G. W. Emerson Lumber Co.

National Labor Relations Board - Board Decisions

Dec 15, 1952

101 N.L.R.B. 1046 (N.L.R.B. 1952)

1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York there are four employees, and in Honolulu three employees,
doing the same type of work that is done in the San Francisco office.
In San Francisco, traffic employees and office and clerical employees
work in one office. In New York they are separated by a partition
and in Honolulu, they are in adjacent offices. The record shows a
degree of integration of the Employer's operations which warrants
the grouping of the traffic and clerical employees in the same bargain-
ing unit.?
Accordingly, we find that all employees of the Employer, located
within the continental United States and Hawaii, including office
and clerical employees, but excluding commercial representatives, the
secretary to the Employer's vice president in charge of operations,8
guards, professional employees, the accountant in the San Francisco
district office, the accountants in the San Francisco administration
office,9 watch supervisors, messenger supervisors, and all other super-
visors within the meaning of the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (c) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
° Cf. San Marcos Telephone Company, 81 NLRB 314; Ohio Associated Telephone Com-
pany, 82 NLRB 972.
"The parties stipulated that this secretary is a confidential employee and should be
excluded from the unit.
D The parties stipulated that the accountants should be excluded from the unit be-
cause of supervisory authority exercised by them and, as to one, because he is an officer
of the Employer.
G. W. EMERSON LUMBER COMPANY and NORTH IDAHO-EASTERN WASH-
INGTON DISTRICT COUNCIL OF LUMBER AND SAWMILL WORKERS, AFL,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
AFL. Case No. 19-CA.-5!0. December 15, 1950
Decision and Order
On May 8, 1952, 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
labor practices in violation of Section 8 (a) (1), 8 (a) (2), and 8
(a) (3) of the National Labor Relations Act, 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 exceptions to the
Intermediate Report and a supporting brief.
101 NLRB No. 165.
G. W. EMERSON LUMBER COMPANY 1047
The Board' has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed 2 The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in this
case , and hereby adopts the findings ,3 conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications :
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) and 8 (a) (2) of the Act by sponsoring and inter-
fering with the formation of a labor organization among its employees.
2. We also agree with the Trial Examiner that the Respondent
discriminated against Norman May and Robert Hale by discharging
them in violation of Section 8 (a) (3) and (1) of the Act. As we
have found, in agreement with the Trial Examiner, that Hale's dis-
charge was an actual discharge, we find it unnecessary to pass on the
Trial Examiner's further finding that the events which transpired
after that discharge gave rise also to a constructive discharge.
The Remedy
We cannot agree with the Trial Examiner's recommendation that
the Respondent be required now to offer reinstatement to May and
Hale. The record shows, and we find, that the Respondent's letters
of September 25, 1951, addressed to each of them, were offers of
reinstatement. The record also shows that although May and Hale
received these letters, neither replied. Hale testified that he did
not reply because "I thought he wanted to hire me back, but he would
not pay no back wages." May gave no explanation. In view of
these facts, we shall limit the remedy to the payment of back pay from
June 8, 1951, the date of discharge, to September 25, 1951, the date on
which the Respondent offered reinstatement, and modify the remedy
section in the Intermediate Report by eliminating the provision for
a present offer of reinstatement.'
'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 Herzog and
Members Styles and Peterson].
' At the opening of the hearing , the General Counsel, without objection , moved to dis-
miss an allegation in the complaint of discrimination against employee Robert Warren.
The Trial Examiner granted the motion and his ruling is hereby affirmed.
# The Intermediate Report makes the following minor misstatements of fact, which do
not affect the validity of the Trial Examiner 's ultimate findings nor our concurrence
therein : (1) There is no evidence that May was called back to work in June or July
of 1950 , but only that he went back to work for the Respondent at that time; (2) there
is no evidence that it was Norman May who origtnally contacted the Union with respect
to organizing the plant ; ( 3) there is no evidence that Union Representative Luscher
gave May union designation cards on Luscher's first visit to the mill ; May's testimony
indicated that he received cards from Luscher through the mail
4 Differential Steel Car Company, 75 NLRB 714
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, G. W. Emerson
Lumber Company, Wilbur, Washington, its agents, officers, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in North Idaho-Eastern Washing-
ton District Council of Lumber and Sawmill Workers, AFL, United
Brotherhood of Carpenters and Joiners of America, AFL, or any
other labor organization of its employees, by discharging employees
or discriminating in any manner with respect to their hire, tenure,
or any term or condition of employment, except to the extent permitted
by Section 8 (a) (3) of the Act.
(b) Sponsoring or interfering with the formation of any labor
organization of its employees.
