Frost Lumber Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 19, 1951

93 N.L.R.B. 1586 (N.L.R.B. 1951)

1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The number and variety of unfair labor practices found above clearly in-
dicates that the Respondent has been, and now is, disposed to deteat concerted
activity and self-organization among its employees by any conceivable means,
and discloses an attitude on the part of the Respondent of fundamental hostility
to the purposes of the Act. This attitude and conduct also indicates the likeli-
hood that the Respondent may resort in the future to the similar or related
unfair practices proscribed by the Act The preventive purposes of the Act
will be thwarted unless the recommendation herein and the Board's order
thereon are coextensive with this threat. The undersigned will, therefore,
recommend that the Respondent cease and desist from in any mariner infring-
ing upon the rights of the employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , the undersigned makes the following :
CONCLUSIONS OF LAW
1. District 34, International Association of Machinists, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the ex-
ercise 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 (a) (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.
[Recommended Order omitted from publication in this N olume.]
FROST LUMBER INDUSTRIES , INC., OF TEXAS and CouNI:r Tus REED. Case
No. 16-CA-217. April 19, 19i5I
Decision and Order
On January 22, 1951, Trial Examiner Lee J. Best issued his Inter-
mediate Report 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 Intermediate Report
attached hereto. No exceptions were filed by the Respondent to these
findings of unfair labor practices. However, the General Counsel
filed exceptions to the Intermediate Report insofar as the Trial Exam-
iner found that the May 2, 1950, offer of employment to Reed by the
Respondent was an offer of employment substantially equivalent to
his former position with the Respondent. We agree with the Trial
Examiner's conclusion.
The Board 1 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 Inter-
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers in connection with this case to a three -member panel
[Chairman Herzog and Members Reynolds and Murdock].
93 NLRB No. 263.
FROST LUMBER INDUSTRIES, INC. 1587
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
Order
Upon the entire record of this case, and pursuant to Section 10 (c)i
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Frost Lumber Industries,.
Inc., of Texas, Nacogdoches, Texas, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the International Woodworkers
of America, CIO, or any other labor organization, by discrimination
in regard to the hire or tenure of employment of its employees or any
term or condition of employment whatsoever.
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to join or
assist the International Woodworkers of America, CIO, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid and protection,
or to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which it is found will
effectuate the policies of the Act :
(a) Offer to Henry Davis immediate and full reinstatement or
employment in a job within its system substantially equivalent to
his former position, without prejudice to his seniority or other rights
and privileges ; and make whole both Cornelius Reed and Henry Davis
for any loss of pay they may have suffered by reason of the Respond-
ent's discrimination against them, in the manner set forth in the
section of the Intermediate Report entitled "The remedy."
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze and compute the back pay due and other
rights of reinstatement under the terms of this Order.
(c) Post at its plant in Nacogdoches, Texas, copies of the notice
attached hereto and marked Appendix A 2 Copies of said notice, to
2In the event this order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice before the words , "A Decision and Order ," the words, •
"A Decree of the United States Court of Appeals Enforcing."
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent, be posted immediately
upon receipt thereof and be maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Necessary action shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what steps
have been taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in, or activities on behalf
of, the INTERNATIONAL WOODWORKERS OF AMERICA, CIO, or any
other labor organization, by discriminating in regard to hire or
tenure of employment or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to join or assist the INTERNATIONAL WOODWORKERS OF AMERICA,
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from any or all of
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3)
of the Act.
AVE WILL OFFER to Henry Davis immediate and full reinstate-
ment or employment in a job within our system at Nacogdoches,
Texas, substantially equivalent to his former position, Without
prejudice to any seniority or other rights or privileges enjoyed
and make him whole for any loss of pay suffered as a result of the
discrimination against him.
WE WILL MAKE WHOLE Cornelius Reed for any loss of pay
suffered as a result of the discrimination against him from the date
of his discharge to May 2, 1950, when he declined our offer of
reemployment.
FROST LUMBER INDUSTRIES , INC. 1589
All our employees are free to become or remain members of the
above-named union or any other labor organization.
