The Red River Lumber Company, a Corporation

National Labor Relations Board - Board Decisions

Apr 4, 1939

12 N.L.R.B. 79 (N.L.R.B. 1939)

In the Matter of THE RED RIVER LUMBER COMPANY, A CORPORATION
and LUMBER AND SAWMILL WORKERS LOCAL UNION No. 53, INTER-
NATIONAL WOODWORKERS OF AMERICA
In the Matter of THE RED RIVER LUMBER COMPANY, A CORPORATION
and LUMBER & SAWMILL WORKERS LOCAL 2836, UNITED BROTHER-
HOOD OF CARPENTERS & JOINERS, A. F. OF L.
In the Matter of THE RED RIVER LUMBER COMPANY, A CORPORATION
and OFFICE EMPLOYEES UNION 21697, A. F. OF L.
Cases Nos . 0-1023, R-1104, and R-1105, respectively
Lumber Industry-Discrtmination: submitted on stipulated testimony ; deiuo-
tions and discharges because of union membership and activity ; charges of,
not sustained ; refusal to reinstate because of union membership and activity ;
non-reinstatement following strike-Rentstatercnt: ordered, of employee re-
fused reinstatement; denied, of striker subsequently convicted of law infrac-
tion-Back Pay: awarded ; demoted employee, stipulation as to ; employee
refused reinstatement; striker, from date denied reinstatement following strike
to date denied reinstatement because of law infraction.
SUPPLEMENTAL DECISION
AND
ORDER
April 4, 1939
STATEMENT OF THE CASE
On December 13, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision, Order, Direction of Election, and
Certification 1 in the above-entitled proceeding. In its Decision the
Board made no findings regarding the cases of J. Franklin Valice,
Valentin Cabana, and Angelo Favero, individuals named in the com-
plaint who are not provided for in the stipulation of October 21,
1938, proposing a partial settlement of the consolidated proceeding.
The Board stated in its Decision that the three cases would be made
the subject of a supplemental decision and order.
1 10 N. L. R. B. 594.
12 N. L. R. B., No. 10.
79
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to Vance, Cabana, and Favero, the complaint, as
amended, alleges that because of their failure or refusal to join Local
1, District 14, of Industrial Employees Union, Inc., herein called
the I. E. U., or because of their membership in, activity on behalf of,
or sympathy toward Lumber and Sawmill Workers Local Union No.
53, International Woodworkers of America, herein called the I. W. A.,
affiliated with the Committee for Industrial Organization, herein
called the C. I. 0., (1) The Red River Lumber Company, Westwood,
California, herein called the respondent, demoted Vance on or about
September 22, 1937, and refused to reinstate him to his former posi-
tion until on or about November 22, 1937, again demoted him on or
about February 16, 1938, discharged him on or about May 6, 1938,
and thereafter refused to reinstate him; (2) the respondent dis-
charged Cabana on or about October 3, 1937, and thereafter refused
to reinstate him; and (3) on or about July 29, 1938 , after the strike
called on or about July 7, 1938, the respondent refused to reinstate
Favero. In its answer, filed October 10, 1938, the respondent denies
that it committed the alleged unfair labor practices with respect to
the three employees.
Written stipulations concerning the three cases, dated November
14, November 30, and December 2, 1938, and signed by counsel for
the Board and counsel for the respondent, were made a part of the
record. Such stipulations set forth the testimony which witnesses for
the respondent and witnesses for the Board would have given had
such witnesses been called to testify at the hearing.
By an Order dated February 4, 1939, the Board directed that no
Intermediate Report be issued, directed that Proposed Supplemental
Findings of Fact, Proposed Supplemental Conclusions of Law, and
Proposed Supplemental Order be issued, and granted the parties the
right to file exceptions thereto, to request oral argument before the
Board, and to request permission to file a brief with the Board. On
the same day, pursuant to the Order the Board issued Proposed Sup-
plemental Findings of Fact, Proposed Supplemental Conclusions of
Law, and Proposed Supplemental Order. On February 16, 1939, the
respondent filed objections and exceptions to the Board's Proposed
Supplemental Findings of Fact, Proposed Supplemental Conclusions
of Law, and Proposed Supplemental Order and thereafter filed a brief
in support of its objections and exceptions. The Board has considered
the objections and exceptions and the brief, and save as consistent
with the findings of fact, conclusions of law, and order below finds
the objections and exceptions to be without merit.