(c) Promising benefits to employees as an inducement to renounce
their union activities or in any other manner interfering with, re-
straining, or coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist North
Idaho-Eastern Washington District Council of Lumber and Sawmill
Workers, AFL, United Brotherhood of Carpenters and Joiners of
America, AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activ-
ities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization, 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) Withdraw and withhold all recognition from the committee of
employees formed in April 1951, or any successor thereto, as the repre-
sentative of any of its employees for the purpose of dealing with it
concerning grievances, labor disputes, rates of pay, wages, hours of
c-mployment, or other conditions of employment, unless and until said
labor organization shall have been certified by the National Labor
Relations Board.
(b) Make whole Norman May and Robert Hale for any loss of
pay they may have suffered by reason of the discrimination against
them, in the manner set forth in the section of the Intermediate Re-
port entitled "The Remedy," as modified herein.
(c) Upon request, make available to the Board or its agents for
examination and copying, all payroll, social security, time, and per-
G. W. EMERSON LUMBER COMPANY 1049
solinel records necessary to determine the amount of back pay due
under the terms of this Order.
(d) Post at its office and place of business in Wilbur, Washington,
the notice attached hereto and marked "Appendix A." 6 Copies of
said notice, to be furnished by the Regional Director for the Nine-
teenth Region, shall, after being duly signed by Respondent's author-
ized representative, be posted by it immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter 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.
(e) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order what steps
it has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT sponsor or interfere with the formation of any
labor organization of our employees.
WE WILL withdraw and withhold all recognition from the com-
mittee of our employees formed in April 1951, or any successor
thereto, as the representative of any of our employees for the pur-
pose of dealing with us concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, unless and until said labor organization shall have
been certified by the National Labor Relations Board.
WE WILL NOT discourage membership in NORTH IDAHO-EASTERN
WASHINGTON DISTRICT COUNCIL OF LUMBER AND SAWMILL WORK-
ERS, AFL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL, or in any other Labor organization of our em-
ployees, by discriminating in any manner in regard to hire or
tenure of employment, except to the extent permitted by Section
8 (a) (3) of the Act.
WE WILL make whole Norman May and Robert Hale for any
loss of pay suffered by them as a result of the discrimination
against them.
"In the event that this Order is enforced by a decree of the 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."
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT promise benefits to employees as an inducement
to renounce union activities or in any other manner interfere with,
restrain, or coerce our employees in the right to self-organization,
to form labor organizations, to join or assist NORTH IDAHO-
EASTERN WASHINGTON DISTRICT COUNCIL OF LUMBER AND SAW-
MILL WORKERS OF AMERICA, AFL, UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA, AFL, or any other
organization of our employees, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization, as authorized
in Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization, except to
the extent above stated.
G. W. EMERSON LUMBER COMPANY,
Employer.
By ----------------------------------------
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed by North Idaho-Eastern Washington District Council
of Lumber and Sawmill Workers, AFL, affiliated with United Brotherhood of
Carpenters and Joiners of America, AFL, herein called the Union, against G. W.
Emerson Lumber Company, herein called Respondent, the General Counsel of
the National Labor Relations Board issued a complaint dated March 10, 1952,
against Respondent. This complaint, upon which the instant proceeding is based,
alleged that Respondent had engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of
the charge, complaint, and notice of hearing thereon were duly served upon the
parties.
Specifically, the complaint, as amended at the hearing, alleged that Respondent
had (1) sponsored, maintained, and contributed support to the formation of
a labor organization of its employees and (2) discharged Norman May and
Robert Hale on or about June 8, 1951, and thereafter denied them reinstatement,
because of their concerted activities for the purpose of collective bargaining.,
Respondent's answer denied the commission of any unfair labor practices and
3 At the opening of the hearing , the undersigned granted a motion by the General Counsel
to dismiss an allegation in the complaint of discrimination against one Robert Warren.
G. W. EMERSON LUMBER COMPANY 1051
alleged that the above-named employees had either quit voluntarily or had been
terminated for nondiscriminatory reasons.
Pursuant to notice, a hearing was held on April 8, 1952, at Wilbur, Washing-
ton, before the undersigned Trial Examiner, Martin S. Bennett, duly designated
by the Associate Chief Trial Examiner. All parties were represented by counsel
who were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. At the close of the
General Counsel's case, Respondent moved that the complaint be dismissed for
failure of proof; the motion was denied. It was renewed at the close of the
hearing and ruling was reserved ; it is disposed of by the findings hereinafter
made. At the conclusion of the hearing, the parties were afforded an oppor-
tunity to present oral argument and to file briefs and/or proposed findings and
conclusions with the undersigned. Oral argument was waived and briefs have
not been submitted.
