Jamestown Veneer and Plywood Corp.

National Labor Relations Board - Board Decisions

Feb 8, 1951

93 N.L.R.B. 101 (N.L.R.B. 1951)

JAMESTOWN VENEER AND PLYWOOD CORPORATION 101
JAMESTOWN VENEER AND PLYWOOD CORPORATION and UNITED BROTHER-
HOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL. Case No.
3-CA-207. February 8, 1951
Decision and Order
On October 27, 1950, Trial Examiner W. Gerard Ryan issued his
Intermediate 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also recom-
mended that the complaint be dismissed insofar as it alleged that the
Respondent had engaged in certain other unfair labor practices.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief. The Respondent also requested oral
argument . This request is hereby denied as, in our opinion, the record
and the exceptions and brief adequately present the issues and the
positions of the parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Herzog and
Members Murdock and Styles].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Jamestown Ve-
neer and Plywood Corporation, Poland, New York, its officers, agents,
successors , and assigns, shall:
i In his Intermediate Report the Trial Examiner found that Robert H. Powers was
discriminatorily discharged on July 22 , 1949 , and was refused reinstatement on August 2,
1949 . We believe that the Trial Examiner inadvertently specified August 2 , 1949, as the
date of the Respondent 's refusal to reinstate Powers, as no evidence appears in the record
indicating such refusal on that date . On the other hand the record shows, and we find,
that Powers , by letter dated September 3, 1949 , requested reinstatement which was refused
by the Respondent by its letter dated September 9, 1949 , and that such refusal was in
violation of Section 8 (a) (1) and ( 3) of the Act. Powers ' back pay, however, shall run
from the date of his discriminatory discharge on July 22, 1949.
93 NLRB No. 19.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in United Brotherhood of Carpen-
ters and Joiners of America , AFL, or in any other labor organization
of its employees , by discharging or refusing to reinstate any of its
employees, or by discriminating in any other manner in regard to
their hire or tenure of employment , or any .term or condition of
employment.
(b) Interrogating its employees in any manner concerning their
union affiliation , activities , or sympathies , or threatening them with
discharge or other economic reprisal because of their union affiliation,
activities , or sympathies.
(c) In any other manner interfering with , restraining , or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations , to join or assist United Brotherhood of
Carpenters and Joiners of America , AFL, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection , or to refrain
from any and all 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 we find will effectu-
ate the policies of the Act :
( a) Offer to Robert H. Powers, Richard J. Morgan, Sr ., Fred B.
Wilcox, Charles Davis, and Gardiner Sheppard immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges.
(b) Make whole Robert H. Powers, Richard J. Morgan, Sr., Fred
B. Wilcox, Charles Davis, and Gardiner Sheppard , in the manner set
forth in that section of the Intermediate Report entitled "The rem-
edy," for any loss of pay each may have suffered as a result of the
Respondent 's discrimination against him.
(c) Upon request , make available to the National Labor Relations
Board, or its agents, for examination and copying , all payroll records,
social security payment records , time cards , personnel records and
reports, and all other records necessary to analyze the amounts of
back pay due and the right of reinstatement under the terms of this
Order.
(d) Post at is plant in Poland, New York, copies of the notice at-
tached hereto and marked "Appendix ." 2 Copies of said notice, to be
2 In the event this Order is enforced by a decree of the United States Court of Appeals,_
there shall be inserted before the words "A Decision and Order ," the words, "A Decree of
the United States Court of Appeals Enforcing "
JAMESTOWN VENEER AND PLYWOOD CORPORATION 103
furnished by the Regional Director for the Third Region, shall, after
being duly signed by a representative of the Respondent, be posted by
it immediately upon receipt thereof, and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps 'shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Appendix
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 UNITED BROTHERHOOD
OF CARPENTERS AND J0INERS OF AMERICA, AFL, or any other labor
organization of our employees, by discharging or refusing to re-
instate any of our employees, or by discriminating in any other
manner with regard to their hire and tenure of employment, or
any term or condition of employment.
WE WILL NOT interrogate our employees in any manner con-
cerning their union affiliation, activities, or sympathies, or
threaten them with discharge or other economic reprisal because
of their union affiliation, activities, or sympathies.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, or
any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination :
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert H. Powers Charles Davis
Richard J. Morgan, Sr. Gardiner Sheppard
Fred B. Wilcox
All our employees are free to become or remain members of the
afore-mentioned union, or any other labor organization or to refrai-ii
from 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. We will not discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any employees
because of membership in or activity on behalf of any such labor
organization.
JAMESTOWN VENEER AND PLYWOOD CORPORATION,
Employer.
By -------------------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and- must not be,altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Ralph E Kennedy, Esq., for the General Counsel.
Charles A Drake, Esq., of Utica, N. Y, and Ferris, Burgess, Hughes and Dor-
rance, by R. G. Dunmore, Esq., of Utica, N. Y., for the Respondent.
Sebastian Al. Paoni, Esq., of Herkimer, N Y., for the Union.
STATEMENT OF THE CASE
Upon a third amended charge filed on June 22, 1950, by United Brotherhood
of Carpenters and Joiners of America, A F. L, herein called the Union, the
General Counsel of the National Labor Relations Board, called herein respec-
tively the General Counsel and the Board, by the Regional Director of the Third
Region (Buffalo, New York), on June 23, 1950, issued a complaint against James-
town Veneer and Plywood Corporation, herein called the Respondent, alleging
that the Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (3) and
Section 2 (6) and (7) of the Labor Management Relations Act, 1947, herein
referred to as the Act Copies of the complaint, the charge, the first amended
charge, the second amended charge, and the third amended charge upon which
it was based together with notice of hearing thereon, were duly served upon the
Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in sub-
stance: (1) That since on or about June 15, 1949, to the date of the complaint,
the Respondent in violation of Section 8 (a) (1) of the Act, interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act by (a) interrogating its employees concerning their
union affiliations; (b) urging, persuading, threatening, or warning its employees
to refrain from assisting, becoming members of, or remaining members of, the
JAMESTOWN VENEER AND PLYWOOD CORPORATION 105
Union; (c) threatening to cease operations and close its Poland plant rather
than recognize the Union; (d) advising and warning its employees to vote
against the Union in the Board-conducted election under threat of discharge or
ether discipline; (e) offering, promising, and granting a wage increase to its
employees shortly before the said election; and (2) that in violation of Sec-
tion 8 (a) (1) and (3) of the Act, the Respondent discharged Robert Powers
on or about July 22, 1949, and has since failed or refused to reinstate. him and
since that date failed or refused to reinstate Richard J. Morgan, Sr., Fred B.
Wilcox, Charles Davis, and Gardiner Sheppard, theieby discriminating in regard
to their hire and tenure of employment in order to discourage membership in the
Union
In its amended answer filed at the hearing, the Respondent admitted certain
allegations of the complaint but denied the commission of any unfair labor
practices. The amended answer further contained affirmative defenses: (1)
That Robert Powers had been discharged for cause ; (2) that Richard J Morgan,
Sr., Fred B. Wilcox, Charles Davis, and Gardiner Sheppard had voluntarily
quit, terminated, and severed their employment with the Respondent; and (3)
that the alleged violations of Section 8 (a) (1) of the Act are based-upon acts
claimed to have occurred more than 6 months prior to the filing of any charge
• thereof with the Board and that no complaint should have been issued based
thereon.
Pursuant to notice a hearing was held from July 25 to July 28, 1950, inclusive,
at the Court Room, United States Post Office, Utica, New York, before W.
Gerard Ryan, the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The parties participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues.
Decision was reserved on motions made by the Respondent to dismiss the
complaint at the close of the General Counsel's case-in-chief and at the conclusion
of the testimony. I now deny those motions. At the conclusion of the testimony,
the General Counsel moved to conform the pleadings to the proof with respect to
minor matters in the spelling of names and dates. I grant that motion. All the
pai ties waived oral argument at the conclusion of the hearing and were afforded
an opportunity to tile briefs, proposed findings of fact, and conclusions of law.
The General Counsel has filed a brief and the Respondent has filed proposed
findings and conclusions.
On the entire record in the case, and from my observation of-the witnesses, I
make the following:
FINDINGS OF FACT1
1. THE BUSINESS OF TILE RESPONDENT
• The Respondent is and has been for several years a New York corporation
with its principal office located at Jamestown, New York. It operates manu-
facturing plants in Poland, New York, the facility herein involved, Jamestown,
-New York, and Jackson, Mississippi. During the year 1949, the Respondent
received, at its Poland, New York, plant, logs valued in excess of $300,000, all of
which were purchased within the State of New York ; and shipped finished
products from its Poland, New York, plant valued in excess of $400,000, approxi-
1 In making the findings herein, I have considered and weighed the entire evidence It
would needlessly burden this Report to set up all time testimony on disputed points Such
testimony or other evidence as is in conflict with the findings herein is not credited
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately 75 percent of which was shipped to its plant at Jamestown , New York,
where it was used in the production of plywood . Approximately 75 percent of
all the plywood produced at its Jamestown plant was sold and shipped to points
located outside the State of New York . During the year 1949, the Respondent
also shipped from its Jackson , Mississippi , plant finished products valued
in excess of $400,000 , of which approximately 100 percent was shipped to points
located outside the. State of Mississippi.
