Knight Veneer and Panel Corp.

National Labor Relations Board - Board Decisions

Jan 25, 1951

92 N.L.R.B. 1569 (N.L.R.B. 1951)

In the Matter of KNIGHT VENEER AND PANEL CORPORATION and LOCAL
34, UNITED FURNITURE WORKERS OF AMERICA, C. I. O.
Case No. 3-CA-230.-Decided Janvaary 05, 1951
DECISION AND ORDER
On October 15, 1950, Stephen S. Dean 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 Intermediate Report
attached hereto. Thereafter, the Respondent and the General Coun-
sel filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Houston, Murdock, and Styles].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no. prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and finds merit in the Respondent's exceptions.
In examining the circumstances surrounding the Respondent's fail-
tire to rehire employees LeRoy Koser, Neil Blood, James Raybuck, and
Margaret Bates after a layoff necessitated by business conditions, the
Trial Examiner failed to set forth and presumably did not consider
certain evidence which We deem pertinent. We therefore find it neces-
sary to review in some detail the facts which, in our opinion, militate
against the Trial Ekaminer's finding that the failure to rehire was
based upon discriminatory motives, and' which prompt us to reach
a different conclusion.
The Facts
Late in May 1949, a union organizer informed the Respondent's
general manager, Shearman, that the Respondent's employees had
formed a union and that employees Kurek, Blood, Fuller, and Ray-
buck were respectively the president,' vice president, treasurer, and
1 The Trial Examiner , apparently relying on the testimony of the union organizer,
Goranson , states that Kurek was treasurer. As Kurek himself testified that he was presi-
dent, we accept his recollection as to the office he held.
92 NLRB No. 231 1569
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secretary of the organization. Subsequently,, the Respondent de-
clined to recognize the Union without a Board certification. On June
24, 1949, the Respondent because of economic conditions, laid off
10 employees out of a total working force of approximately 27. Most
or all of the 10 were members of. the Union, but, except for Blood
and Raybuck, it does not apear that the Respondent was aware of
the union activities or sympathies of any of those laid off. During
the following 6 months, 6 of the 10 laid-off employees were rehired.
Nevertheless, on October 10, 1949, the Union filed charges alleging
that 11 employees had been unlawfully laid off on June 24, 1949.2
On November 9, 1949, the Union registered and mailed to the Re-
spondent letters which it had prepared and on which it had obtained
the signature of each employee who had not at that time been reem-
ployed. These letters, dated November 4, 1949, were all similar in
language, and advised the Respondent that the employee in question
was available for work and desired to be reemployed by the Respond-
ent. On November 19, 1949, the Respondent replied to each letter,
promising to give it consideration upon the receipt of information as
to where the employee concerned had been employed since the layoff
and where he was employed on November 4,1949, the date on the regis-
tered letters. Only employee Ross Barr replied to this letter.3 He
was reemployed on December 5, 1949. On February 11, 1950, the
Respondent wrote to Bates that it could now offer her the same job
and pay as she had before the layoff, except that the job was on the
day shift instead of at night. Bates inquired by telephone as to the
indentity of her working partner if she accepted the day job, and
refused the job on the ground that that partner was a "rusher" with
whom it was too hard to keep up. No other requests for or offers of
employment appear to have been made between this time and the date
of the hearing. The facts concerning the four individuals are as
follows :
Koser had been persuaded in December 1947 by General Manager
Sliearman to leave another job and come to work for the Respondent
as one of the Respondent's two clipper operators.4 At that time he
was told he could work for the Respondent as long as the mill ran.
In May 1949, a preliminary meeting of 6 of the Respondent's em-
= By an amended charge, complaint , and amended complaint , the issues were subse-
quently narrowed to the Respondent 's failure to reemploy Koser, Blood, Raybuck, and
Bates.
2 Raybuck testified that he did not reply because he had a job at the time. Bates testified
that the union organizer , Goranson , took her copy of the Respondent 's reply and told her
he would answer it. This he apparently never did . These facts did not appear in the
Intermediate Report.
4 The Trial Examiner erroneously states that Koser was "one of two clippers operating
lathes." The Respondent has two lathes and two clipping machines . Koser' operated one
of the clippers.
KNIGHT VENEER AND PANEL CORPORATION 1571
ployees was held at Koser's house, at which the organizer for the
Union was present. A second meeting of about 15 employees was held
about May 20 in a hall at the neighboring city of Jamestown. Koser
attended both meetings and was elected trustee at the second. He
testified that he never found out what duties a trustee had in the
organization but that he did hand out one or two union cards to fellow
employees. At the time of the layoff, the Respondent shut down
one of its two lathes and one of its two clippers. Armstrong, a super-
visor, operated the other clipper and Koser was laid off. At this time
Koser reminded Shearman of the promise he had made in 1947, and
Shearman replied that the matter was beyond his control. Within
the next 2 weeks, Koser twice asked in person if Shearman could put
him back to work, and on the second occasion he asked if his layoff
had been due to union activities. Shearman replied on both occasions
that business was still bad, and denied on the second occasion that
the layoff had anything to do with the Union. Koser then requested
that, if Shearman could not or would not reemploy him, he forget
about the layoff being temporary and give him references to use in
obtaining another job 5
As a result of the July furniture show in Chicago, the Respondent
received a heavy influx of orders in August. These were regarded
by the Respondent as only a temporary improvement in economic con-
ditions because the results of the-show had on the whole been rather
disappointing.6 Because of its reduced staff, and the time within
which the orders were to be delivered, it became necessary for the
Respondent to'put on a'night shift for about 6 weeks and to operate
the second clipper again. Kurek,-the union president, whose seniority
was greater than Koser's was assigned Koser's former job on the
second clipper.' At about this time Koser obtained employment in a
tool making plant, but left this in September or early October to
work as foreman in another veneer plant, in Jamestown. - He signed
the letter requesting reemployment but did not answer the Respond-
ent's reply of November 19.
Blood was hired in September 1948 and received raises of 5 cents,
3 cents, and 3 cents after 3, 8, and 12 weeks, respectively. He worked
" Koser testified that on the day preceding the second interview , he had been refused a
job elsewhere because when the prospective employer telephoned Shearman for references,
the latter replied that Koser was only temporarily laid off. These facts surrounding
Koser 's two requests for reemployment do not appear in the Trial Examiner 's Report, which
states only that Koser requested reinstatement personally on two occasions.
9 The Respondent 's estimate was confirmed as it received orders for 800,000 veneer teet
in 1 week in August and no orders at all the next week , 400,000 feet being about a week's
work for the Respondent 's plant.