Upon the entire record in the case and from his observation of the witnesses.
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
G. W. Emerson Lumber Company is a Washington corporation which main-
tains its office and principal place of business at Wilbur, Washington, where it
operates a sawmill and planing mill and is engaged in the manufacture of lumber
and lumber products. During the 12-month period preceding the instant hearing,
Respondent purchased logs and supplies within the State of Washington valued
at approximately $80,000. During the same period, it sold finished lumber and
lumber products valued at approximately $225,000, of which about 80 percent
was shipped to points outside the State of Washington. The undersigned finds
that Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
North Idaho-Eastern Washington District Council of Lumber and Sawmill
Workers, AFL, affiliated with United Brotherhood of Carpenters and Joiners of
America, AFL, is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues; sponsorship of and interference with the formation of a
labor organization
1. The facts
At issue herein are whether Respondent ( 1) sponsored , maintained , and inter-
fered with the formation of a labor organization of its employees, and (2) on
or about June 8, 1951, discriminatorily discharged Norman May and Robert Hale
because of their concerted activities. The first allegation is treated at this point
and the second hereinafter.
The instant proceeding stems from an attempt by the Union to organize the
employees of Respondent in the spring of 1951. Insofar as the record indicates,
these employees, who numbered approximately 30 in production and maintenance
classifications, have never been represented by a labor organization . Dissatis-
faction developed among the employees early in 1951 over the level of their wage
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rates and, when they learned that employees represented by the Union in the
Spokane area had received a wage increase , action was taken . Norman May,
whose discharge is discussed hereinafter , contacted Business Agent Luscher
of the Union in an adjoining town during February and Luscher later visited
May at the Mill about 1 month before April 24 , 1951. He gave May union desig-
nation cards and, during April as well as thereafter , May distributed the cards
among the men and collected them after signature ; these he later turned over
to Luscher when the latter again came to the plant in the early part of May.
Robert Hale, whose discharge is also discussed below, spoke to a number of men
concerning the Union . His duties involved driving a lift truck about the
premises and the men were wont to jump on the truck and ask for his opinions
on the subject of union organization.
On April 23, Business Agent Rausbottom of the Union wrote to Respondent
and stated that the Union had on that date filed a petition with the Board for
certification of representatives covering the employees of Respondent ; this was
docketed by the Regional Office of the Board on April 24 , 1951, as Case No.
19-RC-822. The letter to Respondent was received on April 24 , and specifically
by Kent Emerson , its general manager and secretary-treasurer . Emerson, who
testified that he had spoken several days earlier to then Head Sawyer Robert
Warren concerning dissatisfaction among the men, informed Warren on April
24, after receipt of the letter , but that he wished to hold a meeting to ascertain the
desires of the men . Both Emerson and Warren proceeded to notify the men that
a meeting would be held in the planing mill immediately after working hours.
Present at this meeting were all or almost all of the rank -an-file employees
plus Emerson . According to May , Emerson opened the meeting by announcing
that there appeared to be some trouble with respect to wages ; he then urged them
to elect one of their coworkers as chairman of the meeting and as their spokes-
man ; one, Richardson, was duly elected chairman . Emerson went on to state
that "we could work out a deal ourselves, a kind of union ourselves, in the mill
there, without getting a bunch of high -pressure legal advice from people that
don't even live around here . . . and then we could probably work out benefits
and stuff better than what the union had." May asked him at this juncture if
Respondent would pay union wage scales . Emerson replied that he would and
added that "we ought to elect a guy from each department for a bargaining com-
mittee, or grievance committee and then set up a scale for the guys working
... and give it to him ." The employees present then voted to hold a meeting
on the following day, April 25.2
On the following day, April 25, substantially the same group of employees met
again and , as proposed by Emerson , elected a committee consisting of a represent-
ative from each department . The group discussed their grievances as well as
proposals for contract negotiations . They drew up their wage demands, predi-
cated on the union scale in the area. The chairman of the meeting , Richardson,
who did not testify herein, was instructed to present these grievances and de-
mands to Emerson . Richardson later reported to the group that he had done
so. The record does not indicate what action if any was taken by Respondent
with respect to these proposals.
2 The foregoing findings are based upon the testimony of May, a clear and forthright
witness which is variously corroborated by that of other witnesses . Thus, Resiter, Re-
spondent's head sawyer testified that the men were supposed "to form a three man com-
mittee to take the troubles to the office ." Hale's testimony, although ambiguous , in part
supported that of May . Emerson admitted suggesting the formation of a committee to
contact him with respect to wages.