MOST LUMBER INDUSTRIES , INC., OF TEXAS,
Employer.
Dated-------- By--------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Intermediate Report and Recommended Order
Joseph A. Jenkins, Esq., for the General Counsel.
R. F. Caldwell, Esq., of Shreveport, La., and H. L. Edwards, Esq., of Nacog-
doches, Tex., for the Respondent.
Frank McCarty, Field Representative, of Houston, Tex., for the Union.
STATEMENT OF THE CASE
Upon a charge filed on December 8, 1949, and a first amended charge filed
on January 19, 1950, by Cornelius Reed, an individual, the General Counsel for
the National Labor Relations Board, by and through the Regional Director for
the Sixteenth Region (Fort Worth, Texas), issued a complaint dated Novem-
ber 3, 1950, against Frost Lumber Industries, Inc., of Texas, herein called the
Respondent, alleging that the Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the meaning of Sections 8 (a)
(1) and (3) and 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act.
With respect to the unfair labor practices the complaint alleges in substance
that following an economic termination of the employment of Cornelius Reed
and Henry Davis, (1) the Respondent did on various dates in the month of
June 1949, and thereafter, refuse to reemploy said employees, because of their
membership in Local 25, International Woodworkers of America, CIO, herein
called the Union, and because they engaged in other concerted activities for
the purposes of collective bargaining or other mutual aid or protection; and (2)
the Respondent has from on or about June 10, 1949, to date, interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act by interrogation concerning their union affiliations, and by
threatening and warning them to refrain from assisting, becoming, or remaining
members of the Union.
The Respondent filed an answer admitting that it was engaged in commerce
within the meaning of the Act, but denying all allegations of the complaint with
respect to unfair labor practices. Included therein was a motion to dismiss
Article 7 of the complaint for nonconformity with any charge filed within 6
months subsequent to the respective dates on which unfair labor practices were
alleged to have been engaged in. The motion to dismiss was denied. By an
amended answer filed at the hearing the Respondent further alleged that a short
time prior to the layoff of Cornelius Reed and Henry Davis, their jobs had been
permanently abolished; that no similar jobs exist in the operations of the Re-
spondent, nor is a resumption of such jobs contemplated in the future; and that
Cornelius Reed and Henry Davis are not qualified either through training, ex-
perience, or education to perform any other jobs for Respondent, except extra
employment not usual in Respondent's operations in jobs consisting of common
labor, which have been offered to them and refused.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice to all the parties, a hearing was conducted at Nacogdoches,
Texas, on November 21 and 22, 1950, before the undersigned Trial Examiner duly
designated by the Chief 'Trial Examiner. The General Counsel and Respondent
were represented by counsel, and representatives of the Union were present. All
parties were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues involved.
Counsel for the Respondent moved for an indefinite postponement of the hear-
ing based upon a doctor's certificate that C. S. Williams, president of the Re-
spondent, was unable to appear as a witness because he was 71 years of age and
suffering from a chronic heart ailment, which made confinement to his bed neces-
sary. A final ruling on the motion was deferred, and at the close of the hearing
the Respondent expressed no desire to hold the case open for the taking of Wil-
liams' testimony at a laterdate or by deposition.
At the close of the hearing oral argument by counsel was received and recorded.
The parties were advised of their right to tile proposed findings of fact, con-
clusions of law, and briefs. All briefs filed have been given due consideration.
A motion by counsel for the General Counsel at the conclusion of the hearing to
conform the pleadings to the proof was allowed without objection
Based upon the entire record in the case and observation of the witnesses, I
make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Frost Lumber Industries, Inc, of Texas, is a Texas corporation and subsid-
iary of Frost Lumber Industries, Inc., a Missouri corporation. It is engaged in
logging and the manufacture of lumber. The Texas corporation owns approxi-
mately 125,000 acres of land from which a big majority of its logs are processed.