The Respondent concedes and I find that it is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America , A. F. L., is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The Respondent 's operations at Poland, New York, consist of a veneer mill and
a sawmill , occupying approximately 5 acres of ground. The sawmill is separate
from but adjacent to and in back of the veneer mill. In the veneer mill are two
lathes working straight line production , cutting lathes , and a dryer . Logs are
trucked to the sawmill where they are graded into logs which will produce veneers
and logs unfit for veneer purposes which are sold for lumber . The high grade logs
suitable for veneer are then processed by putting them into outdoor covered vats
containing hot water which is brought to boiling point. After the logs are boiled
according to a schedule which depends on the time of year and the condition of
the logs, they are removed from the vats, taken to a drag saw , and sawed to
required lengths. The bark is then removed, after which the lathes peel the logs
into large sheets of thin wood . The peelings of veneer are then piled in sheets
as they come off the logs consecutively . The veneer then proceeds four or five
sheets at a time to a table where it is snatched for grain after which an operator
clips the sheets for grade ( either a face veneer grade or a low grade veneer called
a "back" ) and size. After the veneer sheets, which are still damp and hot, leave
the clipper , the faces and backs are piled separately . If left at this point, the
veneer would mildew and stain , so the sheets then proceed to the dryer operation.
The dryer is SO feet long and has five openings through which the veneer passes
through rollers which have steam coils above and below them with temperature
ranging from 240 to 300 degrees, Fahrenheit . The sheets of veneer move through
the dryer taking 1516 minutes to travel SO feet, during which time their moisture
content is reduced approximately to S or 10 percent . From the dryer , the veneer
is inspected , reassembled according to proper sequence , loaded on railroad cars,
and shipped to the Respondent 's plant in Jamestown where it is converted into
plywood.
During the daytime operations , a larger amount of veneer is cut by the lathes
than can be clipped and since the lathes are always ahead of the clipping opera-
tions, veneers are accumulated for the night shift to clip in addition to the full
tables of veneers that are ready at the end of the day shift for the clipping
process.
The supervisory personnel at all times herein material consisted of the
Respondent 's treasurer , Francis H . Isaacson , in full charge of the plants at
Poland, New York, and Jackson , Mississippi ; Lloyd J. Henry , general superin-
tendent of the Poland , New York, plant ; Leon Ellis , general manager of the
JAMESTOWN VENEER AND PLYWOOD CORPORATION 107
Adirondack operations which consisted of the veneer mill, sawmill, the purchasing
and supplying of logs to both mills, and the sale of lumber from the sawmill.'
Jesse Matteson was in charge of the dryer operations in the veneer plant during
the day shift during June and July 1949, under Henry and Ellis. Theodore
Morrison, during June and July 1949, was foreman in charge of the night shift
in the veneer plant. As foreman he was in charge of production and loading for
the night shift and in the exercise of his judgment directed and assigned
employees whenever necessary to whatever work was required in order to meet
production. The Respondent stipulated that Henry and Ellis were supervisors
within the meaning of the Act, but denied that Matteson and Morrison were
supervisors . In addition to Isaacson, Henry, and Ellis, whose supervisory status
is not questioned, I find that Morrison was a supervisor within the meaning
of the Act. Matteson was on the day shift under Henry and Ellis, whereas it was
unusual for either Henry to Ellis to be present during the night shift where
Morrison was in charge. It is unnecessary to make a finding whether Matteson
was or was not a supervisor.
Early in June 1949, employees Fred B Wilcox, Gardiner Sheppard, Charles
Davis, Lawrence Lamb, Bill Smith, and Richard J. Morgan, Sr., after discussion
among themselves decided to try to organize a union among the Respondent's
employees at the Poland plant. An appointment was made to meet with the
union representative on Sunday, June 5, at Barly's Hotel in Grant, New York.
,Upon arrival in Grant, it was noticed that Henry's automobile was parked near
the hotel so they proceeded to Hinckley, New York, where the meeting was held
with Mike Walsh and Sebastian M. Paoni, union representatives. Three em-
ployees, Richard J. Morgan, Sr, Richard J. Morgan, Jr., and Fred B. Wilcox
attended the meeting, and it was there decided not to push the organizational
plan "too hard" until after vacation time.' Application cards were distributed at
the meeting. Morgan, Sr., talked to a few employees up until vacation began and
as Morgan testified "they were gradually signing up." After the plant reopened
on July 18, more employees signed application cards The organizational cam-
paign continued and on October 17, 1949, the Union filed a petition with the Board,
and following a hearing, the Board, on December 20, 1949, directed that an election
be held within 30 days. The election was held on January 18, 1950, and the
Union lost 4
B. Interference, restraint , and coercion
1 Threats and interrogation
The General Counsel's Case
Robert Powers testified that during the second week of vacation (July 10-17)
Henry asked him if he had joined the Union and Powers informed him that he
had joined. Gardiner Sheppard testified that in the week after vacation (July
17-22) Henry asked him if he belonged to the Union, but he did not answer;
Henry then stated that if he had joined the Union, Sheppard would be sorry.
Richard J Morgan, Sr., and Fred B. Wilcox testified that 1 or 2 nights before
the layoff of the employees on July 22, shortly after 5 p. in. when the night shift
began, they were at work feeding the dryer in the veneer shop when they over-
heard Henry and Ellis who were standing at the front of the dryer about 6 or 7
2 Ellis died on April 24, 1950.
'From July 3-10 was the paid vacation time. From July 10-17, inclusive, the veneer
plant was shut down for repairs , but employees were not paid for that week.
* I have examined the Board 's file in the representation case ( 3-RC-354).
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feet away talking to each other, and that Henry said to Ellis "I know who some
of them are, but 1 don't know as I know them all", to which Ellis replied, "I
want to know who they all are I will show them how to break up their damned
union."
Roy O. Millers testified that sometime in the summer or fall of 1949,-Ellis went
into the boiler room where Miller was working and said to him "Well. I heard
you joined the Union" and Miller informed him that he had joined the Union
Miller further testified that on another occasion shortly before the election took
place Ellis went to him and told him "You do what you see fit" and Ellis continued
that there was nothing he could do about it, and that if the boys wanted a union,
let them have it.
Theodore Morrison, foreman of the night shift and the only one on the night
shift who was not laid off on July 22, testified that on July 25 Ellis told him that
it was lousy of Morgan to try to get a union in the plant and the men who were
trying to get a union in there would never get a lob there as long as he had
anything to do with them ; that the reason they were laid off was on account of
union activities; and that if the Union came in, they would be some of the first
ones laid off including Morrison on the basis of length of service with the
Company °
Frank J Branck testified that after he was laid off on July 22, he applied for
reinstatement to Ellis during the first week of August and asked when he would
be called back to work Ellis stated "Well, if you didn't belong to the Union
and kept your nose clean you would be called back to work."
Lyle Paddock, at the time o1 the hearing, had been employed by the Respondent
"off and on" since 1942 He testified that he was working for the Respondent
in the summer of 1949 and continued to work until the middle of the winter in
1950 Paddock in the summer of 1949 was employed as a fireman and had re-
lieved Powers at 7 p in on July 16, as discussed info a Paddock testified that a
night or two before the Board election, he and Ellis had a conversation at which
no one else was present Ellis said that lie hoped Paddock was not fool enough
to join the Union When Paddock replied that he had joined the Union, Ellis
replied : "You'll be sorry. You see. what the rest got You will get the same
as they did "
The Respondent's Defense
In its amended answer, the Respondent offers the defense that the unfair
labor practices alleged in paragraph IX of the complaint are based upon acts
claimed to have occurred more than 6 months prior to the filing of any charge
thereof with the National Labor Relations Board and that no complaint should
have been issued based thereon.
The Respondent objected to introduction into evidence of the statements
alleged to have been made by the deceased Ellis The Respondent did not cite
any authority to support its objection and relied merely upon the fact that
Ellis was dead at the time of the hearing I overruled the objection and per-
mitted such testimony subject to a motion to strike it later upon a proper
showing by the Respondent. The Respondent did not thereafter move to strike
such testimony but, on the contrary, offered in its behalf other statements
alleged to have been made by Ellis.
5 Miller was called as a witness, by the Respondent His testimony is referred to in
this part because he supported the General Counsel's case.
There is no evidence in the record that Morrison was a member of the Union
JAMESTOWN VENEER AND PLYWOOD CORPORATION 109
Lloyd J Henry denied that he had questioned Powers or Sheppard concerning
their membership in the Union and that he had told Sheppard if he had joined
the Union, Sheppard would be sorry. Henry further denied that he and Ellis
had any such conversation between them as testified to by Morgan and Wilcox
in which Henry said to Ellis that he knew who some of them were but did
not know them all and to which Ellis replied that he wanted to know them all
and he would show them how to break up their damned Union.
Violet Thayer testified that she has been employed by the Respondent for
more than 6 years, and feeds the dryer ; that after the election notices were
posted she asked Ellis what he thought about the Union and the posters and
Ellis replied "I have nothing to say one way or another. I am not in a position
to say anything." She further testified that neither Ellis nor Henry said she
might lose her job if the Union got in nor that the plant might shut down.
Helen Fergeson testified that she has been a worker in the veneer plant for
approximately 5 years and that a month or two before the election, after the
notices for the election had been posted, she asked Ellis what he thought of the
Union and he replied that it was entirely up to the employees, "if they wanted
a union they could have it or they didn't have to have it"-that as far as Ellis
was concerned there could be 15 unions brought in. She testified further that
Ellis did not tell her the plant would shut down nor anyone would lose his
job ; neither did Ellis nor Henry promise any benefit for not supporting the
Union.
