San Juan Lumber Co.

National Labor Relations Board - Board Decisions

Sep 13, 1965

154 N.L.R.B. 1153 (N.L.R.B. 1965)

SAN JUAN LUMBER COMPANY 1153
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage or otherwise discriminate against our employees for
engaging in concerted activities for the purpose of mutual aid or protection.
WE WILL NOT maintain in effect any rule which prohibits solicitation of union
membership on company property during nonworking time or which prohibits
our employees, when they are are on nonworking time, from distributing hand-
bills or other literature or petitions on behalf of any labor organization in non-
working areas of our property.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the rights guaranteed in Section 7 of the Act.
WE WILL offer to William W. Helson immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights or privileges previously enjoyed, and will make him whole for any
loss he may have suffered by reason of our discrimination against him.
G & W ELECTRIC SPECIALTY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee, if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room 881,
U. S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago,
Illinois, Telephone No. 828-7572, if they have any question concerning this notice
or compliance with its provisions.
San Juan Lumber Company and Lumber and Sawmill Workers,
Local Union No . 2924, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Case No. 36-CA-1336. Sep-
tember 13,1965
DECISION AND ORDER
On February 24, 1965, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the General Counsel and Respondent filed exceptions
to the Trial Examiner's Decision and supporting briefs. The Charg-
ing Union filed a brief in support of the Trial Examiner's Decision.
The National Labor Relations 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 Trial Examiner's Decision, the exceptions, the briefs,
154 NLRB No. 87.
206-446-66-vol 154-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the follow-
ing modifications and additions.'
As found by the Trial Examiner, the collective-bargaining contract
in effect between Respondent and the Union at the time of the events
involved in this proceeding contained interrelated provisions estab-
lishing a grievance procedure and proscribing strikes and lockouts.2
It is apparent from an examination of these provisions that the right
of the employees to resort to strike action was not forfeited entirely by
the parties' contract. Rather, the effect of these provisions was to defer
the exercise of the right to strike, upon the occasion of any dispute,
until opportunity should be afforded for settlement of the dispute
through the grievance procedure, and mediation if necessary. It is
also apparent that the contractual grievance procedure was limited in
its application to disputes relating to the "operation" of the agreement
or its respective provisions. The contract's provisions relating to
wages,3 except for certain provisions relating to their modification,
do no more than specify a minimum rate for workers in all depart-
ments. There are no contractual provisions governing the time, man-
ner, or method of making wage payments. State statutes generally, as
is the case here, specify minimum requirements or standards respect-
ing such matters. We find, therefore, that here there was no dispute
cognizable under the contract's grievance provisions relating to the
"operation of [the] agreement or any article thereof." It follows that
the employees' right to strike was not deferred by the no-strike provi-
sion, and that the employees' resort to strike action Was not in conflict
with that provision. Hence we find, for this reason, that the protection
accorded the employees' strike activity by the National Labor Rela-
tions Act, as amended, was not forfeited by the existence of the no-
strike provision.
'The Respondent 's request for oral argument is hereby denied as , in our opinion, the
record, including the exceptions and briefs , adequately presents the issues and the posi-
tions of the parties.
3 Article X , "Grievances", and article XI, "Strikes and Lockouts ." These are set forth
in some detail in the Trial Examiner's Decision . The provisions particularly applicable
herein provide:
Article X-Grievances
In the event that any employee or group of employees have any grievances with
respect to the operation of this agreement or any article thereof, such grievance shall
be reduced to writing and shall be signed by the party or parties aggrieved, and
shall be presented to the management in writing . . .
Article XI-Strikes and Lockouts
During the life of this agreement , no strikes shall be considered or sanctioned by
the Union, or any of its members and no lockouts shall be ordered by the Employer
until every peaceful method of settlement of the difficulty shall have been tried, . . .
[Emphasis supplied.]
3 Essentially , all pertinent provisions are contained in article XII entitled "Wage
Rates." An additional provision , permitting cancellation of the wage provision by either
party upon 60 days ' notice, appears in article XIII, "Term of Agreement."
SAN JUAN LUMBER COMPANY 1155
However, even assuming that the grievance related to the "operation
of the agreement," we would nevertheless find, in agreement with the
Trial Examiner, that the Respondent's failure to issue paychecks cov-
ered by sufficient funds was a material breach of the Respondent's basic
and fundamental obligation to pay agreed-upon wages when due, of a
character sufficient to excuse the employees' resort to strike action in
disregard of the contractual grievance and no-strike provisions.
Moreover, we are persuaded that, prior to the strike, the Union had
satisfied the requirement of processing the employees' complaint
through the grievance procedure, even if applicable. Thus, the record
shows, and the Trial Examiner found, that because of employee dis-
satisfaction arising from previous instances of dishonored paychecks,
the matter had been discussed by employees at union meetings and the
Union, on March 30, 1964, had sent a letter to Respondent complaining
of its pay practices and requesting that they be remedied. To this the
Respondent replied by letter, accepting the complaint, and giving
assurance that it had "every reason to believe" that past "inconven-
iences" were being corrected. Having thus brought the matter to the
Respondent's attention and received its assurances that there would be
no recurrence of these incidents, there was nothing further the Union
could do under the grievance procedure. As the Union had thus in
effect exhausted the grievance procedure, we find for this further rea-
son that the employees' strike action was not in breach of the contrac-
tual no-strike clause.
Accordingly, we conclude, in agreement with the Trial Examiner,
that by discharging employees Majors, Elliott, Palmer, Ewing, and
Buxton because they had engaged in protected concerted and union
activity, the Respondent violated Section 8(a) (3) and (1) of the Act.
