Rouch's Sawmill, Ltd.

National Labor Relations Board - Board Decisions

May 4, 1951

94 N.L.R.B. 298 (N.L.R.B. 1951)

298' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, professional employees , guards,' and supervisors 6 as de-
fined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBERS REYNOLDS and STYLES took no part in the consideration
of the above Decision and Direction of Election.
'The Employer employs two watchmen, Collins and Griggs, to be on the Employer's
premises at night to prevent trespassing and theft They have no production duties and
perform no work other than normal plant-protection duties We find that these employees
aie guards and they are, therefore, excluded Manhattan Oil Corporation, 79 NLRB 187.
6 The Employer contends, and the Petitioner denies, that Obed Martin is a super% isor
Martin is a maintenance foieman in charge of a roustabout gang that does repair and
building work There is uncontradicted testimony in the record that he has the authority
to hire and discharge employees employed in his crew We find that Martin is a super-
visor as defined in the Act and lie is, therefore, excluded
EDWIN S. RonCH, CLAUDE A. ROUGH, SR., MINNIE K. ROUGH , MARGUE-
RITE R. MUNSON, CLAUDE A. ROUGH , JR., AND ROBERT W. RouGH,
INDIVIDUALLY AND AS CO-PARTNERS , D/B/A ROUGH'S SAWMILL, LTD.
and INTERNATIONAL WOODWORKERS of AMERICA , CIO. Case No.
0O-CA-257. May 4, 1.951
Decision and Order
On August 18, 1950, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and (3) of the
National Labor Relations Act, as amended, and recommending that
they cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondents filed exceptions to the Intermediate Re-
port and a supporting brief.
On October 13, 1950, the Board 1 remanded the proceeding to the
Trial Examiner for the purpose of receiving further evidence as to
the nature and extent of the Respondents' operations. On January
9, 1951, following a second hearing, the Trial Examiner issued a Sup-
plemental Intermediate Report, a copy of which is attached hereto.
No exceptions have been filed to this Supplemental Intermediate Re-
port, but the Respondents advised the Board that they desire con-
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Houston and Reynolds]
94 NLRB No. 57.
ROUCH'S SAWMILL, LTD. 299
sideration of the entire record, including their previously filed excep-
tions and brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed.2 The Board has considered the In-
termediate Report, the Supplemental Intermediate Report, the ex-
ceptions and briefs, and the entire record in the case, and hereby adopts
the findings, conclusions , and recommendations of the Trial Examiner,
with the following modifications 3
1. The Trial Examiner found that the Respondents discharged
Howard Norris because of his membership in and activities on behalf
of the Union, and thereby violated Section 8 (a) (1) and (3) of the
Act. We do not agree. As set forth in the Intermediate Report, it
was this employee's duty to separate good lumber from waste edgings.
On three separate occasions during the 4-week period preceding Nor-
ris' discharge, Respondent Ed Rouch found fault with his work and
warned him against discarding good lumber. In response to the last
such warning, Norris told Rouch that he wished Rouch would fire
him, and that he "didn't care." We are unable to condone this at-
titude by Norris toward his Employer's repeated criticisms. Nor do
we deem significant, as did the Trial Examiner, the testimony of other
employees that during the same period Norris threw waste edgings
where good lumber only was to go. This assertion, if true, is not in-
consistent with Bouch's testimony that Norris used poor judgment
in discarding good wood. It is true that the Respondents were aware
of Norris' activities on behalf of the Union and, 4 months previously,
had unlawfully interfered with such activities by other employees.
Although the matter is not free from doubt, eve are not convinced, on
the record as a whole, that the Respondents were motivated by an anti-
union animus in discharging Norris. Accordingly, we shall dismiss
the complaint as to him.'
2. We agree with the Trial Examiner's conclusion that the Respond-
ents violated Section 8 (a) (1) of the Act independently of the dis-
2 Contrary to the Respondents' contention, we find nothing in the record or Intermediate
Report reflecting bias or prejudice by the Ttial Examiner in either the conduct of the
hearing or his findings, conclusions , and recommendations
4 We find no merit in the Respondents' contention that certain allegations of the com-
plaint should be dismissed because they occurred more than 6 months before the third
amended charge The timely filing of the original charge tolled the statute of limitations
with respect to any matters that might pi operly be included in a complaint based on
that original charge. Ilhnoii Bell Telephone Company, 88 NLRB 1171, and cases cited
therein
The Trial Examiner inadvehtently reported that Silas Croy testified that lie was hit
on the leg by an edging thrown by Norris Croy testified, and we find, that he was hit
by an edging thrown by Strong As Croy also credibly testified that lie did not report this
incident to the Respondents , we deem this correction of the Intermediate Report to be
irrelevant to our adoption of, the Trial Examiner 's conclusion that the Respondents
discriminatorily discharged Earl Strong as alleged in the complaint.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminatory discharges of Robert Adams, Earl Strong, and Orville
Cave. Unlike the Trial Examiner, however, in finding that Robert
Rouch's speech to the employees on June 29, 1949, contained a threat
to withdraw certain material benefits in the event the Union won
the pending election, we do not rely upon Rouch's testimony at the
hearing, wherein Rouch explained his earlier statements. In the
course of the speech, Rouch said, ". . . it has been our pleasure to help,
a number of you personally. If the Union wins in this election you
will no longer have this privilege and the fine personal relationship
which has existed between us is going to disappear." As reported in
detail in the Intermediate Report, the Respondents had for some time
favored their employees with personal loans, reduced purchasing rates,
and other accommodations. We find that the employees necessarily un-
derstood Robert Rouch's mention of past "help" as referring to these
benefits. Indeed, at the start of the Union's organizational campaign
several months before, Claude Rouch, Sr., while explaining to the em-
ployees the reasons for the Respondents' opposition to the Union, had
unequivocally said that if the employees designated the Union to rep-
resent them these accommodations would be discontinued. In these
circumstances, we reject the Respondents' contention that the June 29
speech was but an expression of opinion and privileged under Section
8 (c) of the Act.'
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Edwin S. Rouch, Claude
A. Rouch, Sr., Minnie K. Rouch, Marguerite R. Munson, Claude A.
Rouch, Jr., and Robert W. Rouch, individually and as co-partners,
d/b/a Rouch's Sawmill, Ltd., Springville, California, their agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of
America, CIO, or any other labor organization of their employees,
by discharging employees or in any manner discriminating in regard
to their hire and tenure of employment or any term or condition of
employment.