G. W. EMERSON LUMBER COMPANY 1053
On or about April 26, Union Representatives Luscher and Ransbottom met
with approximately 10 of the employees at a motel located a short distance from
the mill. After being informed by the men of the statements made by Emerson
at the meeting of April 24, the union representatives immediately went to the
mill and accused Emerson of engaging in unlawful conduct. The record dem-
onstrates that the employees' committee did not meet or confer with management
thereafter and it would appear that it has lapsed into desuetude. About May 1,
the parties to the representation proceeding agreed to a consent election. This
was duly held on May 25 and was lost by the Union.
2. Conclusions
Employees under Section 7 of the Act are guaranteed the right to form, join,
or assist labor organizations of their own choosing, or to refrain from such activ-
ities. Employers are forbidden from interfering with, restraining, or coercing
them in the exercise of such rights as well as from dominating, interfering with
the formation of, or contributing support to labor organizations.
These interdictions against employer intrusion are predicated on the theory
that employees are not insensitive to the advantages that may be deemed likely
to follow from the choice of a representative which coincides with the wishes of
their employer, nor the disadvantages that may attend their choice of a repre-
sentative opposed by their employer ; indeed, Emerson in his speech of April 24
specifically raised the likelihood of benefits superior to those promulgated by
the Union as a reward for bargaining through a plant committee whose forma-
tion he proposed. Therefore, all forms of employer assistance, support, domina-
tion , or interference with the formation of labor organizations which might
reasonably operate to preclude and restrain the exercise by employees of their
collective bargaining rights are banned.
In the instant case Emerson, on the very day that he learned that the Union
had filed a representation petition with the Board, took steps to make the Com-
pany's influence felt in the question of union representation. Although he may
have spoken previously to his then head sawyer, Warren, relative to dissatisfac-
tion in the plant, his own testimony shows that he spoke to Warren on April
24, after receipt of the letter from the Union which announced the filing of the
petition and requested a conference later that week on the matter, and informed
Warren that a meeting of employees would be held that night. At this meeting
on April 24, Emerson proposed that the employees form a union of their own and
select a bargaining committee which could prepare wage proposals for submis-
sion to him. Moreover, he held out the inducement of benefits superior to those
enjoyed under union scales in the area as reward for his employees if they
adopted his proposals. And the evidence is clear that the employees did follow
this proposal precisely. A committee was selected on the following evening, wage
proposals were drawn up, and proposals were submitted to Emerson.
As stated, this committee, which never received a name and was not a party
to the case, has remained dormant since its brief spell of activity in April of
1951. The General Counsel announced at the hearing, with respect to this
aspect of the case, that he was seeking solely a negative order which would
prevent the resurrection of the committee in the future; this is construed and
accepted as tantamount to his not pressing for a finding of extensive domination
which would warrant an affirmative order of disestablishment. Accordingly,
the undersigned finds that Respondent, by the foregoing conduct, has sponsored
and interfered with the formation of a labor organization, and has interfered
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, restrained , and coerced its employees in the exercise of the rights guar-
anteed by Section 7 of the Act , said conduct being in contravention of Section
8 (a) (1) and ( 2) of the Act . Seamprufe, Inc., 82 NLRB 892, enfd. 186 F. 2d
671 (C. A. 10).
B. The discharges
1. Work record of the complainants ; the union organizational campaign
Norman May and Robert Hale terminated their employment with Respondent
on June 8, 1951 . The General Counsel contends that they were discharged
because of their protected concerted activities , whereas the position of Respondent
is that May was discharged because he violated certain instructions on June 8
and that Hale , in effect, quit its employ on that date.
Norman May, who had previously worked for Respondent during the summer
of 1943, returned to its employ in the fall of 1949. The mill closed down for the
winter months , as was the custom , and May was called back to work in June
or July of 1950. In the following year , he was again recalled to work in the
spring of 1951 and worked until he was discharged without warning on June 8,
1951 . During the 1950 season , he was assigned to the position of pond man.
The duties of this position included the handling of logs stored in the pond and
their movement to a chain hoist for elevation to a dock and sawing. He also
filled this position during the 1951 season.
Robert Hale was an employee of long tenure who entered the employ of
Respondent in 1941. He worked steadily thereafter , and, approximately 21/2
years prior to his discharge , was assigned to the position of lift truck driver.
The duties of that position included the hauling of lumber to tile planing mill,
the hauling of lumber from the mill to the yard for shipping , and the piling of
logs for storage. It is noteworthy that during the winter shutdowns Respondent
continued to furnish employment to Hale, although the record does not disclose
the precise nature of his winter duties . A not dissimilar situation existed with
respect to May during the 1951 season. He was recalled to work on or about
March 1 , prior to the opening of the mill, and was assigned to repair work ; there-
after , when the mill later opened for the season , he returned to his customary
position of pond man.