Upon the entire record in the case, including the stipulations, the
Board makes the following :
THE RED RTVER LUMBER COMPANY 81
FINDINGS OF FACT
1. THE DEMOTIONS , DISCIIAI{GES, AND REFUSALS OF REINSTATEMENT
J. Franklin Vance was hired by the respondent as ,,t common laborer
on July 15, 1933. On January 1, 1935, he was made it number three
grader in the veneer plant, learning to grade panels. In March 1935
he was made a number one grader, and in June 1935 he began to
work as a grader on the night shift.
According to the testimony of the respondent's witnesses, Vance
was a "trouble-maker" on the night shift and was the source of con-
siderable disturbance among his fellow employees. He often left
his work and annoyed others with pranks and practical jokes.
Moreover, Vance sometimes failed to do satisfactory grading, which
was skilled or semi-skilled work. Despite the admonitions of his
foreman, Eric Bork, Vance failed to improve his behavior and his
work. Accordingly, Bork reported his case to H. A. Smith, superin-
tendent of the veneer plant. Smith thought that Vance's poor be-
havior might have been provoked by his association with the assist-
ant night foreman, Merrill Stoddard, who was thereafter discharged
for neglect of duties, lack of cooperation, and violation of the re-
spondent's rules. Therefore, instead of discharging Vance, Smith
transferred him to the day shift on probation in order to give him
another chance to improve. Vance does not deny having engaged
in the conduct ascribed to him, but testifies that he had never been
warned by the respondent that he would be discharged or disciplined
if he ever got in trouble, and further testifies that to his knowledge
he had never been put on probation because of his conduct. In the
light of all the evidence, including that which relates to the circum-
stances surrounding Vance's discharge, set forth below, we credit the
testimony of the respondent's witnesses regarding Vance's miscon-
duct and find that lie was reprimanded for such behavior and warned
against future breaches of discipline.
Vance testifies that in the spring and summer of 1937 Smith
promised him desirable promotions. This Smith denies, testifying
that neither Vance's skill nor seniority qualified him for such pro-
motions. We credit Smith's denial in this respect, since the claimed
promises of promotion are not consistent with Smith's dissatisfaction
with Vance's conduct.
In September and October 1937 the respondent had to reduce the
number of its highly paid employees due to lack of orders. The re-
spondent at that time had an agreement with the I. E. U. which pro-
vided that members of the I. E. U. should "have preference in em-
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ploylnent, promotion, and retention on the job." Since Vance was
not a nioinber of the I. E. U., his position was given to an I. E. U.
member, and from September 22 to November 22 Vance was demoted
to the position of a common laborer.- On the latter date he was re-
instated to his former position as a number one grader.
Counsel for the Board and the respondent entered into a separate
stipulation with regard to Vance's demotion of September 22, 1937.
The stipulation is hereby approved. It provides as follows:
It is stipulated and agreed that the National Labor Relations
Board may forthwith enter an order providing that J. Franklin
Vance be made whole for any loss of pay which he may have
suffered by reason of his demotion for the period of September
22, 1937, to November 22, 1937, by payment to him of a sum of
money equal to that which he would nominally 3 have earned
as wages from September 22, 1937, to November 22, 1937, less
the amount he earned during that period. It is further stipu-
lated and agreed that after the entry of such order by the Na-
tional Labor Relations Board there may be entered in the United
States Circuit Court of Appeals for the Ninth Circuit a decree
by said Court enforcing in full the said order of the National
Labor Relations Board, and Respondent hereby consents to the
entry of such decree and hereby waives prior notice thereof.
This stipulation and agreement shall not be construed to in any
way limit the power of the National Labor Relations Board to
make any further or different order or orders as it shall see fit,
with respect to matters herein or otherwise presented to said
Board other than said demotion.