However, even if the discharges were referrable only to the employees'
concerted activities, such activities, we find, are nonetheless protected
by Section 7 of the Act and the discharges therefore violative of Sec-
tion 8 (a) (1). Whether the Respondent's conduct be deemed in viola-
tion of Section 8 (a) (3) or of 8 (a) (1), or of both, the remedy in any
event would be the same.4
The Trial Examiner recommended, inter alia, that the Respondent
be ordered to cease and desist from in any other manner interfering
with, restraining, or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act. As we are not persuaded that the
Respondent's conduct reveals an attitude of general opposition to the
purposes of the Act, such as to justify so broad an order, we shall only
order the Respondent to cease and desist from engaging in the viola-
tion found, and from in any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights guar-
anteed in Section 7 of the Act.
' N.L.R.B. v. Washington Aluminum Company , Inc., 370 U.S. 9.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, San Juan Lumber Company,
John Day, Orrgon, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order,
as so modified.
1. Amend paragraph 1(a) of the Recommended Order to read as
follows :
"(a) Discouraging membership of any of its employees in Lumber
and Sawmill Workers, Local Union No. 2924, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, or any other labor
organization of its employees, by discharging employees for engaging
in protected concerted activity, or in any like or related manner dis-
criminating against any employee in regard to his hire or tenure of
employment, or any term or condition of employment, except as
authorized in Section 8(a) (3) of the Act, as amended."
2. Amend paragraph 1(b) of the Recommended Order to read as
follows :
"(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, or to engage in concerted activities for the
purpose of collective bargaining or any other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that
such rights 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, as amended."
3. Add the following paragraph as paragraph 2(b) of the Recom-
mended Order, the present paragraph 2(b) and those subsequent
thereto being consecutively relettered :
"(b) Notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces."
4. Amend the first indented paragraph of the Appendix 5 to read
as follows :
WE WILL NOT discourage membership in Lumber and Sawmill
Workers, Local Union No. 2924, United Brotherhood of Carpen-
s The telephone number for Subregion 31, appearing at the bottom of the Appendix at-
tached to the Trial Examiner 's Decision, is amended to read: Telephone No 226-3361,
Extension 1431.
SAN JUAN LUMBER COMPANY 1157
ters and Joiners of America, AFL-CIO, or any other labor organi-
zation of our employees, by discharging employees for engaging
in protected concerted activity, or in any like or related manner
discriminate against any individual in regard to his hire, tenure
of employment, or any term or condition of employment, except as
authorized in Section 8(a) (3) of the Act, as amended.
5. Amend the third indented paragraph of the Appendix to read as
follows :
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 labor organizations, to join or assist the
above-named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, or to engage
in other concerted activities for the purpose of collective bargain-
ing or other mutual air or protection, or to ref rain from any or all
such activities, except to the extent that such rights 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, as amended.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding with all parties represented was heard before Trial Examiner Louis
S. Penfield in Canyon City, Oregon, on December 1, 1964, upon a complaint of the
General Counsel and answer of San Juan Lumber Company, herein called Respond-
ent.' The issues litigated were whether Respondent violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, herein called the Act. Upon the
entire record, including consideration of briefs filed by the parties, and upon my
observation of the witnesses, I hereby make the following.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
San Juan Lumber Company is a Colorado corporation engaged in the business of
manufacturing, selling, and distributing lumber, with plants located at Pagosa Springs,
Colorado, and John Day, Oregon. Respondent's plant located at John Day, Oregon,
is the only one involved in this proceeding. During its past fiscal year Respondent
manufactured, sold, and shipped products from its John Day plant valued in excess
of $50,000 to points located outside the State of Oregon. I find that at all times mate-
rial herein Respondent has been engaged in a business affecting commerce within the
meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdic-
tion in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Lumber and Sawmill Workers, Local Union No. 2924, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, herein called the Union, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
'The complaint issued on October 15, 1964, and is based upon a charge and amended
charge filed with the National Labor Relations Board, herein called the Board, on June 5
and October 9, 1964, respectively. Copies of the complaint, the charge, and amended
charge have been duly served upon Respondent.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. The background
The General Counsel charges that Respondent discharged five-named individuals
for concertedly leaving their jobs to protest a wage payment problem, thereby violat-
ing Section 8(a)(1) and (3) of the Act. Respondent defends by claiming that the
employees left their jobs under circumstances not protected by the statute, and that it
lawfully discharged them for doing so.
The incidents pertinent to this proceeding took place at Respondent's sawmill in
John Day, a small town located in central Oregon. Respondent operated this mill
using two shifts, one working from 7 a.m. to 4 p.m., and a second working from
5 p.m. to 2 a.m. It employed between 20 and 30 persons on each shift. L. L. Meyers
was the general manager in charge of the John Day operation, Bud Weaver was the
plant superintendent, and Charles B. Talbot was the plant foreman. All three are
supervisors within the meaning of the Act.
At all times material to this proceeding, Respondent and Union were parties to a
collective-bargaining agreement covering the production and maintenance employees
at the John Day sawmill. In addition to provisions covering wages and hours, the
agreement contained union-shop, grievance, and no-strike no-lockout clauses. Article
X, the giievance clause, in relevant part provided:
In the event that any employee or group of employees have any grievances with
respect to the operation of this agieement or any article thereof . . . "(the griev-
ance should be presented in a manner described and if a settlement were not
reached then)" the matter shall be handled in the same manner as set out in
Article XI-Strikes and Lockout of this agreement.
Article XI is entitled "Strikes and Lockouts," and in pertinent part provided-
During the life of this agreement, no strike shall be considered or sanctioned by
the Union, or any of its members, and no lockout shall be ordered by the
Employer until every peaceful method of settlement of the difficulty shall have
been tried, and the period of time specified in Section 8 of the Labor Management
Relations Act, 1947, has expired. In case a strike is called by the Union or a lock-
out is announced by the Employer, after exhausting all methods of settlement con-
tained in Article X hereof, then before each strike or lockout shall become effec-
tive, a Conciliator of the Federal Mediation and Conciliation Service shall be
called in, and no strike or lockout shall be made effective or put into operation
until said Conciliator of the Federal Mediation and Conciliation Service has
completed his review of the matter and made his written report thereon to the
parties hereto, or within 72 hours after completion of said review should the
Conciliator fail or refuse to submit a written report.