It will be recalled that the Union conducted an organizational campaign among
the employees of Respondent during February and March of 1951. In fact,
it was Norman May who originally contacted Union Representative Luscher
during February and interested him in organizing the employees of Respondent.
Luscher visited the mill during April , prior to the April 24 meeting discussed
above, and asked Emerson to refer him to May ; although Emerson allegedly
did not know Luscher at that time , he admitted that he learned his identity
when the latter accused him on April 26 of having engaged in unlawful conduct
by his speech of April 24.
Luscher , in this first visit to the mill, gave May union designation cards for
distribution and May proceeded to pass them out among the men and to solicit
their membership in the Union . He later collected the signed cards and returned
them to Luscher when the latter again called at the mill early in the month of
May. May also served as an observer for the Union at the election held on May
25 which was lost by the Union . Hale signed a union card during the organiza-
tional campaign and spoke to a number of employees relative to joining the
Union . In fact, some of the employees approached Hale as he operated his lift
truck on the mill premises and asked for his views on the question of union repre-
sentation.
G. W. EMERSON LUMBER COMPANY 1055
2. Events on June 8
Although several other causes for the termination of the complainants, treated
hereinafter, have been advanced by Respondent, it is clear and the undersigned
finds that Respondent's basic position is that, at least in the case of May, he was
discharged as a result of his alleged misconduct on June 8.
On or about May 25, Respondent's head sawyer, Warren, gave notice of his
intent to leave its employ and was replaced by one Reister. The latter, who
theretofore had been a setter in the mill, assumed the duties of head sawyer on
Monday, June 4, with Warren remaining until that date in order to help break
him in. According to Relater, he did not desire the transfer to this position and
on two occasions during his first week he expressed to Emerson a preference to
return to his former position.
As stated, one of May's duties was to raise logs from the mill pond for sawing
by the head sawyer. These logs averaged from 12 to 18 inches in diameter.
There were in the pond at the time several larger logs whose diameter varied
from 3 to 4 feet. Kent Emerson spoke to May on or about June 4, the first day
that Reister operated as head sawyer without any assistance, and told him not
to send up the large logs "for a couple of days" until Reister "got the feel of
things."'
It appears that Respondent experienced some difficulty with the operation of
its saws, and, on June 8, a representative of a saw company visited the mill.
He conferred there with Merle Emerson, the brother of Kent Emerson and ap-
parently a company official, in the vicinity of the area where Reister operated the
saws. This was near the dock on which logs from the pond are deposited. Ac-
cording to May, he sent up that morning a log which was moderately large in
size, being approximately 3 feet in diameter. Shortly before noon, he approached
Reister and asked the latter if he was prepared to handle the larger logs. Reister
replied that he "might as well . . . we got to saw it up some time." Reister
added that the representative of the saw company was desirous of trying the
saws on a large log ; this referred to the fact that the saw is actually comprised
of a pair of saws and that the top saw does not come into play unless the log is
a large one.'
Shortly before 3 p. in., May proceeded to send up the big log. Due to its weight,
he enlisted the assistance of Hale in order to prevent the chains of the hoist
from slipping. Hale, who was unaware of any conversation between May and
Emerson relative to these large logs and who had not been given any instructions.
on the matter by Emerson, proceeded to assist May. Almost immediately after
the log came up, Kent Emerson, who had observed Hale helping May with the
log, appeared on the scene. He asked Reister and his brother if they had ordered
up the log ; both denied so doing. Kent Emerson testified that he then decided
to discharge May and Hale and forthwith proceeded to the will office where he
directed that checks be made out for both men. These checks were to include
• The foregoing is May 's testimony , which is credited here as elsewhere . Emerson
testified that he instructed May not to send up the big logs and that "I did not say any
particular time ; but I figured until further notice "
' Findings herein are based on the testimony of May. Merle Emerson and the repre-
sentative of the saw company were not called as witnesses Reister testified that he did
not recall a 3-foot log coming through that day. When asked If he recalled a request
from the saw company representative for a large log, he replied, "I wouldn 't say I do." He
also testified that he did not recall talking to May that day , but then recalled that May
had stated he would send up the big log and that he , Relater , in a kidding manner, had
stated "it would have to come up some time." The testimony of Reister , a vague and
reticent witness , is not credited where In conflict with that of May.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages, at least in the case of Hale, up to 3 p. m. that day. It may be noted that
the customary closing hour was either 4: 30 or 5 p. m., and apparently the
latter.