Lawrence H. Lamb testified that he has been employed for approximately
4% years by the Respondent ; that from March 1950 until 3 days before the
hearing he was night shift foreman in full charge of the mill. Lamb continued
to to tify that about 30 days prior to the election, while he was at work matching
veneer at the clipping table, he asked Ellis if he thought they were going to
be organized in the plant and Ellis said that was a matter for the employees
to decide for themselves-that he was perfectly neutral on the thing and had
nothing whatever to say about it. Lamb further testified that Ellis never told
him lie would lose his job if the Union organized the plant, nor that the plant
would close.
Harold Edwards testified that he has been employed by the Respondent since
May 1949; that he and his wife met Ellis about 9 p. in in the late fall of 1949
and he asked:Ellis what his point on the Union was and that Ellis replied that
he was neutral, due to the fact that he was plant manager, and had nothing to
say-that it was up to the employees. Edwards testified further that Ellis never
indicated to him that jobs might suffer nor the plant shut down, nor any type
of reprisal might follow if the Union succeeded. Edwards further testified that
he never heard Henry say anything.
The testimony of Roy O. Miller, a witness called by the Respondent, has been
referred to, supra.
Conclusions
With respect to the Respondent's defense that the unfair labor practices
alleged as violations of Section 8 (a) (1) are based upon acts claimed to have
occurred more than 6 months prior to the filing of any charge thereof with the
Board and that no complaint should have been issued based thereon, the record
herein shows that the charge filed by the Union on August 15, 1949, copy of
which was mailed to the Respondent on August 15 and received by it on August
16, alleged that the Respondent had discriminatorily discharged employees in
violation of Section 8 (a) (3) and added "by other acts and conduct" the
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had also violated Section 8 (a) (1) of the Act. A similar allegation,
referring to 8 (a) (1) violations was contained in all amended charges served
upon the Respondent.? The complaint, which was issued and received by the
Respondent 1 month before the hearing, spelled out the unlawful acts and
conduct constituting the unfair labor practices. At no time did the Respondent
apply for a bill of particulars nor at any time plead surprise nor claim prejudice
at the lack of specificity in the charges ; instead, the Respondent litigated the
issues at the hearing. The complaint does not allege, nor does the record contain
any evidence in relation to unfair labor practices occurring more than 6 months
prior to the filing and service of the original charge. In view of recent Board
decisions that the Act did not alter the substantive requirements of a charge so
as to preclude charges in the statutory language or to require specificity in the
charge, I find no merit in this defense of the Respondent and accordingly hold
that the charge and amended charges are sufficient to support the 8 (a) (1)
allegations of the complaint.'
With respect-to the Respondent's objection that any testimony relating to
conversations with the deceased Ellis, is inadmissible, I find such a position
can not be supported. The New York Civil Practice Act, Section 347, does not
bar evidence of statements made by an agent of a corporation, even though such
agent be dead at the time of trial.' In other cases, motions to strike testimony
concerning statements made by a deceased have been denied 10 In considering
the weight to be given to the testimony of the witnesses concerning statements
alleged to have been made by the deceased, I am mindful that evidence of such
statements is subject to the closest scrutiny and should be received with caution 11
The issues of fact here to be decided concerning the 8 (a) (1) violations dis-
cussed above are whether or not (1) Henry interrogated Sheppard and Powers
concerning their membership in the Union and threatened Sheppard if he did
belong to the Union; (2) Henry and Ellis had the conversation in the veneer
plant within 6 or 7 feet from Morgan and Wilcox in which it was testified that
Henry told Ellis that he knew who some of them were, but did not know all of
them; to which Ellis replied "I want to know who they all are. I will show
them how to break up their damned union" ; (3) Ellis, a clay or two before the
Board election, said to Paddock that he hoped Paddock was not fool enough
to join the Union and when informed by Paddock that he had joined the Union
replied that Paddock would be sorry, adding "You see what the rest got. You
will get the same as they did" ; (4) Ellis called Boyce and employee Rockwell
into his office and asked Boyce if he had joined the Union and interrogated
him as to his reasons for wanting a union and promised a wage increase ; and
(5) Ellis told Branck when he inquired when he would be recalled to work
that if he did not belong to the Union and had kept his nose clean he would
have been called back to work.
7 The original charge was filed August 15, 1949, mailed on August 15, and received by
the Respondent on August 16, 1949 The first amended charge was filed October 17„1949,
mailed on October 18, and received by the Respondent on October 19, 1949. The second
amended charge was filed November 29, 1949, mailed on November 29, and received by the
Respondent on November 30, 1949 The third amended charge was filed June 22, 1950,
mailed on June 23, and received by the Respondent on June 24, 1950
1 Cedartown Yarn Mills, 84 NLRB 1: Cathey Lumber Company, 86 NLRB 157, Lily-Tulip
Cup Corporation, 88 NLRB 892; Globe Wireless Ltd, 88 NLRB 1262.
9 Carmen v. Shore Cleaners & Dyers, Inc, 270 App. Div. 945
10 Reynolds Wire Company, 26 NLRB 662; enfd 121 F. 2d 627, Montgomery Ward &
Company, Inc., 31 NLRB 786; Metal Mouldings Corporation, 39 NLRB 107.
31 Reynolds Wire Company , supra.
JAMESTOWN VENEER AND PLYWOOD CORPORATION 11I
The testimony of the Respondent 's witnesses concerning Ellis' statements to
them has little , if any, probative value on the issue whether Ellis had made con-
trary statements , earlier in time, to other employees , because such later state-
ments, if made , do not preclude the possibility or even probability that Ellis
had made contrary statements , weeks and months earlier . Indeed the testimony
of Miller, the Respondent 's witness , admits that Ellis did question him concern-
ing his membership in the Union during the summer of 1949 , and, since that is
so, it would lend credence to the inference that Ellis was quite capable of-
interrogating others and making the statements attributed to him by the wit-
nesses for the General Counsel. The question to be decided is whether Ellis
made the unlawful statements attributed to him.
If believed , the events of Henry's interrogation of Sheppard and Powers
concerning their union membership , the conversation between Ellis and Henry
overheard by Morgan and Wilcox , Ellis' statements to Morrison indicating
hostility to the Union and an admission that they had been discharged and for
that reason never would be rehired , and the statement by Ellis to Branck when
he inquired when he would be rehired , all happened within the period of 1 month
(July 10-August 8, 1949).
Examining first the testimony of Morrison , the record shows that at the time
he testified he was employed elsewhere than with the Respondent. He im-
pressed me as a disinterested witness, appeared pursuant to subpoena, and
testified in a matter of fact manner . On doss-examination by the Respondent,,
he was not questioned in any manner with respect to the conversation he had
with Ellis nor was his testimony on other matters impeached . His testimony-
was positive , clear, and unequivocal and withstands the closest scrutiny that
evidence of statements made by the deceased requires . I find that on July 25,
1949, Ellis admitted to Morrison that the men had been discharged and would
not be rehired because of their union membership and, activities.
The denials of Henry are insufficient to overcome the testimony which I credit
of Sheppard , Powers , Morgan, and Wilcox, and I therefore find that Henry-
questioned and threatened Sheppard and questioned Powers regarding mem-
bership in the Union between July 10 and July 22, 1949; and that on or about
July 20, Henry conversed with Ellis within the hearing of Morgan and Wilcox,
stating to Ellis that he knew who some of them were but did not know them
all, to which Ellis replied "I want to know who they all are. I will show them;
how to break up their damned union " Such a statement is not protected under-
Section 8 (c) of the Act because the inference is inescapable that it was pur-
posely planned to be said by Ellis and Henry in the presence and within the
hearing of the Respondent 's employees for, the purpose of intimidating and,
coercing them . I therefore find that the interrogation of Sheppard by Henry
as to his membership in the Union and Henry ' s statement to him that if he did
belong Sheppardi would be sorry ; the interrogation of Powers by Henry as to
his membership in the Union ; the conversation between Ellis and Henry, 1 or 2_
days before the layoff on July 22, staged in the presence of employees Morgan and
Wilcox for the purpose of intimidating , warning, and threatening them, con-
stituted interference , restraint , and coercion on the part of the Respondent and,
were violative of Section 8 (a) (1) of the Act.
In analyzing the testimony of Paddock , it too meets the scrutiny required_
with respect to a conversation with the deceased Ellis. Paddock testified credibly
in a straightforward , convincing manner, was not cross -examined with respect
to his testimony concerning what Ellis had said to him, and in no way was his
testimony impeached on other phases . I therefore find that on or about January-
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
16, 1950, Ellis had a conversation with Paddock in which Ellis stated that he
hoped Paddock was not fool enough to join the Union; and when Paddock an-
swered that he had joined, Ellis said "You'll be sorry. You see what the rest got.
