E.Z. Ply Panel Corp.

National Labor Relations Board - Board Decisions

Jan 30, 1959

122 N.L.R.B. 1165 (N.L.R.B. 1959)

E.Z. PLY PANEL CORPORATION 1165
E.Z. Ply Panel Corporation and Washington -Oregon Shingle
Weavers District Council . Case No. 19-CA-1530. January 30,
1959
DECISION AND ORDER
On October 22, 1958, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair practices and recommending that the Respondent cease and
desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the Respondent filed timely exceptions to the Intermediate Report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers herein to a three-member panel [Chairman
Leedom and Members Bean 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
Intermediate Report, the exceptions and brief, and entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board orders that Respondent, E.Z. Ply Panel Corporation. itc
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Washington-Oregon Shingle
Weavers District Council, or in any other labor organization of its
employees, by discriminating in regard to hire or tenure of employ-
ment or any term or condition thereof, except to the extent permitted
under Section 8 (a) (3) of the Act.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their right to self-organi-
zation, to form, join, or assist any labor organization, to join or
assist Washington-Oregon Shingle Weavers District Council, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
1 in the absence of exceptions to its breadth, the Trial Examiner 's recommended cease
and desist order is adopted pro forma.
122 NLRB No. 144.
1166 DECISIONS OF NATIONAL.. LABOR RELATIONS BOARD'
lective bargaining or other mutual aid or protection, and to refrain
from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the. policies of the Act :
(a) Offer to Dell Taylor, William H. Summers, Ralph Knutson,
Owen Whitaker, and Thomas Wolfe immediate and full reinstate-
ment to their former or substantially equivalent positions without
prejudice to seniority or other rights and privileges and make them
and Dale Adkins whole for any loss of earnings suffered by reason
of the discrimination against them, in the manner set forth in the
section of the Intermediate Report entitled "The Remedy."
(b) Make available to the Board or its agents, upon request for
examination and copying, all payroll records, social-security pay-
ment records, timecards, personnel records and reports, and all other
records necessary to determine the amounts of back pay due under
the terms of this order.
(c) Post at its plant at Marysville, Washington, copies of the
notice attached to the Intermediate Report marked "Appendix A. ." 2
Copies of said notice, to be furnished by the Regional Director for
the Nineteenth Region, shall, after being signed by Respondent's
representative, be posted by Respondent immediately upon receipt
thereof and be maintained for a period of 60 consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced,.
or covered by any other material.
(d) Notify the Regional Director for the Nineteenth Region in
writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
2 This notice is amended by substituting for the words "The Recommendations of a Trial
Examiner " the words "A Decision and Order ." In the event that this Order in enforced
by a decree of a United States Court of Appeals, there shall be substituted for the words
"Pursuant to a Decision and Order ," the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint alleges that Respondent , E.Z. Ply Panel Corporation ( 1) dis-
charged six named employees , Dell Taylor, William H. Summers , Ralph Knutson,.
Owen Whitaker, Thomas Wolfe, and Dale Adkins,' on or about September 30,
1957, and (2) on or about November 4, 1957, hired replacements for and refused
to reinstate the above-named employees, except Adkins, because of their member-
ship in and activities in behalf of a labor organization , viz, Washington-Oregon
Shingle Weavers District Council , thereby engaging in unfair labor practices within
x Erroneously spelled in the complaint as Atkins.
E.Z. PLY PANEL CORPORATION 1167"
the meaning of Section 8(a)(1) and (3) of the Act. The answer of Respondent
denied the commission of any unfair labor practices and alleged that prior to the
resumption of operations on November 4, 1957, after a shutdown, all the com-
plainants were offered employment except Wolfe whose address was unknown,,
and that all named in the complaint who requested reemployment were duly put
to work.
