Sutherland Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1969

176 N.L.R.B. 1011 (N.L.R.B. 1969)

SUTHERLAND LUMBER CO. 1011
Sutherland Lumber Company, Inc. and Coal, Ice,
Building Material , Supply Drivers, Riggers, Heavy
Haulers, Warehousemen , and Helpers, Local 716,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and
Helpers of America . Case 25-CA-3182
June 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On February 11, 1969, Trial Examiner James V.
Constantine 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 Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, the Respondent
filed exceptions to the Decision and a supporting
brief and the General Counsel filed a brief in
support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case, including the exceptions and briefs, and hereby
adopts the findings, conclusions,' and
recommendations of the Trial Examiner, except to
the extent herein modified.
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, and
orders that the Respondent, Sutherland Lumber
Company, Inc., Indianapolis, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
"3. By discriminating in regard to the tenure of employment of Miller
and Stockman , thereby discouraging membership in Local 716, a labor
organization , Respondent has engaged in unfair labor practices condemned
by Section 8(aX3) and (1) of the Act."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is an
unfair labor practice case litigated pursuant to Section
10(b) of the National Labor Relations Act, herein called
the Act, 29 U.S.C. 160(b). It was commenced by a
complaint issued on September 30, 1968, by the General
Counsel of the National Labor Relations Board, through
the Regional Director for Region 25 (Indianapolis,
Indiana). That complaint, based on a charge filed on July
10, 1968, by the Charging Party, Local 716, names
Sutherland Lumber Company, Inc., as the Respondent.
In substance the complaint alleges that Respondent has
violated Section 8(axl) and (3), and that such conduct
affects commerce within the meaning of Section 2(6) and
(7), of the Act. Respondent has answered admitting some
facts but denying that it committed any unfair labor
practices.
Pursuant to due notice this case came on to be heard,
and was tried before me, on November 19 to 21, 1968, at
Indianapolis, Indiana. All parties were represented at and
participated in the trial, and were granted full opportunity
to adduce evidence, examine and cross-examine witnesses,
submit briefs, and argue orally. Briefs have been received
from all parties except Local 716.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent , an Indiana corporation , is engaged at
Indianapolis , Indiana , in selling and distributing lumber
and related products . During the year preceding
September 30, 1968 , the date of the complaint , it sold and
distributed products valued in excess of $500,000. During
that same period it received goods valued in excess of
$50,000 directly from States other than the State of
Indiana ; and it also purchased goods and materials valued
in excess of $50,000 directly from States other than the
State of Indiana . I find that Respondent is an employer as
defined in Section 2(2), and is engaged in commerce
within the meaning of Section 2(6) and (7), of the Act,
and that it will effectuate the purposes of the Act to assert
jurisdiction over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local 716, the Charging Party, is a labor organization
within the meaning of Section 2(5) of the Act.
'The Trial Examiner found that the discharges of employees Goodman,
Milliken, Small, and Smith violated both Section 8(a)(l) and (3) of the
Act. The evidence supports the Trial Examiner ' s conclusion that the
discharge of these employees was, in substantial part , based upon their
participation in the protected concerted activity of complaining about the
transfer of a fellow employee , in violation of Section 8(axl).
Time-O-Mark. Inc. v. N.L.R.B.. 264 F.2d 96 (C.A. 7); N.L.R B. v. J. I.
Case Co., 198 F.2d 919 (C.A. 8). We therefore find at unnecessary to
determine whether these discharges were also in violation of Section 8(aX3)
of the Act. Paragraph three of the Trial Examiner's Conclusions of Law
should be deleted and the following substituted therefor:
III. THE UNFAIR LABOR PRACTICES AS PRESENTED BY
THE GENERAL COUNSEL
This case involves the issues of whether Respondent:(1)
Coercively interrogated its employees about their union
activities; (2) unlawfully kept under surveillance union and
other concerted activities of its employees ; (3) threatened
employees with reprisals if they joined Local 716; (4)
denied pay raises "on time" to employees because Local
176 NLRB No. 143
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
716 filed a representation petition ; and (5 ) discharged
eight employees because of their union and other
concerted activities.
A. The Discharge of Thomas M. Storkman
Storkman worked for Respondent from February 1966
to about May 26 , 1968. He was hired by Manager Glen
Paisley at a salary of $400 a month . Thereafter he
received raises as follows : On June 1 , 1966, $20 a month;
on March 15, 1967, $15 a month; on August 1, 1967, $15
a month ; on March 1 , 1968, $15 a month ; and some time
thereafter $25 a month . About April 25, 1968, he signed
an authorization card for Local 716.
About May 26, 1968, Manager Paisley asked Storkman
what the latter was doing at police headquarters the
previous Friday. Storkman replied that he had been
subpoenaed as a witness, that he had shown the subpoena
to Iverson , and that Iverson gave him permission to go.
Thereupon Paisley asked him if he , Storkman , knew any
more "about the union activity ." When Storkman replied
that he did not , Paisley asked him if he , Storkman,
wanted his "final paycheck ." Although Storkman
protested that he did not desire it, Paisley nevertheless
said , "Well, here it is . . . there is 2 weeks' extra pay on
it." As Storkman left Paisley told him that Paisley hoped
that Storkman would "get on at the police department in
Indianapolis."
In November 1967, Storkman mentioned to Paisley
that he , Storkman, had high blood pressure and that it
might disqualify him for a policeman's job. However,
Storkman passed the physical in February, 1968. As a
matter of fact Storkman did not suffer from high blood
pressure.
In February 1968, Storkman had applied for a job as a
policeman for the city of Indianapolis, Indiana. A few
weeks later he passed the physical examination therefor.
At the time of Storkman's discharge Paisley mentioned to
Storkman that police officers investigating Storkman's
qualifications had spoken to Paisley concerning this and
that they mentioned that Storkman had passed the
physical.
B. The Discharge of Richard Blake
Blake came to work for Sutherland Lumber Company
in the summer of 1966 as a part-time employee at the rate
of $1.75 an hour. It was raised to $2 an hour in the
summer of 1967 and to $2.30 an hour in the summer of
1968. In the spring of 1968 he did not work at all as he
attended school during this period . However , he resumed
working for Sutherland on June 10 , 1968, having been
"rehired" by Manager Paisley.
At the time when Paisley hired Blake in June 1968,
Blake told Paisley that he , Blake , had heard some
discussion of a union among the men in the yard. Paisley
replied that "there was dissension in the yard" and said he
thought he knew some of the "guys" who were "involved
in it, who was trying to get it through ." Then Paisley
asked Blake how Blake felt about a union. Paisley further
mentioned that "this union could not function in the type
of company that Sutherland Lumber Company had." (The
foregoing was offered as evidence of union animus and not
as establishing an independent unfair labor practice.)
About June 22, 1968, between 4:30 and 4:45 p.m., some
of the men , including Blake , were discussing the
promotion of Ronnie Kline to the self-service department.
Soon Yard Foreman Richard Cornwell came by. The
employees told Cornwell that they did not think Kline was
not qualified to be given this advancement "through
seniority . . . experience . . . and . . . ability," and that
some other yard employees were more deserving of this
promotion. However, Cornwell defended this action of the
Company. This conversation lasted until about 5 p.m., the
closing time.
But the argument over Kline's promotion continued
after 5 p.m. Soon Assistant Yard Foreman Fred Cromer
joined the group. Thereafter the same subject was
discussed for another 15 to 30 minutes. By then all had
left except Blake , Cromer, Cornwell and employee Clyde
Small. These four then took up the matter with Manager
Paisley. This happened because Cornwell in the past had
instructed employees, including Blake, to take their
grievances to Paisley.
Thereupon the four persons mentioned above presented
their respective positions to Paisley regarding Kline's
promotion. Paisley told them that "whoever . . . showed
the most potential should get the higher position."
However, Paisley contended Kline did not receive a
promotion. This conversation lasted about 10 or 15
minutes.
On the following Monday, June 24, Blake reported for
work at 12:30 p.m. At about 1 p.m. he heard that the
yard employees who had engaged in the above argument
concerning Kline had been fired. Soon thereafter Cornwell
called Blake to Manager Paisley's office. As Blake
entered Paisley told him, "Mr. Blake, here's your check"
When Blake asked what this meant, Paisley replied, "We
no longer need you. We can't use you." When Blake
further inquired whether he was being discharged for
failure to do the work assigned to him or because he was
"insufficient," Paisley answered , "No . . . you do what
you're supposed to, and you do it well . . . . But we just
don't need you anymore." Although Blake asked for "a
better reason than this, I don't think this is sufficient,"
Paisley merely said, "We just can't use you." Blake was
discharged at about 1:30 or 1:45 p.m., but the check
presented to him compensated him for the entire day.
But Blake persisted in obtaining "a better reason than
that." At this Paisley replied, "I have heard that you've
been hard on the customers." However, at no time prior
to this had any one from the Company mentioned to him
that he had been hard on the customers. But about 2
weeks before this Cornwell asked Blake what trouble
Blake was having with a customer. Blake replied that this
customer was "picking through the stack of lumber
without permission." It was company policy that
customers were not allowed to do this.
The parties stipulated that the Company's discharge
statement , dated July 2, 1968, and signed by Yard
Foreman Cornwell, states that Blake was discharged
because he "did not like the way the lumber yard was
operated." This was given to Blake and also transmitted
to the Indiana Division of Employment Security, also
known as the Unemployment Compensation Commission.