At about the time of Vance's reinstatement, Smith found him away
from his job, laughing and talking with a fellow-employee when he
should have been working. Smith warned Vance at that time that
he was "on the spot" and that if he "kept his mouth shut" he would
get along better. Vance asserts that he had been continually talking
of the merits of the I. W. A. as contrasted with the I. E. U., and
contends that Smith's warning was intended to silence such praises
of the I. W. A. Smith testifies, on the other hand, that his admonition
was occasioned by his finding Vance away from his work, and explains
that it was in the nature of a reminder to Vance that his conduct
was under observation since his removal to the day shift. We adopt
Smith's explanation of his warning since this explanation is con-
sonant with the above findings regarding Vance's misconduct.
2 During the period of his demotion Vance was peumtted to take and took a vacation
of 4 weeks
s Obviously a typographical error for the word "noi wally."
TAE REP RIVER LUMBER COMPANY 83
In February 1938 the repondent's business became very slack, ne-
cessitating the lay-off of several employees. On February 4' Vance
was laid off from his job as number one grader and told to report to
the employment office for information regarding work. Ile did so
and on February 7 was given work in the veneer plant as a common
laborer. Vance testified that others who were demoted at the same
time were not required to apply for work at the employment office
but were transferred directly to their new jobs. It appears, however,
that the employees who received such preferential treatment had
greater seniority or skill and experience than Vance.
The respondent's agreement with the I. E. U., effective January 17,
1938, provides that in the matter of promotions, demotions, and lay-
offs, seniority rules will be followed, and that controlling seniority
shall be departmental seniority, determined upon the basis of length
of service in the department, rather than plant seniority, determined
upon the basis of total length of service with the respondent. The
agreement also provides for "bumping." This provision states that
any skilled or semi-skilled employee who is laid off pursuant to the
seniority rules shall be entitled to "bump," or take the job of, any
other skilled or semi-skilled employee in his own department who has
less departmental seniority than he, "unless the man he proposes to
bump is of more value to . . . [the respondent] as an employee
by reason of skill and/or experience," and further states that any em-
ployee, skilled or unskilled, laid off pursuant to the seniority rules,
shall be entitled to "bump" any common laborer who has less plant
seniority than he, with the same proviso.
At the time of his lay-off Vance asked to be allowed to "bump"
Leonard Beavers, the production clerk, and Leonard Smith, the as-
sistant shipping clerk in the warehouse, but his requests were refused.
Vance testifies that he had greater departmental and plant seniority
than both of these men, but Superintendent Smith testifies that Vance
did not have sufficient seniority or skill and experience to "bump"
either of them. Vance claims, moreover, that Ile held both jobs at
some time in the past, but this somewhat vague claim is not borne
out by Superintendent Smith's specific account of Vance's employment
history.6 We find that Vance did not have any experience in either
I The date of this occurrence is disputed . February 16 is the approximate date set
forth in the complaint and in Vance 's testimony . Smith testifies , however, that the date
was February 4, and since the respondent 's records are available to hun, we accept the
latter date as the correct one.
' Smith testifies that at this time Vance was employed at common labor . Vance testifies
that lie was a number one grader when laid off , and we accept the latter 's testimony. As
set forth above, on November 22, 1937 , Vance was reinstated to his grading job and
there is no evidence that he was deprived of that job betweeen November 22, 1937, and
February 4, 1938.
'Vance testifies that lie held Beavers ' job "two years before ." It appears , however,
that 2 years prior to February 1938, Vance was employed as a number one panel grader
on the night shift.
169134-39-vol. 12-7
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the said jobs and, therefore, that the respondent's refusal to permit
hun to "bu ► np" either the production clerk or the assistant shipping
clerk was not discriminatory. Furthermore, on February 9 Vance
was offered the opportunity of "bumping" either of two number one
graders but refused to "bump" either of them. At his request, he was
then permitted to "bump" into the job of spot sander, which job he
held until his discharge on May 6.
On about May 1 a vacancy occurred for a number one panel
grader to work with Paul Bossetti,7 Vance's former grading partner,
and Vance asked Smith for the job. He testifies that Smith told him
that he was going to "break in a new man on the job," a man who had
more plant seniority but less departmental seniority than Vance.
Smith testifies, however, that the job was given to William Scoville,
a man who had greater seniority and skill than Vance and states that
he informed Vance of this fact.