Pursuant to notice, a hearing was held before the duly designated Trial Ex-
aminer at Everett, Washington, on August 26 and 27, 1958. The General Counsel
and Respondent were represented by counsel and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce relevant,
evidence. At the close of the hearing, the parties were given an opportunity to.
argue orally and to file briefs. Oral argument was waived and briefs have been.
received from the General Counsel and Respondent. Ruling having been reserved
on motions to dismiss the complaint, they are hereby denied.
Upon the entire record in the case, and from my observation of the witnesses,.
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
E.Z. Ply Panel Corporation, herein called E.Z., is a Washington corporation:
whose office and plant is located at Marysville, Washington, where it is engaged
in the manufacture of cedar shake panels. The General Counsel alleges that juris-
diction should be asserted herein for the reason that E.Z. and another corporation„
Colorshake Corporation, herein called Colorshake, constitute an integrated em-
ployer and because the operations of the integrated concern affect commerce. It.
is undisputed that Colorshake is a Washington corporation whose office and plant
are also located at Marysville, Washington; that it is engaged in the business of
processing shingles and shakes, as well as the sale of the shakes manufactured by
E.Z.; and that Colorshake sells and ships products valued in excess of $50,000 per
annum to points outside the State of Washington.
The record discloses that Lynshire Investment Company, Ltd., and Pinecrest
Investment Corporation, Ltd., both of Vancouver, British Columbia, each bene-
ficially owns 2 of the 5 shares of common stock issued by E.Z. and that each,
beneficially owns 54 of the 150 shares of common stock issued by Colorshake.
Colorshake has for some years owned and operated its Marysville property
which is a substantial installation including an office building, plant, rail siding;
electrical transformers, log slip, boilerhouse, and warehouses. One of the ware-
houses, identified as Warehouse 7, is the sole business location of E.Z., save for
part time use of the Colorshake office at the site.
Actually the formation of E.Z. in September of 1957 stems from the decision of
Colorshake to market a new product, a cedar shake panel produced by a newly
devised machine. The operating technique utilized was to lease the machine in
August of 1957 from an outside concern; the funds were supplied by Colorshake
and the lease included an option to purchase. It was ultimately purchased in
May of 1958 with Colorshake funds and title was taken in the name of Color-
shake where it still remains. Significantly, although E.Z. commenced manufac-
turing operations on approximately September 15, 1957, the lease from Colorshake
of the premises utilized for manufacturing, namely Warehouse 7, is dated Oc-
tober 1, 1957, and provides for a monthly rental at $250.
These shakes are manufactured by E.Z. from raw materials owned and supplied
by Colorshake for which service E.Z. charges Colorshake so much per one
thousand units. This is not performed under a written agreement but rather
under an oral understanding, according to Wendell Hatch, manager of both con-
cerns. The price has fluctuated in an effort by Hatch and the accountant who
serves both concerns to arrive at a mutually fair price. E.Z., performing solely
a manufacturing service for Colorshake, has no sales force and makes no sales
to outside customers; the regular sales force of Colorshake handles sales of the
shakes, presumably together with other products. These shakes are shipped and
billed directly to the customer by Colorshake.
Stated otherwise, the sole operation of E.Z. consists of the manufacture of these
panels from Colorshake materials with its entire output taken by Colorshake.
Both E.Z. and Colorshake share the same office, and jointly utilize one office
worker who is on the Colorshake payroll; no rent has been paid for the use of
this office space. E.Z. has no telephone service in its own name and the Colorshake
office worker prepares E.Z. payrolls, but it is envisaged that in due course appro-
priate charges will be made by Colorshake to E.Z. for providing these services.
While E.Z. has a separate bank account, in reality it has no cash assets; Color-
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shake in the sole source of its funds, with funds transferred to it for the purpose
of running the business. Thus, Colorshake advanced funds when E.Z. started
operations and has absorbed initial losses by E.Z., although reimbursement is
contemplated when business conditions permit.
