been laid off "for lack of work," al- though other members of the crew had been. Yet Jones would have it that he made up "a new seniority list" on May 31, with Hill at its bottom, and selected Hill for the layoff because he was at the bottom. Particularly in view of Hill's long employment tenure, this excuse severely strains one's credulity; and, in fact, the record impels a conclusion that Hill was a specific target of the "new seniority list," and that the position assigned him there was a con- trivance to provide an excuse to lay him off, if not, indeed, to terminate his services. Supporting that conclusion is the significant fact that there had never been a seniority list for the sawyers prior to May 31. One may thus pertinently ask why Jones deemed it necessary to prepare a "new" one, and, particularly why he chose May 31 as the date on which to do so. The Respondent makes no claim that it contemplated an economic reduction in force on that date, and one may search Jones' testimony (or the Respondent's case, for that matter) in vain for a statement of any reason why the Respondent, through Jones, would, on May 31, bring into existence for the first time a seniority list for the crew of sawyers. This unusual step , however, becomes explicable when it is borne in mind that on the very morning of the day the list was prepared, Jones overheard Hill's remarks on the subjection of union affiliation. In the absence of any explanation for the timing of the "new" list, particularly bearing in mind Hill 's position on it, despite his experience and tenure, it is reasonable to conclude that the "new" list and Hill's position in it were the direct result of Hill's conversation with Davis, and of a consequent belief or suspicion by Jones that Hill was engaged in union activity. 218 DECISIONS OF NATIONAL LABOR,RELATIONS BOARD That inference is supported, moreover, by the singular fact that so far as appears the only application of the list was to lay off Hill. Accordng to Jones, the list was "just a scratch pad" on which he "just initialled the sawyers initials," and he ex- plained that he does not have the list because he "must have just thrown it away." The timing, scant life, and limited use of the "new" list clearly point to a design to tailor it to a purpose to lay off or get rid of an employee deemed by Jones to be active in union organization of the falling crew. That view of the matter is also reinforced by the patent arbitrariness of the assignment of Hill to the bottom of the list. It is a singular fact that in selecting Hill for layoff on the basis of that position, Jones not only ignored Hill's long employment tenure with the Respondent, but, significantly enough, retained the newly hired Syth and Smith. The peculiarity of this course becomes even more manifest when it is borne in mind that Heuscher admittedly expected Syth's em- ployment to be temporary and so informed Jones on May 31, the very date on which Jones admits he prepared the list. In common understanding, as well as by dic- tionary definition, the term "seniority," as used in labor-management relations, usually refers to a status measured by length of service; 7 and it is thus indeed a strange seniority system that totally excludes such length as a factor, as in Hill's case, going so far as to subordinate an employee with years of service to his employer to employees (Syth and Smith) with tenure of but a day or so. Jones' explanation for this course is a claim to the effect that he felt warranted in placing Hill at the bottom of the "new" list, because "when the whole crew quit [on May 29], I felt I could hire them back at any status I pleased," and "[b]ecause of the trouble we had with Hill." For a number of reasons, this claim appears to me to be born of afterthoughts. For one thing, as already noted, the timing and short career of the list evidence a design to use it for the sole purpose of providing a pretextual basis for Hill's layoff, and thus negate the idea, implicit in Jones' relevant testimony, that the list was prepared as a means of showing the status in which he "hire[d] them back" with a view to providing a seniority system for such personnel purposes as force reduction. Actually, the crew (with the exception of Davis and Kelly) lost no time from work, despite the fact that they had told Claridge after work on May 29 that they were quitting, and it is plain that Jones did not "hire them back." He admittedly had no discussion with the crew in the Paradise Camp area on the morning of May 31 concerning the reason for their presence or their work intentions, and it is evident that those who brought their tools proceeded to their work without any antecedent rehiring procedure, following much the same course as on any other day, and as though they had not previously told Claridge that they were quitting.8 For another matter, the claim of "trouble we had with Hill" has a tenuous cast. The alleged "trouble" appears, in the main (at least in one portion of Jones' testimony), to have consisted of two incidents. One of these, occurring several weeks before the layoff, involved some words between Hill and Jones over the fact that Hill and another faller were working too near to each other. In