A few logs are purchased on the open market. Its sales of finished lumber in the
year 1949 exceeded $500,000, and approximately 75 percent of this outflow was
shipped to points outside the State of Texas. The principal offices of the Texas
corporation are located in Shreveport, Louisiana, and it operates sawmills and
factories at Wascom and Nacogdoches, Texas. Until the spring of 1949, it
operated a logging camp about 35 miles from the Nacogdoches mill and a logging
train connecting those points. The Nacogdoches plant employs approximately 300
people at peak employment. I therefore find that the Respondent is engaged in
commerce within the meaning of the Act.
II. THE LAI3OR ORGANIZATION INVOLVED
International Woodworkers of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act, admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Operations of the Respondent
Operations of the Respondent include logging, and the manufacture of lumber
by sawing, planing, drying, stacking, storing, and loading the finished product
for market. The plant of the Respondent at Nacogdoches, Texas, consists
of a sawmill and planing mill, where the logs are first sawed into rough lumber
of various lengths and sizes. The rough lumber is processed through a planing
machine, and then dried in stacks either in the open air or in dry kilns. Upon
completion of the drying process, the finished lumber is graded and loaded
on cars, trucks, or other means of transportation for sale on the open market.
- FROST LUMBER INDUSTRIES, INC. 1591
The aforesaid general processes include numerous minor operations , which, for
the sake of brevity, will not be set forth in detail here.
In its operations the Respondent necessarily employs highly skilled workmen
such as engineers, machinists, sawyers, filers, edgermen, block-setters, machine
operators, and lumber graders, etc. In addition it employs semiskilled workmen
who because of experience, intelligence, and ability possess qualifications for
particular jobs superior to the ordinary workman. It employs also a large
number of workmen in the classification of common labor.'
The Respondent made a practice of accepting written applications for highly
skilled jobs, and contracts for such employment were approved at the manage-
ment level. In the case of semiskilled and unskilled labor, the authority to hire
and fire was delegated to foremen in the various departments of operation.
These foremen personally selected workmen from available applicants on the
spot, and processed them for physical examination through the company phy-
sician Upon approval by the doctor, the applicants then reported to the office
of the plant superintendent for final approval or disapproval to go on the job.
By that process the Respondent exercised control over who would be hired
or rejected for employment'
Practically all of the highly skilled workmen, foremen, and officials of the
Respondent are white men A large portion of its semiskilled and common
laborers are Negroes. The following persons hold official or supervisory
positions in the Company :
C. S. Williams, president
Clyde Woodward, 'plant superintendent
Richard Cole, shipping clerk
Gilbert Schenks, sawmill foreman
R L. Vance, mill shop foreman
Homer Buchanan, yard foreman
E. L. Grimes, dry kiln foreman
In June 1949, the Respondent discontinued operation of its logging train from
the timberland camp to the mill plant in Nacogdoches. The abandonment of this
operation resulted in the economic layoff or discharge of approximately 26
employees, most of whom were Negro members of the Union, including Cornelius
Reed and Henry Davis. Termination memoranda addressed to the timekeeper
show that Reed was discharged on June 6, 1949, and Henry Davis on June 16,
1949, both for the reason that their jobs had been discontinued.
Shortly after the layoff, officials of the Union sought conferences with the
Respondent with respect to rehiring members of the Union. On August 2,
1949, State Representative Robert Oliver submitted in writing a list of 21 dis-
charged employees for rehiring on available jobs, including the names of Cor-
nelius Reed and Henry Davis. As a result of the ensuing discussion approxi-
mately one-half of the list was eventually reemployed by the Respondent, not
including Reed and Davis.
B. The issues
The principal issues presented in these proceedings are as follows :
(1) Did the Respondent discriminate in regard to the hire or tenure of
employment of Cornelius Reed to encourage or discourage membership in the
Union ;
' James A. Byrd, sawyer for the Respondent over a period of 40 years , testified that
three-fourths of all jobs at Respondent 's plant could be performed by any man of average
education and good physique after 2 or 3 days ' experience ; and that the Respondent
frequently hired green men with no prior experience on the job.