° The Trial Examiner states . that Koser 's job was successively taken over by Kurek,
Flasher, and - Wilson, and . that..the -latter had less : sehioritythan ..Koser. -' We note, however,
as the Trial Examiner did not, that Kurek rah the clipper until May 1950, and that Wilson
did not operate it until shortly before the hearing.
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the supervision of Banks Kahle as a general employee doing
sorting and helping on the lathe and clipper. Blood attended the
second union meeting, at which he was elected vice president and later
handed out two cards 8
.
About 2 weeks after the layoff, Blood requested Shearmani to put
him back to work, and was told things still looked bad and that he
ought to take another job if he had one. In August Kahle told
Shearman he could use help on the clipper and said he knew that
Blood was looking for a job. Shearman replied that he did not believe
conditions justified taking on another employee at the time and that,
in any case, Blood had not been doing good work for several months
prior to the layoff and had spent too much time going about the shop
talking to other employees and generally disturbing the work.0 A
short time later, however, Kahle's wife, who, unlike Blood, had ex-
perience working on the splicer and the tape machine as well as with
the clipper, was hired to help out in Kahle's department. In Sep-
tember, Blood, who had spent the summer haying, obtained permanent
employment with the American Manufacturing Company 1 0 Blood
did not answer the Respondent's November 19th reply to the letter
the Union had sent for him.
Raybuck was hired in August 1949 as a log peeler,11 but within a
month he was put to work inside as a helper to Armstrong on the
clipper and the lathe because he complained of trouble with his back.
Raybuck testified that he was warned once by Shearman that he spent
too much time in the boiler room and did not give Armstrong enough
help with the lathe. Shearman corroborated this and added that half
the time Armstrong had to clip and table veneer alone. Raybuck's
union activities consisted of attending both meetings, at the second
of which he was elected secretary, and in giving out two cards.
In August Raybuck heard that the Respondent had hired a new
man 12 and attempted to reach Shearman by telephone, but the latter
' Blood testified that his activities on behalf of the Union were no greater than those
of the 15 other employees who attended the second meeting. The Trial Examiner found
that Blood was "very active in union affairs."
, Kahle testified that he did not think Blood caused more disturbance than "went on
at all times ." Although he was a friend of Blood's and had joined the Union at his
request, . Kahle twice refused to say that Blood was a good worker but characterized hint
as "average." V
10 The Trial Examiner erroneously states that the only evidence respecting Blood's
employment status is that he did haying in the summer.
11 After about 3 weeks of log peeling, he requested and received a 5-cent raise , although
he was told the work did not justify it.
12 The Trial Examiner states that "George Armstrong , who had been fired in April
1949 was rehired as .a peeler about August 9 . . and that Raybuck' s back condition
"improved and 'started feeling pretty good' 11 weeks after June 24, 1949, and he became
able to work as a peeler by August 6." The record reveals , however, that Armstrong
was a supervisor, was never fired, and worked as a clipper , not as a peeler. We also
KNIGHT VENEER AND PANEL CORPORATION 1573
was out of town. After another unsuccessful attempt to reach Shear-
man by telephone, Raybuck complained to the union organizer and,
according to Raybuck, "he started action on it right away." Charges.
were filed on October 10, but apparently no further attempt to reach
the Employer was made lmtil the letter of November 9, requesting
reinstatement. Raybuck had obtained a permanent position in Sep-
tember, and testified that he did not answer the Respondent's letter of
November 19 because he had a job at that time.
Bates was hired in December 1949 and worked at night taking away
the veneer that had been processed in the dryer, which was fed by
another employee. She did not attend any union meetings but she
did sign a union card in May and revealed this to Shearman in the
course of a conversation about the Union. Bates told Shearman that
she had joined because she thought she had to, having worked in a
union shop during the war. According to Bates, Shearman then said,
"Well, I am telling you not to." 13 On June 24, 1950, Bates was laid
off. She could not be put on the night shift when it was reinstituted
because it frequently ran until after midnight and New York law
would have forbidden her employment after that hour. Bates testi-
fied that after receiving the Respondent's letter of November 19, she
answered by calling and talking to Banks Kahle on the telephone .114
She later testified, however, that she could not remember when she
called, and then that she had not called in November, and that she
had not answered the Respondent's letter, but had turned it over to
Goranson at his request 15 No answer to the letter of November 19
to Bates was ever received by the Respondent.
In' February the Respondent offered to put Bates back in her old
job working days, but she refused because she did not like to work
with the employee who fed the dryer on that shift. Women had been
used for this job, and although Kahle testified that it was difficult
for a woman to keep up with the feeder of the day dryer, he also
testified that Bates "was as capable as the employee that I was using
at the time of the lay-off," and that "we used a lady that wouldn't
have been as efficient on this operation to fill that operation." 16
note that there are less than 7 weeks between June 24 and August 6. The record does
not contain any evidence that the Respondent ever was notified of any improvement
in Raybuck ' s back condition.
l3 Shearman denies that he told her not to join, and claims that he only told her that
it was not necessary for her to join . At the hearing Bates was still under the impression
that she had no choice but to sign the card.
14 Kahle testified that the only time he spoke to Bates on the telephone was in August.
11 Bates' memory failed her also in regard to the contents of the November 9 letter,
which she testified she could not remember.
16 The Trial Examiner does not mention nor apparently consider any of Kahle 's testimony
except that which expressed his opinion that women were not suited for this job.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
On the above state of facts, the Trial Examiner makes certain ob-
servations and conclusions with which we disagree. In the light of
Koser's remonstrance to Shearman and his request for a reference
when Shearman persisted in regarding him as temporarily laid off,
we do not regard Koser's replacement by Kurek as demonstrating
discriminatory motives, especially as Kurek was a senior employee and
was known to Shearman to be an officer of the Union. Nor does the
replacement of Blood with the wife of Kahle, a supervisor whom the
Respondent knew to be a union member and sympathizer'17 appear
to be the act of an employer eager to rid itself of union supporters.
It is, however, consistent with the Respondent's claim, and Kahle's
admission, that Blood was not a good worker. When his layoff
afforded an opportunity to obtain a more versatile and satisfactory
employee, the Respondent took advantage of it. As toRaybuck, we
cannot agree with the Trial Examiner's finding that the admonition
to this employee by Shearman was not a criticism of his work, nor with
his finding that Raybuck's habit of spending time in the boiler room
with other employees "when they could get away with it" was not
the reason for the failure to reemploy him. Nor would we draw any
inference adverse to the Respondent from the fact that it hired log
peelers when it had no knowledge that Raybuck had recovered from
the ailment which had prevented him from performing such labor
for 9 of the 10 months he had worked for the Respondent. As to
Bates, we do not agree with the Trial Examiner's finding that the
February offer was not one of equivalent employment. The Trial
Examiner based this finding on Kahle's testimony, but as he did not
set forth the fact that two other women were employed in this job,
nor mention Kahle's testimony that Bates was as well able to do the
work as the employees who per it, we assume that he over-
looked or did not consider these facts, which we find pertinent and
persuasive.