Vance was discharged on May 6 for misconduct. The circumstances
leading up to the discharge are as follows :
On May 5 Vance again asked Smith why he was not reinstated
to his grading job. It appears that Smith replied that the existing
vacancy was being awarded to Scoville, that Vance's grading work
had been unsatisfactory, and further, that Bossetti did not care to
work with him because of his "devilish pranks and continual
conversation."
When Smith left Vance, the latter walked over to Bossetti, cursed
him, and threatened to give him a beating. Bossetti reported the
occurrence to Superintendent Smith, and shortly thereafter Vance
called Bossetti several more opprobrious names. Several of the men
in the department were summoned to the veneer-plant office, ap-
parently for questioning concerning the occurrence, and Vance later
followed them, leaving his work without permission. On the way
to the office, he met Earl K. Yorton, shipping foreman, and Arthur
Carter, assistant superintendent of the veneer plant. The latter
asked Vance where he was going and then told him he had better
"watch his step." It is against the respondent's rules for an em-
ployee to leave his work without permission. Yorton testifies that
after Vance left, Carter stated that he and Smith had "talked it
over ... [and] they figured it would be a good chance to get rid of
trouble because Vance belonged to the C. I. O. [the I. W. A.]."
Carter denies that he made this statement.
In the plant office Vance found Smith and S. W. Macdonald.
manager of the respondent's industrial-relations department, and
told them that he thought it was about time he was questioned con-
cerning what had happened. Smith directed ltim to return to work,
7 Also designated Bosetti.
THE RED RIVER LUMBER COAIL'ANY 85
and later told him that he and Carter were in charge of the veneer
plant. Near the close of the working day, Macdonald talked with
Vance but said nothing about discharging him. He informed Vance,
that threatening men was a criminal offense, to which Vance replied
that "that worked both ways and that Bossetti had been the one. that
threatened . . . Vance."
On the following clay Smith told Vance that he was released by
direction of T. S. Walker, the respondent's vice president and man-
ager of the lumber division. Before leaving the plant Vance visited
Smith's office, asked him whether he recalled the names which Vance
had called Bossetti the day before, and told him that he was "pre-
cisely the same thing." Vance has not, since been employed by the
respondent. Both the I. W. A. and the Board have negotiated with
the respondent concerning his reinstatement on several occasions
but without success.
Vance is a very active member of the I. W. A. and is its present,
vice president. In the past he has served as its publicity agent and
as a member of its executive board and negotiating committees. He
was an active participant in the strike conducted by the I. W. A.
against the respondent from July 8 to 13, 1938, and served as a
picket.
In its answer the respondent denies that it engaged in the alleged
unfair labor practices with respect to Vance. In view of the sep-
arate stipulation which we have approved with regard to Vance's
demotion on September 22, 1937, we will make no finding regarding
such demotion but will enter our order in accordance with the terms
of the stipulation.
With regard to the alleged discriminatory demotion in February
1938, it is clear that the respondent's slack business made it necessary
to lay off some employees. Testimony given in the respondent's be-
half indicates that the respondent dealt with Vance in accordance
with the seniority rules then in effect under its contract with the
I. E. U., and that shortly after his lay-off Vance was offered the op-
portunity and allowed to "bump" into a position more desirable
than that of a common laborer. Since we shall not in this decision
make any finding regarding the validity of the said contract, we do
not find that the application of the seniority rules embodied therein
constitutes an unfair labor practice within the meaning of the Act.
We do not feel, moreover, that the evidence and contradictory tes-
timony presented warrant a finding of discrimination against Vance
in this instance. Accordingly, we do not find that by laying off J.
Franklin Vance on February 4 and thereafter giving him a position
other than that of a number one panel grader, the respondent dis-
criminated in regard to any term or condition of his employment to
discourage membership in the I. W. A.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of Vance's prior misconduct and resulting probationary
employment status and of the circumstances surrounding his alterca-
tion with Bossetti, we do not find that by discharging J. Franklin
Vance the respondent discriminated in regard to his hire and tenure
of employment, within the meaning of the Act.