Wendell Hatch is and has been at all times material herein manager of both
E.Z. and Colorshake. In this capacity he purchases raw materials for both
concerns and handles Colorshake sales. Gayle Houk was superintendent of both
concerns until approximately 60 days before this hearing and in that post took
orders directly from Hatch. Houk is now superintendent solely of E.Z., but still
takes orders from Hatch. Both men have received all their wages from Color-
shake and still do; in Houk's case, this will continue until E.Z. is in a financial
position to assume this responsibility.
I find in view of the foregoing that the two concerns constitute one integrated
employer, that their operations affect commerce and that it would effectuate the
purposes of the Act to assert jurisdiction herein. N.L.R.B. v. Jones Sausage Co.,
et al., 257 F. 2d 878 (C.A. 4).2
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issue
The issue is whether Respondent E.Z. accelerated a layoff of six employees on
September 30, 1957, and thereafter failed to rehire five of them because of their
union activities. The Union has enjoyed contractual relations since 1955 with
Colorshake either under the latter's present name or a previous one. All of the
Union's labor contracts including that with Colorshake provide that the workday
shall be 6 hours except for watchmen and those performing certain nonproduction
work who are allowed to work in excess of 6 hours. To repeat, the contract
flatly forbids all work in excess of 6 hours daily for production workers at
Colorshake.3
The most recent contract between Colorshake and the Union, from 1956 to 1957,
was renewed shortly before the period material herein, viz, September 1957. At
that time the Union had no knowledge that Colorshake contemplated setting up
the E.Z. operation. Although the contract is not in evidence, it appears that it
contained the customary union-security language providing for union membership
after 30 days of employment; it further appears that all Colorshake employees
were members of the Union.
B. Union activities at E.Z.
Vice President George Weed of the Union received word that Hatch was
commencing a new operation at Building 7. It is to be noted that the Union
considered this to be a Colorshake operation for it had no knowledge of the
formation of E.Z.4 Shortly after September 1, with the new machine delivered
but not in operation, Weed visited Hatch who had seen him at the plant previ-
ously in connection with Colorshake personnel matters. Weed brought up the
new process and Hatch asked for time to get it into operation and ascertain its
capacity. He assured Weed that the Company, ostensibly Colorshake, would go
along with or live up to its contract with the Union.5 Weed again visited the
2It is therefore unnecessary to treat with the General Counsel's alternate theory based
on indirect outflow from E.Z. to Colorshake and then out of the State.
s These findings are based upon the testimony of President Clarence Romane of the
Union. Manager Hatch testified at one point that hours in excess of 6 daily were con-
sidered overtime work at time and one-half. I believe that Hatch was in error, for the
record demonstrates that he, consistent with Romane's testimony, established a 6-hour
day at the E.Z. operation although he desired to operate on an 8-hour-day basis. Accord-
ingly, Romane's version has been credited.
4 There is a conflict as to whether or not a sign designating E.Z. as the employer was
posted on Building 7 during the latter part of September or later. Weed, a clear and
impressive witness, testified that he had no knowledge of the sign .or the new corporation.
His testimony is buttressed by the fact that on September 30, as detailed below, lie signed
up the employees of E.Z. with cards designating Colorshake as the employer. I credit
Weed's testimony here as elsewhere and in any event deem it unnecessary to resolve the
conflict concerning the date of posting of the sign for It is not dispositive of any basic
issue herein.
5 This finding Is based upon the testimony of Weed. Although Hatch testified that
Weed never spoke to him about the application of the union contract with Colorshake
E.Z. PLY PANEL CORPORATION 1169
plant several weeks later to check on the progress of this new operation. He
testified that production had started with five or six men working part time and
this serves to place the date as September 16 or soon thereafter. He spoke to
Hatch and the latter stated that conditions were the same; that labor turnover had
been so great "that there was no use going out and signing them up"; and that
production had not risen so that management could set its plans.