The Trial Examiner found that in its letters on November 19, 1949,
the Respondent violated the Act by failing immediately and un-
conditionally to offer reinstatement to employees Koser, Blood, Ray-
buck, and Bates. This finding is apparently based on two grounds :
(a) As a matter of law, the Respondent had a duty to offer uncondi-
tional reinstatement because "it is well established that an offer of
reinstatement must be unconditional"; (b) as a matter of fact, "the
iv Kahle had told Shearman in May or early June that he had signed a card and felt
that as be worked with the employees he should be willing to participate as a member in
a union if they wanted one. At the hearing Kahle testified for the General Counsel.
KNIGHT VENEER AND PANEL CORPORATION 1575
letters of November 10th 18 were tantamount to a refusal to reinstate,
a fact borne out by the Respondent's conduct in continuing to deny
reemployment down to the present." We cannot agree. As to the
law, although the cases cited by the Trial Examiner stand for the
proposition that the Employer must offer unconditional reinstate-
ment to employees whom it has wrongfully discharged, notwithstand-
ing its belief that they have obtained equivalent employment elsewhere,
those cases are not in point here. To apply here the rule of these
cases would be to assume that the Respondent's motives were discrim-
inatory. But that very fact is the one at issue here. Employment
may be denied for no reason or for any reason except to discourage,
restrain, or interfere with the exercise of the rights guaranteed em-
ployees by Section 7 of the Act.19 Nor do we believe that as a matter
of fact the Employer's letters of November 19 amounted to a refusal to
reinstate. Contrary to the statement of the Trial Examiner, the
Respondent did not continue to deny reemployment to the recipients
of the letters, but put Ross Barr, the only one who replied, back to
work within a short time after receiving his answer. In the light of
Raybuck's explanation that he did not answer because he had obtained
employment elsewhere, even before the request for reinstatement was
composed or sent, we believe that the Respondent's attempt to ascer-
tain whether Raybuck and the others in fact desired reinstatement
was fully justified. Under the circumstances, if there is a reflection
on the good faith of one of the parties, it does not fall on the
Respondent.
We are convinced by the Respondent's letters of November 19, the
subsequent reinstatement of Barr, and the offer to reinstate Bates, that
the failure of the Respondent to reinstate Koser, Blood, Raybuck, and
Bates was not because of their union sympathies or activities. While
we agree with the Trial Examiner that it is possible, we do not believe
that a preponderance of the evidence demonstrates, that in the present
case the Respondent harbored a general union animus which it ex
hibited toward the complainants but which it expressed, as part of a
scheme to divert suspicion, in regard to a prounion supervisor, the
president and the treasurer of the Union, and 6 of the 10 employees
who were laid off. In the light of these findings, and assuming, with-
out finding, that Bates' otherwise unreliable memory was correct as to
the statement which Shearman made to her touching the necessity for
joining the Union, such a statement would constitute merely an isolated
instance insufficient to warrant a remedial order directed at a violation
of Section 8 (a) (1) of the Act.
' Evidently the Trial Examiner meant the letters of November 19.
10 See Fairchild Cafeteria , 92 NLRB 809.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we have found that the record does not establish that the Re-
spondent violated the Act as charged , we shall dismiss the complaint.
ORDER
11
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 complaint herein be, and it
hereby is, dismissed.
INTERMEDIATE REPORT
William Naimark, Esq., for the General Counsel.
J. Russell Rogerson, Esq., of Rogerson and Hewes, of Jamestown, N. Y., for the
Respondent.
Mr. Harold Dimon of Jamestown,. N. Y., for the Union.
I STATEMENT OF THE CASE
Upon a first amended , charge filed July 14, 1950, by Local 34, United Furniture
Workers of America, C. I. 0., herein called the Union, the General Counsel for
the. National Labor Relations Board, herein respectively called the General Coun-
sel and the Board, by the Regional Director for the Third Region (Buffalo, New
York), issued his complaint dated July 19, 1.950, against Knight Veneer and
Panel 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, 61 Stat. 136, herein called the Act.
Copies of the complaint, with copies of the second amended charge , were duly
served on the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance,
that on or about June 24, 1949, the Respondent discharged or laid off Margaret
Bates, Neil L. Blood, LeRoy R. Koser, and James S. Raybuck, that thereafter
because of their membership in, activity in behalf of, and sympathy for the
Union and for the purpose of discouraging membership in the Union, the Re-
spondent has continuously refused and denied them reemployment, and that on
or about and following May 24, 1949, and thereafter, the Respondent warned and
threatened.its employees to refrain from assisting and becoming members of a
labor organization. By motion made by the General Counsel and allowed at the
commencement of the hearing, allegations that the Respondent demoted and
failed to restore Joseph Kurek to his former position, were stricken from the
complaint.
The duly filed answer of the Respondent in substance generally denied the
unfair labor practice allegations of the complaint.
Pursuant to notice of hearing, a hearing was held in Jamestown, New York, on
August 3 and 4, 1950, before Stephen S. Bean, the undersigned Trial. Examiner
duly designated by the Chief Trial Examiner. The General Counsel and the
Respondent were represented by counsel, and the Union by its representative.
All were offered opportunity to participate in the hearing, to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence pertaining to
the issues.
At the close of the hearing the General Counsel's motion to conform pleadings
to the proof was allowed and the Respondent's motion to dismiss the complaint
KNIGHT VENEER AND PANEL CORPORATION 1577
severally as to each of the four employees named therein, was taken under advise-
ment. None of the parties argued the case. A brief was received from the
General Counsel on August 18, 1950. Although the Respondent requested leave
to file a brief and was advised of the opportunity to do so, no brief has been
received from the Respondent.
Upon the entire record and from my observation of the witnesses, I Iilake the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a wholly owned subsidiary of Maddox Table Co., a corpora-
tion duly organized under the laws of the State of New York, having a principal
place of business at Jamestown , New York . The Respondent is a corporation
duly organized under the laws of the State of New York and has a principal
place of business at Falconer , New York, where it is engaged in the manufac-
ture of rotary cut _i7eneers for use in the furniture business . During the year
1949 its purchases amounted to approximately $150,000, about 75 percent of which
was procured from points outside the State of New York and delivered and
transported in interstate commerce to its plant in New York . During the same
period it produced and sold approximately $175,000 worth of finished products,
approximately 25 percent of which was sold and distributed , delivered and trans-
ported in interstate commerce to and through States of the United States other
than the State of New York.