Valentin Cabana was employed by the respondent front 1925 to 1933
as solicitor for its general store in Westwood, California. In 1933
lie was discharged allegedly for having engaged in "bootlegging," s
and T. S. Walker, the respondent's vice president and lumber division
manager, wrote on his employment card the words, "Do not rehire
without OK by T. S. W." On August 17, 1936,° Cabana was reem-
ployed by the respondent in the box factory as a common laborer, on
probation. We have noted that in September and October 1937 the
respondent experienced a period of slack business during which it
demoted and laid off, pursuant to the provisions of the preference
clause in its agreement with the I. E. U., a number of employees who
were not members of the I. E. U. Cabana was laid off in this manner
on October 3. On November 22 the respondent reinstated most of
the employees who had been laid off but failed to recall Cabana. He
immediately went to the employment office to ask the reason for his
exclusion. Macdonald, manager of industrial relations, informed
him that he could not have a job because he was "making too much
trouble."
Cabana was one of the first employees who joined United Wood-
workers Local Industrial Union No. 38, affiliated with the C. I. 0.,
herein called Local 38, which was organized in May 1937 and was
chartered as the I. W. A. in August 1937. He wore his union button
to work and refused to join the I. E. U. He allowed Local 38 to
hold organizational meetings in houses owned by him in "Old Town,"
a community in or near Westwood. Cabana signed up more mem-
bers for Local 38 than any other single member. His home in West-
wood is a common meeting place for I. W. A. committees.
In its answer the respondent denies that it engaged in the alleged
unfair labor practices with respect to Cabana. Since we are not in
this decision determining the validity of the agreement between the
respondent and the I. E. U., we do not find that by laying off Valentin
Cabana pursuant to the terms of the said agreement, the respondent
discriminated in regard to his hire and tenure of employment, within
the meaning of the Act.
With regard to Cabana's denial of reinstatement Macdonald testi-
fies that "Cabana has been . . . a source of considerable trouble and
° Cabana claims that he was innocent of the offense charged.
° Cabana testifies that he was reemployed in February or March 1936 , but we accept
the date given by Macdonald , to whom the respondent 's employment records are available.
THE RED RIVER LUMBER COMPANY 87
disturbance to the community, wholly apart from any union activi-
ties . . ." Macdonald further testifies that although Cabana occupies
a company-owned house under a restrictive, non-commercial lease, he
has for several years used the house as his headquarters for selling
groceries. Furthermore, according to Macdonald's testimony, many
of Cabana's friends have frequented the house for the purpose of
drinking alcoholic beverages, and many of the activities conducted on
the premises have been of "questionable character."
Although, according to Macdonald's testimony, Cabana's alleged
disturbing conduct had continued for several years, such conduct did
not preclude the respondent from reemploying Cabana in 1936 before
the formation of Local 38, or from retaining him until Local 38's
successor, the I. W. A., had become active in the plant. It appears
that no improper personal activities of Cabana were referred to by
the respondent during the course of his employment between August
17, 1936, and October 1937, at the time of his discharge in October
1937, or in May 1938 when Earl S. Neal, a Field Examiner of the
Board, sought to secure his reinstatement. It is, therefore, hardly
conceivable that any such activities constituted the primary reason
for the respondent's refusal to reinstate Cabana. Moreover, the re-
spondent's other alleged reasons for its conduct are not supported by
the evidence. The respondent agrees that Cabana's alleged "boot-
legging" offense in 1933 "should not be considered against him in
view of the fact that he had [subsequently] been reemployed." Neal's
examination of Cabana's employment record revealed that there was
no merit in the respondent's contention that Cabana had done poor
work. Furthermore, Cabana is not, as contended by the respondent,
too "light" for the work.10 Finally, we are of the opinion that when
Macdonald, on November 22, told Cabana that he could not have a
job because he was "making too much trouble," Macdonald was refer-
ring to Cabana's union activities rather than to any improper per-
sonal activities. In view of all the evidence, we find that the
respondent refused to reinstate Cabana not for the reasons assigned
by it but because of Cabana's membership in and activity on behalf
of the I. W. A.
We find that by refusing to reinstate Valentin Cabana on Novem-
ber 22, 1937, and thereafter, the respondent has discriminated in
regard to his hire and tenure of employment, thereby discouraging
membership in the I. W. A., and has thereby engaged in an unfair
labor practice within the meaning of Section 8 (3) of the Act. We
also find that by such action the respondent has interfered with,
10 Women no stronger nor heavier than Cabana do similar work in the respondent's box
factory.