C. The Discharge of Ronald Ray Sowder
Sowder was hired by Respondent in late February or
early March 1968, to work in its yard under Rich
Cornwell, starting at $2 an hour. Later he twice received a
raise of 15 cents an hour. While so employed he signed a
union card about April 25, 1968, for Local 716 at the
request of employee Ron Milliken. Not long after that he
SUTHERLAND LUMBER CO. 1013
also, along with other Sutherland employees, attended a
Local 716 meeting at Marwood Shopping Center.
During Sowder's employment Rich Cornwell told him
it "wouldn't be a good thing for Sutherland Company to
have a union" and that "it would hurt business more than
it would do any good."
About June 22, 1968, Manager Paisley fired Sowder for
(a) loafing, i.e., not working in the guttering shed, where
Sowder "was supposed to have been"; (b) because Sowder
earlier in the day had "hollered back" at a customer who
"hollered at" Sowder (but, according to Sowder, the
customer was Bill Benson , whom he knew, and the
"hollering" amounted to no more than an exchange of
greetings between friends); and (c) also because Sowder
had urinated on Paisley.
Two or three weeks preceding his discharge Sowder did
urinate out of an open door on the back side of a loft on
the second floor of one of the sheds. He did so after
looking out and observing no one on the ground in the
vicinity. However, beneath him was a back door used by
some customers to enter the self-service building and the
office. Another employee, Richard Holmes, was with him
at the time. Within 15 minutes Paisley entered the loft,
said he had seen it, and asked who did the urinating; but
although "neither one ... [i.e., Holmes or Sowderl would
admit to it," Paisley "knew one of [them] had to do it."
Without having ascertained the culprit Paisley left.
Sowder had never previously been warned that his work
was bad. In fact Cornwell "quite a few times" told
Sowder that Sowder "was doing a good job." However, a
customer once made a complaint about Sowder, and
Cornwell once complained that Sowder was loafing.
On one occasion Sowder asked Paisley to be placed on
a salary. basis . But Paisley replied that he could not do
this until "this union deal was straightened out." This is
not alleged in the complaint as an unfair labor practice.
Cf. Barnett Instrument Company, 173 NLRB No. 217.
D. The Discharge of William Ernest Goodman
Goodman started working for Respondent in February,
1966, at $400 a month. Thereafter he received raises as
follows: $20 a month on June 1 , 1966, March 15, 1967,
and about August 1, 1967; $15 a month on March 1,
1968; $25 a month after March 1, 1968; $50 a month on
May 1, 1968; and $40 a month after May 1, 1968. In
addition Goodman received overtime and occasionally was
awarded prize money. This prize money was accompanied
each time by a letter of congratulation. Some of such
letters are dated September 15, 1966, January 1, 1967,
and April 28, 1967.
Goodman signed a card for Local 716 at the request of
employee Ronnie Milliken about a month before
Goodman's discharge. According to employee Sowder,
Goodman also attended a Local 716 meeting at Marwood
Shopping Center.
About June 22, 1968, Goodman was present in a
paneling shed about 5 p.m. along with other employees
and Yard Foreman Cornwell. The group heatedly
discussed Kline ' s being assigned a job in self-service,
Cornwell defending and the employees criticizing this
action. Goodman considered this a promotion for Kline,
and expressed opposition to it in the discussion. Although
the argument continued long after the 5 p.m. quitting
time, Goodman left not long after 5 p.m. and did not
further participate in it.
When Goodman reported for work on the next working
day, June 24, he was called to Manager Paisley's office
where Paisley told him that he, Paisley, did not need
Goodman anymore. Although Goodman asked for a
reason , and inquired if he was being discharged on
account of the argument over Kline, Paisley still gave no
clue as to what prompted the discharge. About July 2,
however, when Goodman again asked Paisley for a
reason , Paisley handed him a completed form of the
Indiana Employment Security Division. Apparently this is
the same body as the "Security Board." See Safety Cab,
Inc. v. Indiana Employment Security Board (Indiana
Appellate Court), 242 N.E. 2d 25. This form, signed by
Yard Foreman Cornwell, asserts that Goodman was fired
because he "didn't like the way the lumber yard was
operated."
E. The Discharge of Charles E. Miller
About February, 1968, Miller was hired by Respondent
at $2 an hour. Later it was raised to $2.15 and then $2.30
an hour. About April 25, 1968, he signed a union
authorization card upon the solicitation of employee Ron
Milliken. Roughly 2 weeks later he attended a meeting of
Local 716 in the Marwood Shopping Center.
Sometime in June, 1968, and perhaps June 18, Miller
called in to say he would report for work at about noon as
he had to see a lawyer about a license. He called in
because he was aware of a posted rule to the effect that
failure to call would result in immediate discharge. The
parties stipulated that a notice was posted on the
Employer's bulletin board bearing the following legend:
"Anyone missing a day's work without calling in will be
fired effective 7/6/66." At noon he called in again to say
he would come in after eating lunch. This was satisfactory
to the Company. When Miller finally arrived at work
Assistant Foreman Fred Cromer met him at the door.
Cromer then handed Miller a check and told Miller that
he, Miller, was fired for "missing too many days."
Actually, Miller lost about 5 or 6 days from work
altogether. He was never warned or reprimanded for this.
However, except for one time, he always called in to
report that he would be absent. On that one occasion
when Miller did not call, Yard Foreman Cornwell
telephoned him and asked, "What happened?" Miller
replied, "I got drunk." Nevertheless Miller did work that
day. But Cornwell said nothing more about this incident.
This was 3 or 4 weeks before Miller was discharged.
Further, Cornwell never found fault with Miller's work,
and once told Miller that Miller was doing a "good job."
F. The Discharge of Danny Kaye Smith
Smith began working for Sutherland Lumber about
October 1965, as a yardman. However, from November
1966 to October 1967 he served in the Army, returning to
Sutherland upon completing his Army service. His rate of
pay was $400 a month on February 1, 1966, and
thereafter he received increases in his monthly rate as
follows: $20 on June 1, 1966, $10 on March 1, 1968, $25
later, $50 on May 1, 1968, and $45 later. He also worked
overtime and was paid additionally therefor.
About April 26, 1968, he signed a card for Local 716 at
the request of Ron Milliken; attended a Local 716
meeting at Marwood Shopping Center about 2 weeks
thereafter; and also went to two more meetings at the
union hall of Local 716. Smith mentioned to Yard
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Cornwell that Smith had attended these three
meetings of Local 716.
On June 24, 1968 , Smith started work at 11:30 a.m.
About 1 p .m. he was called to Manager Paisley 's office
and Was handed a check by the latter . When Smith asked
the reason therefor , Paisley replied that Smith was fired
and that he , Paisley, "did not need [Smith's] kind around
there anymore ." Although Smith asked for a clarification
of this, Paisley replied that he thought that Smith realized
what Paisley meant by it. Then Paisley elucidated this by
saying that Smith had gripes which Smith brought "to the
other people" in the lumber yard rather than to Paisley.
However, Yard Foreman Cornwell had previously
instructed Smith to come to Cornwell with any problems.
On the previous Saturday , June 22, 1968 , Smith was
one of the group of employees who protested to Cornwell
and Assistant Foreman Cromer the transfer of Kline to
the self-service department . However , Smith did not
accompany the group when it later that day presented its
complaint about Kline to Manager Paisley.
On July 1, 1968, Respondent issued to Smith and the
Indiana Employment Security Division a form asserting
that on June 24, 1968 , Smith was separated because he
"did not like the way the lumber yard was operated." It
was signed by Yard Foreman Cornwell.
G. The Discharge of Ronald B. Milliken
Milliken was hired by Respondent about January 20,
1966, as a yard man at $2 an hour . Soon thereafter his
compensation became $400 a month . He received raises in
his monthly rate as follows : $25 on June 1, 1966, $10 on
March 15, 1967, $15 on August 1, 1967, $15 on March 1,
1968, $25 later on, $60 on May 1, 1968, and $40 after
that . He also worked a considerable amount of overtime
for which he was additionally remunerated . Further he
won four prizes or awards in several contests sponsored by
the Company in connection with his work. See General
Counsel ' s Exhibits 6(A) to 6(D).
About April 25, 1968, Milliken signed an authorization
card for Local 716 and also acted as an organizer for that
union at Respondent's Indianapolis lumber yard . As such
he obtained some signed cards from Respondent's
employees. In addition he attended a Local 716 meeting
on about April 25, 1968 , at Marwood Shopping Center,
and also went to other meetings of Local 716. He went to
one of these meetings about May 26 or 27 . He also went
to a meeting on about May 5, 1968 , and saw Yard
Foreman Cornwell drive by.
About 4:30 p.m . on June 22 , 1968, a Saturday, in the
panel shed , Milliken participated for about 20 minutes in
the discussion concerning the transfer of Kline . Customers
were in the yard at the time . Then when it became
quitting time Yard Foreman Cornwell joined in the talk.
Milliken remained for another 10 minutes to continue the
talk concerning Kline.
When Milliken arrived at work at about 11:30 a.m. on
the following Monday, June 24, he was soon called to
Manager Paisley's office on the intercom . Yard Foreman
Cornwell was also present . Paisley handed Milliken a
"final check ." Upon Milliken ' s inquiring the reason
therefor , Paisley answered , "I told you before that if you
had any ... gripes to come see me , and last Saturday you
did and you didn 't come to see me." However, previously
to this Cornwell had told Milliken to bring any
complaints or gripes to Cornwell , and if they remained
unsatisfactorily resolved , then to see Paisley . Nevertheless
Paisley had also told Milliken to present gripes directly to
Paisley.