You will get the same as they did." I further find that such interrogation, warn-
ing, and threat by Ellis constituted on the part of the Respondent interference,
restraint, and coercion in violation of Section 8 (a) (1) of the Act
The testimony of Cecil 1V Boyce is credible and unequivocal that prior to the
Board election, Ellis called him and employee Frank Rockwell into Ellis' office
and thereupon questioned Boyce about his membership in the Union, threatened
him with loss of his job if the Union organized the plant, and promised, in the
presence of Rockwell and Boyce, that there would be a wage increase of 5 cents
per hour Cross-examination of Boyce developed that the event occurred either
in December or January, approximately 2 weeks before the employees received
a wage increase." While Boyce's memory as to time was shown on cross-exami-
nation to be somewhat faulty, that did not impair his testimony in which he
described the circumstances, named the place where it occurred, and named a
witness in whose presence the statements by Ellis were made." After careful
appraisal I credit Boyce's testimony and find that Ellis, in the month of and
prior to December 26, 1949, summoned Boyce and Rockwell to his office, inter-
rogated Boyce concerning his union membership, threatened him with loss of
his job if the Union succeeded in oiganizing the plant, and concluded by promis-
ing a wage increase I further find that such interrogation, threat, and promise
of a wage increase by Ellis announced in such a manner and in such a setting,
constituted on the part of the Respondent interference, restraint, and coercion
violative of Section 8 (a) (1) of the Act.
There remains for resolution the question whether or not Ellis told Frank
J. Branck (when lie inquired, during the fii st week of August 1949, when he
would be recalled to work) "Well, if you didn't belong to the Union and kept your
nose clean you would be called back to woik " The Respondent intioduced the
testimony of Lloyd J Henry, who testified that 3 or 4 weeks after the layoff
on July 22, Henry attempted to recall Bt anck to work, that he notified Branck's
brother-in-law, who said that Branck was working elsewhere, as a result of
which Henry did nothing further about recalling Branck. I do not find such
testimony as to what Hem y did, 2 or 3 weeks after Ellis' remarks to Branck
are supposed to have occurred, probative on the issue whether Ellis, during
the first week in August, made such statements to Branck. Branck named the
time, the place, and the occasion positively and unequivocally, and was not
cross-examined with respect to his testimony that Ellis had made the statements
at the time and place referred to . I have no reason to doubt the truth and
veracity of Branck's testimony and therefore find that Ellis did say to Branck
during the first week in August 1949, when Branck inquired when lie would
be recalled to work "Well, if you didn't belong to the Union and kept your nose
clean you would be called back to work." I further find that such a statement
from Ellis to Branck constituted on the part of the Respondent interference,
restraint, and coercion violative of Section S. (a) (1) of the Act.
Further proof of the Respondent's interrogation of its employees concerning
their union membership was supplied by the Respondent when it introduced
the testimony of Roy 0 Miller, who at the time of the hearing had worked for
the Respondent for the past 8 years. Miller testified that during the summer
12 The wage increase was effective December 26, 1949
13 Rockwell , at the time of the hearing, w .is still working for the Respondent . but did
not testify
JAMESTOWN VENEER AND PLYWOOD CORPORATION 113
of 1949 Ellis said to him that he had heard Miller had joined the Union and
Miller answered that he had joined. The latter part of Miller's testimony that
a few days before the Board election , Ellis came to him and said "You do what
you see fit. . . . If the boys want a Union that is all there is to it" does not
nullify the interrogation nor neutralize the effects of such earlier questioning
of others by Ellis. I accordingly find that during the summer of 1949, Ellis
questioned Miller as to his union membership and such conduct was interference,
restraint , and coercion by the Respondent violative of Section 8 (a) (1) of
the Act.
That all the foregoing interrogation and threats , particularly during or-
ganizational activities by the Union constituted interference , restraint, and
coercion proscribed by Section 8 (a) (1) of the Act requires no elaboration.
It has been repeatedly held that similar threats of economic reprisals are illegal
invasions of the employees ' freedom to organize for the purpose of collective
bargaining ." To like effect , interrogation by an employer concerning union,
membership has been held in and of itself to be a violation of Section 8 (a)
(1) of the Act .15 Such questioning constitutes "interference" in matters which
are exclusively the concern of the employees . The Act envisions the exercise
of the right of self-organization in complete privacy, free from employer in-
trusion and intermeddling . 16 Such interrogation also constitutes "restraint",)
and "coercion" within the meaning of Section 8 (a) (1) since it may well imply
"a threat of some action to come. " 17 The Board ' s experience demonstrates that
questioning concerning union affairs frequently presages dismissal , layoff, or
other economic reprisals , and is not normally motivated by idle curiosity."
2. Other acts of interference, restraint, and coercion
It was stipulated between the parties that wage increases of 5 cents per hour
were granted by the Respondent on May 4, 1947 , August 24 , 1947 , March 29,
1948, April 18, 1949, and December 26, 1949; that on November 1, 1947, a plan
of insurance benefits was put into effect, 60 percent of the cost of which was
paid by the Respondent and 40 percent by the employees; that on September
1, 1949, the Respondent announced that it would grant Thanksgiving Day as
the fourth paid holiday ; and the fifth paid holiday was granted on June 1, 1950.
As appears supra, the Respondent knew by its own interrogation in early
July 1949, that some of its employees had joined the Union. By the service of the
original charge on August 16, 1949, the Respondent was aware that the Union's
campaign was progressing . When he received the charge on August 16, Ellis com-
municated immediately with Isaacson. Within 2 weeks thereafter the Respond-
ent announced that Thanksgiving Day would be a paid holiday. That the Re-
spondent acted precipitately and not in accord with usual business practices
is borne out by the fact that the Respondent was still recruiting its workers
following an economic shutdown and did not get back to full business operations
14 See N. L. R B v W. E Lipshutz , 149 F . 2d 141, 142, Humble Oil & Refining Company
v. N. L. R. B., 140 F. 2d 777, 779 ; N. L. R. B. v. Wytheville Knitting Mills , 175 F 2d 238,
239.
'IN. L. R. B. v. The National Plastic Products Company, 175 F 2d 755 See also,
H. J. Heinz Company v N. L. R B , 311 U S 514, 518; N L. R. B. v. La Salle Steel Com-
pany, 178 F . 2d 829, 832 ; N. L. R B. v. Minnesota Mining and Manufacturing Company,
179 F . 2d 323.
16 See N. L . R B. v W. A. Jones Foundry it Machinery Co., 123 F. 2d 552, 555. Also,
International Association of Machinists v N L. R B., 311 U. S. 72, 80
171V. L. R. B. v. Alco Feed Mills, 133 F 2d 419, 421 ,
18 Standard -Coosa-Thatcher Company, 85 NLRB, 1358.
943732-51-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until approximately November 1, 1949.18 On October 17, 1949, the Union filed,
its petition for investigation and certification with the Board, and, after a
hearing held on November 14, 1949, the Board on December 20, 1949, directed
that an election be held within 30 days. Within a week from the date of the
Board's order, the Respondent made effective a wage increase of 5 cents per
hour. The Respondent failed to explain satisfactorily the timing of the above
wage increases. It failed to establish that the wage increases announced on
September 1, to be effective on Thanksgiving Day, and the second increase, ef-
fective December 26, 1949, were made to meet comparable increases in the in-
dustry or made pursuant to any general pattern of wage increases in its own
plant. The stipulated facts show that the increases were not in accord with
any established practice, policy, or pattern. Almost 13 months elapsed from
the increase granted on March 29, 1948, until the next was granted on April 18,
1949. The courts and the Board have long recognized that for an employer to
offer economic benefits for the purpose of defeating attempts at self-organization
constitutes interference, restraint, and coercion .2' Here, as in N. L. R. B. v.
Crown Can Co.," the Respondent's actions were designed to prove to the em-
ployees that "resort to self-organization was plainly unnecessary." 22 In the
circumstances of this case, and upon the entire record, I find that the announce-
ment on September 1, 1949, that Thanksgiving Day would be a paid holiday and
the wage increase, effective December 26, 1949, both timed so significantly, were
calculated directly to affect the decision of the employees on the issue of union
representation and therefore constituted interference within the meaning of
Section 8 (a) (1) of the Act.
C. The discriminatory diischarge of Robert H. Powers
The complaint alleged that the Respondent discriminatorily discharged Powers
on or about,July 22; 1949, and thereafter refused to reinstate him in violation
of Section 8 (a) (3) of the Act. The amended answer admitted that Powers
was discharged for good cause on or about July 20 and has not been reinstated;
but denied the commission of any unfair labor practice.
The General Counsel's Case
At the time of his discharge, Powers, the highest paid fireman, had been em-
ployed by the Respondent for approximately 6 years. Powers continued to work
while the veneer plant was shut down for repairs from July 3-17, instead of
taking his vacation as other employees did during that period. During the week
ending July 17, as found above, Powers informed Henry that he belonged to the
Union, in reply to Henry's interrogation.
Powers testified that in the early part of that same week, he asked Henry
if he could have his vacation when the rest of the employees returned to work
and that Henry agreed it would be all right. Powers further testified that on
Saturday, July 16, Henry informed him that there would be no one to relieve
him at 3 p. m., and it would be necessary for Powers to work until. 7 p. m..
Powers had been at work since 7 a. m. and during 1949 was working 8-hour shifts.
19 See testimony of Isaacson.
20 See Medo Photo Supply Corp v. N. L R. B., 321 U S. 678, 686; N. L It. B v Brown
Paper Mill Co., 133 F 2d 988, 989, N. L. R. B. v Winona Textile Mills, 160 F. 2d 201, 206-
207; N. L. R. B. v. Bailey Company, 180 F. 2d 278; Western Cartridge Co. v. N. L. R. B,
134 F. 2d 240, 244.
21 138 F. 2d 263, 267, certiorari denied 321 U S 769.