Weed departed and on September 30 made his final visit to the plant. The
payroll of E.Z. discloses that there were eight men employed during the period
from September 16 to September 30. One of these was on loan from the seller
of the machine; of the seven remaining, all except one, Foxe who had maintenance
duties, worked less than full time during this period. The plant was operating on
a 6-hour workday from 8 a.m. until 2:30 p.m. with a lunch period of presumably
30 minutes. Between 10 and 11 a.m. on September 30, Weed accompanied by
another union representative visited the plant office and spoke with Hatch. Weed,
as he testified, informed Hatch that since the plant was under production he was
there to sign up the crew because he was anxious to receive the new men into the
Union. Hatch replied that this would be futile as management contemplated
closing down that evening and, in any event, the planned amount of production
was not being turned out.
Weed persisted in his wish to see the men and Hatch finally agreed that Weed
could see them during the noon lunch period. Hatch summoned Superintendent
Houk and told him, in Weed's presence, that the union representatives were there
to sign up the crew and that Houk should notify the crew that Weed would be
on the scene during the lunch period. Houk told employee Harold Foxe, as the
latter testified, that he, Foxe, should inform the crew that some union men would
be "out back," a reference to the general area where the men ate their lunches.
Foxe so notified at least several of the men. At lunch time Weed met with the
crew and all except two signed application cards for membership in the Union.
The two nonsigners were the nonemployee on loan from the seller of the machine
and Foxe who had previously applied for membership in the Union while working
for Colorshake during May or June prior to his transfer to the E.Z. operation in
September. Weed then left the scene .6
As noted, no mention was made that day of the existence of E.Z. as such,
irrespective of the presence or absence of a sign on the building. And the ap-
plications signed for admission into the Union all designated Colorshake as the
employer of the men on the crew. Even Foxe who testified that there was an
E.Z. sign in front of the building at that time, did not sign a card because he felt
that the card he had previously signed for Colorshake was applicable to him at
this operation.
C. The shutdown
The crew resumed work after the luncheon recess. Soon thereafter, Hatch
entered the building and paused near Foxe in whose vicinity employee Thomas
Wolfe was stationed. Foxe testified that he then told Hatch the panels were un-
satisfactory; Hatch replied that they could do "nothing on six hours." According
to E.Z., this is not a conflict for Weed did not know of the existence of l,Z. and per-
force was referring to new employees of Colorshake coming under the union-security
contract. Hatch further testified that he did not recall what Weed said on this as well
as a later visit by Weed to the plant prior to September 30.
9 The foregoing findings are based upon the testimony of Weed and Foxe. While Hatch
testified he (lid not know until the following day, October 1, that the men had been
signed up, he admitted that he assumed Weed was present for that purpose on Septem-
ber 30. Hatch also denied telling Weed that the plant was closing down, but it was his
express testimony and indeed part of Respondent's defense that a shutdown had been
decided upon by Hatch and Houk earlier that morning.
' Hatch did not remember whether or not he referred the union representatives to Houk.
Houk also claimed that he did not know Weed was in the office that morning; that he
saw Weed in the plant for the first time around noon ; and that he did not recall Hatch
calling him into the office, informing him of Weed's presence, and telling him that Weed
was to talk to the men at noon. Houk also did not recall telling Foxe that there was to
be a union meeting in the lunch room at noon whereas Foxe, still in the employ of this
integrated employer, specifically testified that Houk told him to notify the men of the
meeting scheduled for noon. In view of the foregoing considerations, Weed's testimony
is deemed the more plausible and has been credited here as elsewhere, particularly in
view of its corroboration by Foxe, as well as the frequent lack of recollection on the part
of Hatch and Houk.
505395-b 9-vol. 122-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Wolfe, he heard Hatch tell Foxe that he wanted to run the operation 8 hours
a day but the Union would not allow it . Hatch then announced , as various
witnesses testified , that the operation was to be shut down, that there was no
further work for the men , and instructed Superintendent Houk to close down;
this was done immediately . Hatch denied having any conversation with Foxe
on this occasion.