While the contract sets forth agreed-upon wage rates, it contains no express provi-
sions as to the manner or times of payment of the wages due. Respondent's uniform
practice was to pay wages by check on the 10th and 25th of each month. These checks
were prepared and ready for the employees by 3 p in., and were normally picked up
by the employees between 3 and 6 p.m. on the semimonthly paydays. The checks
were drawn on a local bank, and local banking hours were 10 a.m. to 3 p.m. except
for Fridays when the bank remained open to the public until 5 p.m. When a regular
payday fell on a Saturday or a Sunday, the checks were given on the preceding Friday.
Some employees would deposit their checks to their own accounts on the same or the
day following receipt of the checks. Others undertook to cash their checks immedi-
ately upon receipt either at the bank, if open, or, if not, with local merchants who
would accommodate them.
The alleged unlawful discharges occurred on May 26, 1964, and resulted in the ter-
minations of the following named employees: Leroy Buxton, Larry K. Deming, Wil-
liam Elliott, Herbert M. Majors, and Thomas H. Palmer.
B. The dishonored paychecks
By May 25, 1964, the failure of Respondent to have funds available to cover issued
paychecks on all occasions had become a persistent and aggravating problem to the
employees. Respondent acknowledges that "off and on probably for a year" before this
there had been instances where employees had been unable to cash their checks imme-
SAN JUAN LUMBER COMPANY 1159
diately after receiving them, because there had been insufficient funds available in
Respondent's account at the bank.2 The exact times of such occurrences is not shown,
but it is the undisputed testimony of two employees that paychecks covered by insuf-
ficient funds had issued on at least half of the paydays during the first 5 months of
1964. In each instance the funds had eventually become available and had been
received by the employees. There is no precise evidence in this record to show, in
any instance, the exact time lapse between issuance of the checks and Respondent's
subsequent deposit of funds to cover them. Apparently this period would vary from
a matter of hours to several days. Employee Elliott testified that the time lapse
varied, but stated that "usually on the third day I could get it cashed." In the absence
of more precise evidence, I assume this to represent the situation with reasonable
accuracy.8
Understandably this persistent paycheck problem was the cause of considerable
discussion and dissatisfaction among the employces.4 Early in 1964, the matter was
considered at regular union meetings, and finally at a meeting held on March 28,
1964, the members voted that the Union should write a letter to management pro-
testing the repeated occurrences of dishonorable checks. A letter dated March 30,
1964, signed by the president of the Local and the recording secretary, was also sent
to Respondent and reads as follows:
We have been ordered by the members of Local Union #2924 by a unanimous
vote at the regular March 28, 1964 meeting, to request that the Company have
money in the Grant County Bank covering payroll checks when they are issued.
The present system is creating too much of a hardship on the employees.
We would appreciate your cooperation in this matter and would also like to
have your early reply on the matter.
Respondent General Manager Meyers responded to this letter by a letter dated April 8,
1964, which reads as follows.
Reference to your letter of March 30, 1964, Payroll Checks.
After somewhat lengthy discussion with Mr. Ron Hudspeth,1 am of the opinion
that our current financial status is improving, and I have every reason to believe
that proper steps are being taken to correct the inconveniences which we have
had in the past.
I do wish to state that this Company appreciates your attitude reflected in the
above letter.
2 Payment of wages by a check that is not negotiable or is not covered by sufficient
funds at the bank is a violation of the statutes of the State of Oregon. Oregon Revised
Statutes, Section 652 110, reads as follows: "No person engaged in any business or enter-
prise of any kind in this State shall issue in payment of or as evidence of indebtedness
for wages due employees, any order, check, memorandum, or other acknowledgement of
indebtedness, unless the same is negotiable, and is payable without discount in cash on
demand at some bank or other established place of business in the county where the
same is issued, and where a sufficient amount of funds has been provided and are or
will be available for payment of such order, check or other acknowledgement of indebted-
ness when due."
s There is also testimony by employee Majors and documentary evidence in the form
of canceled checks issued to both Elliott and Majors in 1964 which purport to treat with
the time lapse and the variances. I find none of this evidence definitive on the question,
and no purpose to be served by further discussion of it since I do not regard the time
lapse as an issue of significance. The significant uncontroverted fact is that with con-
siderable frequency Respondent issued checks that remained not covered by sufficient
funds for periods of hours or days. This, regardless of the length of time, subjected
the employees to delays in getting the wages they had earned in a form usable for their
economic needs.
4Both Majors and Elliott testified as to the obvious hardships late payments brought
about. On one occasion Majors stated he had sent out checks to meet his own obliga-
tions , anticipating that they would not be presented until his account was credited with
the amount of his paycheck. It developed that this was a time when Respondent's
paycheck was dishonored, and when the amount was not credited to Majors own account
he had insufficient funds to cover the checks he had issued. The bank honored his
checks but made a penalty charge against Majors for its accommodation.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to the May 25 payday, which will be discussed below, there were three other
paydays which followed the assurances set forth in Respondent's letter. According to
the uncontradicted testimony of employee Majors, on one of them Respondent again
issued him a check which the bank would not honor when presented. Presumably,
other employees experienced similar difficulties on this occasion
C The work stoppage and the walkout on May 25, 1964
May 25, 1964, was a regular payday At 3 p in , the checks were available as usual
at the truck shed, and night-shift employees who did not go to work until 5 p m. com-
menced picking them up. Employee Bill Elliott states that he picked up his check on
that date shortly after 3 o'clock and, accompanied by another employee, immediately
took it to a grocery store known as Food Center. Both he and the other employee
attempted to cash their checks at Food Center, but were turned down for reasons
which do not appear in the record. They then went to the bank but found it was closed
to the public. Then they proceeded to Chester's Market, another local grocery store
They met five or six other employees of Respondent there also seeking to cash their
paychecks. The store owner was willing to accommodate them, and in their presence
called the bank to "find out if they had sufficient funds to cover the checks." After
completing the call, he advised the employees that he could not cash any of their
paychecks because no funds were available to cover them.