22 See also, Cedartown Yarn Mills, Inc., 84 NLRB 1.
JAMESTOWN VENEER AND PLYWOOD CORPORATION 115
Upon learning he would have to work 12 hours that day instead of 8 hours, ac-
cording to Powers' testimony, he told Henry it would be necessary for him to
get some lunch to which Henry assented ; that about 3 p. m., he went to a local
hotel where he obtained two cheese sandwiches and a bottle of beer to take back
to the plant ; that upon coming out of the hotel he saw Henry in an automobile
turning around in the street and rode back to the plant with Henry and during
the ride reminded Henry that he wanted to take his vacation beginning Monday
(July 18) to which Henry replied that Powers would have to come in at 7 o'clock
and work until the rest of the employees came in at 8 a. in., as there would be
no one there on July 18 to relieve Powers prior to that time. Powers testified
further that during the ride back to the plant, Henry did not criticize him for
being at the hotel nor for any misconduct and that he continued to work until.
7 p. in., when he was relieved by Lyle Paddock. Powers further testified that on,
July 18, he reported for work a few minutes before 7 a. in. and worked until
8 a in., when he asked Henry if someone were going to relieve him to which Henry
answered to wait a few minutes until the rest of the men started to work ; that
at 8: 30 a. in., he was relieved by James Surprise and Powers left the plant,3
Powers continued to testify that on July 22 he went to the office for his pay and
was told by the office manager, Mrs. Mary E. Williams McCallum,' that Henry
wanted to see him; that he thereupon saw Henry, who told him that he was laying
off a "bunch of men" that day and Powers was included because Isaacson had
ordered that production be cut and half the men laid off. Powers continued to
testify that Henry did not criticize his work nor his conduct on July 16 nor 18;
and that on September 3, 1949, Powers wrote to Ellis requesting word when lie
would be recalled to work. In reply by letter dated September 9, Isaacson wrote
to Powers advising him for reasons therein stated that under no consideration
could Powers consider himself to be employed by the Respondent.
The Respondent's Defense
Henry in his direct testimony, in answer to leading questions, testified that
he was very certain that he did not give Powers any permission to take a vaca-
tion for the week beginning July 18, but on cross-examination his testimony is
that he could not recall Powers saying anything to him about a vacation. He
further testified that he "does not recall" telling Powers he would have to work
until 7 p. m., on Saturday, July 16, but he "would not deny" that he so informed
Powers. Henry further testified that on July 16, between 9 and 9: 30 a. in., he
saw Powers at the hotel and asked him what he was doing there ; that Powers
replied he had a sandwich and had come to the hotel to get some beer to go with
it. Henry fixed the time to be in the morning because he testified he had to take
a bill of lading to the railroad office before noon since that office was closed at
noon on Saturdays. Henry admitted that he did not reprimand Powers for being
away from the plant, except that he asked him why he was there. Henry further
testified that about 8 a. in. on July 18, in the boiler room of the veneer plant,
Powers asked his permission to have 2 hours off ; that Henry refused, saying to
Powers that if he let him have 2 hours, Powers would be gone for 2 weeks. Later
that morning according to Henry, he saw Surprise firing the boiler instead of
Powers and Surprise told him Powers had requested Surprise to relieve him for a
couple of hours and that Powers had said that Henry had said it would be all
23 Powers left the plant without stamping his card on the time clock.
24 The witness is referred to in the record at times as Mrs Williams and at times as Mrs.
McCallum This•,happens .because she has recently remarried. She will be referred to'
throughout this Intermediate Report as McCallum. She admitted in her testimony that
she did tell Powers when he came to the office for his pay that Henry wanted to see him.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
right. Henry continued in his testimony that he never saw Powers around the
plant after that day.
Isaacson testified that he arrived in Poland, New York, on July 19. On July
20, according to his testimony, he inquired from Ellis, Henry, and McCallum
where Powers was and was told that he had left without permission on July
18 and that he was also told about his trip to the hotel on July 16 without per-
mission. Isaacson testified that Powers had been away from work without per-
mission in November 1948 and in June 1949 which absences he had condoned, but
that when he was informed of further absences without permission on July 16 and
18, he ordered Powers to be discharged, as he was through "fooling around with
him" ; and he was discharged. Isaacson testified that he had no knowledge of
any union membership or activity at the plant before August 16, when the copy
of the charge herein was received. Isaacson testified further that when Ellis
received the letter dated September 3 from Powers he immediately telephoned
Isaacson who was at Jamestown, New York, and advised him of its contents ;
that Isaacson thereupon instructed Ellis to forward the letter to him with a re-
port "as to what it was all about" and informed Ellis that he would consider
it when it was received.
Pursuant to Isaacson's instructions, Ellis forwarded Powers' letter, reporting
thereon in longhand :
Last day worked July 16-on Sat. Lloyd Henry was at R. R. Station and
picked him up at lower Hotel in the A. M. Told Lloyd he was down after a beer
to go with his sandwich-His card was not rung out at any time until the end
of the day.
I did not see him again until the following Wed. or Thurs., when he came
after his pay. In the meantime, found out that he had been drinking while
on duty, and on or about July 19th or 20th told him that he would not be
needed again.
Isaacson testified that on September 9 he wrote to Powers as follows :
... We are at loss to understand what your letter is about, since you
voluntarily left our employment after completing your day's work on
Saturday, July 16th.
On July 16th, when the plant was closed down, you not only left your post
of duty without permission and without signing your card, but you also
visited a nearby hotel during working hours to drink beer. You had been
warned repeatedly against drinking on the job and, of course, leaving your
post of duty was inexcusable.
You knew this, and therefore did not report for work on Monday, July
18th, or thereafter. You came in to get your pay on July 19th, or July 20th,
and you were then told that your services would no longer be required. You
were fully aware that this would happen and that is why you did not come to
work on Monday, Tuesday and Wednesday or any time thereafter.
Our records clearly indicate that you voluntarily quit your work and
severed your employment with the Company after completing your day's
work on July 16th. Furthermore, your behavior on July 16th was sufficient
cause for discharge which was confirmed on July 19th or 20th and under no
consideration can you consider yourself employed by this Company."
u At the hearing, Isaacson admitted that he was wrong in the statement that Powers
did not report for work on July 18 or thereafter . He testified : "It is incorrect I found
that out later."
JAMESTOWN VENEER AND PLYWOOD CORPORATION 117 ,
The Respondent called James Surprise who testified that he has worked for
`the Respondent since June 10, 1946; that about 9 or 9: 30 in the morning of the
last day Powers worked, Powers told him that Henry had said it would be all
right for Surprise to relieve Powers while Powers was away for 2 or 3 hours ;
that he did relieve Powers and later Henry came in and inquired what Surprise
was doing there, whereupon Surprise told him what Powers had said. On cross-
examination, Surprise testified that he had not joined the Union ; that he had
heard•union talk about the first time he went to work there, but paid no attention
to it; and that he had heard union talk prior to the layoff ; but on redirect exami-
nation Surprise testified that he did not hear any union talk until after the
layoff.
Warren Crouch testified in behalf of the Respondent that he has worked as
maintenance man for the Respondent for 6 years and that on Saturday, July 16,
Powers remarked to him in the afternoon "Gosh, I had a limburger sandwich out
here and I wanted something to drink with it and I was down to the hotel and
I come out with a bottle of beer and who picked me up but Henry, and I came
back up to the boiler room."
McCallum, the office manager, testified that on July 20, 1949, she, Isaacson,
Ellis, and Henry, used the payroll for the week ending June 26 to make up a list
of those who should be kept on in the event of a layoff, and "according to the
records" Powers was scheduled for layoff on July 22 With reference to Satur-
day, July 16, she testified that she worked in the morning but did not work in
the afternoon and that at approximately 10 o'clock she asked Henry to take a
bill of lading to the railroad station in order that the agent might sign the bill.
The witness was then asked what happened after Henry had taken the bill of
lading and she testified that "Mr. Henry came back in the office and said ..."
At that point, I sustained an objection to the witness testifying what Henry had
said to her and evidence of that conversation does not appear in the record?"
When Powers came for his pay, and McCallum testified that she is not sure
whether it was Wednesday, July 20 or Friday, July 22, she testified that she told
Powers that Henry wanted to see him. She further testified that she said to
Powers, "This is too bad, Pat" to which he replied "I am sorry I fell off the
wagon." McCallum testified further that she did not recall when Powers was
fired and that she does not know whether he was discharged during the week
after Monday, July 18 ; that she did not hear anyone discharge Powers ; and is
not sure whether it was Ellis or Henry who discharged him. McCallum testified
with respect to the employees included in the layofl s and the dates when they and
others were rehired She testified that she first became aware of union organiz-
ing activity following the layoff of July 22 and that until that layoff had never
heard anyone mention any union activity.
Conclusions
To prove its defense that Powers had been discharged for cause, the Respond-
ent relies heavily upon the testimony of its treasurer, Francis H. Isaacson, who
was also in full charge of operating the Poland, New York, and Jackson, Missis-
sippi, plants. Prior to the receipt of the copy of the charge on August 16, Isaacson
W At that point, Henry had not testified as a witness When lie did testify, his testimony
did not include any statement that he might have made to McCallum. At the conclusion
of the hearing, the Respondent moved to include such proposed testimony in the record in
the mistaken belief that McCallum had been permitted to testify, subject to a motion to
stripe it later. Since there is therefore no basis for such motion, it is denied.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had devoted about 25 percent of his time in Poland or on Poland matters ; since
then, he has been devoting 50 to 60 percent of his time at the Poland plant.