In resolving this conflict it is noted that Foxe testified for Respondent and is
still in the employ of Colorshake. Furthermore , Wolfe's version does support
that of Foxe , the only difference being that Wolfe 's testimony goes further. Since
Foxe was apparently closer to Hatch than Wolfe, I have credited Foxe's version of
the incident and, as elsewhere , do not credit Hatch's denial.
The General Counsel apparently does not challenge the fact that because of
defective products a shutdown was planned for the close of business that day
which was also the end of the pay period . His position is that the shutdown was
accelerated by approximately 1 hour that afternoon because of union activities
among the employees by a labor organization which permitted its members to
work only a 6-hour day. In this respect he also relies on the fact , as will appear
below, that the complainants were not recalled to work in November when the
plant reopened . The entire crew, including the six complainants, was laid off at
that time save for Foxe who was retained along with the outside employee to
perform certain maintenance and cleanup work. And the plant was shut down
until November 4 when it reopened with a new crew except for Foxe.
On the following day, October 1, Wolfe and Whitaker returned to the plant for
their paychecks. They met Houk and a discussion of the layoff ensued. Ac-
cording to Whitaker, Houk stated that the Union would allow its members to
work only a 6-hour day; that Respondent could not manage on such a basis; and
that Respondent wanted to operate on an 8-hour basis but the Union would not
permit it. Wolfe's testimony was to the same effect.
Houk admitted telling the men they had joined the wrong union after the men
stated that they joined the Union and wished to work an 8-hour day because
earnings based upon a 6-hour day were inadequate . However, Houk, consistent
with the testimony of Whitaker and Wolfe, admitted that he had raised the issue
of the 8-hour day in this discussion ; and, as noted , Houk's testimony has been
previously not accepted . Accordingly, the testimony of Whitaker corroborated by
that of Wolfe is credited herein. It may be noted that Houk in essence took the
same position with the two men as Hatch did with Foxe on the previous day.
Dale Adkins also returned for his paycheck on October 1. According to Adkins,
he merely asked Hatch for his check and Hatch proceeded to tell him that the
Union should not have signed up the men . Hatch also stated that he intended
to run the machine 8 hours a day ; that this was necessary in order to provide an
adequate weekly wage for competent men; and that if he could not operate on
an 8-hour basis there he would take it some place where he could . Hatch denied
that such a conversation took place and as elsewhere his denial is not credited?
On October 16 Respondent wrote to each of the complainants except Wolfe
as follows:
We are thinking about putting the panel machine into operation within the
next week or so and would like to know if you are interested in going back
to work. The job will only be temporary.
Enclosed envelope is for your reply, please mail before October 21, 1957.
Respondent contends that Wolfe would have received a letter as well but that
his address was not available. It is noteworthy that Wolfe was reached by Re-
spondent during the following May and rehired . In addition , Wolfe had been
telephoned previously on one occasion when the plant did not operate. According
to Hatch, Wolfe's address was discovered at a later date by. the office girl, although
Wolfe testified that he left it with this same girl when he was laid off in September.
Of the other complainants , all but Adkins, who testified herein that he was not
interested in the job at that time , replied in one form or another. Knutson visited
the plant within several days and indicated his desire to return to work. Hatch
explained that Respondent had anticipated a resumption of operations but had
changed its mind and that Knutson would be recalled when operations were re-
sumed . Whitaker wrote the word "Acceptance" on the letter together with a state-
ment that he would accept temporary work but preferred permanent work and
mailed it to Respondent . One week later he telephoned the office girl and was
7 The complaint does not allege that these statements by Hatch and Hook were violative
of the Act. I therefore construe them to be presented by the General Counsel solely as
evidence of motivation in connection with the allegation of discrimination.