Emerson then returned to the mill premises in search of May. He found
him serving as temporary relief for an employee who had temporarily absented
himself. He informed May that he was through and to pick up his check at the
office. May asked Emerson the reason for the discharge and, according to May,
Emerson stated, "You have been pulling too many little deals around here."
May asked for an explanation of this remark and Emerson replied, "for one
thing you sent up that big log and I didn't tell you to." May protested that his
instructions had been merely to hold the log back for several days. Emerson
adhered to his position and took over May's position as relief for the absent
employee. May went to the mill office and obtained his check which was ready
for him. It was then slightly after 3 p. m. It may be noted that within some
minutes thereafter the large log was sawed by Reister without any difficulty s
Emerson, who admitted in his testimony that he had not given any instructions
to Hale with respect to these large logs, immediately proceeded over to Hale who
had returned to the operation of his lift truck. Hale, a straightforward witness,
testified that Emerson informed him that he was discharged. When he asked
the reason, Emerson replied that it was because he had helped May raise the large
log. Hale protested that he was not aware of any instructions forbidding this
action and stated that his discharge "must be on account of the union." Emer-
son did not reply directly to this statement, but said that Hale was "a heck of
a good friend of Norman May's." Hale asked Emerson if his work had been
satisfactory, if he had piled logs properly, and if he had piled lumber in the
proper places. Emerson admitted that his work had been satisfactory in those
respects, but added that Hale had failed to place cover boards over one or two
stacks of lumber. Hale pointed out that all available cover boards were already
in use over select lumber. Emerson claimed that Hale could have piled the lum-
ber in a shed ; however, according to Hale, the shed was then in the process of
construction and was not available for use.
At this point, two employees, who were unaware that Hale had just been
terminated, approached and asked Hale, who was about to depart, to move some
lumber with the truck. Emerson then turned to Hale and stated, "I will pay
you cash to work to 5 o'clock." Hale asked if this meant that his check was
already made out. Emerson admitted that it had been made out through 3 p. m.
It was then approximately 3:15 p. m. and Hale, in effect declining the prospect
of 2 hours additional work, went to the office and picked up his check.
The testimony of Emerson parallels that of Hale only up to a certain point.
He admitted his decision to discharge Hale and the making out of the check.
He then allegedly discharged Hale for helping May in raising the large log and
admitted that Hale had protested his ignorance of any instructions not to move
the log. According to Emerson, he offered at this point to tear up the check "but
I figured that he [Hale] had been kind of dissatisfied and I knew that we were
with his work and he could take his check or leave it just as he felt about it."
Emerson claimed that Hale then stated he "could get a job elsewhere" at another
6 The findings herein are based upon the testimony of May. Emerson ' s testimony sub-
stantially agreed with that of May, save as to his statements. Emerson did not recall
making the remark attributed to him by May with respect to "pulling too many litle deals
around here." According to Emerson , he informed May that he had no business sending
up the log . May then replied that Reister had sawed sufficient logs so as to be able to
handle that one. Emerson replied that he had not issued orders to raise the log and
directed May to get his pay cheek
"G. W. EMERSON LUMBER COMPANY 1057
lumber mill and that he, Emerson, then stated, "That probably would be all right
with me."
The undersigned does not credit Emerson's version of the talk. While Hale
testified that he stated at the end of the conversation that he could obtain work
at Lincoln, another lumber installation, reliance on this statement overlooks
the realities of the situation. For the fact is that Emerson discharged Hale.
Although Emerson attempted in his testimony to indicate that he rescinded the
decision to discharge, he admittedly proceeded to bring up his dissatisfaction
with the work of Hale. Moreover, he did not deny Hale's testimony that he,
Emerson, had offered to pay Hale in cash for working an additional 2 hours
that day. Such a statement is not indicative of the rescission of a decision to
effectuate a permanent discharge. Accordingly, the undersigned rejects Emer-
son's testimony where in conflict with that of Hale. Under all the circum-
stances, the undersigned finds that Hale was in fact discharged by Respondent
on June 8. The contention and testimonial inference that Hale quit on that
occasion is not accepted."
3. Contentious and conclusions
It has not been contended and there is no evidence that Respondent intended
to discipline or discharge May or Hale prior to the incident of June 8. It follows,
therefore, that Respondent's position is reduced to the claim that their termi-
nation resulted from the log incident on June 8, directly so in the case of May
and at least indirectly in the case of Hale. However certain other matters
relative to the capabilities and work performances of the two men have been
raised and will be treated below.