Isaacson testified that Ellis telephoned to him at Jamestown, New York, upon
the receipt of the letter from Powers which inquired when he would be recalled
to work ; and that Isaacson directed Ellis to write to him giving a full report as to
"what it was all about." Thereupon Ellis wrote to Isaacson that the last day'
Powers worked was July 16. That information was incorrect, as Isaacson ad-
mitted at the hearing. Ellis reported further that Henry had picked Powers up
at the hotel on the morning of July 16 and that Powers told Henry he was down
after a beer to go with his sandwich ; that his card was not rung out at any time
until the end of the day. Ellis continued in his written report that he did not
see Powers again until the following Wednesday or Thursday, when he came for
his pay ; and that, in the meantime, found out that Powers had been drinking
while on duty, and on or about July 19 or 20, told him that he would not be
needed. Thus we have testimony that on September 4, 1949, Ellis informed
Isaacson that Ellis had discharged Powers apparently because he had gone to
the hotel without permission for a beer'to go with his sandwich and because he
had not worked since July 16 ; and that sometime between July 16 and July 20,
Ellis had found out that Powers had been drinking while on duty, whereupon,
when he came for his pay, Powers was told by Ellis that his services were no
longer needed. Acting upon that written information from Ellis, Isaacson wrote
to Powers on September 9, stating at the outset that he was at a loss to under-
stand what Powers' letter was about, since Powers had voluntarily left the
Respondent's employ after completing his day's work on Saturday, July 16. If
Isaacson had ordered Ellis to discharge Powers on or about July 20 following
information at that time that Powers had been absent again without permission
on July 18 and that he was through "fooling around with him" it is difficult to
reconcile Isaacson's statement in his letter to Powers that Powers had voluntarily
quit. Isaacson's letter emphasized that Powers had voluntarily quit by saying
"Our records clearly indicate that you voluntarily quit your work and severed
your employment with the Company after completing your day's work on July
16th." The letter continued to inform Powers "Furthermore, your behavior on
July 16th was sufficient cause for discharge which was confirmed on July 19th
or 20th. . . . "It appears to me that at the time of writing the letter in September
to Powers, Isaacson had no idea whether Powers had voluntarily quit his
employment, been laid off, or had been discharged for cause or other reason. At
the hearing, Isaacson admitted that he was wrong in his statement that Powers
did not report for work on July 18 or thereafter. Such misapprehension by
Isaacson in September 1949, as to what the facts were in July 1949, impairs the
quality of his testimony at the hearing that on July 20 he ordered Ellis to dis-
charge Powers after inquiring where Powers was and being informed that he
was absent without permission. Nor was there any indication, clear or other-
wise, on the company records that Powers had voluntarily quit and severed his
employment, as Isaacson stated there was in his letter to Powers. Thus there
is evidence from Isaacson that he ordered Ellis to discharge Powers ; evidence
from Isaacson that Powers had voluntarily quit his job ; evidence from Powers
that he was laid off by Henry. Powers is corroborated to some extent by the
testimony of McCallum, the office manager, that she told Powers on the day he
came for his pay that Henry wanted to see him.
It is important to keep in mind that the position of the Respondent in September
1949 was that Powers had voluntarily quit and severed his employment. Such
was the attitude of the Respondent up to and including the time it filed its
JAMESTOWN VENEER AND PLYWOOD CORPORATION 119
answer on July 3, 1950 , which had been verified by Isaacson on June 24, 1950,
wherein it denied the allegation in the complaint that Powers had been dis-
charged. Not until the amended answer ( also verified by Isaacson ) was flied
at the hearing on July 25 - did the Respondent concede that Powers had been
discharged and aver that he had been discharged for cause . If Isaacson had
considered the absentee record of Powers as he testified he did in July and
'ordered Ellis to discharge him, it is highly suspect that Isaacson could have
written such a letter as he wrote on September 9 to Powers , and as late as
June 24, 1950, also deny that Powers had been discharged . I reject the evi-
dence that Isaacson directed Ellis to discharge Powers, that Ellis did discharge
Powers, , and that Powers had voluntarily quit his job. After weighing all the
evidence , I credit Powers ' testimony and find that he went to the hotel on
July 16, pursuant to Henry's permission to get some lunch ; that he had Henry's
permission to take his vacation beginning July 18 after he would be relieved
by another employee ; that he had never been disciplined for misconduct ; and
that his absence during the week beginning Monday, July 18, was his permitted
vacation . I further find that Henry told Powers on July 22 that he was included
in the layoff of employees for July 22 necessitated by business reasons. The
crucial question now presents itself, whether in the light of all the facts in this
record, such was the real reason or whether the true reason was that Powers,
although he did not realize nor know it at the time , was actually discharged
on July 22 by the Respondent in violation of the provisions of Section 8 (a) (3)
of the Act . The background of antiunion animus portrayed by the findings of
interference , restraint , and coercion , as found above , the admission by its general
manager, Ellis , to the foreman , Morrison , that the men who had tried to bring
the Union into the plant had been discharged for such activities and never
would be rehired ; confirmed months later , again by Ellis , to employee Paddock
that he would get what the rest got for belonging to the Union-thus fulfilling
Ellis' threat uttered on or about July 20 that he would show the employees how
he would break up "their damned union" compel the conclusion that Henry's
asserted layoff of Powers on July 22 was a pretext ; and the real situation was
that Powers was then and there discharged by the Respondent for discrimina-
tory reasons . Upon the entire record, therefore , I find that because of Powers'
known membership in the Union and the Respondent's plan to prevent its
employees from being organized by the Union the reasons assigned by the
Respondent were a pretext for discharging Robert H. Powers on July 22, 1949;
and, therefore , find that in violation - of Section 8 (a) (1) and ( 3) of the Act,
the Respondent by discharging Powers on July 22, 1949 , and refusing him rein-
statement to a fireman 's job on August 2, 1949, discriminated with respect to
his hire and tenure of employment , thereby discouraging membership in the
Union and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
D. The failure or refusal of the Respondent to reinstate Richard J. Morgan,
Sr., Fred B. Wilcox , Charles Davis, and Gardiner Sheppard
The complaint alleged, not that the four above-named employees were dis-
criminatorily discharged on July 22, 1949 , but that they were not recalled to
work because they joined or assisted the Union and engaged in other concerted
activities for the purposes of collective bargaining or other mutual aid or
protection . The amended answer denied that they were refused reinstate-
ment for discriminatory reasons and averred that they had voluntarily qu t,
terminated , and severed their employment on or about July 22, 1949.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel's Case
Richard J. Morgan, Sr., testified that he had worked for the Respondent from
November 1948 until July 22, 1949. In July his work was "feeding" the dryer.
He testified that union activity began in June 1949, when, following talks with
Wilcox, Sheppard, Davis, and two other employees, Morgan made an appoint-
ment to meet the union representative on June 5 at a hotel in Grant, New York.
Upon arrival in Grant, it was observed that Henry's automobile was parked out-
side the hotel, so the meeting was held with the union representatives in Hinck-
ley, New York, on the same day. Besides Morgan, Sr., the other employees who
attended the meeting were his son, Richard J. Morgan, Jr.,24 and Wilcox. There
it was decided not to push matters "too hard" until after vacation time. During
vacation time (July 3-17) Moigan, Sr., testified that several employees signed
union cards; that he talked to several employees soliciting their membership
in the Union ; and that after vacation was over, more signatures were obtained.2R
He continued to testify that shortly after 11 p. in , on July 22, the entire night
shift 29 was notified by the foreman, Morrison, that they were laid off and Mor-
rison handed to each employee the official form of the State of New York, Depart-
ment of Labor, which is required to be presented to the State Unemployment
Insurance Division, when application is made for unemployment insurance bene-
fits. The forms were made out with the employee's name, social security number,
name of employer, and stated that July 22, 1949, was the last day on which the
employee worked for the Respondent. He testified that all the men were angry
because they were given such short notice of the layoff ; that eight or nine men
assembled between the dryer and the time clock and talked it over among them-
selves, and then Morgan, Sr., Wilcox, Davis, and Sheppard walked out in protest
of the short notice of the layoff that had been given. Morgan admitted that at
the time of the walkout they left six cradles of unprocessed veneer which had
to be finished by others 30 He continued to testify that he went to the office on
the following Wednesday (July 27) for his pay 31 and on September 3, 1949, wrote
to the Respondent stating he was ready and had been ready since the layoff, to
return to work and inquired when his services would be required and in reply
received a letter from the Respondent that it did not consider him to be an
employee and that if he desired reemployment to apply for it in the customary
manner.
Fred B. Wilcox was employed from May 15 until July 22, 1949, and was oper-
ating the clipping machine in July 1949. He testified that he joined the Union
at the initial meeting in Hinckley, New York, at the same time that Morgan, Sr.,
joined, but Wilcox did not participate in any activity for the Union. He took
a book at the first meeting to solicit members, but did not ask anyone to join,
because he did not know many employees'2 Wilcox testified that a few minutes
before the night shift started at 5 p. m , the men were gathered in front of the
shop talking about the possible impending layoff. Wilcox testified that the
regular quitting time for the shift was at 1: 30 a. in. He testified further that
27 Morgan, Jr , at the time of the hearing was still employed by the Respondent.
28 The testimony of Morgan, Sr., concerning the conversation which he overheard between
,Ellis and Henry in the veneer shop about July 20 has been shown above and will not be
detailed here.