E.Z. PLY PANEL CORPORATION 1171
informed that the plant was closed down indefinitely. Summers and Taylor visited
Hatch within 1 or 2 days and announced their readiness to return. Hatch con-
ceded that these two men had come in: he informed them, as Summers testified,
that although an order for mechandise had been received it had been canceled.
Hatch testified, it may be noted, that when production was resumed in November
no orders were on hand.
Houk testified with respect to this letter that Respondent wanted a crew ready
for a resumption of operations. According to Hatch he wanted a crew ready
although he was not sure when they would start.
Turning to November 4 and the reopening of the plant, it is the position of
the General Counsel that a further discrimination took place with respect to all
the complainants except Adkins because Respondent hired new employees at that
time.8 None of the complainants were hired for work on November 4, despite
the fact that Respondent admittedly was desirous of recruiting experienced help;
the complainants had been told on September 30 that Respondent would com-
municate with them; and Respondent's office had their names and addresses.
Houk claimed that he had attempted to contact various of the complainants for
work in November. As for Whitaker, Houk claimed that Whitaker had not re-
sponded to the October 16 letter and he, Houk, did not have his address. Not
only did Respondent have his address, as the October 16 letter discloses, but
Whitaker testified and I find that he wrote the word "Acceptance" on the letter and
mailed it back to Respondent; moreover, he stated that he would accept temporary
work.
As for Knutson , Houk claimed that he telephoned his home prior to reopening
on November 4, but that Knutson was not at home. Although Houk later admitted
speaking with Knutson's mother on this occasion , his testimony is silent as to leav-
ing any message for Knutson ; this is in accord with Knutson 's testimony that he
never was called back to work by Respondent after his futile visit to the plant in
October. While Hatch testified that he had certain addresses, he claimed that Houk
had no access to them. Houk claimed that he kept his own book of names of
personnel and did not ordinarily compare them with office records. I am unable
to credit this testimony which is contrary to any rational form of business pro-
cedure. This is so because Hatch and Houk admittedly conferred on the matter
before sending the October 16 letter to Knutson and the others. Furthermore,
Houk did not even attempt to obtain the addresses from the office girl, or for
that matter, from Knutson's mother at the time he telephoned and failed to leave
a message . His testimony places Houk in the position of having a telephone
number but not an address , surely a soluble problem.
It is true that on or about January 21 , 1958, Knutson went to the office for
his W-2 income tax form and he mentioned to Hatch that he was still out of work.
Hatch replied that he understood Knutson had been injured in an automobile ac-
cident, but Knutson assured him that although he had been in an accident he had
not been injured . Hatch told Knutson to call him the next morning , stated that
"it wasn 't definite," and said that he would ascertain whether he could find any
work for him with Colorshake but not at E.Z. Knutson found another job in the
interim and did not make the call.
In the case of Wolfe, he did not receive the October 16 letter and was not con-
tacted in November when the plant reopened . He testified that the office had his
telephone number and that he left his name and address with the office girl on
September 30. Not only had Wolfe been reached by telephone by Respondent
during his tenure at E.Z ., but later, in May of 1958 , he was recalled under cir-
cumstances not disclosed herein and hired at Colorshake.
As for Summers and Taylor, Houk claimed that he attempted to contact them
by personal visits prior to November 4, but discovered that both had moved.
It is undisputed that Summers was contacted by Hatch on or about February 1
and put back to work , apparently at E.Z . Summers admitted that soon thereafter
he told Taylor, who did not testify herein, that there was a job for him but Taylor
merely replied that he was leaving for Texas.
As for Adkins , it is significant that Houk , who was ignorant of Adkins' views
on returning to work after October 16, did not attempt to reach him although
he conceded that the office had Adkins ' address.
In sum , four of the complainants responded to the October 16 letter , but none
were hired for work on November 4. And although Respondent desired experi-
8 Adkins testified that he was not interested in returning to work on October 16 when
he received the form letter. Although it is hereinafter found that the October 16 letter
was not a bona fide offer of reinstatement, the complaint is 'deemed to frame the issues in
this case. Herald Publishing Company of Bellflower, 114 NLRB 71, 85.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enced hands, it reopened with new employees , except for Foxe, including three
women who were the wives of Houk and two of the new men respectively.