(b) Threatening the withdrawal of benefits, accommodations, and
privileges, or in any other manner interfering with, restraining, or
coercing their employees in the exercise of the right to self-organiza-
tion, to join or assist International Woodworkers of America, CIO,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activ-
ities for the purposes of collective bargaining or other mutual aid
6 The Linde Air Products Company, 86 NLRB 1333
ROUCH'S SAWMILL, LTD. 301
or protection, and to refrain from any and all such activities except
to the extent that such right' may be affected by an agreement requir-
ing 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 the Board finds will
effectuate the policies of the Act :
(a) Offer to Earl Strong and Orville Cave immediate and full re-
instatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges,
and make Earl Strong, Orville Cave, and Robert W. Adams whole
in the manner set forth in the section of the Intermediate Report
entitled "The remedy."
(b) 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.
(c) Post at their plant at or near Springville, California, copies
of the notice attached hereto marked Appendix.6 Copies of said
notice, to be furnished by the Regional Director for the Twentieth
Region, shall, after being duly signed by the Respondents' repre-
sentative, be posted by the Respondents immediately upon receipt
thereof and maintained by them for a period of sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days from the date of this Order, what
steps the Respondents have taken to comply herewith.
IT IS FURTIlEll ORDERED that the complaint, insofar as it alleges that
the Respondents violated Section 8 (a) (3) by discharging Howard
.Norris, be, and it hereby is, dismissed.
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:
8 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall he inserted before the mords "A Decision and Order," the voids "A Decice of
the United States Court of Appeals Enforcing."
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in INTERNATIONAL WOOD-
WORKERS OF AMERICA, CIO, or any other labor organization of
our employees, by discharging any of our employees, or in any
other manner discriminating as to their hire and tenure of em-
ployment or any term or condition of employment.
WE. WILL NOT threaten our employees with loss of privileges,
benefits, or accommodations, or in any other manner interfere
with, restrain, or coerce our employees in the exercise of the right
to self-organization, to form labor organizations, to join or assist
INTERNATIONAL WOODWORKERS OF AMERICA, CIO, 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 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 offer to Earl Strong and Orville Cave immediate and
full reinstatement to their former or substantially equivalent
,,positions without prejudice to any seniority or other rights and
,privileges previously enjoyed; and we will make them and Robert
W. Adams whole for loss of pay suffered as the result of the
discrimination against them.
All our employees are free to become or remain members of the
above-named union or any other labor organization.
EDWIN S. ROUGH, CLAUDE A. ROUGH, SR.,
MINNIE K. ROUGH, MARGUERITE R. MUNSON,
CLAUDE A. ROUGH, JR., and ROBERT W. ROUGH,
Individually and as Co-Partners d/b/a
ROUCH'S SAWDIILL, LTD.
Employer.
Dated ---------- By ------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Nathan R Berke, Esq., for the General Counsel.
Max K. Jamison, Esq., of Jamison & Jamison, Porterville, Calif., and L. W.-
Baxter, Esq., Fresno, Calif, for the Respondents.
Messrs. Kenneth McKee, Sacramento, Calif., and Joe F. Clark, Oroville, Calif.,
for the Union.
ROUCH'S SAWMILL, LTD.
STATEMENT OF THE CASE ,
303
Upon an amended charge duly filed by International Woodworkers of America,
CIO, herein called the Union, the General Counsel of the National Labor Rela-
tions Board,' by the Regional Director for the Twentieth Region (Sail Francisco,
California), issued his complaint dated March 13, 1950, against Edwin S. Rouch,
Claude A. Rouch, Sr, Minnie K Rouch, Maiguerite R Munson, Claude A. Rouch,
Jr., and Robert N. Rouch, individually and as co-partners d/b/a Rouch's Sawmill,
Ltd, herein called the Respondents, alleging that the Respondents had engaged
in and were 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
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the charge, the complaint, and a notice of hearing were duly served on
the Respondents and the Union.
With respect to unfair labor practices, the complaint alleged in substance
that the Respondents discriminated against four named employees because of
their union membership and activities, in violation of Section 8 (a) (1) and (3)
of the Act, and engaged in independent violation of Section S (a) (1) of the Act
by specifically enumerated acts and conduct.
The Respondents in their duly filed answer admitted the jurisdictional allega-
tions of the complaint but denied the commission of the alleged unfair labor
practices.
Pursuant to notice a hearing was held at Porterville, California, on April 11,
12, 13, 1950, before William E Spencer, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. All parties were represented and
participated in the hearing where full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues was
afforded them. After the taking of evidence, the General Counsel's unopposed
motion to conform the pleadings to the proof was granted. The Respondents
and the General Counsel, respectively, filed briefs with the undersigned.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondents, a limited copartnership, ire, engaged in the business of
logging timber and manufacturing lumber. Their operations are carried on in
and near Springville, California. During the year 1949 the Respondents' pur-
chases, consisting principally of timber, exceeded $25,000 in value, and during
the same year the Respondents' sales of finished lumber exceeded $250,000 in
value, of which amount approximately 5 percent was shipped to points outside
the State of California. The Respondents admit that they are engaged in com-
merce within the meaning of the Act.
IL TILE LABOR ORGANIZATION INVOLVED
International Woodworkers of America, CIO, is a labor organization admitting
to membership employees of the Respondents.
The General Counsel and his representative at the hearing will be called herein the
General Counsel , the National Labor Relations Board , the Poaid
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Character and scope of the issues
This proceeding involves the operation of the Respondents' sawmill at or near
Springville, California. The Respondents' business is seasonal, the mill being
in operation normally from about June to the middle of February. About 30
persons are employed in the-operation of the mill
In December 1948, a number of Respondents' employees became affiliated with
the Union, among them Earl Strong, Orville Cave, Howard Norris, and Robert 11'.
Adams, the four employees alleged to have been discriminated against. These
employees, and others, wore union buttons from a time shortly after they became
affiliated with the Union and, admittedly, the Respondents had knowledge of
their union affiliation. Adams was elected vice president of the local union in
December 1948, and later became president. Norris was secretary-treasurer.
Norris and Strong attended meetings between representatives of the Respondents.
and the Union in the late winter and spring of 1949, as union representatives.
The Respondents opposed the Union and voiced this opposition to the em-
ployees on several occasions At a safety meeting held in January 1949, Claude
Rouch, Sr., and Robert Rouch, of the respondent partnership, addressed the
employees in opposition to the Union At another safety meeting held just
prior to a bargaining election conducted by the Board on June 29, 1949, Robert
Rouch read a statement prepared for him by the California Association of
Employers, with which the Respondents are affiliated, in which the Respondents
urged their employees to vote against the Union The Union won the election,
and after Respondents' objections to the conduct of the election had been over-
ruled by the Board, the Union, on or about December 1949, was certified as bar-
gaining representative of Respondents' employees in an appropriate unit.
When, after a seasonal shutdown, the mill Iesumed operations in June 1949,
Cave and Strong, who had been employed for the prior two seasons, were refused
employment and two new employees were hired to take their place. In October
1949, Howard Norris, the Union's secretary-treasurer, was discharged In
December 1949, the Respondents discharged the Union's president, Robert W.