H. The Discharge of Clyde Small
Small began working for Respondent about April 2,
1968, as a laborer in the yard at $2 an hour . Later he
received two raises, each for 15 cents an hour . He signed
a card for Local 716 on or about April 25, 1968, at the
solicitation of employee Ron Milliken , and on the same
day attended a meeting of Local 716 in a parking lot in
the Marwood Shopping Center.
On June 22 Small was among those employees who
protested to Yard Foreman Cornwell the assignment of
Kline to the self-service department . Some customers were
in the yard prior to 5 p . m., the closing time . Shortly after
5 p.m. Cornwell invited the employee group to see
Manager Paisley about Kline , and they did. Cornwell and
his assistant , Cromer, joined in the discussion with
Paisley.
Cornwell previously had told Small to bring gripes or
complaints to Cornwell . However, Manager Paisley had
also told Small to bring gripes or complaints to Paisley.
On June 24, 1968 , a Monday , Small was called to
Paisley' s office during the lunch hour . Paisley presented
him with a "final check" and told Small that he , Paisley,
did not need Small anymore . When Small inquired if he
had done anything wrong , Paisley replied , "Could be,
could be not .... We just don't need you anymore." On
July 1, 1968, Respondent gave Clyde an unemployment
compensation form , signed by Yard Foreman Cornwell,
'reciting that Small was terminated because he "did not
like the way the lumber yard was operated."
1. Interference, Restraint , and Coercion
Roughly 4 days before his discharge , employee Thomas
M. Storkran had a conversation with Carl Iverson, the
manager of the self-service department , for whom he
worked . There is evidence in the record that Iverson
responsibly directs employees. I find he is a supervisor
within the meaning of Section 2(11) of the Act. Iverson
asked Storkman if the latter "knew anything about this
union business ." When Storkman replied that he did,
Iverson said that he "wanted to know all about it," but
added that , as part of management , he had no right to
question Storkman on the matter . Nevertheless , Storkman
refused to inform Iverson any more about the "union
business ." Iverson's contrary testimony is not credited. I
find this is coercive interrogation.
About April 30, 1968 , Rich Cornwell , an employee in
the sales department , spoke to Storkman. About the next
day or so Carl Iverson asked Storkman if the latter knew
any more "about the Union ." When Storkman replied in
the negative , Cornwell commented that he "would rather
see the yard closed down ... before the Union came in,"
and that other employees of Sutherland at another yard
"were fired because they tried to get a union in." (This
conversation was admitted as bearing upon Storkman's
discharge and not as affirmative evidence of an
independent unfair labor practice.)
On the Saturday preceding Storkman ' s discharge,
Manager Paisley asked the former if he "knew anything
about this union activity ." Storkman replied that he knew
"a little bit ." Thereupon Paisley asked "who was coming
around and having people sign?" Upon Storkman's
replying that he refused to disclose this information,
SUTHERLAND LUMBER CO. 1015
Paisley stated that he, Paisley , would lose his job "if the
Union ever got in ." Paisley ' s testimony to the contrary is
not credited . I find that Paisley 's inquiries constitute
coercive interrogation . Of course I recognize that all
interrogation is not coercive per se . Bourne Co. v.
N.L.R.B., 332 F.2d 47 (C.A. 2). But absent a legitimate
objective for inquiring into union activity, interrogation
violates Section 8(axl) of the Act. Texas Industries, Inc.
v. N.L.R.B., 336 F.2d 128, 133 (C.A. 5); Orkin
Exterminating Company, 136 NLRB 399; Johnnie's
Poultry Co., 146 NLRB 770, 774-775, enforcement denied
344 F.2d 617 (C.A. 8).
On one occasion Rich Cornwell asked employee
Goodman if Goodman had anything to do with the Union
and whether Goodman knew anyone who did . Goodman
replied in the negative to both questions . I credit
Goodman . This constitutes unprotected coercion. In this
conversation Goodman observed that Respondent would
never let a union in and would shut down "before they let
a union in ." Cornwell also mentioned that at another
Sutherland lumber yard "that had union activity" all
employees were fired and "a new crew " was hired. This
statement of Cornwell is not coercive as it does not imply
that employees were fired for union activity.
Employee Thomas E. White was hired in the summer
of 1967 to work in both the self-service department and
the yard. About April 25, 1968, he attended a meeting of
Local 716. Shortly thereafter, while White and employee
King were working in the plywood shed , Yard Foreman
Rich Cornwell asked them if they had signed union cards.
Respondent ' s contrary evidence is not credited. This
inquiry violates Section 8(a)(l) of the Act. White replied
that "everyone was trying to get a union because they
didn't feel that we had job security." To this Cornwell
answered that "we had job security as long as we did our
work." Cornwell ' s last statement is noncoercive , and I so
find.
Continuing, White asked why, if job security existed,
Storkman and others were fired . Cornwell replied that
Storkman "had been applying for a job at other places . .
. that he wasn't happy with his job at" Sutherland, and
that Storkman "had quit some times before ." This is an
innocuous statement by Cornwell and does not transgress
the Act.
About August 1, 1968, Cornwell again asked White if
White had signed a union card , but added " it wouldn't
make any difference to our jobs ." Continuing Cornwell
said he was "just wondering who had signed the cards"
and that the Union was "trying to stir up again ." White
replied that he signed such a card . The foregoing inquiries
are coercive , and I so find.
Shortly after June 24, 1968, Manager Paisley explained
to White that the men were fired on June 24 for "causing
a ruckus" on the evening of June 22 , and that the men
should have come to him in the first place to complain
about Kline . However , Paisley added that "these were the
men that were causing the trouble over the Union and
they must not have been happy with their jobs." Although
I credit White, I find nothing coercive about Paisley's
foregoing remarks.
As employee Charles Miller drove to the meeting of
Local 716 at the Marwood Shopping center he observed
Yard Foreman Cornwell slowly driving around the union
hall at a speed of about 10 miles an hour . Thereupon he
went to a telephone booth and telephoned the Union.
When he came out Miller again saw Cornwell driving
"very slow" near the hall but proceeding away from it.
Another employee, Ronald Milliken, testified to the same
effect. So did employee Clyde Small. I find Milliken is
mistaken in his testimony that this occurred on May 5 as
he worked on that day. See Respondent's Exhibits 1 and
2. But I find that Milliken did observe Cornwell on
another day.
I find that Cornwell did not engage in surveillance
merely by driving by a building in which a union meeting
was being conducted.
At some time in April, 1968, Cornwell asked Miller if
Miller knew anything about the Union. Miller replied that
he did not. Then Cornwell asked Miller who was
"pushing" the Union and to inform other employees it
would be bad "moneywise" for both employees and the
Company if Miller "knew anything" about the Union.
Miller answered that he did not know who was pushing
the Union. These inquiries by Cornwell are coercive, and I
so find. Cornwell's testimony inconsistent with Miller's is
not credited.
About May, 1968, Yard Foreman Rich Cornwell asked
employee Danny Smith if Smith had any gripes and, if so,
to mention them to Cornwell, and Cornwell would try to
"work them out." Continuing, Cornwell remarked that
"Somebody in the yard must have [gripes] because a
union was trying to get in ." Smith replied that he had
none . However, Smith did say that he attended three
meetings of Local 716. I find nothing illegal in this
conversation by Cornwell.
The day, before Cornwell drove by a Local 716 meeting
Smith and,Zornwell were working in the yard when Local
716 Agent Oscar Manuel visited the yard and told both of
them there would be a union meeting the next day and
gave them the address of the union hall. Thus Cornwell
had notice that a union meeting would be held the next
day.
About 3 weeks before June 24, 1968, Yard Foreman
Cornwell asked employee Ronald B. Milliken how the
latter felt about a union. Milliken answered he "felt like a
union would be a good thing for the Company."
Thereupon Cornwell asked Milliken for reasons to support
this conclusion. This interrogation by Cornwell is coercive
and I so find. Milliken advanced several reasons. This
caused Cornwell to ask if Milliken would be willing to pay
an $80 initiation fee and $ 16 a month in union dues.
Milliken disputed these figures . In my opinion these latter
assertions by Cornwell are not coercive, and I so find.
Cornwell asked the same question of employee Small,
who was also present. Small replied that he "felt the same
way about" the Union as Milliken had just mentioned.
Since no legitimate purpose is shown for this questioning
by Cornwell, I find it is coercive. Cornwell's contrary
testimony is not credited.
Employee Milliken was sent to Respondent's "farm
down South" at Tulsa, Oklahoma, a few days before "the
petition" of Local 716 was withdrawn. Other employees
from Respondent's various yards, including some from its
Indianapolis yard, also attended. Jack Gilbreath, district
manager , spoke to the employees there. Among other
things, Gilbreath said that in the history of Sutherland
Lumber Company "no union had ever been allowed in,
and, as far as they could see, no union would ever be
allowed in"; that unions had "tried" without success in
Respondent's East St. Louis and other yards; that no
union would ever be "allowed" in a Sutherland Lumber
Company yard; and that "a yard might close down before
the Union was allowed in and move out to another city."
Gilbreath's denial of such statements are not credited. I
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that such utterances are coercive.
About 2 weeks after Local 716 filed its representation
petition employee Small spoke to Yard Foreman Cornwell
in the cabinet shed. Cornwell asked Small, in the presence
of employee Milliken, how Small "felt or if I [Small] had
any complaints .... So we started discussing the Union."
When Small mentioned that "we could use a timeclock,"
Cornwell asked how Small felt about a union. Small
answered that "we could use one." Thereupon further
discussion about the Union ensued , during which Cornwell
said "the Union would never get in ." In my opinion no
coercion is involved in this conversation, as it appears that
it amounts to no more than an informal discussion of
unions.