2 Deduced from testimony of Gilbert Schenks, sawmill foreman.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Did the Respondent discriminate in the hire or tenure of employment
of Henry Davis to encourage or discourage membership in the Union ; and
(3) Did the Respondent by other acts or conduct interfere with, restrain, or
coerce its employees in the exercise of the rights guaranteed in Section 7 of
the Act?
C. Discrimination against Cornelius Reed
1. His qualifications for employment
When discharged on June 6, 1949, Cornelius Reed was an able-bodied and
satisfactory worker. He possessed the equivalent of a junior high school educa-
tion, and was 52 years of age. For several months following his original employ-
ment in 1941 or 1942, he worked under the supervision of sawmill foreman,
Gilbert Schenks, as a clean-up man, oiler of machinery, and relief man in various
jobs at the plant of the Respondent. In sawmill lingo he performed such work
as relieving the hog feeder, running the hog, fighting the bear, changing knives,
running the slasher, working the swing behind the edger, working on the log
pond, and helping the millwright. Foreman Schenks testified that he was a
satisfactory worker, and that the only work in the mill he was not qualified to
perform was skilled jobs such as edger-man, block-setter, sawyer, and filer.
In 1943, Reed was transferred to the logging department where he worked
in the car shop under the supervision of Shop Foreman R. L. Vance, as a car
knocker. He worked in the repair and construction of cars for the logging train,
repaired locomotives, and engaged in extra work in the mill shop. Foreman
Vance testified that his work was satisfactory, and that Reed was more de-
pendable and experienced than his helper, Donna Rogers, who was rehired by
the Respondent subsequent to the layoff
2. His union activities
Cornelius Reed joined the Union prior to its certification as bargaining rep-
resentative in May 1948 Both white and Negro employees were admitted to
membership. He became a leader in Local 25, and was elected shop steward,
trustee, member of the negotiating committee, and chairman of the grievance
committee. He was very aggressive in negotiating a contract with the Respond-
ent, and was one of the signers of the initial agreement dated July 2, 1948. On
November 9, 1949, when all white employees had withdrawn from the local union,
Reed was elected president of Local 25.
From the uncontradicted testimony of W. A. Keeter and James A. Byrd, it
appears that by his aggressiveness at negotiation conferences Cornelius Reed
incurred the enmity of C. S. Williams, president of Respondent, who threatened
retaliation in December 1948 to the effect: "Sonny, I'll get you yet" or "Sonny,
I am going to get you someday."'
3. Negotiations for reemployment
On June 7 or 8, 1949, Cornelius Reed in company with a state representative
(W. A. Keeter) of the Union sought a conference with the Respondent with
respect to his reemployment. The Respondent was informed that Reed was
available and would accept any type of job available. The president (C. S.
Williams) stated that no openings were available, that approximately one-half
8 C. S Williams did not attend the hearing on account of illness. Acts of the
Respondent's agents occurring more than 6 months prior to the filing and service of
the charge will be considered as background only, and will not be made the basis of any
finding of unfair labor practices herein. Section 10 (b) of the Act.
FROST LUMBER INDUSTRIES, INC. 1593
of the mill force would be laid off, and that the boys from the camp would be taken
care of. The plant superintendent (Woodward) said, "We'll think about it."
On June 21, 1949, President Williams told W. A. Keeter that "Sonny Reed
will never work for Frost again." When it was suggested that a charge of
unfair labor practices might be filed, Williams said, "Go ahead and file your
damned charges."
At the conference in August 1949 called by Robert Oliver, state representative
of the Union, President Williams told Reed, "You don't work here any more,
and when we cut out the log train, we cut you out."
In February or March 1950, another representative of the Union (Paul C.
White) interceded on behalf of Cornelius Reed. Williams said, "If that's all
you have to talk about, you can get out of, my office. We are not going to put
that damned nigger back to work ; he's too diligent, too active in the union
activity out there in handling grievances. We don't need a nigger out there
that is so active in handling grievances, stirring up a lot of trouble."
During the latter part of June and in July 1949, Cornelius Reed applied in
person to Foremen Schenks and Cole for employment on the mill premises.