D. Conclusions
It is not disputed that Respondent had been experiencing difficulty with the
panels during September, that the quality of production had been poor on Sep-
tember 29, and that on the morning of September 30 Houk and Hatch had decided
to close down at the end of the shift that day at 2:30 p.m. On the other hand,
there is evidence by Hatch and employee Summers that production had been faulty
all day on September 30, an indication that it was no worse in the afternoon that
it had been in the morning. Houk presented similar testimony but also claimed
that it worsened in the afternoon ; yet he admitted that he planned to continue
production all day until prevented from doing so by Hatch's announcement of the
shutdown after the visit of the union representative.
Hatch had previous dealings with the Union under its contract with Colorshake
calling for a 6-hour day and there is evidence that Hatch strongly desired an
8-hour shift. Prior to September 30, both Hatch and Houk had told employee
Foxe, according to the latter's credited testimony , that Respondent wished to op-
erate an 8 -hour shift. Hatch again told this to Foxe immediately prior to the
September 30 shutdown, stating that Respondent could do nothing on a 6-hour day.
After the layoffs, Hatch told Adkins on the following day that he intended to
run the plant 8 hours and would move the machinery elsewhere if he could not
operate it on an 8-hour basis. And that same day, Hatch made it crystal clear to
Wolfe and Whitaker that the Union was preventing Respondent from working the
8-hour day which it desired.
The shutdown took place within an hour after union representative Weed visited
the plant and signed up the men, with Hatch admitting herein that he assumed
Weed had been at the plant for that purpose. Although the General Counsel
concedes that a shutdown was imminent, the evidence thus preponderates in favor
of his position that Respondent accelerated the shutdown on September 30 be-
cause of the union activity at the plant. The motivation for the shutdown is
readily apparent when consideration is given to Respondent's announced aversion
to the 6-hour day established by the Union and the further fact that Respondent
reopened on an 8-hour basis on November 4.9
The record also warrants the finding that the October 16 letter was not a good
faith offer of reemployment. Even on Respondent's version, it was an attempt to
line up employees for future work, and the net result was that four persons who
received and responded forthwith to the letters were not recalled to work on
November 4. Houk's testimony as to his attempt to recall the men for Novem-
ber 4, and the inconsistencies therein, have been set forth above; and there is yet
another inconsistency in Respondent's position. Houk testified that Respondent
did not start operations after the October 16 letter because there were no orders.
Nevertheless, Hatch testified that when operations did resume on November 4,
there were still no orders on hand, yet Respondent hired new employees and im-
mediately commenced operations on an 8-hour day basis. Accordingly, I find that
the reasons assigned by Respondent for shutting down early on September 30 and
for not rehiring the complainants on November 4 are not the true reasons.lo
In view of the foregoing, I find that by laying off the complainants prematurely
on September 30, 1957, and by failing and refusing to reinstate them, except
Adkins, on November 4, 1957, Respondent has discriminated against them because
of their union activities, within the meaning of Section 8(a)(3) of the Act. I
further find that by such conduct Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Section 7 within
the meaning of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in con-
nection with its operations set forth in section I, above, have a close, intimate, and
o The General Counsel apparently concedes that the shutdown from October 1 to
November 4 was not discriminatory, attacking only the acceleration of the shutdown, plus
the failure to recall the old employees on November 4.
10I am not unaware that Wolfe and Summers are now in the employ of Colorshake and
E.Z., respectively, since various dates In 1958. This of course Is not inconsistent with
an earlier attempt to eliminate a union majority at E.Z. in September and November of
1957 and, moreover, does not serve to overcome the preponderance of the evidence set
forth above.