At this Small suggested "they'd have to let the Union
in because . . . we'd have to set a picket up." Thereupon
Cornwell insisted that "nobody was going to put a picket
up," and that "if that was the case, then they could
transfer it from the Fort Wayne yard . . . or if matters
come to worse, that they could just go ahead and close the
yard down to keep the Union from coming in." I find the
threat to close the yard a threat of reprisal and, therefore,
coercive.
Shortly before the foregoing incident Cornwell said that
employees at all other company yards had received a $40
raise , but this was denied to employees in the Indianapolis
yard "because they couldn't give any raises or hire or fire
while the Union was trying to get in." In my opinion this
is not coercive as it correctly states the law ttoo the effect
that an employer may not give raises to ti 1dermine a
union ' s campaign . Thus it is proper to postpone
anticipated benefits where such postponement is made to
avoid the appearance of attempting to influence the
employees' decision concerning their representation for
purposes of collective bargaining . N.L.R.B. v. Dorn's
Transportation Co., Inc., 405 F. 2d 706 (C.A. 2); Uarco,
Inc., 169 NLRB No. 162; Grafton Boat Co., 173 NLRB
No. 150; Dudley Mfg. Corp., 167 NLRB No. 16. It is not
an unfair labor practice to bring to the attention of
employees correct statements of the law. Perkins Machine
Company, 141 NLRB 697, 700; Texas Industries, Inc. v.
N.L.R.B. 336 NLRB 128, 130 (C.A. 5).
Some time later Small, accompanied by employee
Milliken, told Manager Paisley that they had withdrawn
"the petition." Paisley replied he was "relieved" that the
petition "was pulled." Then Paisley showed them "books"
comparing Sutherland's pay and "different benefits" with
those of "other yards." These statements by Paisley do
not contravene the Act, and I so find.
IV. RESPONDENTS EVIDENCE
Homer Holliday works as a counter man for
Respondent. He knows employee Charles Miller. At no
time on June 18, 1968, or any other day, did Holliday
receive a telephone call from Miller. However, Manager
Paisley on June 18 asked Holliday to "make out a final
check for" Miller, and Holliday complied. Preparing
checks is part of Holliday's regular duties.
On June 22, 1968, about 5 p.m. Holliday was present in
the self-service area of the yard. About 15 or 20
customers still were being served then and after 5 p.m.,
the last one departing about 5:20 or 5:25 p.m. During this
period Holliday heard loud voices outside the building. He
later learned such voices were involved in an argument
between Yard Foreman Cornwell and some employees.
On one occasion Manager Paisley told Holliday that if
any employee has a gripe he should come directly to
"your manager."
George D. Pitman, another employee, was present in
the yard on Saturday, June 22, 1968, at about 5 p.m. He
heard "very angry" and "very loud" voices of employees
Smith, Small, and Blake for 45 minutes to an hour
discussing Kline 's transfer to the self-service department.
They also "used obscenities." Other employees there did
not use profanity or talk loud.
Pitman also testified that he was informed by Manager
Paisley that gripes or complaints should be presented to
Paisley, and that Foreman Cornwell never told him to
present such gripes and complaints to Cornwell.
Employee Jerry Strainer, a yard man, on June 22,
1968, worked in a box car unloading lumber with
employee Goodman. As employee Kline went into the
pole yard with a customer, Goodman mentioned that
Kline was being assigned to the self-service department.
As Kline passed by Goodman in a loud and "sort of
angry" voice stated that Kline's wife had written a "letter
to Herman." At about 11 or 11:30 a.m. on June 24, 1968,
Strainer informed Manager Paisley about the incident
recited above.
Paisley at another time previous to this had instructed
Strainer to bring gripes or complaints to Paisley. And no
other supervisor, including Yard Foreman Cornwell, had
ever directed Strainer to take gripes and complaints to
such supervisor.
Fred Cromer, on about July 15, 1968, became
Respondent's yard foreman. On June 22, 1968, about 5
p.m. he started to lock up the yard. As he entered the
paneling shed, he observed employees Goodman, Milliken,
Small, Smith, and Blake and Yard Foreman Cornwell.
Later he noticed this group engaging in an argument,
concerning employee Kline, in front of the office. The
employees, using profane language , took the position that
Kline should not have been placed in the self-service
department, while Cornwell insisted that Kline deserved
this job because Kline "had learned more." Soon Cromer
took sides with Cornwell, and also commented that Kline
did not receive a promotion.
Then Cromer, Cornwell, Small, and Blake went to see
Paisley in the office, where they continued their argument.
Goodman, Milliken, and Smith did not enter the office as
they had left. Small and Blake talked in angry and loud
tones. Paisley supported Cornwell's position. When
Paisley and Cornwell left, Small and Blake continued
arguing with Cromer outside the building. Profanity is
often used in the yard, by employees as well as Cromer
and Cornwell, "if there isn't customers around."
On two or three occasions Paisley directed Cromer to
take complaints to Paisley. Cromer never told employees
to see him, rather than Paisley, about complaints.
Richard Cornwell was appointed yard foreman about
May, 1966. About mid-April 1968, he was transferred to
the position of "counter help," and Fred Cromer became
yard foreman in his place. However, on May 16, 1968,
Cornwell again became yard foreman. As the Union had
filed a petition Manager Paisley made Cornwell foreman
the second time because Paisley wanted an older and more
experienced man as foreman so that no unfair labor
practices would occur. At the same time Paisley instructed
Cornwell "not to threaten or promise anyone in the yard .
don't ask anyone about their activities."
Cornwell first learned of union activity at Respondent's
yard on May 14, 1968, when Assistant Manager Sharp
SUTHERLAND LUMBER CO. 1017
told him that Sharp had been "handed a letter from the
Union ." Oscar Manuel , a representative of Local 716,
gave Sharp the letter . On May 14, 1968 , Harry Berns,
counsel for Local 716, mailed a letter to Respondent.
Admittedly Assistant Manager Sharp , of Respondent,
received it the same day, as it was delivered by hand to
Mr. Sharp on said May 14.
On the day when Sowder was discharged Cornwell
assigned employee Sowder to clean up and "do some
work" in a building adjoining a building where nails are
stored . On two or three occasions Cornwell told Sowder
to stop hollering at customers and other employees serving
customers . Then Cornwell informed Manager Paisley of
this dereliction by Sowder . At other times employees
complained to Cornwell that Sowder was loafing on jobs
so that they "had to do all the work."
Employee Miller was scheduled to work at 8 a.m. on
June 18 , 1968. As he had not reported by 9:30 or 10 a.m.
Cornwell called him to inquire if he was working that day.
Miller said he would come in. Then Cornwell advised
Manager Paisley of this and Paisley "had [Miller 's] check
made out ." Miller had not telephoned to anyone else at
the yard that day.
On June 21, 1968, Paisley showed Cornwell a letter
from Herman Sutherland suggesting men be assigned to
various jobs to obtain a rounded experience . So Paisley
mentioned to Cornwell that he was putting Ronnie Kline
in the self-service department to obtain "this added
experience."
The next day , June 22, employees Miller and Goodman
in the morning protested to Cornwell that Kline had been
promoted to the self-service department , and Goodman
threatened to quit on the spot if Cornwell considered
Kline to be "a better man." Later on many employees
(Milliken , Blake , Small, Smith , and Goodman) in the
yard were griping about Kline' s transfer . Still other
employees wanted to know what was going on.
Later in the day of June 22, a little after 4 p.m.,
Cornwell had a conversation with employees Milliken,
Small, Blake, Smith and Goodman in the panel shed. The
employees angrily demanded , sometimes using profanity,
to know why the Company transferred Kline . Cornwell
defended the decision regarding Kline . During this time
the five employees were not performing any work
although the yard was still in operation and two or three
customers were being served. At 5 p . m. we started
locking up the lumber yard," according to Cornwell. After
5 p.m. the five employees and Cornwell continued "this
argument" in front of the office building for about 45
minutes . The employees used profanity at times. At the
time customers were inside the office and came out to go
to their cars parked nearby . Employees Goodman , Smith,
and Milliken were not there during the entire 45 minutes
as they had left after about 10 or 15 minutes.
Employees Blake and Small continued to argue with
Cornwell after Goodman , Smith , and Milliken left.
During this time Cornwell supported the Company's
action regarding Kline and expressly insisted that "the
Company doesn ' t operate on a seniority basis." Then
Cornwell asked Blake and Small to accompany him to
Manager Paisley's office , and they did. After Cornwell
explained the nature of their differences with him to
Paisley , Blake and Small "continued to argue with
Paisley" over Kline ' s transfer . After about 15 or 20
minutes Paisley and Cornwell left to make a deposit in the
bank.
On the way to the bank Cornwell reviewed for Paisley
the events of the day at the panel shed and in front of the
office which ended in the argument in Paisley ' s office.
Then Cornwell and Paisley returned to the yard where
they found employees Small and Blake "still arguing"
with Assistant Yard Foreman Fred Cromer . Thereupon
Cornwell remarked to Paisley that "if these boys don't
like their job, they ought to get a job some place where
they would be happy ." Then Cornwell left.
About noon on June 24 Paisley informed Cornwell that
he was firing "these fellas . . . because of all the ruckus
they had raised in the yard and the unrest they had
caused ." Then, as directed by Paisley , Cornwell called in
each "fella" individually to Paisley ' s office, where each
was told by Paisley he was being let go "because of the . .
. gripes and unrest that they had caused in the yard, that
they knew the company rules that if they did have any ...
gripes to come to [Paisley ] and they hadn ' t done this."