Both foremen informed him that no work was available. On July 14, 1949, Reed
dispatched a letter to the Respondent, as follows :
After I was laid off by Frost Lumber Company I applied verbally for em-
ployment in any job in the system and have been continuously available since
that time for employment and am now available and will be available at
any time in the future for any job that may fit my qualifications.
He also sent a note to the plant superintendent (Woodward) by Martin
Rabellez in December 1949 stating that he was ready to go to work at any time
there was an opening for him.
4. Respondent's offer of reinstatement
In September 1949, Cornelius Reed accepted employment with Harris Hotel
Courts at Nacogdoches, Texas, where he is still employed. Acting upon the
advice of counsel, the plant superintendent (Woodward) on May 2, 1950, offered
Reed a job on a construction project which had been launched by the Respondent
in February 1950. The wage offered was 75 cents per hour plus overtime, and
he was told that there was a probability of his going back into the plant when the
construction work was completed. His previous job with Respondent paid a
wage of 65 cents per hour plus a bonus of 15 percent. The construction job has
not yet been completed. After due consideration Reed notified the Respondent
that he would not accept the offer of reemployment unless he was assured of a
permanent job, and preferred to retain his job with Harris Hotel Courts.
The record shows that since June 1949, the Respondent has hired a total of 69
new men in various departments of its plant at Nacogdoches, not including those
employed for work on the construction project.
D. Discrimination against Henry Davis
Having prior experience in the sawmill industry at Wiergate, Texas, Henry
Davis was first employed by the Respondent in 1930. Intermittently he has
remained in the employment of Respondent for a period of approximately 18
years. For the first 8 years he lived and worked at the logging camp about 35
miles from Nacogdoches. He was a member of the steel gang, laying track for
the railroad. He worked for a while with hook and tongs as a loader of logs on
cars. Then he became a brakeman and fireman on the logging train. In 1938
he was transferred to the mill shop in Nacogdoches. There he was first a helper
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
around the shop, and then resumed his duties as a brakeman and fireman on
the logging train.
When discharged in June 1949 because the logging train was discontinued,
Davis went immediately to the plant superintendent ( Woodward ) and requested
work in the shop. He was informed that other men being moved in from the
camp must first be taken care of before he could be put to work . Woodward
testified that he suggested that work might be found for him in the sawmill, but
that Davis was afraid to work around the machinery . When Davis insisted that
he needed work, Woodward said, "Well, Henry , don't you all have a fund? I
understand they have a fund to take care of the boys or help you." Davis testi-
fied that Woodward said, " Well, I am going to let the Union feed you boys I
am going to let the Union take care of you, let the Union feed you "
Henry Davis also applied personally to several of the foremen in the plant, but
found none of them interested in giving him employment . On July 14 , 1949, he
addressed a letter to the Respondent stating that he had already made verbal
application for any job in the system , and would be continuously available for
any job fitting his qualifications . His name was also included on the list of
members for which the Union sought reemployment by the Respondent at the
conference in August 1949, supra.
Henry Davis held no official position with the Union , but had been a loyal
member since its inception at Respondent 's plant. It will hereinafter appear
that the plant superintendent had learned of his loyalty to the Union just prior
to the Board -ordered election in May 1948.
E. Interference, restraint, and coercion
On the eve of a Board-ordered election in May 1948, the plant superintendent
approached Henry Davis with a ballot in his hand, and said, "Tomorrow is the
day they are going to vote This piece of paper right here says `yes.' You make
an `N' in here if you want the Union, and over here says `no.' If you don't want
the Union make an `X' in there. I want you to make an `N' in `no.'
Thereupon Davis replied, "No, I won't do that."
Woodward said, "You are a hundred percent for the Union," and walked away.