29 There were 11 employees on the night shift , excluding the foreman.
30 Morgan checked out on the time clock at 11 : 05 p. m.
Bi At which time nothing was said to him about his leaving early on July 22. See
testimony of McCallum , infra.
x52 Wilcox ' s testimony , corroborating that of Morgan , Sr., with reference to the con-
versation both overheard between Ellis and Henry has been dealt with supra.
JAMESTOWN VENEER AND PLYWOOD CORPORATION 121
after he was given the unemployment insurance form referred to above, he was
one of the group conferring together and he inquired from Morrison, the fore-
man, "This means that my services are no longer required?" to which Morrison
replied, "I guess that is what it means." Wilcox then said to Morrison, "I
guess I may as well go home" and Morrison answered, "I guess you might as
well" ; and thereupon Wilcox left.3 Wilcox applied for his job by letter dated
September 3, 1949, and received a reply similar to that which Morgan, Sr.,
received.
Gardiner Sheppard testified that he was employed matching veneer after it
came from the cutting lathes. It was stipulated that he was originally hired
on September 21, 1947. He testified that he joined the Union on June 10, 1949.'
Sheppard testified that while he does not remember hearing any rumors about
an impending layoff, he was one of the group that was "talking it over" after
the layoff was announced by Morrison ; that Morrison asked them to stay and
finish the shift. Sheppard admitted that there was unfinished veneer at the
time he left the plant with the others. He testified further that he applied for
his job by letter on September 3, 1949, and received the same reply as Morgan, Sr.,
and Wilcox did.
Charles Davis did not testify at the hearing. It was stipulated that, if called,
he would testify that he signed a union card on June 8, 1949, signed out at
11: 05 p. in., on July 22, and rode home with Gardiner Sheppard.
It was stipulated that in the veneer plant, 16 employees were laid off on July
22,36 and 8 more on July 27, 1949 3° ; that all, except 1, of the employees who were
laid off on July 27, were recalled during the week ending August 7; and that
of the employees who were laid off on July 22., 1 was recalled in the week ending
August 7,37 4 were recalled in the week ending August 14,38 and 1 was recalled
during the week ending August 2338 It was further stipulated and testified to
by McCallum, the office manager, that during August and September 1949, the
Respondent hired 2 new employees 40 and rehired 7 former employees, who, how-
ever, had not been working for it during June and July 1949; 91 and that 4 of
the 7 former employees had been rehired on and after September 4, 1949.
The Respondent's Defense
The Respondent introduced evidence which is not controverted that approxi-
mately six cradles of veneer were still to be finished when the four employees
left before the end of the shift and also proved that it was necessary for others
to work Saturday afternoon, July 23, in order to finish the unfinished work.
33 Wilcox checked out at 11 01 p. in., July 22.
34 His testimony concerning interrogation by Henry as to his union membership in
the week following vacation (July 18-22) to which he did not reply and Henry's warning
that if he had joined the Union, Sheppard would be sorry has already been referred to
supra.
36 Earl Baumes, Cecil Boyce, Frank Branck, Lois Hawkins, Russell Hennings, David
Hook, Robert Holliday, David Roberts, Frank Rockwell, David Tilly, Floyd Jenkins,
Thomas Schug, Gardiner Sheppard, Richard J. Morgan, Sr., Fred B. Wilcox, and Charles
Davis.
3° Milo Dygert, Helen Fergeson, Floyd Parmer, Harry Schults; Judson Stacks, James
Surprise, Beatrice Willoughby, and Roy Wilt.
31 David Roberts.
38 Earl Baumes, Cecil Boyce, Russell Hennings, and Frank Rockwell.
31 Thomas Schug.
40 John Poplasky, August 15; and Floyd Roberts, August 25.
41 Gerald Baltz, August 24; Clarence Smith, August 28 ; Nathaniel Sheppard, August 31 ;
Arthur Ingall, September 4, Reynolds Turner, September 11 ; Helen Palmiter, September
12, and Claude Bathke, September 27.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Francis H. Isaacson testified that the Respondent's business declined in the
latter part of June 1949, until it reached a point where the Poland plant was
shipping one railroad car of veneer every 10 days compared to normal shipping
of 21/2 cars per week. The usual vacation week with pay was the week ending
July 10, but the second week of shutdown (without pay) was ordered because
of lack of business. Work was resumed on Monday, July 18, and, according
to Isaacson, it became apparent that the Respondent could not continue to op-
erate longer than that week, because he had instructions from the Jamestown
office to ship only 1 more carload and then he would be through. Isaacson
testified that he arrived in Poland, New York, on Tuesday, July 19, and con-
ferred with Ellis and Henry on the impending reduction of force since production
had to be cut to 50 percent of what the plant was then doing. There was no
seniority policy in effect at the plant ; but it was one of the factors taken into
consideration. The duties of each man on the payroll, his job, his need for
employment, and his service record were discussed by Isaacson with Ellis,
Henry, and McCallum and from that they decided to keep 32 on the payroll ;
all others to be laid off on July 22, if word was received from Isaacson finally
confirming that layoffs were necessary. Isaacson testified that before he left
Poland on the afternoon of July 21 he told Ellis and Henry to hold up any
layoffs and make no announcement to the men until Isaacson had an opportunity
in Jamestown on July 22 to check the stock to see if he could not obtain per-
mission to ship more cars from the plant to Jamestown. He testified that he
did obtain permission to ship 2 more cars but since that would not justify carry-
ing on the full crew, he telephoned Ellis late Friday afternoon on July 22 to
reduce the number of employees from 50 to 32, according to the approved list
that Isaacson had left with him. Business reasons also compelled Isaacson
to telephone Ellis on Thursday morning of the following week to lay off an
additional 12 employees. On Tuesday morning, August 2, Isaacson was able to
telephone Ellis that he could resume production up to 600,000 feet, which au-
thorized him to recall all those who had been, laid off on July 28 and about
half of the employees who had been laid off on July 22.
Isaacson testified further that he had no knowledge of union activity among
the employees until August 16 when Ellis, upon receipt of the charge herein,
telephoned him at Jamestown and informed him of the contents. Isaacson testi-
fied that he then instructed Ellis to keep their time cards out of the rack and
treat them as having voluntarily left the Respondent's employ.
Isaacson testified from memory that probably 8 to 12 employees were brought
in on Saturday, July 23, and worked all day to do the work that Morgan, Sr.,
Wilcox, Davis, and Sheppard had left on July 22. Upon receipt of the letters
dated September 3, 1949, Isaacson wrote to each of the men involved that
the Respondent did not consider them to be in its employ because they had
voluntarily terminated their employment and advised them, if they desired to
be reemployed, to apply in the customary manner.
Mrs. Mary E. Williams McCallum, called by the Respondent, testified that
she is its office manager and that the day dryer crew of four employees 42 did
not work on Monday morning, July 18, since the plant had been closed for 2
weeks with no lathes running and there was no veneer for them to dry on the
morning of that day. She further testified that the dryer crew were notified
at sometime prior to 5 p in., on July 22, to report for work on Saturday morning,
July 23. McCallum testified further that nothing was said to Morgan, Sr., and
42 Roberts , Christman , Thayer , and Hawkins.
JAMESTOWN VENEER AND PLYWOOD CORPORATION 123
Sheppard about leaving early on July 22 when they came to the plant for their
pay on July 27. She testified further that she had no knowledge of any union
activity prior to the layoffs on July 22.
Violet Thayer, on behalf of the Respondent, testified that she and the other
three dryers were requested to come in Saturday morning, July 23, because
they had not worked Monday morning, July 18, and that they had been scheduled
to work on Saturday, July 23, until noontime ; and that during the course of
the shift on Saturday morning, they were requested by Ellis to work that after-
noon because all the work necessary to be done on the previous evening had
not been done, and they worked until 5 p. in., Saturday, July 23 "
David Tilly, called by the Respondent, testified that he began work for the
Respondent on June 30, 1949, and did not work during the shutdown from
July 4-17. Tilly was a medical student and had worked during summer vaca-
tions for the Respondent. He testified that he worked on the night shift and
his job was taking the veneer off the dryer ; that he reported for work on July
22, a few minutes before 5 p. m., and heard rumors that the possibility of a
layoff was imminent. He testified that the men were all talking about the pos-
sibility of being laid off and he heard Davis and Wilcox say that they would walk
out if they were laid off on such short notice. After the intermission for lunch
on the evening of July 22, the foreman, Morrison, gave each man the unemploy-
ment insurance form already referred to supra, and Morgan, Sr., Wilcox, Davis,
and Sheppard walked out of the plant before the end of the shift.
Helen Fergeson, who operated the clipper, testified that she has been working
for the Respondent over 5 years. She testified that she worked 8 hours on
Saturday, July 23, and "cleaned up work that was left by the night crew."
Her time card shows however that the last day she worked that week was
Friday, July 22 "
Conclusions
It is not disputed that the layoffs in July 1949 were dictated and necessary
for economic reasons. I so find.
The underlying question presented is whether the work stoppage participated in
by Morgan, Sr., Wilcox, Davis, and Sheppard was concerted activity of such a
nature as to be protected by the Act. If the Respondent refused to recall them
because they had participated in concerted activity protected by the Act, then it
has committed an unfair labor practice. If the men voluntarily terminated their
employment or had engaged in a form of activity not protected by the Act, then
no unfair labor practice has been committed by the Respondent's refusal to rein-
state them.