E.Z. PLY PANEL CORPORATION 1173
substantial relation to trade, traffic, and commerce among the several States andi
tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has discriminated with respect to the hire and
tenure of employment of Dell Taylor, William H. Summers, Dale Adkins, Ralph
Knutson, Owen Whitaker, and Thomas Wolfe. I shall, therefore, recommend that
Respondent offer them, except Adkins, immediate and full reinstatement to their
former positions without prejudice to seniority or other rights and privileges. See
The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.11 I shall further recommend that Respondent make all of the
above-named employees whole for any loss of pay suffered by reason of the dis-
crimination against them. Said loss of pay, based upon earnings which each nor-
mally would have earned from the date of the discrimination to the date of the
offer of reinstatement, less net earnings, shall be computed in the manner estab-
lished by the Board in F. W. Woolworth Co., 90 NLRB 289. See N.L.R.B. v.
Seven-Up Bottling Company of Miami, 344 U.S. 344.
On the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Washington-Oregon Shingle Weavers District Council is a labor organization
within the meaning of Section 2(5) of the Act.
2. E.Z. Ply Panel Corporation is an employer within the meaning of Section 2(2)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of Dell
Taylor, William H. Summers, Dale Adkins, Ralph Knutson, Owen Whitaker, and
Thomas Wolfe, thereby discouraging membership in a labor organization, Respond-
ent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of
the Act.
4. By interfering with, restraining , and coercing employees in the exercise of
the rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
"'The customary reinstatement order has been recommended In all cases. Taylor has
not received an offer of reinstatement from Respondent. Wolfe is now on the Colorshake
payroll and is entitled to return to the employ of E.Z. if he so desires. While It appears
that Summers now has substantially equivalent employment or better, the record does
not definitively show this, and the issue may be resolved at the compliance stage of the
proceeding.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activity in behalf of Washing-
ton-Oregon Shingle Weavers District Council, or any other labor organization
of our employees, by discriminating in any manner in regard to hire or tenure
of employment, except to the extent permitted under Section 8(a)(3) of the Act.
WE WILL offer the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to seniority or other rights and privileges:
Dell Taylor Owen Whitaker
William H. Summers Thomas Wolfe
Ralph Knutson
WE WILL make whole the above-named employees and Dale Adkins for any
loss of pay suffered as a result of our discrimination against them.
1174 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with , restrain, or
coerce our employees in the exercise of their right to self-organization , to form,
join, or assist any labor organization , to join or assist Washington-Oregon
Shingle Weavers District Council, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection , and to refrain from
any or all such activities , except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a)(3) of the National Labor Re-
lations Act.
All our employees are free to become or remain , or refrain from becoming or
remaining, members of the above-named or any other labor organization.
B.Z. PLY PANEL CORPORATION,
Employer.
Dated------------------- By--------------------------------------(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Alamo White Truck Service, Inc. and Lodge 36, International
Association of Machinists , AFL-CIO, and General Drivers
and Helpers Local 657, affiliate of International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Case No. 39-CA-666. January 30, 1959
DECISION AND ORDER
On July 16, 1958, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that
it would not effectuate the policies of the Act for the Board to
assert jurisdiction in this case and that the Respondent had not
engaged in certain unfair labor practices and recommending that
the complaint be dismissed, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Respondent filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report,' the exceptions, the briefs, and the entire rec-
ord in the case, and finds merit in the General Counsel's exception.
Accordingly, it adopts the findings, conclusions , and recommenda-
tions of the Trial Examiner, only to the extent that they are con-
sistent with the findings below.a
1 The Board hereby deletes Appendix I. the Trial Examiner's Digest of Record, from
the Intermediate Report.
'The complaint did not allege independent violations of Section 8 (a) (1) of the Act,
and was not amended to do so. Notwithstanding, the Trial Examiner found such an
allegation and held that the General Counsel had not proved a violation of that section.
The Trial Examiner asserts that the allegation is based upon testimony that the service
122 NLRB No. 139.