The checks were made out by Cornwell , according to him.
Cornwell and employees individually and at company
meetings had previously been informed by Paisley that it
was the Company ' s policy that grievances should be
brought to Paisley . Cornwell at no time gave contrary
instructions or orders to the employees.
Cornwell denies (a) he ever asked employee Goodman
if Goodman had anything to do with the Union or if
Goodman knew of anyone who had anything to do with
the Union;,-(b) he ever told any employee the yard would
be shut dawn if a union came in; (c) he ever told
Goodman, jat at another Sutherland yard employees had
been fired and were replaced by a new crew ; (d) he ever in
April , 1968, asked employee White whether White or
other employees had signed union cards . However, (a)
about late May, 1968, Cornwell told White that he,
Cornwell , understood that "they was try for, to organize a
union in the yard"; and (b) about August 1 , 1968, when
Cornwell was working as "counter help," Cornwell asked
White if White had signed a union card . (I find that, on
Cornwell's own testimony , he was remade yard foreman
on May 16, 1968, and that he was not "counter help" on
August 1, 1968.)
Cornwell (a) "does not remember" telling employee
Sowder the Union would not be a good thing and that it
would hurt business more than it would do good; (b) never
asked employee Miller if Miller knew anything about the
Union , or if Miller knew who was pushing for the Union;
and (c) never told Miller it would be bad moneywise for
the Company to have the Union . However , in late May,
1968, Cornwell told Miller that Cornwell thought the
Union would not be a good thing "for our type of
business."
Some time in May , 1968, during a conversation with
employee Smith, Cornwell told Smith that Cornwell
understood "they was trying to organize a union in here."
Cornwell "has no knowledge" that someone told Smith,
in Cornwell's presence , of a union meeting to be held
soon . Nor did Cornwell keep a union meeting under
surveillance . Although he drove by the union hall in
Indianapolis with his family several times in May and
June , he did so because he pursued a "normal route" in
"looking for another place to live."
About the first week in June 1968, Cornwell talked
with employee Milliken in the cabinet building in the
presence of employees Harrison and Small . Among other
things Cornwell told them that he understood "there was .
.. trying to be organized out of the lumber yard a union."
When Milliken said it was a good idea, Cornwell
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disagreed because he, Cornwell, understood they have to
pay dues and fees to get in the Union.
About June, 1968, employee Small mentioned that
unions could shut down operations with a strike and
picket line. Cornwell disagreed, but he never said anything
about a ball bat or referred to the Fort Wayne yard in
this conversation. And at no time did Cornwell threaten
any employee with discharge, reprisals, or closing the yard
if the Union came in or if they were active in union
activities.
Cornwell did tell employee Small that other employees
at Sutherland yards received a $40 raise but this could not
be granted to those in the Indianapolis yard because
"there was an organization of union pending."
At one time Carl Iverson was manager of the
self-service area in Respondent ' s Indianapolis yard. He
denies that he ever inquired about the Union in any
conversation with employee Storkman . However, on one
occasion Storkman asked Iverson if the latter had heard
any "scuttlebut on any union activities ." When Iverson
replied that he had not, Storkman volunteered that he,
Storkman, had "heard some of the fellas in the lunchroom
talking about unions."
About 5 p.m. on June 22, 1968, while customers were
still in the self-service area , Iverson heard "these fellas .
outside arguing ... a little loud and a little angry."
Glen Paisley has been the yard manager at
Respondent ' s Indianapolis yard since April 1964. His
testimony follows. He did not have any k , wledge of
union activity at the yard until May 14, 1968;"when John
Sutherland telephoned him about it. At the time Paisley
was at a Sutherland farm in Maysville, Oklahoma. Upon
returning to Indianapolis on May 16 , Paisley made
Cornwell foreman of the yard because Cornwell was older
and more experienced than Cromer , the incumbent
foreman. Paisley also instructed Cornwell not to talk to
anyone in the lumber yard about the Union.
About June 22, 1968, Paisley discharged employee
Sowder. About a week before, as Paisley entered the
office , a stream of water came down from a door above
and some of it landed on him. Since it was summer and
not raining, Paisley investigated by going upstairs to the
place whence the water flowed. There he found employees
Sowder and Holmes sitting down . Although he asked
them if anyone or either of them had urinated out of the
door , both Holmes and Sowder denied knowledge thereof.
To Paisley 's question as to what they were doing up there,
Holmes replied , "Goofing off, I guess ." So Paisley
ordered them back to work. About June 20, 1968, Holmes
told Paisley that "the other man that was with me up
there ... urinated out the door."
On June 22 Sowder was assigned the job of cleaning
the nail bin area . However , Yard Foreman Cornwell
reported to Paisley that Sowder was not doing anything.
Thereafter Paisley observed Sowder sitting on a keg of
nails and ordered Sowder to start working . Later in the
day Cornwell again told Paisley that Sowder was not
.working. This time Paisley told Cornwell that Sowder
would be "checked out." Not long after this Paisley
discharged Sowder , giving as the reason therefor that
Sowder lied about urinating out of the door . Although
Paisley stated that Holmes told him about this Sowder
nevertheless denied he had done it . Paisley also told
Sowder that he was being fired for loafing the whole day.
Paisley discharged employee Storkman on May 2,
1968. Storkman had quit earlier in the year at which time
he told Paisley that he , Storkman, could not pass the
policeman ' s examination because he suffered from high
blood pressure. Storkman later was rehired. However,
about May 2, 1968, two plain clothes police asked Paisley
for a character reference on Storkman and responding to
Paisley's question, mentioned that Storkman had passed
the physical examination. A couple days later Paisley told
Storkman that , although "we needed men," Paisley
thought Storkman should be with the police department;
and also that the police had told Paisley that Storkman
had passed the exam when Storkman had said he did not.
Thereupon Paisley gave Storkman a check and fired him.
Neither at this or any other time did Paisley ask
Storkman about union activity or who was obtaining
signatures to union cards.
Paisley discharged employee Miller for failing to call in
when he did not show up for work. Other employees have
been terminated for the same reason.
Although the Company has no posted rules concerning
grievances, Paisley tells all new hires to bring their
complaints and gripes to him . He also has repeated this to
the yard foreman and to employees at meetings held for
them by the Company.
Paisley discharged employees Milliken , Blake,
Goodman, Small, and Smith on June 24, 1968. In the
morning of that day Kline sought to reject the assignment
to self-service because these five employees had "made
threats" to him and "used obscene language" so that he
was afraid of them. However Paisley assured that he,
Paisley, wanted Kline to work in self-service. At about
noon Kline told Paisley that Milliken , Goodman , Blake,
and Smith again "called [Kline] abusive language in front
of" a customer. Thereupon Paisley decided to fire the
men. He did so after clearing with his superior, Jack
Gilbreath, by long distance telephone. When discharging
these five men, Paisley had Yard Foreman Cornwell
present and Paisley told each one that he was fired
because, although aware of the rule to come to Paisley
with gripes, he nevertheless failed to come to Paisley to
complain about Kline.
When Small and Milliken advised Paisley that they had
withdrawn the representation petition , they added that
they did not want the Union to come in nd that Union
Representative Oscar Manuel acquiesced . But Paisley did
not tell them that he was greatly relieved by such action.
Nor did Paisley talk to any employee about the Union.
Jack Gilbreath is divisional manager of Respondent's
Eastern Division. He also was manager of Respondent's
East St. Louis yard until about 4 months prior to
November 21, 1968. In June 1968, about 100 employees
from various of Respondent's yards were in attendance on
a training program at its farm in Oklahoma, the mailing
address of which is Maysville, Arkansas. Gilbreath
delivered a speech to them . One of those present was
employee Ronald Milliken from Respondent's
Indianapolis yard.
Gilbreath denies that in his speech he ever said ( 1) that
no union would ever be, and has never been , allowed in a
Sutherland yard; or that (2) Gilbreath fought the Union in
East St. Louis; or that (3) the yard might be closed down
and moved to another city if a union ever got into that
yard; or that (4) no union ever got in a yard of
Respondent. In fact Gilbreath read the text of his speech
over the telephone to counsel and received the latter's
approval before rendering it. Although Gilbreath departed
from the text, the subject matter of such divergence did
not relate to unions.
SUTHERLAND LUMBER CO. 1019
V. CONCLUDING FINDINGS AND DISCUSSION
REGARDING THE DISCHARGES
The burden of proof is upon the General Counsel to
establish the allegations of the complaint.
A. As to the Discharge of Thomas M. Storkman
6. I find that Respondent engaged in a pattern of
systematically discharging union adherents . Graham Ford,
Inc., 172 NLRB No. 50; Sterling Aluminum v. N.L.R.B.,
391 F.2d 713 (C.A. 8). This is significant in arriving at the
real reason for a discharge , and creates a strong inference
that such discharge was motivated by discriminatory
reasons . See N.L.R.B. v. Chicago Steel Foundry
Company, 142 F.2d 306, 308 (C.A. 7); N.L.R.B. v.
Bachelder, 120 F.2d 575, 578 (C.A. 7).
It is my opinion , and I find , that Storkman was
discharged for having signed a union card and refusing to
disclose who was soliciting the employees to sign union
cards, and that this action violates Section 8(a)(3) and (1)
of the Act. Further I find that the reason asserted for
terminating Storkman, i.e., that Storkman was going to
join the police force and was observed wasting time at the
police station , is a pretext to disguise the true motive
behind his discharge . These ultimate findings are based
upon the entire record and the following subsidiary
findings which I find as facts:
1. Manager Paisley had knowledge of Storkman's
union activity . This is because Respondent operates a
small plant, employing about 40 people ; and, under the
Board 's small plant rule, knowledge of union activity may
be inferred. Angwell Curtain Company, Inc. v. N. L. R. B.,
192 F.2d 899, 903 (C.A. 7); American Grinding &
Machine Co., 150 NLRB 1357, 1358. Also Paisley told
employee Blake that he, Paisley , knew who the union men
were. Respondent's contrary evidence is not credited.