The Respondent admits and I find that the Respondent is engaged in commerce
within the meaning of Act.
II. THE ORGANIZATION INVOLVED
Local 34, United Furniture Workers of America, C. I. 0., is a labor organiza-
tion, affiliated with United Furniture Workers of America, C. I. 0., admitting
to membership employees of the Respondent.
1H. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In the' spring of 1949, Bert S. Goranson , district organizer of the Union, re-
quested employee LeRoy It. Koser to sound out union sentiment in the Respond-
ent's plant . A first organizational meeting attended by 6 or 7 employees was
held at Koser ' s house early in flay. A subsequent meeting held at Nordic Temple
in Jamestown on May 20 , 1049, was attended by about 15 or 16 employees.
Twenty - two membership applications representing all but 5 of the employees
were procured . Goranson then requested Frank E. Shearman III, general man-
ager of the Respondent , to recognize the Union , informed him that employee
Fuller who accompanied him was the president , employee Blood, the vice presi-
dent, - employee Kurek , the treasurer , and employee Raybuck, the secretary, and
offered to show hire the signed union membership application cards. Subse-
quently, Shearman , after consultation with his father, declined to recognize the
Union without a Board certification.
Out of a total working force of approximately 27, about 10 . employees ,' including
the 4 named in the complaint , all of whom were union members, were laid off
'The record does not definitely disclose how many employees were laid off . Superin-
tendent Shearman testified the number was "roughly 8 or 10."
929979-51-vol. 92 101
"1578 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
.on June 24, 1949. The General Counsel concedes there was economic justifica-
tion for the layoff. Shearman in substance told the employees who were as-
sembled in a group before the layoff that those to be laid off would be selected as
far as possible on a basis of seniority and ability and in accordance with the dis-
pensability of particular types of operations.
Six of the ten employees laid off on June 24,2 were rehired between June 27,
1949, and December of the same year. The main issue in the case revolves about
the fact that four employees, Margaret Bates, Neil L. Blood, LeRoy R. Koser, and
James S. Raybuck were not rehired. In addition to making requests for re-
employment in person, these four employees sent, the Respondent letters dated
November 4, 1949, prepared for them by the union organizer in but slight vari-
ances from the following form :
I am available for work and would like to be put back on my old job from
which I was laid off June 24 of this year, or some other work in the plant
which I can do. I know new people have been hired after I was laid-off and
I can't understand why I have not been called back. You told me that as
work picked up I would be called back. I would like to know the reason why
I have not been called back? Let me know what's wrong.
On November 19, 1950, the Respondent replied to these letters as follows :
'Your letter dated November 4, 1949 and registered November 9, 1949 has
been received and will be given consideration upon receipt of the informa-
tion requested below :
Will you please inform us when and where you have been employed since
your layoff on June 24, 1949, also, where you were employed on November 4,
1949? -
None of these four employees replied to this letter.
Banks Kahle is and was at the time of the events around which this case is
centered, foreman of the Respondent's dry veneer and shipping department.
On his credited testimony he is a supervisory employee within the meaning of the
Act and was consulted by Shearman III, respecting the union activities of the
Respondent's employees. Shearman asked him if he knew what was causing
the disturbance and discussion throughout the plant relating to union activity
and told him that unions spread like fire. Kahle told Shearman all he knew
_.about the Union was that employee Blood had asked him to join and that he felt
-that if the employees wanted a union he was willing to participate as a member.
Sometime after the layoff, upon Kahle's request. that Blood be rehired, Shearman
replied, "I don't care to take Neil (Blood) back now due to the fact that things
are running smooth and I don't see this confusion and men grouped in corners
talking. I know who caused this confusion and as long as things are running
smooth, I want to leave it that way."
B. The complainants
1. Margaret Bates
Employee Bates worked nights as a drier from December 1948 until-June 24,
1949, when she was laid off. She had been a member of the Union at her place
of previous employment and signed a card while working for the Respondent in
May 1949. She attended no meetings. It was her understanding that it would
2-The rehired employees were Aldrich, Barr, Flasher, Hartzel, Mead, and Wilson.
KNIGHT VENEER AND PANEL CORPORATION 1579
be necessary to join the Union in order to hold her job. Shearman called her
aside and told her not to join the Union. She was offered a day job February
11, 1950, and declined it because the employee who fed the machine from which
she was to take stock was a "pusher." The night job she had formerly done was
not available because it would require her to work after midnight in contraven-
tion of the laws of New York.
2. Neil L. Blood
Employee Blood worked from September 1948 first as a lathe helper and later
in the shipping room where he sorted veneer, billed out orders, and operated the
clipper part of the time, until he was laid off on June 24, 1949. During this
period he received three pay raises. He attended the meeting of May 20, 1949,
and was elected vice president. He personally requested reemployment 1 /2
weeks after the layoff. The foreman's recommendation that he be rehired after
business had picked up was rejected.
3. LeRoy R. Koser
Employee Koser had worked for the Respondent in 1946 and at Shear-
man's request gave up a job lie held at Pearl City and returned as a clipper
on December 29, 1947, continuing his employment until the June 24, 1949, layoff.
He had received two raises during this last period. The first union meeting was
held at his home. He was elected union trustee and solicited memberships.
Shearman had indicated to Koser when he sought him out for employment in
December 1947 that if he left his position then, his job with the Respondent
would be secure. Koser asked Shearman how it happened that he was laid off,
in view of the latter's earlier assurances and Shearman stated the layoff was
due to unforeseeable circumstances. When he asked if his layoff was due to
union activities, Shearman replied no, that it was one of those things. He per-
sonally requested reinstatement on two occasions.
4. James S. Raybuck
Employee Raybuck started working for the Respondent on August 10, 1948, as
a log peeler until he became troubled by a back condition and was then trans-
ferred , upon request , to work as a clipper helper. There had been no complaints
about his work, other than he was once requested not to spend so much time in
the boiler room. He attended the first meeting at Koser's house, and at. the
second meeting was elected recording secretary of the Union. Raybuck asked for
reinstatement in person.