88 DECISIONS OF NATLONAL LABOR RELATIONS BOARD
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Angelo Favero was employed by the respondent in 1934. He
joined the I. W. A. in November 1937. Favero participated in the
strike conducted by the I. W. A. against the respondent from July
8 to 13, 1938, and served as a picket. When the picket line was
dispersed on July 13, he was driven from Westwood along with
many other I. W. A. members. He returned to Westwood on July
21 and on July 22 applied for work with the respondent. Although
the respondent had posted notices prior to this date stating that
all employees could go back to work without discrimination, Mac-
donald made reference to Favero's activities on the picket line and
told him that there was no job open to him. Favero testifies without,
contradiction that at that time and thereafter, other workers were
given employment, many of whom had less seniority than he.
In its answer the respondent denies that it refused to reinstate
Favero because of his activities in behalf of the I. W. A., as alleged
in the complaint. In view, however, of Macdonald's statement to
Favero on July 22, we do not credit the respondent's denial. Ac-
cordingly, we find that by refusing to reinstate Angelo Favero on
July 22, 1938, the respondent has discriminated in regard to his
hire and tenure of employment, thereby discouraging membership
in the I. W. A., and has thereby engaged in an unfair labor practice
within the meaning of Section 8 (3) of the Act. We also find that
by such action the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Sec-
tion I above, occurring in connection with the operations of the
respondent,11 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.
III. THE REMEDY
We have found that the respondent discriminated in regard to
the hire and tenure of employment of Valentin Cabana and Angelo
Favero by refusing to reinstate them. The respondent contends,
"The operations of the respondent are described in Section I of the Decision, Order,
Direction of Election , and Certification , 10 N L R B 594 , issued by the Board in
this proceeding on December 13, 1935.
THE, RED RIVER LUMBER COMPANY 89
however, that we should not order the reinstatement of these em-
ployees for the reason that both Cabana and Favero were subse-
quently punished for infractions of the law.
On January 3, 1938, subsequent to his denial of reinstatement,
Cabana pleaded guilty to the charge of illegal possession of wine
and was fined therefor. The respondent further contends that it
has a "strict rule against the employment of men who get into
difficulties with the law, and especially when that violation relates
to the use or sale or possession of intoxicating liquors . . ." This
alleged rule was not uniformly applied by the respondent, however,
for although Cabana was discharged in 1933 allegedly for having
engaged in "bootlegging," the said rule did not prevent his reem-
ployment in August 1936. In addition to our finding that the re-
spondent discriminatorily refused to reinstate Cabana on November
22, 1937, we find that the respondent continued to refuse Cabana
reinstatement on and subsequent to January 3, 1938, because of
his union membership and activity, and we therefore see no reason
to depart from our usual practice in ordering Cabana reinstated
to restore the staters quo existing prior to the commission of the
unfair labor practices. Accordingly, we shall order the respondent
to offer Cabana immediate reinstatement to his former or substan-
tially equivalent position without prejudice to his seniority and
other rights and privileges, and to make him whole for any loss
of pay which he has suffered by reason of the discrimination against
him by payment to him of a sum equal to the amount which he
would normally have earned as wages from November 22, 1937,
the date of his refusal of reinstatement, to the date of the offer of
reinstatement, less his net earnings 12 during said period.
In August 1938, after his application for reinstatement had been
denied, Favero was arrested for beating his wife when he was under
the influence of intoxicating liquor. He was found guilty of battery
and served a 60-day sentence in jail. On September 25, 1938, the day
of his release from jail, he made a second application to the respondent
for work and on this occasion was informed by Macdonald that it was
useless for him to seek further employment in view of his "jail record."