2. Paisley was frustrated in his attempt to find out who
was behind the union movement when Storkman refused
to reveal this information in response to Paisley's
questioning . I do not credit Paisley insofar as his
testimony is inconsistent with this finding . Thus I find that
Storkman was fired , in part, for refusing to divulge this
information.
3. Respondent demonstrated antiunion hostility, as
hereinafter found . This in itself is not an unfair labor
practice, for an employer may lawfully dislike or oppose
unions and may lawfully express antiunion sentiments.
N.L.R.B. v. Howard Quarries, 362 F.2d 236 (C.A. 8);
N.L.R.B. v, Threads, Inc., 308 F.2d 1, 8 (C.A. 4).
Respondent also committed unfair labor practices as
found below. However, antiunion animus is a factor which
may be evaluated in ascertaining the true reason
prompting a discharge . N.L.R.B. v. Georgia Rug Mill,
308 F.2d 89, 91 (C.A. 5); Maphis Chapman Corp. v.
N.L.R.B., 368 F.2d 298, 304 (C.A. 4). Similarly, the
commission of unfair labor practices may be weighed in
determining the actual basis for a discharge.
4. Admittedly, on Paisley ' s own testimony , Respondent
"needed men." Since Storkman had not yet been
appointed a policeman or even decided to accept a
policeman ' s job at that time , it is difficult to understand
why he was abruptly dismissed before he had been
accepted as a policeman and at a time when Respondent
needed men.
5. I find that Storkman visited the police station as a
witness, and that he had permission from his supervisor to
leave work for that purpose . Hence I find that he was not
away from work improperly, and that his presence at the
station was seized upon as a pretext . Of course, I
recognize that an employee may be fired for any reason,
no matter how trivial (such as visiting a police station), as
long as the reason is not proscribed by the Act . But I find
that Storkman 's presence at the police station is not the
reason which led to his discharge.
B. As to the Discharge of Richard Blake
Admittedly Blake was discharged for participating with
other employees in protesting the transfer of employee
Kline to the self-service department. It is unnecessary to
decide whether this transfer constituted a promotion.
However, if material, I find, crediting Respondent's
evidence, that Kline's transfer did not amount to a
promotion . Nevertheless I find that such transfer relates
to or affects conditions of employment, that protesting
such transfer amounts to a protected grievance (Modern
Motors v. N.L.R.B., 198 F.2d 925, 926 (C.A. 8)) and that
the joint protest of the employees constitutes a protected,
concerted activity. N.L.R.B. v. Phoenix Mutual Life
Insurance Company, 167 F.2d 983, 988 (C.A. 7), cert.
denied 335 U.S. 845; Salt River Assn. v. N.L.R.B., 206
F.2d 325, 328; Signal Oil Co. v. N.L.R.B., 390 F.2d 338,
342-343 (C.A. 9); N.L.R.B. v. Case Co., 198 F.2d 919,
922 (C.A. 8), cert. denied 345 U.S. 917.
Since Blake was engaged in a protected concerted
activity in objecting to the transfer of Kline (See Section
9(a) of the Act), it follows that Blake's discharge for such
activity is unlawful unless Respondent's defense of its
action in terminating Blake is meritorious . N.L.R.B. v.
Washington Aluminum Co., Inc., 370 U.S. 9. In this
connection I expressly find that Blake and other
participants in the protest, although neglecting their
regular assignments from about 4:30 to 5 p.m., were not
engaged in a sit-down strike which would warrant their
discharge . Golay & Company, Inc. v. N.L.R.B., 371 F.2d
259 (C.A. 7), cert. denied 387 U.S. 944. Further, I
expressly find that Yard Foreman Cornwell failed to order
Blake back to work, so that I find no insubordination or
other misconduct in Blake's not working from 4:30 to 5
p.m.
Respondent seeks to justify Blake's discharge on the
ground that, pursuant to company rules, he should have
presented his grievance directly to Paisley and not Yard
Foreman Cornwell. But I find this defense is not well
taken for two reasons.
(a) I find that Cornwell had told the men to present
their grievances to him first and then, if still unsatisfied,
to speak to Paisley about them. Respondent's contrary
evidence is not credited. Hence I find that Blake followed
Respondent's established avenues for processing
grievances . However, I also find that Paisley told the men
to present grievances directly to him.
(b) Even though I find that Respondent's rules required
that grievances be submitted directly to Paisley, I find
that this was waived when Cornwell entertained the
grievance for a full half hour. It would have been a simple
matter for Cornwell to have refused to discuss Blake's
grievance and to have referred Blake to Paisley; and it
would have been equally simple for Paisley to discipline or
reprimand Cornwell for entertaining the grievance. In any
event I find that employees engaged in protected activity
may not be discharged therefor merely because they
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present their grievance to an official other than the one
designated by the Employer to pass on grievances . In such
instances the employees have a right to expect that their
grievance will be referred , or they will be directed, to the
proper person who handles grievances . See N.L.R.B. v.
Kearney & Trecker Corporation, 237 F.2d 416, 419-420
(C.A. 7).
Respondent also justifies Blake ' s discharge on the
ground that he spoke so loud and used such profanity that
customers heard him and that business was disrupted
thereby . Although I find that Blake used profanity, I also
find that all persons in the yard , including supervisors, did
likewise . Therefore I find Blake ' s conduct in this respect
conformed to practices accepted or at least condoned by
the Employer . But I further find that such profanity did
not disrupt business and, therefore , did not cause Blake to
lose the protection of the Act in presenting his grievance.
See N.L.R.B. v. Illinois Tool Works, 153 F.2d 811,
815-816 (C.A. 7).
Further, I find that Blake did speak in a loud tone. But
I find that it did not disrupt business . And I expressly find
that such loud talk did not amount to such misconduct
which rendered him unfit for further service and thus
deprived Blake of the protection afforded him by the Act.
N.L.R.B. v. Illinois Tool Works, 153 F.2d 815-816 (C.A.
7); The Bettcher Manufacturing Corporation, 76 NLRB
526, 527.
Then again , I find that Blake was not terminated for
union activity, even though I have found that Respondent
entertained antiunion hostility and committed „infair labor
practices . This is because the record is silent as to any
union activity by Blake.
Finally , I find that Paisley told Blake that Blake was
"hard on the customers" at the time Blake was
discharged , but I find this is a pretext to mask the true
reason , i.e., dismissing Blake for engaging in protected
concerted activity . This is because I find that Blake was
not hard on customers . In any event , I find that Blake
had never been warned of this alleged dereliction on his
part; and that , if he was hard on customers, it was
condoned not only by the failure to warn him thereof, but
also by rehiring him and giving him raises in pay.
Unsatisfactory employees are neither rehired nor granted
wage increases.
C. The Discharge of Donald Ray Sowder
On the record unfolded before me I am of the opinion,
and find , that Sowder was discharged for cause and that
no pretext was resorted to in discharging him. This
ultimate finding is based on the entire record and the
following subsidiary facts, which I hereby find:
1. Although I find that Respondent displayed antiunion
animus and committed unfair labor practices , I find that
such conduct is not proximately correlated to his
discharge . Reading & Bates, Inc. v . N.L.R.B., 403 F.2d 9
(C.A. 5).
2. I find that Sowder was discharged for urinating out
of a door . Admittedly Sowder did engage in this act, and
admittedly within minutes thereafter Manager Paisley
sought to ascertain the identity of the culprit. Hence
Respondent cannot be accused of condoning this conduct
because it did not immediately fire Sowder . This is
because Respondent did not learn that Sowder committed
this act until some time later . And I find that Sowder was
discharged as soon as Paisley ascertained that Sowder was
guilty of urinating
3. However, I find that although Paisley told Sowder
that the latter was being discharged for loafing and also
for hollering at a customer , Sowder would not have been
discharged for these reasons alone . This is because I find
that Respondent "needed men," as Paisley told employee
Storkman , and would probably have done no more than
reprimand Sowder for loafing and hollering at customers.
I realize that I may not substitute my judgment for that
of an employer in laying off employees . Indiana Metal
Products Corp. v. N.L.R.B., 202 F.2d 613, 617 (C.A. 7);
N.L.R.B. v. United Parcel Service, Inc., 317 F.2d 912,
(C.A. 1); Portable Electric Tools, Pic. v. N.L.R.B., 309
F.2d 423, 426 (C.A. 7). But it is reasonable to infer -
and I do so - that an employer will not discharge an
employee for a trivial infraction , especially when the
employer "needs men."
4. Although I find that Sowder engaged in union
activity, I further find that the probative evidence is
insufficient to link his discharge with such activity.
Hawkins v. N.L.R.B., 358 F.2d 281 (C.A. 7). Further,
union activity is not a shield against a discharge for cause.
Holt Co., 161 NLRB 1606, 1612. Nor does union
membership insulate an employee from discharge for
legitimate, nondiscriminatory reasons . Mitchell Transport,
Inc., 152 NLRB 122, 123 , set aside 358 F.2d 281 (C.A.
7); Wellington Mill v. N.L.R.B., 330 F.2d 579, 586-587
(C.A. 4); Metals Engineering Co., 148 NLRB 88, 90;
N.L.R.B. v. Bangor Plastics , Inc., 392 F.2d 772, 776
(C.A. 6).