C. The rehirings since the layoff, including the Respondent's contentions
The other 6 of the 10 employees laid off on June 24, 1949, were rehired as indi-
cated in the following table :
Name : Date
Aldrich-------------------------------------------- June 27, 1949
Barr----------------------------------------------- November 1949
Flasher-------7------------------------------------ August 26, 1949
Hartzel------------------------------------------- June 30, 1949
Mead --------------------------------- August 1949
Wilson ---------------------------------- ---------- . August 1949
1 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These 6 employees were apparently all members of the Union. The record
does not reveal whether or not the Respondent was aware of this fact. Of the
approximately 17 employees who remained at work after the layoff of June 24,
12 were members of the Union and 5 were not members. General Manager
Shearman knew that Banks Kahle, who was retained, was a union member even
though he was a foreman. It does not appear that the Respondent knew in
every case which if any of the 17 employees it retained were union adherents
or nonunion members with the exception that it did know that employees Fuller
and Kurek who were not laid off were respectively the union president and treas-
urer. As to the 4 employees alleged to have been discriininatorily denied rein-
statement, the Respondent knew that Blood was the vice president and that
Raybuck was the secretary. Bates told Shearman she was and thought she had
to be a member of the Union. It is a reasonable inference that in a small plant
such as the Respondent's and in a community of the size of Falconer, the Re-
spondent knew the Union had met at Koser's house. It is manifest that shortly
after his layoff, management knew that Koser was a union adherent since Koser
asked Shearman if his union activity had anything to do with the layoff.
The Respondent attempted some explanation as to why Aldrich, Barr, Flasher,
Hartzel, Mead, and Wilson were reemployed and why Bates, Blood, Koser,.and
Raybuck were not reemployed as follows :
Aldrich. reported hack on June 27, 3 days after the layoff, and was rehired
because he was needed. Hartzel was rehired June 30, 6 days after the layoff
when lie reported back because help was needed at that time. Flasher was called
back August 26 because business had picked up. Wilson came back in August
when business had picked up and the Respondent knew it had to start a night
shift on the drier. Barr was rehired in November or December, although he
was not a qualified peeler, as there was need for a peeler. He answered the Re-
spondent's letter of November 19, 1949. Wilson was rehired in August to work
nights feeding the drier. Mead was rehired in August as helper on a clipper.
Bates was offered employment on February 11, 1950, working days on a job
taking material away from the drier. , This was the type of work she had been
doing nights prior to the layoff. In February, the performance of work at night
would have necessitated. her working after midnight in violation of New York
State Law relating to female workers.. The employee feeding the drier days
was a more experienced and faster worker than the employee who had been
hired to perform the same operation nights, and as Bates felt she could not take
away material as fast as the day tin1e operator fed it in, she declined to accept the
offered position. I find on the testimony of Foreman Kahle that this job was
not suitable for 'Mrs. Bates and therefore not equivalent employment. She had
filled in as a taper while working for the Respondent and also had had experience
taking away material from a splicer and asked Shearman for work of this char-
acter.- Shearman told her he would be glad to get her back if someone was laid
off and that he would call her when she was needed.
The Respondent's attempted explanation for its failure to rehire Blood was
that a cut in production reduced the amount of dry clipping and sorting
and that Blood's work was not entirely satisfactory ; that he started out fairly
good until the latter part of the winter of 1949 when he was not paying much at-
tention to his work and wasn't at his place of work just as much as he should
be; that the Respondent did not try to get in touch with him when it started the
night shift because of the impression it had that Blood was working on a farm and
that when he'did come in seeking employment there was no place open for him
KNTIGHT VENEER AND PANEL CORPORATION 1581
despite the fact that the foreman stated he needed someone on the clipper and
possibly Blood could fill the position.
Its explanation for failure to reemploy Raybuck was lack of seniority plus the
fact he wasn't a satifactory worker. When he first started on the clipper he was
a satisfactory employee. His two jobs on the clipper were to lay up and to work
on the lathe. He was only willing to lay up.
. Koser, according to the Respondent, was not rehired because of the need of
business, the cessation of the use of one of the two clipper lathes, and lack of
seniority. Employee Kurek who had more seniority and who was not satis-
fied with his millwright job took over Koser's job as a clipper when business
increased in August, and the second clipper lathe was again put into operation.
Employee Flasher also operated one of the clipper lathes and when he left, the
job was taken over by employee Wilson who is still performing the operation.
Wilson was hired in 1949 and Koser was hired in 1947. When Flasher left the
Respondent's employ, Koser was not called back to work because he had another
job.
Shearman also testified at one point that all of the complainants except Bates
were unsatisfactory.
Since June 24, 1949, in addition to rehiring six of the employees who were laid
off on that date the Respondent has hired "quite a large amount" of new help.
More than eight new employees have worked on the job which was previously
handled by Blood. During the 6 months prior to the date of the hearing, accord-
ing to the credited testimony of Foreman Kahle, the plant has been more or less
like an induction center with men working there for a week without their names
having ever been on the payroll.
D. Was the failure to rehire the compla:i.naids due to b'asiness conditions?
During the period from April 29 to June 24, the backlog of orders for finished
products was reduced from 878,349 veneer feet to 393,137 veneer feet. The aver-
age amount of unfilled orders was approximately 700,000 veneer feet. There-
after the backlog of unfilled orders increased as follows :
Backlog
(veneer feet)
Backlog
(veneer feet)
Week :
July 1----------------- 498,772
Week :
Sept. 23--------------- 1,187,839
July 14---------------- 602,583 Sept. 30--------------- 1,131,181
July 22--------------- 86'7,995 Oct. 7----------------- 1,149,973
July 29---------------- 999,799 Oct. 15---------------- 1,015,000
Aug. 5---------------- 1,583,337 Oct. 22---------------- 1,214,239
Aug. 12--------------- 1,283,993 Oct. 29---------------- 1,365,541
Aug. 19--------------- 1,502,211 Nov. 5----------------- 1,294,559
Aug. 26---------------- 1,522,808 Nov. 12---------------- 1,459,708
Sept. 2---------------- 1,394,960 Nov. 19---------------- 2,051,737
Sept. 9---------------- 1,200,463 Nov. 26--------------- 2,179,666
Sept. 16--------------- 1,171,000 Dec. 3----------------- 2,194,307
Beginning with July 22, 4 weeks after the layoff and continuing for the rest of
the year down to at least December 3, the backlog was constantly greater than
the average amount of unfilled orders during the period of 8 weeks before the
layoff and by November 19 and 26 it was three times as large. On November
19, 1949, the date the Respondent replied to letters from Bates, Blood, Koser,
and Raybuck requesting reemployment, unfilled orders amounted to 2,051,737
- 1582 DEciS30NS- OF--NATIUIVAL- LABOR RELATIONS BOARD
veneer feet. This volume was' neafly_six times greater- than tliat• existing at
the time of the layoff and nearly three times greater than the average amount
of the backlog during the period of 8 weeks prior to the layoff. It was ap-
proximately 1,500,000 veneer feet larger -than at any time during a month
before the layoff.
The conclusion is inescapable that -the reason for not rehiring Bates,-Blood,
Koser, and Raybuck was not lack of work. I shall find, contrary to the Re-
spondent's contentions that the failure to reinstate the complainants was not
due to economic conditions.