Adams These acts are alleged to have been discriminatory. Adams was later
reinstated. It is also alleged that Adams was discriminatorily denied employ-
ment during the seasonal shutdown in the spring of 1949.
B. Interference, restraint, and coeicion
At a safety meeting held in January 1949, shortly after organizational activi-
ties had started among the employees, Claude Rouch, Sr., and Robert Rouch, of
the Respondent partnership, addressed the employees in opposition to the Union.'
Robert, called "Bobby" by the employees generally, referred to the wearing of
union buttons and stated that the company was not "union" yet and would not
be until such time as a secret election was held when all would be allowed to
vote ; stated further that it had come to his attention that the Union had been
making "grandiose" promises and that it did not appear fi om his point of view
of Respondents' operations that fulfillment of such promises would be possible.
Folloui mg Bobby, Claude Rouch, Sr., his father, said that he had been informed
2There are numerous versions of statements made at this meeting in the testimony of
witnesses for both the General Counsel and the Respondents The undersigned has con-
sidered the entire testimony and had based findings on nailually coiroboiative and credible
testimony Testimony in conflict with these findings has been considered and rejected
In certain other alleged statements no findings sic made because of a lack of sufficiently
peisuasive supporting testimony.
ROUCH'S SAWMILL, LTD. 305
that an 'employee had been warned that if she did not wear a union button she
would be thrown in the mill pond "Be damned sure you don't start nothing
like that because you won't get away with it," he warned. He had reference
to Stella Cameron, Respondents' bookkeeper and secretary, who testified that
she had been told by one of the employees that if she did not sign a union card
she would be thrown into the mill pond. There is also testimony, which I credit,
that Claude Rouch, Sr, in his speech made statements to the effect that if the
employees tried to "run over him" they would be "butting their heads against
a stone wall," Such a statement may very well be construed as a threat, but
the context in which the statement was made varied according to the testimony
of several witnesses, and may have had reference to the Stella Cameron incident.
The Respondents would be justified in stating in strong terms that they would
resist any attempted reprisals against employees who did not choose to affiliate
with the Union. I am not persuaded, therefore, that Claude Rouch's statements
were violative of the Act, and Robert Rouch's statements, though strongly
worded in their opposition to the Union, appear to fall within the purview of
Section 8 (c) of the Act, with one exception
During the course of his remarks Robert Rouch stated that certain benefits
of accommodations previously extended to the employees would no longer be
granted Ho had reference to such matters as loans of money and extension
of credit, the purchase of gasoline on the mill property, and the privilege of
buying lumber fi oni the mill at lower than retail prices Several employees
testified coneei ping his remarks on this topic, and some tes
0
tified that lie said
these benefits would be withdrawn if the Union came in' I believe this testi-
mony represented the conclusions di awn by the witnesses rather than what
was actually said, and I credit the testimony of other witnesses, including that
of Roach himself, that in his announcement of the withdrawal of benefits he
referred in general but not specific terms to difficulties the Respondents had had
in the administration of such benefits It also appears that the Respondents
had actually encountered some difficulty in connection with the extension of a
loan to an employee, Otto McFerran, and that at least some of the employees
had knowledge of this difficulty This, however, does not explain satisfactorily
why Robert Rouch chose to make the announcement of the withdrawal of bene-
fits (it this Buie, and in a context of remarks addressed against the Union. Thei e
is no showing as to when the difficulty with McFerian arose, whether or not
the matter had been adjusted at or prior to the time of Roach's speech, or what
it involved, and therefore no basis exists in the evidence for inferring that
Roach's announcement was a logical and timely follow-up of actual difficulties
encountei ed in the administration of employee benefits The contexts of anti-
union remarks in which the announcement was made, however, inevitably
colors the statement itself and suggests that it was made at this place and at
this time for the specific purpose of discouraging union affiliation. Such a
conclusion i5 strengthened by later statements on the same topic
\V'hen Earl Strong, just pi for to the resumption of operations at the mill in
June 1949, attempted to learn from Ed Roach whether he would be given work
naming that season, Ed Rouch referred to the matter of "accommodations," and
stated that they would ba discontinued ; that the Respondents had "leaned back-
VA arils" in the past, but that in the future it a man was placed on a job and did
This testimony was, in several instances, elicited by leading questions It is also ne-
lieved. on the basis of the undersigned's observation of Robert Rouch as a witness and
scrutm, of his entree testnnony, that he was too adroit and cautious to openly and ex-
plicitly threaten the emploiees with wwithdiawal of accommodations if the Union was
successtul in organizing the plant
95-841-52-col q4 21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not perform satisfactorily, "down the hill he goes" "You know why," Rouch
said, and when Strong replied that he did, Rouch said, "That man down there
at Porterville has just made us look like s. o. b's ." The Union's representative,
Kenneth McKee, lived at Porterville, and so did McFerran with whom the Re-
spondents had had some' difficulty over "accommodations" Rouch testified
that in this conversation with Strong lie was referring to the latter. This does
not seem likely, however, because whatever the difficulty the Respondents had
had with McFerran, it could hardly have been of a character which would, in
Rouch's words, have made the Respondents look like "s. o. b's." It is entirely
likely, however, that the propaganda of the Union's organizer, in the hinds of
the Respondents, may have cast aspersions upon their ancestry (in the venacu-
lar). Furthermore, if Rouch had had reference to McFerran, a fellow employee
well known to Strong, it is unlikely that he would have referred to hint as "that
man down there at Porterville " He might very well, however, 'have referred to
McKee in those terms. I conclude that in his conversation with Strong, Ed
Itouch purposefully linked the discontinuance of accommodations with the ac-
tivities of the Union's organizer.
Finally,' in a prepared speech which he read at a safety meeting held shortly
before the bargaining election of June 29, 1949, Robert Rouch again referred
to the withdrawal of "privileges " The paragraph of the speech in which the
reference occurs, follows:'
We really value the personal relationship which has always existed be-
tween the management and with each of you as employees Up to now you
have been free to come to us about any matter whatever And, as previously
mentioned, it has been our pleasure to help a number of you personally If
the union wins in this election you will no longer have this privilege and the
fine personal relationship which has existed between you and us is going
to disappear. If the union wins we will have to deal with you on a strictly
impersonal basis . And we will no longer deal directly and individually with
you as heretofore-but only through the union We certainly would prefer
to keep our relationship as it has been ! We sincerely hope you feel the
same way about it
When, after having read this paragraph of the speech to the witness, the Gen-
eral Counsel on cross-examination questioned: "What was that matter you were
relerimg to here, about `It has been our pleasure to help a number of you per-
sonally?' " Rouch answered : "Financially or in other ways " The following
examination ensued :
Q All right So that in addition to loans, what you were referring to
in helping them peisonally was the privilege of buying lumber at lower
prices than they could get it retail and other accommodations you were
giving?