Hill's view at the time, Jones had stationed the other faller in an area Hill regarded as too close to his for safety of operations, and he brought the matter to the foreman's attention. Jones replied, in substance, that the location of worksites was his business, and told Hill to work at another place. Hill complied.9 The other incident, which took place about 2 7 The term "seniority" has diverse meanings and applications, but as applied to labor- management relations, the word is defined as : "The status secured by length of service for a company, to which certain rights, as promotion, attach." Webster's Unabridged New International Dictionary, 2d Ed 8 The issues require no determination whether the crew terminated their employment on May 29 or whether their announcement to Claridge that they were quitting was but another way of saying that they were on strike. I note, in that connection, that the com- plaint contains no allegation that the preparation of the "new seniority list," apart from the position given Hill at its bottom, was unlawful. 9 Findings as to the conversation are based on Hill's account. Jones testified that he "figured [Hill] was too close" to the other faller, and "might endanger" the other's life, but stated that he could not remember what was said At a later point, in response to leading (but not improper) questions by the Respondent's counsel whether he had "warned" Hill, he replied that he had "warned him that he could be endangering another man's life." Jones' recollection of the conversation appeared to me to be less firm than Hill's. More- over, in view of Hill's many years of experience, I think it credible, as he testified, that he would be aware of the danger involved, and that he brought the matter to Jones' attention. In any case, even if it be assumed that Hill was at fault, rather than the reverse, CLARIDGE LOGGING CO. 219 weeks before the layoff, consisted of Hill's "blazing a strip" (cutting marks on trees) to establish a demarcation line between his work area and an adjacent one. Jones told Hill that that should not have been done because it was his function "to run a strip line if there is one to be laid," and he directed Hill where to do his cutting. Hill did as he was told. For a proper appraisal of the claim that "trouble" with Hill led Jones to give the former a bottom seniority status, one should place the claim alongside Hill's many years of experience, his long tenure in the Respondent's employ, his produc- tion record, and, not least, the fact that there is a complete absence of evidence that there was any deficiency in his work during the years that he worked for the Respondent, except for the "trouble" (if that be any deficiency in Hill's work) during Jones' brief tenure of some 2 months as foreman preceding the layoff. Thus measured, Jones' claim is transparently thin, and its feebleness becomes even more evident when it is borne in mind that the alleged "trouble" did not deter Jones from offering Hill reinstatement about 10 days after a copy of the charge was served on Claridge.'° In sum, I am convinced that the claim that Jones was given the bottom seniority position because of shortcomings in his work is a sham, put forward to conceal an ulterior purpose in selecting him for layoff.ll One matter remains for consideration, and that is the effect to be given to the evidence that it was Gore, and not Hill, who arranged the May 27 meeting with Claridge; that Arno, and not Hill, was the employees' spokesman at the meeting; and that in talking to Davis on May 31, within earshot of Jones, Hill named Johnson, and not himself, as the employee who had been in touch with Weller regard- ing union affiliation. Judging by the stress he put upon this evidence at the hearing, the Respondent appears to take the position that it negates a conclusion that Hill was selected for layoff because of union or other concerted activity, for, so the argument apparently runs, if the Respondent were disposed to discriminate on such a ground he would have done so against Arno, Gore or Johnson rather than Hill. The record does not establish the employment tenure of Arno, Gore or Johnson after the layoff of Hill, but assuming that the employment of Arno, Gore and in working too near the other faller, he complied with Jones' instructions, and in the perspective of the whole record, particularly Hill's long work history, and the length of time between the incident and the "new seniority list," I think it quite unlikely that the incident had any connection with the bottom seniority position given Hill, or with his layoff. to Jones testified that he was not aware of the filing and service of the charge when he made the offer of reinstatement to Hill "at his same status where he was at before." The results in this proceeding do not hinge on the truth or falsity of this testimony, but one may doubt its credibility, to say the least, taking into account the somewhat formalistic allusion in the reinstatement offer to Hill's "status" ; the relatively small size of the Respondent's enterprise ; and the fact that the charge served on Claridge expressly alleges the illegality of his foreman's conduct in laying off Hill. 13 The early portion of Jones' testimony