E. Was the failure to rewire the complainants due to inefficiency or lack of
seniority?
There is no evidence, and apparently the Respondent does not contend, that
Bates was not a satisfactory worker or that the question of seniority entered
into the fact that she was not offered reemployment until February 11, 1950.
Blood received three pay raises during the period between September 1948
and May 1949 when he became vice president of the Union. Foreman Kahle
considered him an average worker, in general more efficient and experienced
than employees Spitzer, Rudolph, and Michael. The latter two had more sen-
iority than Blood, but it does not appear to be contended that the question of
seniority enters into the matter of Blood not having been rehired. Spitze>: left
the Respondent's employment and more than eight other new employees were
assigned to the work Blood had been doing. Foreman Kahle wanted Blood
back but Shearman declined to reemploy him.
In December 1947 Koser returned to work for the Respondent at Shearman's
special request and thereafter received two pay raises. At the time of his
layoff he was one of two clippers operating lathes. The use of one lathe was
temporarily discontinued. - Shearman testified he had told Koser he was doing
a satisfactory job. In August the second lathe was again put into operation.
Koser was not called back. Kurek, who had more seniority but less experience
than Koser was assigned to the job of operating this lathe. Subsequently it
was run by Flasher, and upon the latter leaving the Respondent's employment,
by Wilson who has less seniority than Koser. .
Raybuck received but one pay increase shortly after he went to work in
August 1948 up until the date of the layoff. His work was never criticised.'
After the layoff, Mead, who was rehired after the layoff, and Hartzel, who was
hired after Raybuck, performed the work of. clipper helper that Raybuck had
done before he was laid off.
On the evidence before me I conclude and shall find, contrary to the Respond-
ent's contentions, that the failure to reinstate the complainants was not due
to their inefficiency or lack of seniority.
F. Was the failure to rehire the cbmplainants justified by the belief they might
have found other employment?
It is fundamental than an employer may decline to rehire employees it has
laid off for lack of business, for any reason, or for no reason at all, provided
Shearman testified that be "believed " he told Raybuck he shouldn 't be running around
the shop as much as he was. Raybuck admitted that Shearman spoke to him once about
spending time in the boiler room . I do not consider that this admonition amounts to a
criticism of Raybuck's work or that the fact of Raybuck spending time. in the boiler room
along with other employees "when they could get away with it," was the real reason for
such a harsh penalty as not rehiring him.
KNIGHT VENEER AND PANEL CORPORATION 1583
that its refusal is not prompted by opposition to or disapproval of the union
interests and activities of the employees it fails to rehire. Here the Respondent's
asserted reasons in the cases of Blood, Koser , and Raybuck are either that there
were no jobs for them , that they were not satisfactory employees,- that they
lacked seniority , or that they had procured work elsewhere . It has been found
that the failure to rehire these three men was not due to lack -of work or
seniority or to their inefficiency . The asserted defense that they had other
jobs requires but brief discussion . In Hartsell Mills Co. v. N.L. R. B., 111 F.
2d 291 ( C.-A. 4), recently "cited in Norfolk Shipbuilding & Dry Dock Corp., 172
-F."2d 813- ( d. A. 4j, and quoted in Eastern Coal Corp., 176 F. 2d 131 ( C. A. 4),
the employer contended that W discriminatorily discharged employee was not
entitled to reinstatement because he had obtained substantially equivalent em-
ployment elsewhere. The Board 's finding to the contrary was sustained in the
light of the ' Court's holding in Mooresville Cotton Mills , 110 F . 2d 179 ( C. A. 4).
In the latter case the Court sustained the Board 's finding that the new employ-
ment that four employees had obtained was not equivalent to the old, and
ordered the entry of a decree directing reinstatement . Here, the Respondent has
presented no evidence that any of the four complainants have procured sub-
stantially equivalent employment. There is no evidence that Bates has had
any work since June 1949 . The only evidence respecting Blood having worked
is that Shearman had heard he was haying or working on a farm. Raybuck
testified he has been working at Excel Metal since about the second week of
September 1949. Koser , who was destitute , got a job for a month at Plumb
Tool . This work was not up to his standard and in October 1949 he procured
a position at Jamestown Veneer & Plywood Co ., which he continued to hold at
the time of the hearing.
Likewise the fact that none of the 'complainants chose to reply to the Re-
spondent 's letters of November 19, 1949, inquiring what work they were doing
or had been doing requires but little discussion. The fact that Bates, who did
not answer , was offered a job on February 11, 1950, negatives the idea that
the failure to offer work to any of the complainants was their not having
answered the same letter. It is well established that an offer of reinstatement
must be ' unconditional . No actual offer of reinstatement has ever been made
to any of the employees named in the complaint . Even though the Respondent
may have assumed or hoped that they were working elsewhere , their solicitation
of employment was unequivocal and in the absence of any knowledge as to
whether any jobs in which they might be employed in November were sub-
stantially equivalent to those they had held in June, the Employer should not
be permitted to defeat the purposes of the Act by temporizing and by parrying
the requests until such time as it might putatively be determined judicially
whether the failure to reinstate any or all of the applicants for rehiring was
discriminatory or if any or all of them had procured equivalent employment.
Rather, when the requests for reemployment were made it devolved upon the
Employer to either refuse them or grant them . In fine, the letters of November
10 were tantamount to a refusal to reinstate , a fact borne out by the Respondent's
conduct in continuing to deny reemployment down to the present.
G. Did the Respondent refuse to rehire the complainants because of their union
membership and activities?
Bates persisted in her determination to be a member of the Union despite the
fact that Shearman singled her out to tell her she should not join. After
having applied for work to Foreman Kahle, having been told by Shearman she
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be called when needed, having signed a letter dated November 4, 1949,
seeking reemployment, she was eventually- on February 11, 1950, offered work
to commence February 14. During the period between June 24, 1949, and
February 14, 1950, the amount of work taking material away from night drier,
which Bates had formerly done, had increased to the extent that it could not
become completed before midnight and sometimes required the operator to
remain on the job from 3: 30 p. in. straight through until the day shift came on
the next morning. It is a fair inference that this increase in work on this
single operation reflected the general step-up in production shown by , the aug-
mentation in the backlog of unfilled orders from an average of approximately
700,000 veneer feet for the 9 weeks up to and including the week of June 24, 1949,
np to an average of over 2,000,000 veneer feet for the weeks following November
12, 1949. It is patent that this position suitable for Mrs. Bates at a time when
production was so low from the time she was hired in 1948 until she was laid off
.on June 24, 1949, that she could complete the work by midnight, was no longer
available to her after the output had increased to the extent that the work
could not be completed before midnight after which hour women could not
legally be employed. It may well be wondered why the Respondent could not
have arranged to provide work on the drier for this employee, whose efficiency
it does not deny and concerning whose seniority it raises no question, from
3: 30 p. in. to midnight and allow a male employee to carry on from that hour.