Between 4.30 and 5 p m., a number of the night-shift employees, including some who
had unsuccessfully attempted to cash their checks at the grocery stores, gathered in the
smokehouse on Respondent's premises Among the 10 or 12 present was employee;
Herbert M Majors who had picked up his check during the afternoon, but who had
not attempted to cash it since it was his practice to deposit his check at the bank,
and the bank was not then open General discussion ensued among the employ-
ees present at the smokehouse, and it centered on the difficulty that they had expe-
rienced in cashing their checks both that day and before According to Maiors,
this discussion was spontaneous with no particular employee taking the lead. How-
ever, a general consensus was reached among those present that they had had enough,
and should not work again until the checks were made good. No vote was taken or for-
malized decision reached, and it is not clear how or in what manner the consensus
of this group reached others on the shift. Nevertheless, by the time the 5 o'clock
whistle blew, only a portion of the employees on the shift were manning their work
stations. Night-Shift Leadman Osburne observed this, and decided that it would not
be appropriate to start up the machinery. No one went to work, and Osburne imme-
diately left the mill to report the matter to Foreman Talbot In the meantime the
entire crew stood around in groups discussing the check problem. Many, though not
all, agreed that they should not return to work until the checks were made good
One of the employees telephoned Ed Howard, president of the Union, at his home
and apprised him of what was taking place. Osburne located Talbot and told him
that some of the men "won't go to work on account of their checks not being good "
This was the first knowledge that Talbot or any other employer official received of
the possibility of a work stoppage for any reason. Talbot returned with Osburne
to the mill, arriving about 5:15 He observed that the men were standing around in
groups talking He asked about the trouble, and Majors responded "that they weren't
going to work, that their checks were no good." Talbot replied, "Well there is noth-
ing I can do about the checks. So you men that aren't going to work punch out."
Majors, Elliott, Palmer, Deming, and Buxton thereupon started walking in the direc-
tion of the time shack. A few others started to follow but turned back. Talbot then
undertook to get the mill running. With some doubling up of duties and curtailment
of part of the operations he was successful in getting it started within 5 minutes.
Later he recruited additional employees to fill in and the shift ran to completion.
The five men met Union President Howard on their way to the time shack. Howard
expressed some surprise at seeing so few of the men refusing to work, and it was
explained to him that the others had gone back on the job rather than walk out but
that the five wished to carry on with their protest. Howard suggested to them, May
be you guys better-may be you should go back " Majors replied that "The way [he]
felt right then," he would rather not, but that he "would be back the next day."
s Elliott testified that he had not learned that the men were planning a work stoppage
until he reported for work just when the 5 o'clock whistle blew. Elliott learned from
the discussion with the men standing around that it appeared to be the view of most
of the crew that they were not going to work because the checks were not good He
states that this "sounded all right to [him]" and that he went along with the rest of
the men.
SAN JUAN LUMBER COMPANY 1161
Shortly thereafter, the five men punched out. Howard proceeded to the mill and saw
Talbot. According to Talbot, he explained to Howard that he had told the men to
punch out if they wouldn't work, and Howard replied, "Well, we don't go for that.
I'll have to talk to them " Howard again spoke to the five employees before they left
the plant, and, according to Majors, told them that after talking with Talbot he be-
lieved that "probably everything would be all right," that they should go home and
report back to work at the regular time on the next day.
On the following day, May 26, Majors came to the plant between 9 and 10 a m. At
that time, he talked with Plant Superintendent Weaver who told him that as far as he
knew, nobody had been fired, and that the men "could come back to work tonight."
Majors then proceeded to the bank where he successfuly cashed his paycheck How-
ever, when Majors and the other four employees reported to work for the night shift
that afternoon, each was given a termination slip signed by Talbot reading that he
"wouldn't go to work after puching in on May 25, 1964, when the starting whistle blew
at 5 o'clock because according to him his check was no good."
Immediately after receiving their termination slips, the employees visited Howard
to see if the Union could assist them in getting reinstated. Howard arranged a meet-
ing with General Manager Meyers for the following day. Howard and the five dis-
charged employees met with Meyers at this time and protested that they had been
unjustly discharged. Meyers replied that the men had been fired because they refused
to go to work, and that he had directed the discharges only after consulting with Ron
Hudspeth, owner of Respondent. Meyers stated he could not reverse the decision, but
he did agree to call Hudspeth by telephone to see if he would reconsider the matter.
Sometime after the meeting, Meyers advised Howard that Hudspeth was standing by
the original decision, and that the terminations stood
Howard then communicated about the matter with Clair Morris, representative of
the Central Oregon District Council of the Lumber and Sawmill Workers Union. A
meeting was thereafter arranged with management and held on June 2, 1964. Morris,
Howard, and Earl Hartley, executive secretary of the Western Council of the Union,
represented the Union at this meeting. Owner Hudspeth as well as Meyers represented
Respondent The union representatives made every effort to induce Respondent to
reinstate the five discharged employees. Hudspeth, however, refused to do so. It
was following this meeting that the charges in the instant case were filed.
D. Discussion of the issues and concluding findings
The persistent and continuing failures of Respondent to have sufficient funds avail-
able to cover checks issued for wages stands unrefuted. Neither the General Counsel
nor Respondent called bank officials as witnesses, or offered other probative evidence,
to establish the exact dates of each failure, or to establish its duration. Nevertheless,
the evidence is undisputed that the problem had existed for over a year, that failures
had occurred on 50 percent or more of the paydays in the first 5 months of 1964, and
that one or more days frequently elapsed before the checks were covered.