On or about June 14-20, 1949, the plant superintendent (Woodward) accosted
Cornelius Reed at the company store at its plant in Nacogdoches, and objected
to his discussing union affairs with other employees during the noon hour. The
Respondent contended that the men were being delayed in returning to work
when the whistle blew. Reed credibly testified as to the substance of statements
made by Woodward, as follows :
Sonny, I have got orders to tell you not "to come around the store any
more ;" "Well, that is the orders I got We got a way to keep Mr Keeter
away from here, too, if we want to ;" "I don't want you to come down es-
pecially the noon hour and agitating and keeping the men's minds stirred
up;" "No, we don't want you down here any more."
Because of his leadership in the local union, the discharge of Cornelius Reed
produced repercussions throughout the Respondent's plant. The dry kiln fore-
man (E. L. Grimes) twitted another committeeman (Curtis Sparks) of the local
union by inquiring, "What are you-all going to do with Sonny Reed's car, now
he is laid off? You-all got to pay for it. You might as well go ahead and pay
for the car. He won't work for this company no more." On another occasion
the foreman directed attention to a union button on Sparks' hat by expressing
a wish that he throw that old hat away. Stating that Sparks was a good worker,
the foreman further remarked that "You go to Williams and get any favor you
FROST LUMBER INDUSTRIES, INC . 1595
want. I see to it " Upon another occasion when Grimes received a letter from
the union organizer (W. A. Keeter), he said to Sparks, "I wish that son-of-a-
bitch would come to me instead of writing a letter. I would like to catch the
man face to face." In February 1950, Foreman Grimes said, "I wish every
son-of-a-bitch that belongs to the CIO would be backed up against a brick wall
and shot down."
Soon after the discharge of Cornelius Reed, the sawmill foreman (Gilbert
Schenks) remarked to another member of the Union (Arthur Reed), "That old
man is after you-all. You might as well throw that damned button in the
creek, because Mr . Williams-will not give you another contract. They have the
King Fish."
Concluding Findings
In view of the fact that Respondent has since June 1949 hired 69 new employees
in its plant and an undetermined additional number in construction work on the
premises, it cannot now be heard to say that no jobs were available. There is no
merit in its contention that Cornelius Reed and Henry Davis were not qualified
by training, experience, or education to perform any work for the Respondent.
For a long period of years both of these men demonstrated their ability in a
variety of jobs throughout the system. Their availability for reemployment is
clearly established by the persistent efforts of the Union and themselves for a
period of several months following the layoff in June 1949 to persuade the Re-
spondent to offer them employment.
With respect to Cornelius Reed, I find that on May 2, 1950, the Respondent
made him- a bona fide and unconditional offer of employment in construction work
on the premises with the probability of continued employment at the plant in
Nacogdoches, Texas, and that such employment was substantially equivalent to
his former position with the Respondent. There is no evidence that the Re-
spondent made a practice of or was obligated to insure permanent employment
to any of its employees. The Union had previously recognized by contract and
otherwise that the assignment and direction of its working force was the ex-
clusive right and responsibility of the Respondent
From a preponderance of the evidence, it is concluded that the Respondent
for a period of 6 months prior to the filing and service of the charge herein, and
continuously thereafter, has engaged in unfair labor practices by discrimination
in regard to the hire or tenure of employment of Cornelius Reed and Henry
Davis to discourage membership in a labor organization ; except that any such
discrimination with respect to Cornelius Reed was terminated on May 2, 1950,
when the Respondent tendered him substantial employment, which he declined.
The charge and complaint alleges that on and after June 10, 1949, the Re-
spondent by other acts and conduct interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 of the Act. The
episode between Henry Davis and Clyde Woodward, plant superintendent, con-
cerning the ballot on the eve of the election in May 1948 cannot and will not be
made the basis of any finding of unfair labor practices herein. It has been
mentioned and considered only as background bearing upon subsequent acts and
conduct of the Respondent occurring within a period of 6 months prior to the
filing and service of the charge.