But neither were such hours of work on the drier nor the jobs of taper or of
taking away from the splicer, in which she was experienced and which she
requested, offered her despite the fact they could be performed during hours
permissible for female work and the large increase in production that developed
after the date of the layoff. Rather there was belatedly offered to Mrs. Bates
a position which I have previously found, in paragraph III C, on the testimony
of Foreman Kahle did not constitute equivalent employment.
Direct evidence of antiunion motivation or even of the employer's knowledge
of employees union adherence in cases of either discharging employees or re-
fusals to rehire them is infrequently encountered. Cf. N. L. R. B. v. 1'ex-O-Ka.u-
Flour Hills, 122 F. 2d 433 (C. A. 5) ; Hartsell Mills Co. v. N. L. R. B., supra,
1.11 F. 2d 291 (C. A. 4) ; N. L. R. B. v. Abbott 117orste(l Mills, 12 F. 2d 438
(C. A. 1). Here at the very least there is direct evidence of the Employer's
admitted knowledge of Mrs. Bates' union affiliation. If the Employer's failure
to offer her some work she could do, was not motivated by antiunionism, how
may it be explained? Clearly it was not due to lack of seniority or ability.
The large increase in production during the autumn of 1949, the rehiring
of old employees, and the hiring of new help negatives the conclusion that there
was no work as a taper or as a taller taking away from the splicer, available
for assignment to her. It is scarcely reasonable to conclude that there was no
reason for her not having been called back. It is reasonable to conclude that
the Respondent knowing her union proclivities and her adamant insistence upon
continuing her union membership, was not anxious to have her on the payroll
at a time when it knew that an election, which it demanded before recognizing
the Union, would soon be held. I am unable to reach any other conclusion than
that the actual and real reason for the denying and refusing employment to
Margaret Bates was her membership and interest in the Union.
Blood was very active in union affairs. He was known to the Respondent
to be its vice president and the person who solicited the membership of Foreman
Kahle. Shearman in the course of a conversation about Blood referred to
the "disturbance" he had created, stated in substance he would not accept
KNIGHT VENEER AND PANEL CORPORATION 1585
Kahle's recommendation that Blood possibly be reemployed because he wanted
to avoid a renewal of the confusion with men grouped in a corner talking
and that he knew who had caused the confusion. For reasons pointed out
in subsections D and E of this main section III, I find that the failure to
reinstate Blood was neither due to economic conditions nor due to any ineffi-
ciency or lack of seniority. It is obvious that Blood was a valuable employee
entirely acceptable to the Respondent until after May 20, 1949, when he was
elected to office in the Union at the first meeting he attended. I feel that the
General Counsel has established the fact that the Respondent's real reason for
denying and refusing employment to Neil L. Blood was his membership in and
activities in behalf of the Union.
Koser was the originator and among the leaders in union organization.
For the reasons pointed out in subsections D and E of this section III, I find
that the failure to reinstate Koser was neither due to economic reasons nor
due to any inefficiency or lack of seniority. That he was regarded as a valuable
employee when hired is attested to by the fact Shearman especially sought him
out for reemployment in 1.947. That he continued to prove his worth is attested
to by the fact that he received two pay raises after he was employed.
I am at a loss to understand what valid reason impelled the Respondent
not to reemploy Koser at some time after its business had so markedly increased
during the summer or fall of 1949 unless it was upon the ground of its dis-
approval of his prominent participation in union affairs. Hence, I feel con-
strained to conclude that the Respondent's real reason for denying and refusing
employment to LeRoy R. Koser was his membership in and activities in behalf
of the Union.
The Respondent also knew that Raybuck was an officer of the Union. I
have found that the Respondent's failure to reinstate him was due neither
to economic conditions nor to lack of seniority. Whether he was denied reem-
ployment for reasons from the consequences of which the Respondent is im-
mune or from the consequences of which the Act makes it chargeable, remains
to be determined. I have considered whether the Respondent's real reason
was the fact that Raybuck was found spending time in the boiler room. It
was not suggested that other employees who had indulged in this practice
were subjected to any form of discipline. I can not bring myself to believe
that so severe a punishment as refusing to rehire him was meted out to Raybuck,
alone, for this comparatively unimportant offense or that its commission was
the real reason motivating the Respondent's action. In his case as in instances
of the other three complainants, there became available openings in which he
could be placed. Raybuck had to give up working as a peeler because of a
back condition about September 10, 1948, and thereafter worked as a clipper
helper. His back condition improved and "started feeling pretty good" 11
weeks after June 24, 1949, and he became able to work as a peeler by August 6.
George Armstrong who had been fired in April 1949 was rehired as a peeler
about August 9 and Ross Barr who Shearman stated was not a qualified peeler
was hired as a peeler on December 5, 1949, and fired 6 months later. Glenn Mead
was rehired as a clipper helper and I consider it a reasonable assumption, in
view of the marked increase in production, that other employees among those
that were taken on to such an extent that the Respondent's plant came to
look like an induction center, took over both of Raybuck's previous jobs as
peeler and clipper helper. As with Blood and Koser, Raybuck's asserted defi-
ciency became unsupportable only after it became known he was an officer in
the Union. It becomes apparent to me, as in Agwilines, Inc. v.. N. L. R. B.,
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
87 F. 2d 146 (C. A. 5), that the Respondent's failure to reemploy these men
was directed more at their unionism than at their peculiarities. In summary,
I conclude that the Respondent's real reason for denying and refusing reem-
ployment to James S. Raybuck was his membership in and activities in behalf
of the Union.
It follows that the Respondent's conduct was discriminatory, that it interfered
with the hire and tenure of employment of the complainants and that it coerced
them in the exercise of the rights guaranteed by Section 7 of the Act, and thereby
violated Section8 (a) (1) and Section 8 (a) (3) of the Act.
H. Interference, restraint, and coercion
The layoffs occurred very shortly after the Respondent became aware of
the organizational activity of the Union and its demand for recognition. The
Respondent knew .of the prominence,of Blood and Raybuck in the Union and.
of Bate's insistence that she was and would remain a union member. Manage-
ment presumably knew before the layoff, as previously pointed out, that Koser
was one of the originators, if not the primary source of the union movement
and in any event certainly knew of his interest in union affairs shortly after
the layoff when he asked Shearman if the reason for his not getting back his
job was his union activity.