Respondent, although not refuting its past derelictions, suggests in its brief that the
checks on paydays after April 10, 1964, were honored when piesented at the bank the
first time it was open to the public after issuance. Respondent is apparently asserting
that at least from this time on it was fulfilling its obligations, claiming that checks
were properly payable at the bank and not at the local merchants.° From this record
it cannot be determined with exactness if in fact this was true. On the contrary the
undisputed testimony of Majors would indicate that during this period on at least one
payday prior to May 25 the bank had not honored his paycheck. However, I regard
the point as irrelevant for Respondent does not show that on any of these paydays
the checks were good when issued The paychecks were not promises to pay in the
future, but were orders to pay on demand purporting to be immediately negotiable.
Where such checks could not be immediately negotiated because Respondent did not
have sufficient funds in its account, Respondent had not only failed in its obligation to
its employees but had acted in violation of the Oregon statute above quoted.
Respondent offered no evidence to show that May 25 was not another of its failures
to have sufficient funds. Although it appears that by the following day some of the
checks at least were being honored, the record does not establish when funds first
became available after issuance. It is uncontradicted that employees attempting to
cash checks shortly after their issuance on this day were denied payment when a
6 Elliot's undisputed testimony is that regularly he and other employees cashed their
checks with local merchants when the banks were not open , and that the merchants
invariably were willing to accommodate them when they could obtain direct assurances
from the bank that funds were available, but that when they ascertained that the checks
were not covered the accommodation was refused.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merchant had learned from the bank that funds were not available. Later when
confronted with a work stoppage and a walkout solely because the checks were not
good, neither Talbot nor any other official of Respondent made any representation
that the checks were by then good. These facts, coupled with the failure of Respond-
ent to offer any affirmative evidence to the contrary make it reasonable to inter, and
I find, that on May 25 Respondent once again had failed to meet its obligation to have
sufficient funds to cover the paychecks when issued. The employees when they
walked out were not advised that funds had become available, and reasonably con-
cluded that the checks were still not good at that time
We thus approach the ultimate issue with the case in the following posture • Fol-
lowing a short work stoppage of the whole night shift to protest the issuance of
noncashable checks, five men leave their jobs in furtherance of the same grievance.
They are discharged for doing this There can be no doubt, and 1 do not understand
Respondent even to claim otherwise, that the walkout represented not only a form
of concerted activity, but that it was undertaken for the lawful objective of seeking
to remedy an unsatisfactory working condition Concerted activity for such an
objective would normally be protected, and the dischaige of those participating in it
would be unlawful? Respondent urges, however, that circumstances are present
here which strip this conduct of its protected character and thus make the discharges
permissible. It is claimed that the employees engaged in a so-called wildcat strike
and also acted in derogation of a no-strike clause in the collective-bargaining con-
tract, and that either circumstance suffices to characterize the activity as unprotected,
and to justify Respondent's action. The General Counsel and the Charging Party
deny that within accepted Board and court doctrine there was a wildcat strike, and
argue further that the conduct either fell outside the scope of the no-strike clause, or
occurred in a context that entitled the employees to disregard it
Employees engaging in strikes or other concerted activities may lose the protection
of the Act for a variety of reasons. Generally these reasons are related either to the
object of their action or to the manner in which it is conducted. Participation in a
so-called wildcat strike,8 or a strike in breach of a contractual obligation such as a
a no-strike clause,9 are each circumstances which may result in the forfeiture of
otherwise protected rights. These doctrines, however, do not have unlimited appli-
cation and we must consider them as they relate to the facts before us.
Respondent strongly urges that the doctrine of the Draper and Plasti-Line cases,
footnote 8, supra, is controlling in the disposition of the instant case In each of
these cases a minority of the employees had taken strike action in direct defiance of
positions theretofore taken by their bargaining representatives. Both courts held
such conduct to render the walkouts unprotected, and held that the employees who
participated in them thereby lost their rights to reinstatement. The rationale which
supports both decisions is to be found in the following language from the Draper
case wherein the court stated (at 203) :
It is perfectly clear not only that the "wild cat" strike is a particularly harmful
and demoralizing form of industrial strife and unrest, the necessary effect
of which is to burden and obstruct commerce, but also that it is necessarily
destructive of that collective bargaining which it is the purpose of the Act to
promote. Even though the majority of the employees in an industry may have
selected their bargaining agent and the agent may have been recognized by the
employer, there can be no effective bargaining if small groups of employees are
at liberty to ignore the bargaining agency thus set up, take particular matters
into their own hands and deal independently with the employer. The whole
purpose of the Act is to give to the employees as a whole, through action of a
majority, the right to bargain with the employer with respect to such matters as
wages, hours, and conditions of work.
Minority groups must acquiesce in the action of the majority and the bargain-
ing agent they have chosen; and, just as a minority has no right to enter into
7 Gordon-Ladley Plywood Products Company, 118 NLRB 1.
For the doctrine that employees forfeit their protected rights by participation in a
wildcat strike see N L R B. v Draper Corporation, 145 F 2d 199 (C A. 4) ; Harnesehfcger
Corporation v. N.L.R.B., 207 F. 2d 575 (C.A. 7) ; N.L R B. v. American Manufacturing
Company of Texas, 203 F. 2d 212 (C A 5) , Plasti -Line, Inc. and Harry W Brooks, etc,
d/b/a Sign Fabricators v. N.L.R B., 278 F 2d 482 ( C.A 6).
9 For the doctrine that employees striking in breach of contract forfeit their otherwise
protected rights see N .L R B. v. Sands Manufacturing Co., 306 U S. 332 ; Joseph Dyson
& Son, Inc, 72 NLRB 445 ; Scullin Steel Company, 65 NLRB 1294.
SAN JUAN LUMBER COMPANY 1163
separate bargaining arrangements with the employer , so it has no right to take
independent action to interfere with the course of bargaining which is being
carried on by the duly authorized bargaining agent chosen by the majority.