D. As to the Discharge of William Ernest Goodman
On the credible preponderance of the evidence I find
that Goodman was discharged for two reasons : (1) for
engaging in protected , concerted activity in protesting the
assignment of employee Kline to the self-service area, and
(2) for engaging in union activity.
The reasons recited above in finding that employee
Blake was discharged for engaging in protected, concerted
activity are equally applicable to Goodman as a
participant in that same activity , and I so find.
Further, I find that an additional motive behind
Goodman's discharge is his union activity. This ultimate
finding is based on the entire record and the following
subsidiary findings which I hereby find as facts:
1. Goodman signed a union card and attended a
meeting of Local 716. This constitutes union activity.
2. Respondent had knowledge of this union activity. I
infer this knowledge by invoking the Board ' s small plant
rule. And I also find that Respondent operates a small
plant . In addition , Paisley told employee Blake that he,
Paisley , knew who the union "guys" were and told
employee White that the five protesters caused the
"trouble over the Union." Respondent's inconsistent
evidence is not credited.
3. Respondent entertained antiunion animus . While this
in itself is insufficient to find an unfair labor practice, it
nevertheless is a factor which may be weighed in
determining the true motive for his discharge . It is also
significant that Goodman' s discharge coincided with the
Union' s organizational campaign . N.L.R.B. v. Mira-Pak,
Inc., 354 F.2d 525, 527 (C.A. 5); Texas Industries, Inc.,
156 NLRB 423, 425.
4. It is not necessary that union activity be the only
reason leading to a discharge . It is sufficient that union
activity be a motivating or substantial reason for such
termination . N.L.R.B. v. Symons Mfg. Co., 328 F.2d
SUTHERLAND LUMBER CO. 1021
835, 837 (C.A. 7); N. L. R. B. v . Lexington Chair Co., 361
F.2d 283, 295 (C.A. 6); N. L.R.B. v . Whitin Machine
Works , 204 F . 2d 883, 885 (C.A. 1). And I find that union
activity was a substantial reason for Goodman ' s discharge.
N.L.R.B. v. Park Edge Sheridan Meats , 341 F.2d 725,
728 (C.A. 2).
5. Respondent committed other unfair labor practices.
In addition , I find that Manager Paisley told employee
White that Paisley would lose his job " if the Union ever
got in ." I do not credit Respondent' s contrary evidence.
This is probative on the question of whether union activity
contributed to Paisley 's decision to fire Goodman.
6. Goodman was abruptly discharged during the
organizational campaign of Local 716. Thus timing is
significant . Arkansas-Louisiana Gas Company, 142
NLRB 1083 , 1085-86 . The abruptness of a discharge
warrants the inference - and I draw it - that
Goodman ' s union activity entered into the decision to
discharge him. And the timing of the discharge to coincide
with the Union ' s campaign also carries weight. Texas
Industries , 156 NLRB 423 , 425. "The abruptness of a
discharge and its timing are persuasive evidence as to
motivation ." N.L.R.B. v. Montgomery Ward & Co., Inc.,
247 F.2d 497, 502 (C.A. 2), cert. denied 355 U. S. 829;
N.L.R.B. v. Hawthorn Company , 403 F. 2d 1205 (C.A. 8);
N.L.R.B. v. L. E. Farrell Co., 360 F.2d 205 , 208 (C.A. 2).
7. Finally, I find that Manager Paisley refused to give a
reason for Goodman ' s discharge when Goodman asked for
one. I do not credit Respondent' s evidence not consonant
with this finding . This "alone would be enough to support
an inference that the layoff was discriminatory ." N.L.R.B.
v. Griggs Equipment , Inc., 307 F .2d 275, 278 (C.A. 5);
N.L.R.B. v. Plant City Steel Corp., 331 F.2d 511 (C.A.
5).
8. Goodman received periodic pay increases. Thus I
find that he was a satisfactory employee . It is most
unusual to discharge good employees precipitately at a
time when men are needed.
9. A pattern of discharging only union adherents is
discernible in the record . This discloses a discriminatory
intent . Sterling Aluminum Co. v. N. L.R.B., 391 F.2d 713;
Nachman Corporation , 144 NLRB 473. Thus I find
Paisley told White that the five protesters "caused the
trouble over the Union."
E. As to the Discharge of Charles E. Miller
5. Respondent engaged in a discernible pattern of
systematically terminating only union men. Thus the
Union ' s attempt to obtain a majority was effectively
frustrated . This is significant when coupled with Manager
Paisley' s statement that he would lose his job if the Union
ever got in.
6. I find that Respondent posted a rule that an
employee who "misses a day's work without calling in will
be fired effective 7/6/66 ," and that Miller had knowledge
thereof. I further find that failure to call in constitutes
lawful cause for discharge , and that the wisdom,
soundness , reasonableness , or harshness of such a rule
may not be questioned in this proceeding . Portable
Electric Tools , Inc. v . N.L.R.B., 309 F .2d 423 , 426 (C.A.
7); N.L.R. B. v. Ogle Protection Service , 375 F.2d 497,
505 (C .A. 6), cert . denied 389 U .S. 483; Thurston Motor
Lines , Inc., 149 NLRB 1368. However if union activity is
a substantial or motivating cause for a discharge, it will
be found to be discriminatory even though cause also
exists for the layoff. N.L.R.B. v. Symons Mfg. Co., 328
F.2d 835 , 837 (C .A. 7); N.L.R.B. v. Mid- West Towel &
Linen Service , 339 F .2d 958, 962 (C.A. 7).
If material , I find that Miller did call in , so that no
breach of the rule has been established . Of course this
alone does not shield him, and I so find . For an employer
may discharge for any reason , no matter how groundless,
so long as it is not discriminatory . Nevertheless, I have
found Miller's discharge to be discriminatory for other
reasons narrated above.
7. I find that Miller was told that he was laid off for
missing too many days . Respondent ' s evidence
inconsistent with this finding is not credited . However, I
find that he lost no more than 5 or 6 days in all before his
layoff and that he was not reprimanded about this or
warned that he thus exposed himself to discharge . Failure
to warn has probative value . E. Anthony Sons , Inc. v.
N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.); N.L.R.B. v.
Melrose Co., 351 F.2d 693 (C.A. 8); Dunclick , Inc., 159
NLRB 10, 11, fn. 1. And absence of reprimand warrants
an inference of waiver of the alleged misconduct involved.
8. Finally , I find that Miller was a satisfactory
employee , that he received two raises in pay within 5
months after he was hired , and that Respondent "needed
men." It is difficult to perceive why competent workers
are summarily discharged for their first infraction of a
rule of this nature at a time when such workers are in
demand.
I am of the opinion, and I find , that Miller was
dismissed for engaging in union activity , and that the
reason given for his discharge , i.e., absenteeism, is a
pretext to conceal the true reason . This ultimate finding is
derived from the entire record in this case and the
following subsidiary findings which I find as facts:
1. Miller engaged in union activity, i.e., he signed a
union authorization card and attended a meeting of Local
716.
2. Respondent had cognizance of Miller's union
activity , not only because the Board 's small plant rule is
operative , but also because Manager Paisley told
employee Blake that he, Paisley , knew who the union men
were.
3. Miller was abruptly discharged during the Union's
organizing campaign . The abruptness and timing of a
discharge are relevant in pointing to the conclusion that
the discharge is discriminatory.
4. Respondent not only harbored antiunion hostility,
but also committed other unfair labor practices.
F. As to the Discharge of Danny Kaye Smith
Smith ' s discharge in my opinion occurred because he
(a) engaged in protected , concerted activity in protesting
the transfer of employee Kline to the self-service
department , and (b) engaged in union activity . I so find.
This employee ' s conduct in protesting Kline 's discharge
conforms substantially (except for minor variations) with
that of others in the group , including Blake . For the
reasons stated above in connection with the discharge of
Blake, I find that Smith engaged in protected , concerted
activity , and that his discharge therefor violates Section
8(a)(1) of the Act.
But I also find that a substantial or motivating reason
for Smith 's discharge is his union activity . On this aspect
of the case the reasons (except that numbered 7)
mentioned above in finding that employee Goodman was
discharged for engaging in union activity are equally
applicable to Smith . They need not be reiterated here.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, I also further find that Smith started at $400
a month and received periodic increases which raised his
pay to $550 a month by the time he was discharged. Such
increases connote that Smith was a valuable employee
performing acceptable services. An employee in this
category is not usually peremptorily discharged especially
when the employer "needs men." Hence it is reasonable to
infer - and I do so - that a discriminatory motive
persuaded Manager Paisley to discharge Smith. For this
additional reason I find that a motivating consideration in
discharging Smith was his union activity.
G. As to the Discharge of Ronald B. Milliken
"Direct evidence of a purpose to violate the statute is
rarely obtainable" in connection with an employee's
discharge. Hartsell Mills v. N.L.R.B., 111 F.2d 291, 293
(C.A. 4). "Nowadays it is usually a case of more subtlety
" N.L.R.B. v. Neuhoff Bros., 375 F.2d 372, 374
(C.A. 5). As a consequence it becomes necessary to scan
the record to ascertain the actual motive behind an
employee's dismissal . Radio Officers Union v. N.L.R.B.,
347 U.S. 17, 50. In my opinion Milliken was released as
an employee (a) for protesting the transfer of Kline to the
self-service department, and (b) for engaging in union
activity. I so find. This ultimate or basic finding flows
from the entire record and the following subsidiary facts,
which I hereby find:
1. Milliken's conduct in complaining about Kline's
transfer substantially corresponds to that of the others in
the protesting group, including that of Blake. See Section
9(a) of the Act. For the same reasons given above in
finding Blake's discharge resulted from his conduct in
objecting to Kline's transfer, I find that Milliken was
unlawfully discharged. Owens-Corning Fiberglass, 172
NLRB No. 20. Such reasons are hereby incorporated by
reference and need not be repeated at this point.