A Yes.
Q. And that is what you were referring to in this speech?
A Yes
At another point, however, Rouch testified : "I don't believe that is the in-
terpretation I had when I read the prepared report. I believe the interpretation
should be that I did not believe if the union was voted in there would any
longer be the close personal relationship between employer and employee."
' Robert Rouch admitted that he may have referred to the withdrawal of accommoda-
tions on several occasions , but such references can be evaluated only in the context in
which they occur
c The entire speech is found in Appendix A of the Intermediate Report It has been
considered in its entirety in making the findings herein
ROUGH'S SAWMILL, LTD. 307
I conclude that the reference to the withdrawal of privileges in the event the
Union won the election, appearing as it does in the context of a prepared speech
which, in its entirety, is an argument against unionization, was deliberately
planted in the body of the speech for its coercive effect on the minds of the
employees Robert Rouch, an adroit and resourceful witness, was quick to
recognize that lie had made admissions adverse to the Respondents' position,
and changed his testimony I believe his admissions set forth above, represent
the true purport of the reference. The threat of withdrawal of accommodations
contained in the preelection speech, together with the announcement of the
withdrawal of accommodations made during the safety meeting of January, and
Ed Rouch's statements to Earl Strong on the same topic, constitute calculated
threats of reprisal not privileged because of constitutional immunity nor 8 (cA
of the Act Accordingly, it is found that the Respondents, by threatening the
withdrawal of privileges and accommodations because of the union activities
of their employees, interferred with, restrained, and coerced their employees in
violation of Section 8 (a) (1) of the Act
I also believe, and find, that Ed Rouch s statement to Earl Strong, that in
the future-in contrast with the past when the Respondents had "leaned back-
wards"-when a man was placed on a job and did not perform satisfactorily,
"down the hill he goes," coupled with the statement, "and you know why," and
reference to the Union's organizer, was coercive and violative of the Act. rn
the same category is Ed Rouch's statement to Orville Cave, when the latter- like
Strong came to inquire concerning his job when the mill resumed operations,
that if the Union came in "we are going to have men that can handle lumber,
not cotton pickers." In the one instance the threat is implicit, in the other ex-
plicit, that the Respondents in the future would require a higher standard of
performance from their employees because of the Union Such statements had.
the necessary effect of discouraging union affiliation and activities. Accordingly,,
I find that each of these statements constituted interfei ence, restraint, and
coercion, in violation of Section 8 (a) (1) of the Act.'
C. The disc,timanation against Robert Adams
Adams was employed about 2 weeks before the mill commenced operations
in June 1947. He did electrical work prior to the mill's opening and thereafter,
except during closed seasons when he did electrical work solely, was, employed
as a general maintenance man. As general maintenance man electrical work
was but one of his duties.
Adams joined the Union in December 1948, was active in getting it organized,
and' «as its first vice president, In January or February 1949, on an occasion
when Ed Rouch was at his house, Adams informed the latter in answer to an
inquiry, that union meetings were held in his home. He also attended meetings
between representatives of the Union and the Respondents From the foregoing
it is clear, and is not denied, that the Respondents were fully aware of his union
affiliation and activities.
In the closed season of 1949, Adams was not employed to do any electrical
work at the mill notwithstanding that such work was performed during this,
6 Glenn Stevens, a witness for the General Counsel, testified that Rouch told him that
if the Union came in the employees would lose money because he would "contract out"
the greenchain. Stevens was not a convincing witness and no reliance is placed on hig
testimony. There was other testimony proffered by the General Counsel on alleged inde-
pendent 8 (a) (1) statements or incidents, all of which has been considered and found
lacking in sufficient probative value to establish a violation.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
season, and that electrical work had been performed by Adams during the closed
seasons of 1947 and 1948.
When the mill closed in February 1949, 0 V Isaacs, Respondents' millwright
and foreman, informed Adams that certain motors were to be moved and this
necessitated the rewiring cf electrical switches and reconnecting the motors.
Adams assumed that lie would do this work, but iihen in April he went to
the mill and asked Ed Rouch it he was to do the electrical work, Rouch replied
that the Respondents were not going to "stick our their Becks" by having a full-
time electrician when the Union came in ' Adams, accordingly, was refused
employment during the closed season, and the electrical work was performed by
an industrial electrician named Denton who, according to Ed Rouch, was "vei y
highly recommended by the Westinghouse people."
There is no evidence that Adams was not qualified to do the electrical work
's hich was performed by Denton, and the matter of his qualifications was not
raised with him when lie was refused this work. During this same closed
season Adams did some electrical work for individual members of the respondent
partnership in the latter's homes and, because of this, it is argued that there
was no discrimination practiced against him it may well be that it was not
the Respondents' wish to discriminate against Adams as an individual, but to
deny employment at the mill was none the less discriminatory if it was denied
for the reasons stated to Adams by Ed Rouch It is reasonably assumed from
liouch's statement that except for the Union, and what Rouch feared might be
the bargaining position of the Union on the employment of a full-time electrician,
Adams would have been given the electrical work It is believed that Adams
was deprived of this work solely for the reasons stated to him by Ed Rouch,
one of the respondent partners. This action necessarily had the effect of dis-
couraging union affiliation and activities. Accordingly, it is found that by
denying Adams employment as an electrician during the closed season of 1949,
the Respondents discriminated against him in violation of Section 8 (a) (3)
of the Act, and thereby interfered with, restrained, and coerced their employees
in violation of Section 8 (a) (1) of the Act.
There is very little dispute as to the basic facts of Adains' discharge in
December 1949. Two days prior to his dischaige, during working hours and
in the course of his employment as a maintenance man which took him into
various parts of the mill, Adams informed several employees that a union meet-
ing was to be held On December 16, Adams was called to the mill i,ffice whei e,
upon his admission that he had engaged in this activity, he was discharged by
Robert Rouch who told him that it was against company rules to engage in
such activity during working hours. Adams denied that he had knowledge
of such a rule.
It is found that the Respondents had no rule prohibiting union activities on
company time, and while it was well within their managerial domain to promul-
gate such a rule absent discriminatory motives, inasmuch as they had not
clone so their action in discharging Adams was clearly discriminatory. There
is no evidence that Adams in passing on the information concerning a union
meeting to fellow employees, left his own job or called any other employee from
his job, or that production suffered as a consequence of this activity. The
evidence is to the contrary. Obviously, he was not discharged because the
Respondents reasonably believed that he had interfered with production but
'Adams so testified Questioned if lie had made this statement. Rouch evaded a direct
answer, testifying "I don't remember what the occasion was, but I do remember telling
him [Adams] at some time or another we couldn't possihlti afford to have a lull-time
electrician We never had a full-time electrician "
ROUCH'S SAWMILL, LTD. 309
because they objected to his union activity and believed, erroneously , that they
bad been afforded a plausible pretext for his discharge As early as June, prior
to resumption of operations , the Respondents had shown a desire to oust Adams
from their employ when Ed Rouch asked Isaacs if be would not prefer a
younger man in Adams' place Isaacs replied that he would rather keep Adams.