The credible evidence shows that after the four employees involved had re-
ceived notice of the layoff, they talked it over among themselves, and told the fore-
man they were leaving as a protest against the short notice they had received.
The foreman urged them to stay until the end of the shift but they refused and
left. That they did not thereafter picket the Respondent's plant nor engage in
other activities which usually accompany a strike are not controlling factors"
43 The time cards show that Roberts, Christman. and Thayer worked from 7 42 a m.
to 5 p in , and Hawkins worked from 7 : 47 a. m to 5 p. m.
99 Neither was she named as one of those who worked on July 23, when McCallum testified
nor did Thayer include her with the dryer crew who worked on July 23 . Fergeson's
testimony is not credited.
95 The Board has held that cessation of work by a group is no less a strike because the
group may not have labelled it a strike, or engaged in the additional activities which
usually accompany a strike Massey Gin and Machine Works, Inc , 78 NLRB 189
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That they did not consider their employment status as having been voluntarily
terminated by the events of July 22 is strongly indicated by the fact that, having
waited for recall to work on August 2 to August 15, their representative filed
a charge with the Board, alleging that Morgan, Sr., and others had been dis-
criminatorily discharged. That the Respondent did not consider it to be volun-
tary terminations is also strongly indicated by the fact that it made no mention
of the incident when Morgan, Sr., and Sheppard returned the following week
for their pay; and, it was not until after the service of the charge herein on
August 16, that Isaacson directed Ellis to withdraw their time cards from the
rack and treat them as having voluntarily lqft its employment.
Section 7 of the Act guarantees to employees the right to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection. The test whether concerted activity is protected by the Act is whether
the particular activity involved is so indefensible as to warrant the employer in
discharging the participating employees.40 Either an unlawful object or the
adoption of improper means of achieving it may deprive employees engaged in
concerted activities of the protection of the Act 47 Applying that test to the case
at bar, it is clear that the concerted activity of the employees who engaged in
the work stoppage as a means of voicing their protest against the short notice of
layoffs was no so indefensible as to warrant their discharge. It is defensible on
the theory that while such concerted activity could not or did not immediately
secure to them longer notice of layoffs, it could be construed as a protest to the
Respondent as far as future notices might be concerned. Such an objective would
not be unlawful and, in the circumstances of this case, it cannot be said that
the participating employees had adopted an improper means of achieving it.
They had not engaged in any "slow-down" nor "sit-down " When their fears of
layoff were realized, they consulted among themselves ; heard the foreman
urge them to stay; and, having decided to participate in the work stoppage,
announced their protest, withdrew, and left the Respondent's premises. On the
basis of the entire record, I find that they did not voluntarily quit and terminate
their employment on July 22, and further find that their concerted activity on July
22 by engaging in a work stoppage to protest the short notice of layoffs given to
them was protected by the provisions of Section 7 of the Act. Since it was so
protected, it constituted an economic strike and the question of inconvenience
or expense incurred by the Respondent as a result thereof becomes immaterial
since undoubtedly all strikes result to some measure in inconvenience or loss
to the employer 48
The economic strike participated in by the four employees involved herein
lasted until they sought reinstatement to their jobs by letters dated September
3, 1949. Not only did the Respondent refuse them reinstatement, informing
each that it did not recognize him as an employee because he voluntarily ter-
minated his employment and directing him, if he desired reemployment, to apply
46 Harnischfeger Corporation, 9 NLRB 676.
47 Elk Lumber Company, 91 NLRB 333.
98 The unfinished work left by these four employees did not require , as the evidence for
the Respondent would imply, four other employees woiking from shortly after 7 :42 a m.
on Saturday , July 23 to 5 p in , since the record proves that the dryer crew had not worked
on the preceding Monday morning July 18. Therefore , the dryer crew worked on July
23 on the unfinished veneer that the Respondent never expected to finish on the night
shift on July 22, plus whatever additional work was necessary in view of Morgan, Sr.,
Wilcox , Davis. and Sheppaid leaving 2% hours before the night shift was over. Thus it is
reasonable to conclude , and I find, that the four employees on the dryer crew worked not
more than 21/2 hours on Saturday ( 10 hours ) to finish the work that the other four
employees would have accomplished in 21/2 hours on the Friday evening previous.
JAMESTOWN VENEER AND PLYWOOD CORPORATION 125 "
for it in the customary manner, but it hired other employees beginning on Sep-
tember 11, 1949, and failed to show that Morgan, Sr., Wilcox, Davis, and Sheppard
could not perform the duties of any of those hired on and after September 11.
On the basis of the entire record, I conclude and find that the Respondent, in
violation of Section 8 (a) (1) of the Act, refused to reinstate Morgan, Sr.,
Wilcox, Davis, and Sheppard to their former jobs, because they had engaged in
concerted activity protected by the Act on July 22, 1949; and I further find that
because such refusal to recall them amounted to a discrimination in regard to
hire and tenure of employment, thereby discouraging membership in the Union,
it also violated Section 8 (a) (3) of the Act. I also find that such discrimina-
tion occurred when the Respondent began its hiring of other employees on
September 11, 1949."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III,,above, occurring
in connection with the operations of the Respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has violated Section 8 (a) (1) and (3)
of the Act, I shall recommend that it cease and desist therefrom, and that it take
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated against Robert H.
Powers, Richard J. Morgan, Sr, Fred B. Wilcox, Charles Davis, and Gardiner
Sheppard in regard to their hire and tenure of employment, I shall recommend
that the Respondent offer them immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their seniority or
other rights and privileges, and that the Respondent also made each of them
whole for any loss of pay he may have suffered by reason of the Respondent's
discrimination against him, by payment to each of them of a sum of money
covering his loss of pay; such loss of pay to be computed on the basis of each
separate calendar quarter or portion thereof during the period from the Re-
spondent's discriminatory action to the date of the offer of reinstatement The
quarterly periods, hereinafter called "quarters," shall begin with the first day
of January, April, July, and October. Loss of pay shall be determined by de-
ducting from a sum equal to that which he normally would have earned for each
quarter or portion thereof, his net earnings," if any, in other employment, during
that period. Earnings in one particular quarter shall have no effect upon the
back-pay liability for any other quarter. I shall further recommend that the
Respondent, upon request, make available to the National Labor Relations Board,
or its agents, for examination and copying, all payroll records and reports, and all
49 See H. & H Manufacturing Company, Inc, 87 NLRB 1373, where the Board held
that the discrimination occurred on the date when the employer began its new hirings.
S0 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 else-
where than for the Respondent, which would not have been incurred but for the unlawful
discrimination against him and the consequent necessity of his seeking employment
elsewhere. See Crossett Lumber Company, 8 NLRB 440. Monies received for work
performed upon Federal, State; county, municipal, or other work-relief projects shall be
considered as earnings See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other records necessary to analyze the amounts of back pay due and the right
of reinstatement under the terms of this recommended order."
The scope of the Respondent's illegal conduct as found above discloses a pur-
pose to defeat self-organization among its employees. Because of the Respond-
ent's unlawful conduct and its underlying purpose, I am convinced that the
unfair labor practices found are persuasively related to the other unfair labor
practices proscribed and that danger of their commission in the future is to be
anticipated from the Respondent's conduct in the past. The preventive pur-
poses of the Act will be thwarted unless the recommendations are coextensive
with the threat. In order, therefore, to make effective the interdependent
guarantee of Section 7, to prevent a recurrence of unfair labor practices and
thereby minimize industrial strife which burdens and obstructs commerce and
thus effectuate the policies of the Act, I shall recommend that the Respondent
cease and desist from in any manner infringing on the rights guaranteed in
Section 7 of the Act.
It will also be recommended that the complaint, so far as it alleges that the
Respondent has made threats that it would cease operations and close its
Poland plant rather than recognize the Union, be dismissed.
It will also be recommended that the complaint, so far as it alleges that the
Respondent has advised and warned its employees to vote against the Union
in an election conducted by the Board on or about January 18, 1950, under
threat of discharge or other discipline, be dismissed.
Upon the foregoing findings of fact," and upon the entire record in the case,
I make the following :
CONCLUSIONS OF LAW '
1. United Brotherhood of Carpenters and Joiners of America, A. F. L., is a
labor organization within the meaning of Section 2 (5) 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 (a)
(1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Robert
H. Powers, Richard J. Morgan, 9r., Fred B. Wilcox, Charles Davis, and Gardiner
Sheppard, and thereby discouraging membership in United Brotherhood of
Carpenters and Joiners of America, A. F. L, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
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.
5. The Respondent has not violated Section 8 (a) (1) of the Act by (a)
threatening that it R ould cease operations and close its Poland, New York,
plant rather than recognize the Union or (b) advising and warning its employees
to vote against the Union in an election conducted by the Board on or about
January 18, 1950, under threat of discharge or other discipline.
[Recommended Order omitted from publication in this volume.]
61 See F. W. Woolworth Company, 90 NLrtB 289.
"' The Respondent's proposed findings of fact are granted, except that the following
numbered requests are denied : 10, 11, 13, 21, 23, 24, 25, 27, 31, 32, 35, 36, 38, 39, 57,
61, 66 , 72, 79 , 84, 86.
® The Respondent 's proposed conclusions of law are denied.