Emerson contended that May had been cutting logs too short all that spring,
that he had spoken to May about the matter, and that May's last offense took
place just prior to June 8. However, the fact that this purported condition,
with its expensive loss of lumber, was permitted to continue for so long a
time rebuts the seriousness and accuracy of the claim. Moreover, Emerson's
own testimony, as well as his statement in a letter to the Regional Office of the
Board, clearly demonstrates that it was May's alleged misconduct on June 8
that resulted in the immediate decision to discharge him. The further fact
that Emerson regarded May highly enough to call him in to work prior to the
opening of the mill for the 1951 season, is indicative of May's ability and of
Respondent's regard for him. The undersigned is therefore of the belief and
finds that this contention was an afterthought on the part of Respondent.
In its letter to the Regional Office, Respondent stated that May as well as
Hale wasted considerable time by talking at work. Emerson was unable to
recall if he had ever mentioned this to the men. Here too, and for the reasons
hereinabove set forth, it is found that this claim was an afterthought and not
the true reason for the discharges.
The log incident of June 8, on which Respondent basically relies, impresses the
undersigned as one which at best was of a trivial nature. It has been found
that Emerson instructed May on June 4 not to send up the large logs for several
days; May complied with the instruction and, after discussing the matter with
Reister on June 8, sent up the log on that date. Assuming that there was a mis-
interpretation by May of the statements by Emerson, it would not appear to
6 Hale's reference at the end of the conversation to his ability to find other employment
is to the undersigned indicative of a compulsive response by one who after 10 years of
employment deemed himself to have been unjustly and abruptly discharged for causes
which, as will hereinafter appear, were not the true causes for his discharge.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
follow in the normal course of events that the extreme penalty of discharge
would be visited upon an experienced employee who had been employed for the
second season after a presumably satisfactory record during the prior season.
This is all the more apparent when consideration is given to the factor that
Emerson had admittedly not given any instructions to Hale relative to large
logs and yet decided to discharge Hale at the same time and for the same reason.
This serves only to strengthen the view that search must be made elsewhere
to ascertain the true motive for May's discharge.
Turning to the case of Hale, here as well Emerson introduced various causes
for the discharge. It has heretofore been found that the purported talking by
Hale and May was not an operative factor in the decision to discharge them on
June 8.
Emerson further presented testimony to the effect that Hale had been guilty
of a dereliction of duty by spilling a load of lumber in the yard and not picking
it up ; that the lumber remained there for several months ; and that it ultimately
had to be sold as lower grade lumber at a financial loss. Further testimony by
Emerson disclosed that this incident took place approximately 1 week before
Hale was terminated on June 8 and that the decision to keep the lumber exposed
to the elements was perforce that of Emerson. Furthermore, the loss in ques-
tion appears to have totaled approximately $9. Not only is there no evidence
that Hale was reprimanded as a result of this incident, but, furthermore, this
was not an operative factor in the decision to terminate him on June 8.
Emerson presented other testimony to the effect that at different times he
had asked Hale to do various jobs, but that Hale proceeded to do something else.
He added that this condition existed for 2 or 3 months prior to his termination.
Totally aside from the fact that this would indicate that Hale had considerable
work to do, this evidence is otherwise unimpressive. The alleged condition
existed for several months; there is no evidence that Hale, an employee of 10
years' tenure, received any warning ; and, as has been found, this was not a
reason for the decision to terminate him.
Turning to the incident of June 8, it is clear that Respondent demonstrated
a fixed determination to eliminate Hale from its employ. It will be recalled
that Emerson discharged Hale because he had assisted May in raising the large
log. When Hale pointed out that he had never received any instructions to
refrain from raising the large log, Emerson did not dispute this ; he admitted
at the hearing that he had not so instructed Hale. At this point, what the
undersigned believe to have been the actual operative factor on the part of
Emerson came into play. Emerson significantly stated that Hale was very
close to May. When Hale attempted to get Emerson to admit that his work
was satisfactory, Emerson in large measure agreed with him and could point
only to Hale's failure to cover certain lumber, the fault for which was not that
of Hale, but was due to a shortage of covers.
The reference to Hale's friendship and closeness to May assumes added sig-
nificance when attention is paid to the statements made by Emerson to May at
the time of his discharge several minutes earlier when Emerson accused May of
"pulling too many little deals around here." The facts present herein impel
the conclusion that Emerson by the foregoing statement was referring to May's
union activities. And when attention is paid to the union campaign, it is
apparent that May was notably prominent therein. It was he who first inter-
ested Union Representative Luscher in Respondent's mill; it was May whom
Luscher visited at the plant to the knowledge of Emerson ; it was May who
distributed and collected the union cards given him by Luscher which were later
G. W. EMERSON LUMBER COMPANY 1059
picked up at the plant by the latter ; and it was May who served as a union
observer at the election of May 25. Moreover, Emerson admitted that he knew
May had engaged in union activities at the plant prior to his discharge.