Adams was reinstated to his job on or about January 1950 , but he was not
compensated for the time that lie lost as a result of his discharge.
It is found that the Respondents discharged Adams on December `16, 1949,
because of union and conceited activities , thereby discouraging membership
in the Union in violation of Section 8 (a) (3) of the Act, and interferi ng 'with,
restraining , and coercing their employees in violation of Section 8 (a) (1) of
the Act s
D The disahai qe of J]w I Strong and Orville Cave'
Strong and Cave were employed by the Respondents at or near the start of
the 1947 season, and worked for the Respondents continuously thereafter, when
the mill was in operation, until the start of the 1949, season when they were
refused further employment. Both were employed on the greenchain during the
1048 season and until the mill closed down in February 1949 Their employment
record prior to the 1948 season is not clearly defined. Cave testified that he
Rent on the greenchain a month or 5 weeks after lie was hired; Strong appears
to have been assigned to this operation later, but, in any event, worked on the
greenchain most or all of the 1945 season.
The greenchain is it frame or platform, equipped with moving chains over
which the newly sawn or "green" Jumber is drawn after it has passed through
the trimmer Men ai e stationed on either side of this platform and as the
lumber comes over the greenchain it is their job to remove it, sort and stack it
in piles alongside the platform, according to the varying lengths and widths.
The lumber is then trucked away. The operation of the greenchain is a con-
tinuous one, and any failure of the men to remove the lumber at the proper
station would cause an interruption in the operation of the mill In some re-
spects it has'the characteristics of an assembly line in a modern industrial plant.
During the 194S season, three men were regularly employed on the green-
chain: Strong, Cave, and Jack Pritchett. Elmer Milford Cranford, a brother-in-
law to Pritchett, supervised the operation.
In January or February 1949, a few weeks before the mill closed, during the
operation of the greenchain, Cave was struck across the face by a piece of
lumber and suffeted a slight injury. This occurred while he and Strong were
engaged in removing lumber from the greenchain. Cave went to the office where
his wound was treated and taped by Respondents' secretary, Stella Cameron.
Cave testified concerning the incident at the office. "The stenographer, she asked
me, says, `It looks like you got something in the side of the mouth,' and I just
laughed and I said, 'Oh, that At kie, lie hit me with a board !' " Strong was
called "Arkie" by his fellow employees. Cave returned to work only a few
minutes after the accident occurred. There is no evidence, other than his state-
BThere is eiidence that follomug the bargaining election of June 29, Ed Rouch told
Adams that lie would ' hate" to be in Adanis' shoes The discussion in the course of
which this statement was made concerned Adauis' failuie to make certain "challenges" at
the election, for which onussion Rouch apparently thought Adams would be censured by
the Union I am convinced that Rouch made the statement in a jocular manner and that
it was not intended to have. and did not have, the force of a threat
'In making these findings, all the evidence has been considered and testimony which
does not accord with these findings, though considered, has been rejected as not credible.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inent to Cameron , that he attributed his injury to negligence on the part of
Strong.
A few weeks before the mill resumed operations in June 1949, Strong, accom-
panied by his son-in-law, Merle Powell, went to the mill to inquire concerning
Strong's job. Powell had received a card from the Respondents directing him to
report back to work when the mill resumed operations, but Strong had not
received such notification. At the mill, Strong saw Ed Rouch, who told him that
he was pretty sure the greenchain operation would be "contracted out" for the
coming season. By "contracting out" Rouch meant that payment for'handling
the lumber from the greenchain would be made on the basis of the footage of
lumber handled instead of an hourly wage He also said that Pritchett would
be given the first chance at contracting for the job 10 Further in the course of
this same conversation, Rouch said that there would be no more accommodations
like there had been the previous year ; that if a man was put on a job and couldn't
perform it satisfactorily, • down the hill he goes," and, "that man down there at
Porterville has just made us look like s o. b's." , This reference, it has been
found above, was to the Union's organizer, McKee.
Cave also visited the mill prior to its resumption of operations. He saw
Cranford, overseer of the greenchain, and Cranford told him, apparently with
reference to Cave's job on the greenchain, "I guess I kind of fouled the deal up."
Cave then saw Ed Rouch and told him, "I hear that I am all messed up."
Rouch replied that it was "just one of those things," and further said that if
the Union came in, "we are going to have men that can handle lumber, not
cotton pickers." 11
Both Strong and Cave went to the mill on the day that it resumed operations,
on or about June 13. Strong started to work on the greenchain but Ed Rouch
told him, "Arkie, we have got this contracted out." Two men, strangers to
Strong, went to work on the gieenchain. Strong, apparently still not certain as
to whether or not lie was to be given work, saw Robert Rouch later on that day,
and Rouch told hun, "We are just replacing a few men." When Strong asked
if he was being discharged because of the Union, and told Rouch that he was no
more active in the Union than some others, Robert Rouch replied that he was not
being discharged because of the Union, but because it had been teported that
Strong "hurt some of the then on the job." 12
Before Strong left the mill, Robert Rouch gave him a letter of recommendation
which bears the following text : la
Mr. Strong wol ked for us two summer seasons as a general hand and as
a lumber handler
10 Strong testified that Rouch said if Pritchett (lid not contract for the job it would be
up to him, Strong Rouch admitted that lie said Patchett would have first chance at
the contract, but denied that he said that in the event of Pritchett's'refusal, Strong would
have next chance. It seems unlikely that Rouch would have made such a commitment to
Strong, though lie may very well have said something from which Strong inferred that
lie would have second chance at the contract Thus, at one point in his examination.
Strong testified that Rouch said that the older men would have first chance at contracting
for the work on the gieenchain And it is clear that following his conversation with
Rouch, Strong still did not know that he was to be refused further employment.
11 Cave so testified Rouch admitted that lie may have used the term "cotton pickers,"
though he slid not recall doing so, but otheiwise denied that lie made the statement
attributed to him by Cave I have credited Cave's testimony and in doing so, have given
weight to the fact that Rouch made it sinul.u statement to Strong I have also taken note
of the fact that Rouch's testimony was liberally interspersed with "I don't recall," when
questioned concerning conversations and events of recent months
12 This finding is based on Strong 's credited testimony , not specifically denied by Rouch
13 Strong testified that Roach volunteered the letter of recommendation ; Rouch testified
that Strong requested it. The conflict having no material bearing on the issues is not
resolved.