2. But I also find that a substantial reason for
Milliken's discharge is his union activity. On this branch
of the case I find that Milliken signed a union card,
attended meetings of Local 716, acted as organizer for
Local 716 at Respondent's Indianapolis lumber yard, and
obtained signed union authorization cards from some
employees. The reasons given above (except that
numbered 7) in finding that union activity was a
substantial motive for discharging William Ernest
Goodman are equally applicable to Milliken, and I so
find. Accordingly, they are hereby incorporated by
reference but will not be restated here.
However, an additional ground exists for finding that a
substantially motivating cause behind Milliken's discharge
was his union activity. This is that Milliken was very
active in the union movement at Respondent's lumber
yard and acted as its organizer there. Thus I find that he
actively and openly espoused the Union and solicited
members at such yard on behalf of Local 716. Hence he
patently became a target for dismissal in order to cripple
the progress of the union movement at the yard.
"Obviously the discharge of a leading union advocate is a
most effective method of undermining a union."
N.L.R.B. v. Longhorn Transfer Service, 346 F.2d 1003,
1006 (C.A. 5).
H. As to the Discharge of Clyde Small
Small's discharge closely resembles that of Goodman.
Accordingly I find that Small was discharged for (a)
protesting the transfer of Kline to the self-service
department, and (b) for union activity. The reasons
supporting this finding are set forth in that part of this
Decision dealing with Goodman's discharge, and are
hereby incorporated by reference at this point.
An additional reason for finding that Small was
discharged for his union activity is that I find that
Manager Paisley offered no explanation as to why he was
discharging Small notwithstanding that Small requested
one. All that Paisley said was "we just don't need you any
more." Respondent's evidence clashing with this finding is
not credited. This not only establishes employer
knowledge of Small's union activity (American Grinding
& Machine Co., 150 NLRB 1357, 1358) but amounts to
evidence of discriminatory intent in actuating the dismissal
of an employee. N.L.R.B. v. C. W. Radcliffe, 211 F.2d
309, 314 (C.A. 9); Virginia Metalcrafters, 158 NLRB 958,
962; N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275,
278 (C.A. 5); N.L.R.B. v. Plant City Steel Corp., 331
F.2d 511 (C.A. 5).
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Respondent set forth in sections
III(I ) and V, above, found to amount to unfair labor
practices, occurring in connection with its operations
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.
VII. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices prohibited by Section 8(a)(1) and (3)
of the Act, I shall recommend that the National Labor
Relations Board order it to cease and desist therefrom and
to take specific affirmative action, as set forth below,
designed to effectuate the policies of the Act. Since the
discharges found to be illegal (except that of Blake) go
"to the very heart of the Act" (N.L.R.B. v. Entwhistle
Manufacturing Company, 120 F.2d 532, 536 (C.A. 4)), I
shall recommend that the relief provided in the Board's
Order be broad enough to prevent further infraction of the
Act in any manner . R & R Screen Engraving, Inc., 151
NLRB 1579, 1587.
As Respondent has discriminated against Blake,
Goodman, Miller, Milliken, Small, Smith, and Storkman
in discharging them I shall further recommend that it
offer to each of them immediate and full reinstatement to
his former position or one substantially equivalent thereto
without prejudice to their seniority and other rights and
privileges previously enjoyed by each, and to make each
whole for any loss of earnings he may have suffered by
reason of his discharge. In making them whole
Respondent shall pay to each a sum of money equal to
that which he normally would have earned as wages from
the date of his discharge to the date of reinstatement or a
proper offer of reinstatement, as the case may be, less his
net earnings during such period. Such backpay shall be
computed on a quarterly basis in the manner provided in
F. W. Woolworth Company, 90 NLRB 289, and shall
include the payment of interest at the rate of 6 percent
calculated according to the method set forth in Isis
Plumbing & Heating Co., 138 NLRB 716. I shall also
recommend that Respondent preserve and, upon
SUTHERLAND LUMBER CO. 1023
reasonable request , make available to the Board or its
agents , all pertinent records and data necessary to
ascertain whatever backpay may be due.
Upon the basis of the foregoing findings of fact, and
upon the entire record , I make the following:
CONCLUSIONS OF LAW
1. Local 716 is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent is an employer as defined in Section
2(2), and is engaged in commerce within the meaning of
Section 2(6) and (7), of the Act.
3. By discriminating in regard to the tenure of
employment of Goodman , Miller , Milliken, Small , Smith,
and Storkman , thereby discouraging membership in Local
716, a labor organization , Respondent has engaged in
unfair labor practices condemned by Section 8(a)(3) and
(1) of the Act.
4. By discharging Blake , Goodman , Milliken , Small,
and Smith , for participating in protected , concerted
activities , Respondent had engaged in unfair labor
practices prohibited by Section 8(a)(l) of the Act.
5. By engaging in the conduct set forth in this
paragraph Respondent has engaged in additional conduct
forbidden by Section 8(a)(1) of the Act: (a) coercively
interrogating employees concerning their and other
employees ' union membership , activities , and desires; (b)
threatening to close its lumber yard at Indianapolis,
Indiana , rather than recognize a union there ; (c) telling its
employees at said Indianapolis lumber yard there will
never be a union there ; and (d ) threatening employees at
said Indianapolis lumber yard with reprisals if they
supported Local 716 or if a union came in to said lumber
yard.
6. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
7. Respondent has not committed any other unfair
labor practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this case,
I recommend that the Board enter an Order that
Respondent , its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Local 716, or any
other labor organization , by discharging employees or
otherwise discriminating in any manner in respect to their
tenure of employment or any term or condition of
employment.
(b) Discharging employees for protesting another
employee ' s transfer or assignment to any position, or for
engaging in other protected , concerted activities.
(c) Coercively interrogating its employees concerning
their and other employees ' union membership , activities,
and desires.
(d) Threatening to close its lumber yard at
Indianapolis , Indiana, rather than recognize a union there.
(e) Telling its employees at said Indianapolis lumber
yard there will never be a union there.
(f) Threatening employees at said Indianapolis lumber
yard with reprisals if they supported Local 716 or if a
union came in to said lumber yard.
(g) In any other manner interfering with , restraining, or
coercing its employees in the exercise of rights
safeguarded to them by Section 7 of the Act , 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.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer employees Blake , Goodman , Miller , Milliken,
Small, Smith , and Storkman each immediate and full
reinstatement to his former position or one substantially
equivalent thereto , without prejudice to their seniority and
other rights and privileges enjoyed by each , and make
each whole for any loss of pay he may have suffered by
reason of his discharge , with interest thereon at the rate of
6 percent.
(b) Notify said Blake, Goodman , Miller , Milliken,
Small, Smith , and Storkman , if presently serving in the
Armed Forces of the United States, each of his rights to
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.
(c) Preserve and, upon reasonable request, make
available to the Board or its agents , for examination and
copying , all payroll records and reports and all other
records necessary to ascertain the amount of backpay due
under the terms of this Recommended Order.
(d) Post- at its lumber yard in Indianapolis , Indiana,
copies of the attached notice marked "Appendix ."' Copies
of said t(otice , on forms provided by the Regional
Director for Region 25, after being signed by a duly
authorized representative of Respondent , shall 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 displayed . 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 Region 25, in
writing , within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
'If 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 further event that the Board 's Order is
enforced by a decree of a United States Court of Appeals , the words "a
Decree of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
'If this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify said Regional Director , in writing,
within 10 days from the date of this Order , of the steps which Respondent
has taken to comply herewith."
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:
1024 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Coal, Ice,
Building Material , Supply Drivers, Riggers, Heavy
Haulers, Warehousemen , and Helpers, Local 716,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America,
or any other labor organization, by discharging any of
our employees or in any other manner discriminating
against them in regard to tenure of employment or any
term or condition of employment.
WE WILL NOT discharge employees for protesting
another employee 's transfer or assignment, or for
engaging in other protected, concerted activities.
WE WILL NOT coercively interrogate employees
concerning their and other employees' union
membership, activities, and desires.
WE WILL NOT threaten to close our lumber yard
rather than recognize a union here.
WE WILL NOT tell employees there will never be a
union in our lumber yard.
WE WILL NOT threaten our employees with reprisals
if they support said Local 716 or if a union comes in to
our lumber yard.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the Act,
except to the extent that such rights may be affected by
a union shop contract requiring membership in a labor
organization as a condition of employment.
WE WILL offer to the following employees immediate
and full reinstatement each to his former" position or
one substantially equivalent thereto, without prejudice
to their seniority and other rights and privileges enjoyed
by each. We will also pay each whatever loss of pay he
may have suffered as a result of his discharge by us,
with interest at 6 percent per annum.
Richard Blake Clyde Small
William E. Goodmar Danny K. Smith
Charles E. Miller Thomas Storkman
Ronald F. Milliken
All our employees are free to become members or, if
already members, to remain members , of said Local 716.
They are also free to refrain from becoming members or,
if already members, to refrain from remaining members,
of said Local 716.
SUTHERLAND LUMBER
COMPANY, INC.
Dated By
(Employer)
(Representative) (Title)
Note: Notify the above-mentioned employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, 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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 317-633-8921.