The Respondent was unwilling to recognize the Union, absent an election and
did not avail itself of the opportunity to inspect the 22 membership application
cards. Shearman's statements to Foreman Kahle and employee Bates clearly
manifested the Respondent's opposition to unionization' of the plant. It would
be to shut one's eyes to the obvious to believe that the Respondent was not
hopeful that a majority of its employees would vote against the Union at an.
election it knew would undoubtedly be held or that by refraining from re-
employing the four complainants it would not only deprive the Union of four
certain votes but also discourage others, who had signed cards, from voting in.
favor of the Union. The necessities of the business required the Respondent to
retain Union President Donald Fuller and Union Treasurer Joseph Kurek in
its employ. Fuller was one of three firemen, none of whom could be laid off'
without seriously curtailing or discontinuing operations. Kurek was one of
the oldest and most experienced employees without whom the doubling up of
different duties could scarcely be accomplished. I consider it clear not only
that it would have been extremely inexpedient for the Respondent to have
completely separated these two employees, but also, had it done so by means
of layoff and refusal to reinstate, its conduct would have been even more patently
discriminatory than that disclosed by the separation of only four employees.
I believe that in the face of an unwelcome demand for union recognition the
.Respondent realized it must move with caution and accordingly calculated that
its discriminatory conduct would be rendered difficult of detection by the device
of utilizing a half or three-quarter way measure at a fortuitously convenient
time when the collective bargaining effort was in a nebulous stage. When the
Union applied pressure upon the Respondent to reemploy those who had not
been taken back after the June layoff, the Respondent sought to find out if the
applicants for reinstatement were working. Having learned from Ross Barr's
letter of November 24, 1949, that he had not been employed since June 24, it
promptly asked him to. report for work. Having satisfield itself that Bates
had found no work since her layoff the Respondent came to the point finally
on February 11, 1950, of offering her work in a position that its foremen testified.
was unsuitable for her. Having gathered after Blood, Koser, and Raybuck did
KNIGHT VENEER AND PANEL -CORPORATION 1587
not reply to its letters of November 19, that they had jobs, the Respondent
persisted in its refusal.to offer them reemployment. Thus the Respondent in
my opinion, felt that it had either built up a complete defense to the charge'
that it had discriminated against employees, or materially reduced the costs
of complying with an enforcement decree, should reinstatement ultimately be
ordered.
In summary , I conclude that the Respondent by telling an employee not to
join the Union impliedly threatened her with reprisal if she failed to comply
with its request, that upon her insisting she would continue to be a union
adherent, she was denied reemployment in a position equivalent to that she held
before being laid off, and by discriminatorily refusing to reinstate three other
employees, interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed them by Section 7 of the Act and thereby violated Section
8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in Section III, above, occurring
in connection with the business and operations of the Respondent, as described
in Section I, above, have a close, intimate, and -substantial relation to trade,
traffic, and commerce among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor
practices, it will be recommended that the Respondent cease and desist there-
from and take certain affirmative action designed to effectuate the policies of
the Act. -
I have found that the Respondent discriminated in regard to the hire and
tenure of employment of Margaret Bates, Neil L. Blood, LeRoy R. Koser, and
James S. Raybuck and will recommend that the Respondent offer to Margaret
Bates, Neil L. Blood, LeRoy R. Koser, and James S. Raybuck immediate and
full reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights or privileges. It will be further recom-
mended that the Respondent make Margaret Bates, Neil L. Blood, LeRoy R. Koser,
and James S. Raybuck whole for any loss of pay they may individually have
suffered by reason of the Respondent's discrimination against them since Novem-
ber 19, 1949,6 by payment to each of them a sum of money to be computed on the
4 It was originally charged on October 7, 1949 , that the Respondent had discriminated
against Bates, Blood, Koser, Raybuck, Barr, and Mead by discharging them on June 24,
1949. By amendment on July 14, 1950, it was charged that the Respondent discriminated
against Bates , Blood , Koser , and Raybuck by failing to reinstate them. As appears else-
where in this Report, Mead and Barr were reinstated before the charge was amended.
5 November 19, 1949, is selected as the date of the discriminatory refusals to reemploy
.from which the making whole for any loss of back pay is recommended, for the following
reason . There is evidence that each of the complainants requested reinstatement in
person before their letters dated November 4, 1949. It could be deduced that most of
these personal requests were made around August 1949, although the evidence on the
point is vague . There is no substantial testimony however , apart from the evidence
there was a 0-week spurt starting in August, that at the time was thought to be but
temporary, that business had increased by August to the extent that all former hands
could be absorbed . By November 1949 , however, operations as manifested by the six- or
seven -fold expansion of unfilled orders after June 24, and the rehiring of old and hiring
of new employees , there was more work to be done than during the period of 2 months
1 588 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
basis of each calendar quarter or portion thereof during the period from the
discriminatory refusal to reinstate to the date of a proper 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
deducting from a sum equal to that Margaret Bates, Neil L. Blood, LeRoy R.
Loser, and James S. Raybuck individually would normally have earned for each
such quarter or portions thereof, her or his net earnings, if any, during that
period. Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other quarter. It is further recommended that the
Respondent shall, upon request, make available to the Board, all payroll and
other pertinent records to facilitate the checking of back pay due.
Because of the Respondent's unlawful conduct and its underlying purpose
and tendency, I find that the unfair labor practices found are persuasively related
to other unfair labor practices proscribed and that danger of their commission
in the future is to be anticipated from the course of the Respondent's conduct
in the past. The preventative purpose of the Act will be thwarted unless the
order is coextensive with the threat. In order, therefore, to make effective the
interdependent guarantees of Section 7, to prevent a recurrence of unfair labor
practices , and thereby to minimize industrial strife which burdens and obstructs
commerce, and thus effectuate the policies of the Act, I will recommend that
Respondent cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
of the case, I make the following:
CONCLUSIONS OF LAW
1. Local 34, United Furniture Workers of America, C. I. 0., is a labor organi-
zation within the meaning of the Act.
2. By refusing to reinstate and coercing Margaret Bates, Neil L. Blood, LeRoy
R. Koser, and James S. Raybuck, thereby discouraging membership in Local 34,
United Furniture Workers of America, C. I. 0., the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
3. By said conduct and 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.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
before June 24, when the complainants were fully occupied. I feel it has not been clearly
established that economic conditions were such that the Respondent was not justified in
refusing reemployment at the times it was sought by personal contact. But I am
satisfied that by November 8, there was no economic justification for the refusals. The
complainants requests for reemployment were mailed November 9 and acknowledged on
November 19. By the latter date, the Respondent had had ample opportunity to make
arrangements for reintegrating the complainants . It failed to do so and its action on
November 19, as has been found above, constituted a refusal to employ , which was
discriminatory.