ROUCH'S' SAWMILL, LTD. 311
Mr. Strong was always to work on time and missed very few days for
any reason at all.
Mr. Strong is leaving our employ through mutual consent having finished
the past season.
He is a willing and eager worker and will try any job.14
Cave also reported at the mill on the day operations were resumed He saw
Ed Rouch and said, "Ed, I guess me and Arkie is blackballed." Rouch replied,
"No, I am just replacing you guys with better men "
Rouch had, in fact, contracted with Daniel Althof and Milton Dinsmore, two
men not previously employed by the Respondents, prior to the resumption of
operations. During the course of the hiring, Rouch spoke of the coming bar-
gaining election, stated that he was opposed to the Union, and ascertained from
Althof and Dinsmore that they were not affiliated with it union." Althof and
Dinsmore worked for the Respondents only it few weeks after which, apparently,
the greenchain was operated as it had been prior to their employment.
The Respondents' defense with respect to Strong is that the latter worked
too fast, and was nervous and excitable and therefore a hazard to the safety
of men working with him. The defense with respect to Cave is that he worked
too slow and idled on the job Ed, Robert, and Claude Rouch, Pritchett, Cran-
ford, and others, testified in support of the respondents' position.
Cranford, overseer of the greenchain operation, testified concerning Strong
that Strong "was a reckless type He did work fast and he disregarded safety
altogether when he was in a rush, for himself and for the other employees with
him " Cranford further testified that he had told Strong to slow down but that
Strong didn't follow orders "too well "
Concerning Cave, Cranford testified : "He was of the slower type. He only
worked when lie had to, when you were right up against him, when he was
forced to-I mean he done his share of the work only when he was put up
against the wall and actually had to get in and do it . . . if there was any
easier or lighter work, that was usually where he was at."
Cranford admitted, however, that he told Cave he was sorry that he had
given the latter an adverse recommendation Questioned as to why he made
this statement to Cave, Cranford testified : "Because I recommended for him
to be transferred off the greenchain and I later learned that he was going to
be replaced entirely and taken off the job, be fired."
It is needless to report in detail the testimony of all the other witnesses for
the Respondents, inasmuch as they all testified in general terms that Strong
was fast and excitable and that Cave was slow and did less than his share of
the work With the exception of Pritchett, none of these witnesses had the
opportunity of continuous observation of work on the greenchain that was
afforded Cranford as overseer of this operation. Pritchett, who left Respondents'
employ at the close of the 1948 season, testified that he had said that he would
not work on the greenchain with Strong and Cave another season , but there
is no evidence that he made such a threat to the Respondents, and the fact is
14 This letter has two obvious misstatements I Strong worked throughout the 1948
season and most if not all of the 1947 season ; 2 Strong was discharged, and therefore
he did not leave Respondent s employ " through mutual consent."
15 These findings are based on Althof's credited testimony. Rouch admitted that lie
may have referred to the bargaining election in his conversation with Althof and Dins-
more, denied that he told them he was against unions, but to numerous questions on cross-
examination concerning this conversation his answer was, "I don't remember." I am con-
vinced and find that lie broached the subject of unions in his conversation with these
two applicants for employment for the purpose of ascertaining whether or not they were
members of a labor oiganization , and was successful in eliciting from them the information
he wanted.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he left the employ of the Respondents for a better job There is no evidence
that any employee other than Pritchett objected to working with Strong and
Cave, and it is clear that the latter felt that Pritchett was favored in his work
by Cranford, his brother-in-law. Cranford and Pritchett both joined the Union
but paid no dues other than the initiation fees, and Cranford, though he
was the Union's first president, admittedly seldom attended union meetings.
It seems obvious that Cranford, who supervised the greenchain operation and
had the authority to recommend for discharge, was closely identified with
management.
Conclusions
Admittedly, Strong was a fast and willing worker. That he was also somewhat
nervous and excitable seems equally well established and is consonant with
the undersigned's observation of his demeanor as a witness That he was a fast
and hard worker would seem to be a definite asset for one whose job was to
handle lumber from the greenchain. The flow of lumber over the greenchain is
uneven and there are occasions when the men assigned to it are required to be
agile and work fast if the lumber is to be removed at its proper station 'G Fur-
thermore, Robert Rouch testified that it was expected at the beginning of the
1949 season that the mill would saw 10,000 more feet of lumber than during
the previous season and that this additional amount would be handled from
the greenchain without an increase in manpower. We may reasonably assume,
therefore, that Strong was the ideal man for the job unless his temperament
was such that he created a safety hazard The testimony of the Respondents'
witnesses, as seen above, is that lie did create a safety hazard. From all the
evidence it appears, however, that although Strong was on the greenchain for
most if not all the 1948 season only one accident occurred during this entire
time which could have been attributed to him That accident was of a very
minor character and it is impossible to conclude from the evidence that it was
caused by Strong's inept or careless handling of the lumber All reasonable
inferences are to the contrary. Cave, who suffered the injury, testified con-
cerning the mishap, "I might have did the same thing to him [Strong] "
There are other reasons for concluding, as I do, that the testimony that Strong
created a safety hazard was greatly exaggerated. According to Robert Rouch,
the Respondents are particularly zealous of their safety record This is. of
course, highly commendable But if Strong really created a safety hazard by
his work on the greenchain, it strains credulity to believe that the Respondents,
knowing this, would have retained him in their employ through the 1948 season.
Similarly, with respect to Cave, if the latter was too slow for the job and
shirked his work, it is difficult to believe that the Respondents would have hired
him back for the 1948 season and retained him in their employ throughout that
season. He, like Strong, was never warned that his work was not satisfactory,
and both he and Strong left at the end of the 1948 season believing that they
would still hold their jobs on the greenchain when the mill resumed operations in
June of 1949."
Finally, assuming without finding that neither Strong nor Cave were satis-
factory on the greenchain and the Respondents only sought to replace them
"Ed Rouch ' s testimony : "There is so much lumber comes out on the gi cenchain it
has all got to be pulled If it isn't pulled, it is going to hold up the mill itself "
17 This is not to say that Strong was never criticized for his work on the greenchain.
.He admittedly had been cautioned by Cranford on one or more occasions to "slow down"
and not to get excited when lumber came over the greencham in large quantities, but he
was never disciplined or warned that he would lose his job Cave ' s testimony that his
n ork on the greenchain was never criticized, is credited.