The facts of the instant case, however, are sharply distinguishable from those in both
Draper and Plasti-Line . In each of those cases a minority group acted in derogation
of a position taken by its collective -bargaining representative , and engaged in conduct
diametrically opposed to aims the unions were seeking through the collective-
bargaining process. In the instant case , however, the Union at all times had been
supporting , and continued to support , the employee position . Earlier the Union had
lodged a formal complaint with Respondent on the very issue that precipitated the
walkout . This had been considered by Respondent in the nature of a grievance, and
Respondent had acknowledged the cause to be just and had represented that it was
seeking to remedy the situation . It was only when Respondent failed in these efforts,
and again dishonored checks, that the men took action on their own . It is true that
the action was spontaneous and undertaken without prior consultation with the Union
or prior warning to the Employer , but the Union was immediately advised of what
happened and came into the picture at once. At the most Union President Howard
mildly questioned the wisdom of the walkout , but he unhesitatingly gave it his full
support when he learned of the discharges . Not only did he support it himself, but
he notified and enlisted the support of the State council officials who joined with
him in pressing the matter to the utmost . Contrary to the situation in Draper and
Plasti-Line , the facts of the instant case more closely parallel those found in a case
recently decided by the United States Court of Appeals for the Fifth Circuit, N . L.R.B.
v. R. C. Can Company , 328 F. 2d 974. In that case a union had been
bargaining with an employer for a considerable period of time, but had reached the
conclusion that the employer was stalling it in its efforts to obtain an agreement. The
problem of what to do about it had been considered at a union meeting, and , although
the possibility of a strike was discussed , the general consensus was that there should
be no immediate walkout. : In spite of this, on the following day , a small group of
the employees discussed the matter further among themselves , and decided to take
job action to protest the employer 's stalling. These employees left their jobs and
established a picket line at the plant entrances . A union representative was there-
after notified and immediately came to the plant. He questioned the action of the
employees and suggested that they offer to return to work. They followed his advice
and unconditionally offered to return. It was respondent 's refusal to reinstate them
immediately that gave rise to the charge. In upholding a Board finding that the
conduct of these employees constituted protected concerted activity despite its
minority character , and despite the failure of the men to consult with their union
before taking it, the court stated:
There cannot be bargaining in any real sense if the employer has to deal with
individuals or splinter groups. And just as attempted negotiations with such
groups or individuals would make a mockery out of bargaining , so, too, must
bargaining negotiations by a single agency be kept free from divisive pressures
generated by dissident elements. On the other hand, a union is, or at least
should be, a democratic device. The very reason for its existence is the exist-
ence of its members and others for whom the law says it acts . Consequently, the
law should be slow to declare that members cannot speak effectively in behalf
of their own organization and the aims and objectives which it collectively
seeks to assert in their behalf . In these conflicting policies, there may be found
a basis for resolution : is the action of the individuals or a small group in criti-
cism of, or opposition to, the policies and actions theretofore taken by the
organization ? Or, to the contrary is it more nearly in support of the things
which the union is trying to accomplish ? If it is the former , then such divisive,
dissident action is not protected . [The Court then cites Draper, Plasti-Line,
and related cases. ] If, on the other hand, it seeks to generate support for and
acceptance of the demands put forth by the union, it is protected so long, of
course, as the means used do not involve a disagreement with, repudiation or
criticism of, a policy or decision previously taken by the union such as, for
example, a no -strike pledge , a cooling off period, or the like during negotiation.
The Union , as witness the handbill and the meeting called for that purpose, was
trying to get the Employer to sit down and talk. That, too, was the aim of these
men. Although it is true that at the Union meeting there was no vote to strike,
it is equally true there was no formal vote not to strike . In any event , the con-
sensus that the Union would not strike at the present time was not communi-
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cated to the Employer. In no sense could it have affected the Employer's
response to the picket line. And one thing seems quite clear. The moment Lee
learned of the action, he expressed a disappointment that the men had taken it.
But in no way did he repudiate it. To the contrary, he told the men their action
was protected, a position immediately corroborated by assisting in the prepa-
ration of the letters of unconditional application plus the telephone calls to
production manager Smith. To cap it all, there is not a single stitch of evidence
to indicate that this action put the Employer in any sort of quandry. It was
not put in the position of choosing between the demands of the Union and the
demands of these strikers.
In the instant case, as in the R. C. Can case, the action taken by the men was clearly
in support of a position already taken by the Union. Here too, although Howard
may have questioned their wisdom, we see him and the Union supporting the men
at all times. The rationale of Draper rests primarily on the proposition that minori-
ties must not be permitted to ignore their chosen representatives, and act in deroga-
tion of and contrary to their asserted aims. This is not the situation in the instant
case which comes close to R. C. Can on its facts, and the rationale of the court in
that case as set forth above is properly controlling here. Accordingly, I find that by
the walkout the five employees did not engage in a so-called wildcat strike, and did
not for this reason lose any protection which the Act would otherwise afford them.
Respondent next urges that the employees lost their protected rights because they
walked out in violation of the no-strike clause in the contract It has been noted
above that it is well established that employees who strike in derogation of no-strike
clause in an existing contract forfeit the protection of the Act.'° The no-strike
clause in the instant case is a broadly phrased one, and by its terms it purports to
cover action taken by either the Union or by the employees. The employees here
walked off the job without any steps being taken to comply with its terms, and this
would suffice to deprive them of the protection of the Act unless it can be shown
that the section had no application to a strike for this particular objective, or, assum-
ing it to be applicable, by a showing of circumstances which would excuse adher-
ence to it.