Although lie also testified that he was uncertain whether Hale was so engaged,
his statement in discharging Hale on June 8 that Hale was very close to May
demonstrates that lie had decided Hale was so engaged.
Although Emerson contended that he feared Reister would not stay with his
job, and the record demonstrates that Reister was not happy in the position, the
undersigned does not believe, under all the circumstances, that this was the
motivating factor behind the discharges.
Under all the foregoing circumstances, the union activities of the complainants
within the cognizance of Respondent, the lack of substance to the reason ad-
vanced by Respondent for the discharges, and the tenure of the employees
involved, the undersigned is convinced and finds that the reasons assigned by
Respondent for the termination of May and Hale are not the true reasons and
that Respondent discharged them on June 8 because of their activities in behalf
of the Union. It is further found that by such conduct Respondent had dis-
criminated with regard to their employment in order to discourage membership
in a labor organization and has thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7 of the Act.
N. L. R. B. v. Smith Victory Corp., 190 F. 2d 56 (C. A. 2) ; N. L. R. B. v Con-
denser Corp, 128 F. 2d 67 (C. A. 3) ; Romboro Cotton Mills, 97 NLRB 1359; and
Mathews Lumber Co., Inc., 96 NLRB 322.°
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 the operations of 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 Respondent has engaged in certain unfair labor practices,
the undersigned will 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 sponsored and interefered with the
formation of a labor organization in the form of an employee committee. Al-
though said organization appears to be dormant at the present time, neverthe-
less, it will be recommended that Respondent withdraw all recognition from
this committee until said organization is certified by the Board.
It has also been found that Respondent has discriminated with respect to
the employment of Norman May and Robert Hale on June 8, 1951. However, on
September 25, 1951, Respondent wrote to each of them and, after denying the
commission of any unfair labor practices and declining to reinstate them with
back pay, went on to state ". . . we are willing to offer you reinstatement to
3 our former position at the current rate of pay for that position. Since it is
I The offer of 2 hours ' additional work on June 8 to Hale was obviously not an offer
of reinstatement to his previous position . It may also be noted that even if Hale did quit
on June 8, although the undersigned is convinced and has found that he was actually
discharged , it would follow under the circumstances present in the case that he was
constructively discharged . See Olin Indu8trie8, Inc., 97 NLRB 130, enfd . 192 F. 2d 799
( C. A. 5), cert. denied April 7 , 1952, and Saxe-Glassman Shoe Corp ., 97 NLRB 332.
242305- 53- 68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary for us to have some positive means of (sic) plan our operations
and with due respect to your successor so that we may advise him of his tenure,
we request that you respond to this letter on or before Tuesday, October 9, 1951."
Neither May nor Hale has replied to this communication or contacted Respond-
ent with respect to reinstatement and there is no evidence that the respective
rates of pay for these positions changed after June 8.
The testimony of Hale disclosed that the receipt of this letter from Respondent
engendered considerable confusion in his mind as to his rights in the matter;
it may reasonably be inferred from his testimony that he was under the im-
pression that a return to work might well constitute an abandonment or waiver
of the back pay he had lost. Accordingly, under the special circumstances
present herein, and in order to best effectuate the purposes of the Act, the un-
dersigned will further recommend that Respondent offer reinstatement to their
former or substantially equivalent positions to May and Hale, without preju-
dice to their 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.
It will further be recommended that Respondent make them whole for any loss
of pay suffered by reason of the discrimination against them. Said loss of
pay, based upon earnings which each would normally have earned from the date
of discrimination to the date when Respondent offered them reinstatement,
September 25, 1951, less net earnings, shall be computed on a quarterly calendar
basis in accordance with the formula adopted by the Board in F. W. Woolworth
Co., 90 NLRB 289. See Crossett Lumber Company, 8 NLRB 440.
The nature of the unfair labor practices found herein warrants an inference
that the commission of other unfair labor practices may be anticipated. It will
therefore be recommended that Respondent cease and desist from in any manner
infringing upon the rights guaranteed its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. North Idaho-Eastern Washington District Council of Lumber and Saw-
mill Workers, AFL, affiliated with United Brotherhood of Carpenters and
Joiners of America, AFL, is a labor organization within the meaning of Section
2 (5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of
Norman May and Robert Hale, thereby discouraging membership in a labor
organization, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. By sponsoring and interfering with the formation of a labor organization,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]