In the absence of substantial evidence that such activities seriously interfered
with the operation of Respondent's business, I find that the action of Clyde
Woodward, plant superintendent, on or about June 14-20, 1949, in forbidding the
discussion of union affairs by Cornelius Reed with other employees around the
company store during the noon hour lunch period constituted interference with
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and restraint of its employees in their right to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection.4
Although Foreman Grimes denied the specific language attributed to him by
Curtis Sparks, he admitted that he did a great deal of talking about the Union,
and carried on a lot of foolishness with employees in that respect, but could not
recall any particular remarks that he made to any of them. I therefore credit
the testimony of Curtis Sparks, and find that the statements made by Foreman
Grimes in their entirety were an integral part of Respondent's campaign to
discredit the Union, far exceeded the bounds of free speech, contained threats of
reprisal or force or promise of benefits, and therefore amounted to interference
with, restraint, and coercion of Respondent's employees in the exercise of their
rights to self-organization.
I credit also the testimony of Arthur Reed with respect to the remarks made
to him by the sawmill foreman, Gilbert Schenks. That statement contained
threats of reprisal against members of the Union, and was clearly an inter-
ference with, restraint, and coercion of Respondent's employees in the exercise
of their rights to self-organization.
From a preponderance of the evidence, I therefore find that the Respondent
has independently of other charges engaged in unfair labor practices by inter-
fering with, restraining, and coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act, as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent described in Section III, above, occurring in
connection with the Respondent's operations described in Section I, above, have
a close, intimate, and substantial relation, to trade, traffic, and commerce among
the several States, and such of them as have been found to constitute unfair
labor practices tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
Having found that the Respondent discriminatorily failed and refused ' to
reinstate or reemploy Cornelius Reed and Henry Davis, but that Cornelius Reed
declined to accept Respondent's offer of substantially equivalent employment on
May 2, 1950, I shall recommend that the Respondent offer to Henry Davis im-
mediate employment in a job within its system substantially equivalent' to
his former position, without prejudice to his seniority or other rights and privi-
leges and make him whole for any loss of pay suffered by him as a result of the
discrimination by payment to him of a sum of money equal to the amount he-
would have earned from the date of his discharge to the date of-offer of re-
instatement or reemployment less his net earnings 6 to be computed on a quarterly
basis in the manner established by the Board in the case of F. W. Woolworth
Company, 90 NLRB 289. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other such period. It will also be recom-
mended that the Respondent make available to the Board upon request payroll
and other records to facilitate the, checking of the amount of back pay due.7
41. F. Sales Company, 82 NLRB 137.
5 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
6 Crossett Lumber Co., 8 NLRB 440.
-7 F. W. Woolworth Company, 90 NLRB 289.
E. C. OLSON LUMBER COMPANY 1597
I shall further recommend that the Respondent in a like manner make Cor-
nelius Reed whole for any loss of pay suffered by him as a result of the dis-
crimination by payment to him of a sum of money equal to the amount he would
have earned from the date of his discharge to the offer of reinstatement or
reemployment which he declined on May 2, 1950. less his net earnings to be
computed as set forth above.
Further finding from the past conduct of the Respondent, and the nature of
the unfair labor practices herein revealed, a likelihood that such practices may
be continued in the future, it will be recommended that the Respondent cease
and desist from in any manner interfering with, restraining, or coercing its,
employees in the exercise of the rights guaranteed by Section 7 of the Act 8
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. International Woodworkers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act, admitting to membership employees of
the Respondent.
2. By discriminating in regard to the hire or tenure of employment of Cornelius
Reed and Henry Davis to discourage membership in a labor organization, thereby
discouraging membership in the International Woodworkers of America, CIO,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of and in violation of Section 8 (a) (1) and Section 8 (a) (3) of
the Act.
3. By other acts and conduct 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 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting:
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
8 May Department Stores v N L. R. B , 326 U. S. 376.
E. C. OLSON LUMBER COMPANY and NORTH IDAHO-EASTERN WASH-
INGTON DISTRICT COUNCIL OF LUMBER AND SAWMILL WORKERS, AFL,.
PETITIONER. Case No. 19-RC-734. April 19, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 ( c) of the National
Labor Relations Act, a hearing was held before A. C. Roll, hearing
officer. The hearing officer 's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act , the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Murdock and Styles].
93 NLRB No. 262.