The General Counsel contends that the no-strike clause had no application to the
particular dispute because it was not a proper subject for a contract grievance. The
General Counsel notes that the contract contains no express provision regarding a
payday or the manner in which wages were to be paid. He urges that grievances are
described in the contract as relating "to the operation of this agreement," and that
since grievance provisions are normally the quid pro quo for a no-strike clause the
dispute herein does not relate to the operation of the agreement and is thus not
controlled by the no-strike clause. I regard this as an unduly narrow view of the
contract. The contract purports to cover wages, hours, and working conditions. It
is difficult to think of a matter more fundamental to its functions than the payment
of wages at certain times with legal tender or cashable checks. Absence of an express
provision concerning the details does not indicate lack of concern about the fact
of payment, but only an apparent intent to leave the mechanics of payment to the
discretion of management . The employer-employee relationship which the contract
purports to govern is solidly grounded in the regular payment of wages for work
done in a form that is economically usable. It is unthinkable that disputes over
anything so basic as the time or manner of payment would not fall within the defini-
tion of a dispute concerning the operation of the agreement. Moreover, I am satisfied
that both the union letter of March 30 and Respondent's response thereto indicated
that both looked to the dispute as a grievance coming under the contract and treated
it accordingly. Therefore, I reject the General Counsel's argument, and find the
dispute to be a grievance concerning a matter covered by the agreement and subject
to the no-strike clause in the contract.
If the no-strike clause be applicable we must next consider the justification, if any,
for excusing compliance with it Although no-strike clauses are a recognized limita-
tion of employee rights, in certain situations they do not impose a limitation that
is absolute It is well established that in instances where the employer itself has
engaged in unfair labor practices, it cannot avail itself of an existing no-strike clause
to penalize employees who engage in strikes or other concerted activities to protest
these unfair labor practices Mastro Plastics Corp., and French-American Reeds
Mfg. Co., Inc. v. N L R B, 350 U S. 270 Similarly, a strike to protest unsafe work-
ing conditions even in the face of an existing no-strike clause does not become an
10 See footnote 9, above.
SAN JUAN LUMBER COMPANY 1165
unprotected activity. Knight Morley Corp., 116 NLRB 140, enfd. 251 F. 2d 753
(C.A. 6), cert. denied 357 U.S. 927. Both Mastro Plastics and Knight Morley stand
for the proposition that an employer will be denied contract benefits that otherwise
would be his where he himself is found to have engaged in some form of unlawful
conduct which provoked the concerted activity. Unfair labor practices and the
hazardous conditions are both regarded as circumstances which have the effect of
excusing performance of a no-strike clause by the employees, essentially because the
employer, by his own conduct or misconduct, has provided the employees with rea-
sonable justification for disregarding an otherwise binding obligation.
In the instant case we do not find the Employer engaging in unfair labor practices
,or imposing hazardous physical conditions upon the employees, but his conduct
toward them is hardly defensible. For at least a year Respondent had been subjecting
the employees to the hardship of paychecks which could not be immediately cashed.
Even though it had later made funds available, the uncertainty, embarrassment, and
in some instances actual financial loss its failures had brought to the employees cannot
be minimized. These failures were not sporadic, but, as we have seen in the 5 months
immediately preceding the discharges they had occurred on 50 percent or more of
the paydays. The employees, far from acting in haste or in a rash manner, sought
first to remedy the problem through action of their bargaining representative. In
response to this complaint, Respondent had represented that steps were under way
to correct the "inconveniences." It was only when the same thing occurred for the
second time after this assurance that the patience of the employees gave way, and
they resorted to job action to support the position that the Union had already been
pressing on their behalf. The action taken was spontaneous upon the part of all,
and reached the point of walkout for only five of their number. This brought about
only a minimal disruption of Respondent's operation, and it was advised that even
these five were ready to return for their next regular shift. Nevertheless in the face
of this, Respondent retaliated by invoking the penalty of discharge against the five,
relying on its claim of a wildcat strike and, upon the no-strike clause, and not even
suggesting a compromise to the Union which was supporting their efforts to be
reinstated.
If the matter were to be determined on the basis of the equities alone, they fall
clearly with the employees. Respondent, however, relies on an alleged legal justifi-
cation which it would have prevail regardless of the equities . It urges that the
existing no-strike clause required that these employees remain on the job and not
engage in a strike "until every peaceful method of settlement of the difficulties shall
have been tried" and asserts that their failure to follow this course was fatal. I do
not agree. Respondent's justification turns on an issue of contract performance.
Essentially Respondent is asserting that the employees remained bound by the
no-strike clause even though their departure from it was to protest Respondent's own
failure to fulfill its own obligations under the same contract. It is not apparent,
however, why this situation is distinguishable in piinciple from those cases in which
an employer has subjected its employees to unfair labor practices or hazardous work-
ing conditions and they strike to protest them. Contract obligations are not to be
lightly disregarded. The contractual obligations between Respondent and the Union
were not unilateral, but were the mutual obligations of each. The Union agreed to
forego its otherwise existing right to strike in return for the Respondent 's obligation
to give the employees agreed-upon wages, hours, and working conditions. The whole
basis for this obligation, however, and indeed the very consideration for its having
been given, fails when the employer itself does not live up to its own undertaking.
Failure to pay the employees with checks covered by sufficient funds is at once a
violation of the statutes of the State of Oregon, and a material breach of one of the
most basic and fundamental obligations which Respondent had undertaken. It is a
basic tenet of contract law that breach of a material provision of the contract by
one party justifies nonperformance by the other.11 It is not necessary to decide if a
single failure of the nature found in this case would in all instances be regarded as a
material breach of Respondent's contract. Repeated failures, such as are shown by
the circumstances here, constitute an aggravated situation and establish a breach of
the most flagrant nature. Upon basic principles of contract law it must be regarded
"Restatement , Contracts, § 274:
In promises for an agreed exchange , any material failure of performance by one
party not justified by the conduct of the other , discharges the latter ' s duty to give
the agreed exchange even though the promise is not in terms conditional. An im-
material failure does not operate as such a discharge.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a material breach justifying 12 nonperformance of the no-strike clause by the-
employees and I so find. I further find that since Respondent's breach of contract
excuses performance of the no-strike clause by the employees, their concerted activity
in walking off the job to protest the bad checks is protected by the Act. Since
Respondent discharged these five employees because they engaged in concerted
activity and no circumstances are found that would cause such conduct to lose its
protected character, it follows that by so doing Respondent has discriminated against
them in violation of Section 8(a) (1) and (3) of the Act,13 and that by the same
conduct it has also interfered with, restrained, and coerced its employees in violation
of Section 8(a) (1) of the Act, and I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section III, above, occurring in connec-
tion 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 of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a) (1) and (3) of the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent has discriminately discharged Leroy Buxton, Larry
K. Deming, William Elliott, Herbert M. Majors, and Thomas H. Palmer, I shall rec-
ommend that Respondent be ordered to offer them immediate and full reinstatement
to their former or substantially equivalent positions, and make each whole for any
loss of earnings he may have suffered because of the discrimination against him, by
payment to each of a sum of money equal to the amount of wages he would have
earned from the date of his discrimination to the date of the offer of reinstatement,
together with interest thereon at the rate of 6 percent per annum, and that the loss of
pay and interest be computed in accordance with the formula and method prescribed
by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co , 138 NLRB 716, to which the parties hereto are expressly referred.