ROUCH'S SAWMILL, LTD. 313
with, abler men, this does not fully explain why they were not offered other
work at the mill Cranford, by his own admission, did not recommend Cave's
discharge; he only recommended that he be transferred from the greenchain
to other work, and when he learned that the latter had been discharged he
expressed himself as sorry that he had made the recommendation As to
Strong and Cave, Robert Roach testified that they were not offered other
work because the same faults which made them unfit to continue on the green-
chain disqualified them for other work. This testimony is not convincing. As
to Cave, Cranford's testimony is to the contrary, he obviously considered Cave
qualified for other work or lie would not have recommended his transfer And
as to'both Strong and Cave, O. V Isaacs, Respondents' millwright and foreman,
testified that their work on the lath machine, before they were transferred to
the greenchain, was satisfactoiy'B
The Respondents' opposition to the unionization of their employees has been
reviewed above. It was strong and for the most part forthright During the
spring of 1949, there were conferences between repesentatives of the Union and
the Respondents, which resulted in an agreement for a bargaining election to be
conducted by the Board. Sti ong attended these conferences and was therefore
identified to the Respondents as a union adherent and leader. Cave, though less
active than Strong, was also known to the Respondents as a union elan. The
Plectron was held on June 29, shortly after the milt had n esumed operations,
and a few days prior to it the Respondents reiterated their opposition to the
Union through a prepared speech delivered by Robert Rouch to the employees.
While the precise date on which the election agreement was executed is not
in evidence, it is a fair assumption that the Respondents knew prior to the
resumption of operations in June that such an election would be held A
definite link between the discharge of Strong and Cave and the approaching
election is found in the circumstances under which Althof and Dinsmore, who
replaced Strong and Cave on the greenchain, were hired. In the course of their
hiring, Ed Rouch volunteered the intormation that a bargaining election was to
be held among the Respondents' employees, stated Respondents' opposition to
the Union, and ascertained from them that they were not members of a union.
In this manner, Ed Rouch made certain that the men hired to replace Strong
and Cave were not union men.
Upon the basis of the entire evidence I am convinced, and find, that the
Respondents refused ieeniployment to Strong and Cove, thereby discharging
them, because of their union affiliation and activities. By the said discharges,
the Respondents discouraged membership in a labor organization in violation
of Section S (a) (3) of the Act, and interfered with, restrained, and coerced
their employees in violation of Section 8 (a) (1) of the Act.
E. The discharge of Howard Norris
Norris was employed by the Respondents in August 1948 and worked for
them continuously thereafter, when the null was in operation, until he was
discharged on or about October 16, 1949. From December 1948, until his dis-
charge, except for a brief period when lie was on the trimmer, he was employed
on the edger, where it was his duty to sort the lumber that came off the edger,
is Isaacs' testimony
Q Did you observe the work of Strong and Cave while they worked under you?
A Well, I had no complaints while they were on the machines
Q Did you regard them as good workers?
A. I would say they were.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
placing that which was suitable for use as car strips of crossaLms on the
trimmer table where it was transferred to the trunsaw for further processing,
and discarding the remainder by placing it in a chute where it was conveyed
to the burner. It is the Respondents' position that he was discharged for un-
satisfactory work on the edger, and Ed Rouch, Claude Rouch, Sr, Alden Munson,
and others testified in support of this position
Ed Rouch admitted that Norris' work on the edger was satisfactory until
after he had worked as a relief man on the trimmer for a week or two This
occurred some 4 to 6 weeks prior to his discharge It was after he returned
to his job on the edger, according to Rouch, that he "slackened off" and began to,
throw good lumber down the conveyor Admittedly, Ed Rouch spoke to him
on at least three occasions during this period, each time admonishing him
against discarding good lumber, and at the same time warning him to keep
the transfer table clear of discard edgings On the last of these occasions
when Rouch admonished him, Norris told Rouch he wished he would go ahead_
and fire him, he "didn't care." Rouch replied that he would see Isaacs, mill
foreman and Norris' supervisor. He was not discharged, however, until about
a week later, and although Isaacs had full authority both to hire and discharge,
it was Ed Rouch who told him that he was discharged.
Claude Rouch, Sr., and Alden Munson testified that they had observed lumber
from the edger which had been discarded by Norris and which was suitable
for use, and Claude Rouch, Sr , testified that he personally ordered that Norris
be discharged.
There was also some evidence apparently offered to show that Norris was
so careless in his work that he created a safety hazard to the men who worked
on the trimsaw. Silas Croy, who ran the trimsaw, testified that he was hit on
the leg when Norris threw an edging at the conveyor and missed, but he
admitted that he did not report the incident to the Respondents and that it
occurred in 1948. Obviously, therefore, the Respondents had no knowledge of
this incident at the time'Norris was discharged and, in any event, it happened
in a period when Norris' work on the edger admittedly was satisfactory.
Claude Rouch, Sr, testified, however, that Croy told him that he was going to
quit on account of Norris, that Norris had "let some boards get through and
it hurt his hand " Croy, in his own testimony, made no reference to such an
injury and, as has been seen, testified that he did not report the incident which
occurred in 1948. Admittedly, on one occasion, an unidentified person was hit
by a slab pulled by Norris, but it is Norris' undisputed testimony that the inci-
dent occurred through the negligence of the person who was hit. The injury
inflicted, if any, was apparently slight, and there is no evidence that the matter
was ever brought to the attention of the Respondents. I conclude that the
Respondents had no reasonable grounds for believing that Norris' work as an
edger puller created a safety hazard, and that no such considerations entered
into their decision to discharge him
Norris testified that each time he was criticized by Ed Rouch for throwing
good lumber down the chute, he threw more material on the transfer table for
conveyance to the trimmer, although in his judgment not all of it was suitable
for laths, and that each time he did so, the man who ran the trimsaw com-
plained. Silas Croy, a witness for the Respondents, testified that Norris did
not get the edgings out of the lumber as it came on to the transfer table, and
that he had complained to Robert Rouch that he would quit unless a change
was made He further testified, however, that Norris was "improving" toward
the last. Raymond Taylor, who worked on the trimmer with Croy, was also
critical of Norris' work on the edger and complained to Ed Rouch, but his criti-
cisms, unlike that of Ed Rouch, were directed at the period before Norris was
ROUCH'S SAWMILL, LTD. 315
on the trimmer as well as after he returned to the edger. Finally, 0. V. Isaacs,
Norris' supervisor, testified that he thought Norris was a good man until after
he had received complaints from Claude and Ed Rouch a few days before Norris
was discharged.