would lead one to believe that the "blazing" and work location incidents constituted his alleged "trouble" with Hill, but at subsequent points Jones enlarged on his claim of "trouble" with testimony to the effect that on one occasion in April 1962, Hill "threw his saw on the ground" in protest of an assignment by Jones to an undesirable strip of timber ; and that Hill was not "too good a faller" because "he broke a lot of timber" by felling it "in the wrong direction a lot of times." This testimony does nothing for Jones' credibility, and, in fact, reinforces my conclusion that the alleged "trouble" with Hill as a basis for his bottom seniority status is an exercise in straw- clutching. The claim regarding the April incident is demonstrably thin, for it occurred about 2 months before the layoff, and it appears to have had so little impact on Jones that he testified that "I don't even remember what he [Hill] said now, just an argument, I guess." Moreover, Jones contradicted himself regarding the question whether the incident entered into the layoff decision, first giving testimony that the episode was a factor in the layoff, then admitting that he did not have the occurrence in mind in deciding to lay off Hill. The log breakage story has earmarks of pronounced exaggeration. Following the claim of "a lot of [broken] timber," Jones could describe only one occasion when he spoke to Hill about breakage, pointing out one broken log to Hill at the time in question, and that was about 2 months before the layoff. Efforts to find out from Jones whether Hill's work improved thereafter produced evasive and reluctant testimony that "I don't know whether he eliminated it [breakage] completely or not," and that "I suppose he [Hill] did" become a better faller after the criticism. I am convinced, in short, that Hill's protest of the undesirable timber assignment and the alleged breakage, like the other two incidents , had no connection either with the bottom seniority position assigned to Hill or his layoff. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson continued without discriminatory interruption, the argument is unpersuasive in the light of the whole record. For one thing, we are unable to tell what seniority status Jones assigned to Arno, Gore, and Johnson, for the list was not produced, and Jones who asserts that he was the one who prepared it also claims that he threw it away. For another matter, as described earlier, there is a lack of candor in the testimony of Jones, the one person, according to the record at least, who made the seniority and layoff decisions, and thus to accord decisive weight to the evidence regarding the activities of Arno, Gore and Johnson is as much as to reward the Respondent for his foreman's uncandid explanation why he put Hill at the bottom of the "new seniority list" despite the latter's years of service. Conceivably, Jones suspected Hill of far greater participation in union organizational leadership or activity among the fallers; or believed that the layoff of Hill, but not of Arno, Gore, or Johnson, would escape detection as unlawful, but serve as a deterrent to union activity among the employees; but the very lack of candor in Jones' testimony neces- sarily frustrates any effort to determine the full proportions of his motivation. Against that background, it is enough that the total record reasonably warrants an inference (the only rational one possible in the circumstances , in my judgment) that Jones noticed that Davis looked to Hill for an explanation for the change of plan, overhead Hill's remarks to Davis, concluded or suspected from the conversation that Hill was active in union organization among the crew, and for that reason put Hill at the bottom of the "new" list admittedly prepared that very day, and then selected Hill for layoff. The sum of the matter is, for the reasons stated above, that the motive for placing Hill at the bottom of the seniority list, and for laying him off, was discriminatory and unlawful; and that by each such action, the Respondent violated Section 8(a)(3) of the Act, and interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(a)(1) of the statute. 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 of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend below that he cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. As I have found that the Respondent laid off Harry A. Hill on June 4, 1962, in violation of Section 8(a)(1) and (3) of the Act, and unconditionally offered him reinstatement on June 22, 1962, I shall recommend that the Respondent make the said Hill whole for any loss of pay he may have suffered by reason of the layoff, to the time of the said offered of reinstatement, by payment to him of a sum of money equal to the amount of wages he would have earned, but for the layoff, together with interest thereon at the rate of 6 percent per annum; and that the loss of pay and interest be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, to which the parties hereto are expressly referred. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following conclusions of law: 1. The Respondent, Lyman H. Claridge, individually and doing business as Claridge Logging Co., is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. Harry A. Hill was on June 4, 1962, and had been for some prior thereto, an employee of the said Respondent within the meaning of Section 2(3) of the Act. 3. Montana Carpenters District Council is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 4. By placing and treating the said Harry A. Hill in a bottom seniority position, as found above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. CLARIDGE LOGGING CO. 221 5. By laying off the said Harry A. Hill on June 4, 1962, as found above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. 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 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that the Respondent, Lyman H. Claridge, individually and doing business as Claridge Logging Co., his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any of his employees in Montana Carpenters District Council, or in any other labor organization, by laying off, discharging, deny- ing employment to, or reducing the seniority status of, any individual, or in any other manner discriminating against any individual in regard to his hire, tenure of employment, or any term or condition of employment , except as authorized in Sec- tion 8(a) (3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing em- ployees in the right to self-organization; to form, join, or assist any labor organiza- tion; to bargain collectively through representatives of their own choosing; to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organ- ization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Make Harry A. Hill whole in the manner and in accordance with the method set forth in section V, above, entitled "The Remedy"; (b) Preserve until compliance with any order for backpay made by the National Labor Relations Board in this proceeding is effectuated, and make available to the said Board and its agents upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant to a determination of the amount of backpay due under the terms of any such order. (c) Post in conspicuous places at his usual place of business, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix A." Copies of said notice to be furnished by the Regional Di- rector of the Nineteenth Region of the National Labor Relations Board, shall, after being signed by the Respondent, be posted by him immediately upon receipt thereof and maintained by him for 60 days thereafter in such conspicuous places. Reason- able steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material.12 (d) Notify the said Regional Director, in writing, within 20 days from the receipt by the said Respondent of a copy of this Intermediate Report and Recommended Order, what steps the said Respondent has taken to comply therewith.13 It is further recommended that, unless on or before 20 days from the date of his receipt of this Intermediate Report and Recommended Order the Respondent notify the said Regional Director that he will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 23 In the event that these recommendations are adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" In the notice. In the additional event that the Board's order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." Is In the event that these recommendations be adopted by the Board, paragraph 2(d) thereof shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this order what steps the Respondent has taken to comply therewith." .222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, I hereby notify my employees that: I WILL NOT discourage membership of any of my employees in Montana Carpenters District Council, or in any other labor organization, by laying off, discharging, denying employment to, or reducing the seniority status of, any individual, or in any other manner discriminating against any individual in re- gard to his hire, tenure of employment, or any term or condition of employment, except as authorized in Section 8(a) (3) of the said Act. I WILL NOT in any other like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a conditions of em- ployment, as authorized in Section 8 (a) (3) of the said Act. I WILL reimburse Harry A. Hill for any loss of pay he may have suffered by reason of the fact that I discriminated against him by laying him off. LYMAN H. CLARIDGE, INDIVIDUALLY AND DOING BUSINESS AS CLARIDGE LOGGING CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date of posting and must not be altered, defaced, or covered by any other material. Information regarding the provisions of this notice and compliance with its terms may be secured from the Regional Office of the National Labor Relations Board, Logan Bldg., 500 Union Street , Seattle, Washington, 98101, Telephone No. Mutual 2-3300, Extension 553. Galis Electric & Machine Company and United Steelworkers of America, AFL-CIO. Case No. 6-CA-2560. April 24, 1963 DECISION AND ORDER On January 30, 1963, Trial Examiner Thomas S. Wilson 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 Intermedi- ate Report. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. 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 entire record in this case, including the Intermediate Report and the excep- 142 NLRB No. 30.