The unfair labor practices committed by Respondent strike at the heart of the rights
guaranteed employees by Section 7 of the Act.14 The inference is warranted that
Respondent maintains an attitude of opposition to the purposes of the Act with respect
to the protection of the employees in general. It will, accordingly, be recommended
that Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.15
Upon the basis of the foregoing findings of fact and upon the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. San Juan Lumber Company is, and has been at all material times , an employer
within the meaning of Section 2(2) of the Act.
2. Lumber and Sawmill Workers, Local Union No. 2924, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, is, and has been at all material times,
a labor organization within the meaning of Section 2(5) of the Act.
12 Although I have found no case in which the Board has held on a specific set of facts
that breach of a contract excuses performance of a no-strike clause by the union or the em-
ployees, the Board suggests such a result by the following language in the decision in
Mastro Plastics Corp., 103 NLRB 511: "The Board, under the Scullin-Dyson doctrine, has
held that economic strikes in violation of no-strike contract clauses are not protected
activity In both the Scullin and Dyson cases, however, the Board noted the absence of
any prior breach o f contract or unfair labor practice upon the part of the employer "
[Emphasis supplied.]
13 Respondent argues in Its brief that the record lacks evidence to show that it dis-
criminated against employees for their union activity. This argument would have validity
only if it be found that they had not engaged in protected concerted activity Having
found to the contrary, and further having found that the activity was in support of a
union objective, it follows that discharges for engaging in such conduct are violative of
both Section 8(a) (1) and (3).
14 N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
15 Retail Store Employees UnAon Local 880, AFL-CIO (May Department Stoics Co
v. N.L.R.B., 326 U.S 376, Bethlehem Steel Company v. N L.R B., 120 F 2d 641
(C A.D.C ).
SAN JUAN LUMBER COMPANY 1167
3. By discharging Leroy Buxton, Larry K. Denning, William Elliott, Herbert M.
Majors, and Thomas H. Palmer, as found above, Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act, as found above, 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.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this proceeding, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that Respondent, San Juan Lumber Com-
pany, its officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Discouraging membership of any of its employees in Lumber and Sawmill
Workers, Local Union No 2924, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, or any other labor organization of its employees by discharging
employees for engaging in protected concerted activity, or in any other manner dis-
criminating against any individual in regard to his hire or tenure of employment, or
any term or condition of employment, except as authorized in Section 8(a)(3) of the
Act.
(b) In any other manner interfering with, restraining, or coercing employees in the
exercise of their right to self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Offer to Leroy Buxton, Larry K. Denning, William Elliott, Herbert M. Majors,
and Thomas H. Palmer immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other rights and
privileges, and make each whole for any loss of pay he may have suffered by reason of
the discrimination against him in the manner provided above in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to an analysis
of the backpay due.
(c) Post at its usual place of business in John Day, Oregon, copies of the attached
notice marked "Appendix A." 1e Copies of said notice, to be furnished by the Regional
Director for Region 19 of the National Labor Relations Board, shall, after being
signed by Respondent, be posted by it immediately upon receipt thereof, and be
maintained by it for 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.
(d) Notify the Regional Director for Region 19, in writing, within 20 days from the
receipt by Respondent of a copy of this Decision, what steps Respondent has taken to
comply therewith.17
"In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
"In the event that this Recommended Order is adopted by the Board , paragraph 2(d)
thereof shall be modified to read* "Notify said Regional Director, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply
therewith."
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that unless on or before 20 days from the date of its
receipt of this Trial Examiner's Decision, Respondent notifies the Regional Director
that it will comply with the foregoing recommendations, the National Labor Relations
Board issue an order requiring Respondent to take the action aforesaid.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Lumber and Sawmill Workers,
Local Union No. 2924, United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, or any other labor organization of our employees, by discharging
employees for engaging in protected concerted activity, or in any other manner
discriminating against any individual in regard to his hire, tenure of employment,
or any term or condition of employment except as authorized in Section 8(a) (3)
of the Act.
WE WILL offer to Leroy Buxton, Larry K. Deming, William Elliott, Herbert
M. Majors, and Thomas H. Palmer immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and make each whole for any loss of earnings he
may have suffered as a result of the discrimination against him.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to, form labor
organizations, to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing, or to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except to
the extent that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized in Sec-
tion 8(a) (3) of the 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.
SAN JUAN LUMBER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Subregional Office, 612
Lincoln Building, 208 SW. Fifth Avenue, Portland, Oregon, Telephone No. Capitol
2-1607, if they have any questions concerning this notice or compliance with its
provisions.
Bud's Cabinet & Fixture Co., Builders Mill , Powell Cabinet &
Fixture Co., Northern Nevada Cabinet and Mill Operators
Council of Home Builders Association of Northern Nevada and
Carpenters' Union Local 971, United Brotherhood of Carpen-
ters & Joiners of America , AFL-CIO. Case No. 2O-CA-3125.
September 14,1965
DECISION AND ORDER
On June 1, 1965, Trial Examiner David F. Doyle issued his Decision
in the above-entitled proceeding, finding that the Respondents had
154 NLRB No. 106.