It being conceded by the Respondents Claude and Ed Rouch, that Norris'
work on the edger was satisfactory until some 5 or 6 weeks prior to his
discharge when he was returned to the edger after a temporary assignment on
the trimmer, it would appear that there would exist some plausible explanation
why he suddenly became so unsatisfactory on the job that Ed and Claude Rouch
and Alden Munson should all have had occasion to observe that he was throwing
away good lumber. There was some attempt to show, through the testimony of
Ed Rouch, that work on the trimmer represented advancement to Norris, and
having failed to qualify on the trimmer he was thereafter dissatisfied and delib-
erately provoked Ed Rouch into discharging him. Further testimony showed,
however, that Norris was never offered a permanent job on the trimmer; that
he was placed on the trimmer as a relief man, without increase in wages, when
one of the trimmers suffered an injury. There is no basis in the evidence, there-
fore, for inferring that Norris had any reasonable expectancy of remaining on
the trimmer Furthermore, there is no explanation why Norris would discard
lumber suitable for the trimmer unless his judgment was poor, inasmuch as the
edger puller must continuously apply his judgment in deciding which lumber to
place on the transfer table and which to throw down the chute for conveyance
to the burner But if Norris' judgment was poor he could never have been satis-
factory on the edger, and the Respondents admit that he was satisfactory prior to
the period in question.
The picture which emerges from the testimony on Norris' last few weeks of
employment, shows him impaled on the horns of a dilemma. Ed Rouch was
amomshing him to pile more lumber on the transfer table and he was attempt-
ing to-do so, although against his own judgment on what constituted lumber
suitable for the trimmer, and yet when lie did so he was critized by the men on
the trunsaw for not keeping the transfer table clean of edgings that were only
fit for discard. It does not appear to be unreasonable behavior on his part that
after several weeks of this, and repeated warnings by Rouch, he should tell.
Ed Rouch to go ahead and fire him.
The evidence fails to convince me that Norris, after a brief relief job on the
trimmer, returned to his regular job on the edger so disgruntled that he set
about deliberately to provoke his discharge, and yet it is necessary to believe
this if the Respondents' witnesses are credited, for otherwise there is no way to
explain Norris' sudden failure in judgment. I conclude that he was subjected
to deliberate harassment in the hope that he would provide the Respondents
with a pretext for his discharge. In reaching this conclusion , I am impressed
with the testimony of his supervisor and the mill foreman, Isaacs, who though
a reluctant witness for the General Counsel, admitted that he had regarded
Norris as a satisfactory employee until he received complaints from Ed and
Claude Rouch a few days prior to Norris' discharge It seems obvious that
Isaacs, who observed Norris' work "about once in half a day," would not have
been totally in ' that Norris had changed from a satisfactory edger puller
to one who recklessly threw away good lumber and neglected the transfer table,
if such were the fact
Norris, secretary-treasurer of the Union, had on at least two occasions par-
ticipated as a union representative in conferences with the Respondents, and
while the Union had won the bargaining election of June 29, it had not yet been
certified at the time of Norris' discharge due to the fact that Respondents'
objections to the conduct of the election were still pending before the Board.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
His discharge, I am convinced and find, is attributable to his union membership
and activities, and had the necessary effect of discouraging membership in a
labor organization in violation of Section 8 (a) (3) of the Act. By the said
discharge the Respondents interfered with, restrained, and coerced their
employees in violation of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of 'the Respondents set forth in Section III, above, occurring in
connection with the operations of the Respondents described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom, and
take certain affirmative action which the undersigned finds will effectuate the
policies of the Act.
It has been found' that the Respondents discriminatorily discharged Earl
Strong, Orville Cave. Howard Norris, and Robert W. Adams because of their
union activities, and discriminatorily refused Robert IV, Adams employment
luring the 1949 closed season. It will be recommended that the Respondents
offer Strong, Cave, and Norris immediate and full reinstatement to their former
cr substantially equivalent positions,"' without prejudice to their seniority or
Other rights and privileges, and make them whole for any loss of pay which they
may have suffered by reason of the Respondents' discrimination against them
by payment to each of them of a sum of money equal to that which he would have
earned as wages from the date of his discharge to the date of Respondents' offer
of reinstatement, less his net earnings 20 during said period The back pay shall
be computed in the ina vier established by the Board in F. IV. Woolworth Com-
pany zl and the Respondents shall make such records available as is hereinafter
provided With respect to Robert W. Adams, it is recommended that the Re-
spondents make him whole for any loss of pay which he may have suffered by
reason of the Respondents' discrimination against him by payment to him of a
sum of money equal to that which he normally would have earned as wages
during the closed season of 1949 and from the date of his discharge to the date
of his reinstatement, less his net earnings during this latter period.
The character and scope of the unfair labor practices found to have been
committed by the Respondents indicate an intent to interfere generally with
the rights of the employees as guaranteed by the Act. It will therefore be rec-
ommended that the Respondents cease and desist from in any manner interfering
with, restraining, or coercing their employees in their right to self-organization. 22
On the basis of the above findings of fact and upon the entire record in the
case, I make the following
CONCLUSIONS OF LAw
1. International Woodworkers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act
19 The Chase National Bank, 65 NLRB 827.
20 Crossett Liunber Co , 8 NLRB 440, 497-98
21 90 NLRB 289.
z2 May Department Stores, 326 U. S. 376.
PAUL W. SPEER, INC. 31.7
2. By discriminating in regard to the hire and tenure of employment of Earl
Strong, Orville Cave, Howard Norris, and Robert W. Adams, thereby discouraging
membership in International Woodworkers of America, CIO, the Respondents
have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondents have
engaged in and are 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 cf Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
PAUL W. SPEER, INC . and PAUL ESPARZA
INTERNATIONAL HOD CARRIERS' AND COMMOZS LABORERS ' UNION OF
AMERICA, LOCAL 300, AFL, AND Los ANGELES BUILDING AND CON-
STRUCTLoN TRADES COUNCIL and PAUL ESPARZA . Cases Nos.
21-CA-844 and 21-CP-276. May -It, 1951
Decision and Order Remanding Cases
On January 30, 1951, Trial Examiner James R. Hemingway dis-
missed from the bench the consolidated complaints in the above cases.
To the extent herein material, the Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's order, the General Counsel's re-
quest for review, the Respondent Union's brief, and the applicable
portion of the record in these cases, and makes the following findings.
The Trial Examiner concluded that while the operations of Re-
spondent Speer' were substantial and not wholly unrelated to inter-
state commerce, it would not effectuate the policies of the Act to
assert jurisdiction. During 1950 Speer was engaged in construction
operations valued at $280,000 for General Paint Company, an inter-
state corporation selling more than $500,000 worth of goods out of
State. The Trial Examiner decided that this fact did not bring Re-
spondent Speer within the rule of the Hollow Tree 2 case, because the
enterprise was not "customarily or regularly furnishing goods or
services to a corporation engaged in interstate commerce."
We do not agree with the Trial Examiner that an employer must
custoinari,ly and regularly furnish goods to an interstate corporation
I At the hearing Paul W. Speer, an individual, was joined as respondent.
2 In Hollow Tree Lumber Company, 91 NLRB 635, the Board decided that it would assert
jurisdiction over any enterprise which furnishes goods or services valued at $50,000 essen-
proscribed by the Act in the course of their employment. Newspaper and Mail Deliverers."
at $26,000.
94 NLRB No. 59.