The respondent contends that "it has been the consistent policy of
12 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent, irhich would not hare been incurred but for his
unlawful retusal of reinstatement and the consequent necessity of his seeking employ-
ment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of
Caipenters and Joiners of America, Lumber and Sawmill lVoikers Union, Local 2590,
8 N. L. R. B. 440 . Monies received for woik pertoimed upon Federal , State , county,
municipal , or other work relief projects are not considered as earnings , but, as provided
below in the Order, shall be deducted from the sum due the employee , and the amount
thereof shall be paid over to the appropriate fiscal agency of the Federal, State , county,
municipal , or other government or governments which supplied the funds for said work-
relief projects.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the company [the respondent] to discharge employees who are con-
victed of wife beating, assault, or resisting an officer." On the basis
of the evidence, we find that the respondent refused to reinstate Angelo
Favero on September 25, 1938, for the reason alleged and therefore
we shall not order the respondent to reinstate him. We shall, how-
ever, order the respondent to make him whole for any loss of pay he
has suffered by reason of the discrimination against him on July 22,
1938, by payment to him of a sum equal to the amount which he would
normally have earned as wages from July 22, 1938, to September 25,
1938,13 less his net earnings 14 during said period.
In its exceptions and brief the respondent urges that since it has
heretofore posted in its plant the Order in the Board's Decision, Order,
Direction of Election, and Certification,15 issued on December 13, 1938,
it should not be required to post notices of the cease and desist portion
of this supplemental order. Since the previous Order has been posted,
we shall not require another posting.
Upon the basis of the foregoing findings of fact and the entire
record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employ-
ment of Valentin Cabana and Angelo Favero, thereby discouraging
membership in the I. W. A., the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section
8 (3) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
4. The respondent has not discriminated in regard to the hire or
tenure of employment of J. Franklin Vance, within the meaning of
Section 8 (3) of the Act.
5. By laying off J. Franklin Vance on February 4, 1938, and there-
after demoting him, the respondent did not discriminate in regard
to any term or condition of his employment, within the meaning of
Section 8 (3) of the Act.
"We shall not require the respondent to pay Favero for the period of tine during
which he served his sentence.
14 See footnote 12.
1810NLRB594.
THE RED RIVER LUMBER COMPANY
ORDER
91
Upon the basis of the above findings of fact and conclusions of law,
upon the basis of the stipulation regarding J. Franklin Vance, and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
The Red River Lumber Company, Westwood, California, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from discouraging membership in Lumber and
Sawmill Workers Local Union No. 53, International Woodworkers of
America, or any other labor organization, by laying off, discharging,
demoting, refusing to reinstate, or otherwise discriminating against
its employees in regard to hire or tenure of employment, or any term
or condition of employment.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make J. Franklin Vance whole for any loss of pay which he
may have suffered by reason of his demotion between September 22,
1937, and November 22, 1937, by payment to him of a sum of money
equal to that which he would normally have earned as wages from
September 22 to November 22, 1937, less the amount lie earned during
said period;
(b) Offer to Valentin Cabana immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges;
(c) Make whole Valentin Cabana for any loss of pay he has
suffered by reason of the respondent's discrimination in regard to his
hire and tenure of employment, by payment to him of a sum of
money equal to that which he would normally have earned as wages
from the date of his refusal of reinstatement to the date of said offer
of reinstatement, less his net earnings during said period, deducting,
however, from the amount otherwise due to said employee, monies
received by said employee during said period for work performed
upon Federal, State, county, municipal, or other work-relief projects,
and pay over the amount, so deducted, to the appropriate fiscal
agency of the Federal, State, county, municipal, or other government
or governments which supplied the funds for said work-relief projects;
(d) Make whole Angelo Favero for any loss of pay he has suffered
by reason of the respondent's discrimination in regard to his hire
and tenure of employment, by payment to him of a sum of money
equal to that which he would normally have earned as wages from
July 22, 1938, to September 25, 1938, less his net earnings during said
period, deducting, however, from the amount otherwise due to said
employee, monies received by said employee during said period for
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount, so deducted, to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
said work-relief projects;
(e) Notify the Regional Director for the Twentieth Region in
writing within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, in so far as it alleges that
the respondent discriminated in regard to the hire and tenure of
employment of J. Franklin Vance, and in so far as it alleges that
the respondent on February 16, 1938, discriminated in regard to the
terms and conditions of his employment, within the meaning of
Section 8 (3) of the Act, be, and it hereby is, dismissed.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent discriminated in regard to the hire and tenure of
employment of Valentin Cabana on October 3, 1937, within the mean-
ing of Section 8 (3) of the Act, be, and it hereby is, dismissed.