Coulbourn Lumber Co.

National Labor Relations Board - Board Decisions

Aug 15, 1952

100 N.L.R.B. 622 (N.L.R.B. 1952)

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. C. COULBOURN, E. T. CouLBoURN, G. I. COULBouRN, G. F. CouL-
BOURN, AND U. F. COULBOIIRN, PARTNERS D/B/A COULBOURN LUMBER
COMPANY and INTERNATIONAL WOODWORKERS OF AMERICA , C. I. 0.
Case No. 34-CA-9294. August 16, 1962
Decision and Order
On February 11, 1952, Trial Examiner William F. Scharnikow
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondents had engaged in and were engaging in certain
unfair labor practices 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. The Trial Ex-
aminer also found that the Respondents had not engaged in certail1
other unfair labor practices alleged in the complaint and recom-
mended that the complaint be dismissed in part. Thereafter, the
Union filed exceptions to the Intermediate Report. No exceptions
were filed by the Respondents.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.2
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents W. C. Coulbourn,
E. T. Coulbourn, G. I. Coulbourn, G. F. Coulbourn, and U. F. Coul-
bourn, partners doing business as Coulbourn Lumber Company, their
agents, representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of
America, C. 1. 0., or in any other labor organization of its employees,
by discharging or refusing to reinstate any of their employees because
of their participation in concerted activities, or by discriminating in
any manner in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Interrogating their employees concerning their union activities
and membership; threatening to transfer employees to other jobs, to
'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 Styles and Peterson].
2 Exception was taken only to the Trial Examiner 's findings that the transfer of Clark
and the discharge of Severe did not violate the Act. We find no merit in these exceptions.
100 NLRB No. 104.
COULBOURN LUMBER COMPANY 623
discharge them, or to shut down the mills to discourage their union
affiliations or activities; or in any other manner interfering with,
restraining, or coercing their employees in the exercise of the rights
to self-organization, to form labor organizations, to join or assist
International Woodworkers of America, C. I. 0., or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in labor
organizations 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 Freeman Clark, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy," immediate and
full reinstatement to his former or a substantially equivalent position,
without prejudice to his seniority or other rights and privileges.
(b) Make whole Freeman Clark and Lee Edward Bond in the
manner set forth in the section of the Intermediate Report entitled,
"The Remedy," for any loss in compensation they may have suffered
by reason of the Respondents' discrimination against them.
(c) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records, necessary to analyze the amounts of back pay and the right
of reinstatement under the terms recommended in the Intermediate
Report.
(d) Post at their office in Windsor, North Carolina, copies of the
notice attached to the Intermediate Report and marked "Appendix
A." 8 Copies of said notice, to be furnished by the Regional Director
for the Fifth Region, shall, after having been signed by the Respond-
ents or their representative, be posted by the Respondents immediately
upon receipt thereof and maintained by them for 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
(e) Notify the Regional Director for the Fifth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
a This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof, the words "A Decision and Order ." If this
Order is enforced by a decree of a United States Court of Appeals , there shall be sub-
stituted for said words "A Decision and Order ," the words "A Decree of the United States
Court of Appeals , Enforcing an Order."
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the Respondents discriminated against Steve B.-Cooper,
Lonnie Severe, and Patrick H. Hill, Jr., and that the transfer of
Freeman Clark to the planing mill was discriminatory.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on'April 23, 1951, by International Woodworkers of
America, C. I. 0., herein called the Union, the General Counsel for the National
Labor Relations Board,' by the Regional Director for the Fifth Region (Balti-
more, Maryland), issued a 'complaint dated June 28, 1951, alleging that W. C.
Coulbourn, E. T. Coulbourn, G. I. Coulbourn, G. F. Coulbourn, and U. F. Coul-
bourn, partners doing business as Coulbourn Lumber Company, herein called
the Respondents, have engaged in and are 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 referred to as the Act: Copies of the complaint, the charge, and a notice
of hearing were duly served upon the Respondents and the Union.
With respect to the unfair labor practices, the complaint alleges in substance:
(1) That on and since April 13, 1951, the Respondents, in violation of Section
8 (a) (1) of the Act, interfered with, restrained, and coerced their employees in
the exercise of the rights guaranteed in Section 7, by urging, persuading, warning,
and coercing their employees by threats of reprisal and promise of benefit to
refrain from assisting , becoming, or remaining members of the Union or engag-
ing in concerted activities for the purpose of collective bargaining or other mutual
aid or protection ; and by questioning their employees concerning their member-
ship in, sympathies with, and activities on behalf of the Union and other labor
organizations.
(2) That the Respondents, in violation of Section 8 (a) (3) of the Act, dis-
charged employees Steve B. Cooper, Freeman Clark, Lonnie Severe, Lee Edward
Bolid, and Patrick H. Hill, Jr., between April 13 and 17, 1951, and have since then
failed and refused to reinstate these employees, in each case because of the
employee's membership in or assistance to the Union, or because he engaged
with other employees in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.
The Respondents in their answer deny the commission of any of the unfair
labor practices charged in the complaint. They further assert that they dis-
charged Steve B. Cooper and Lonnie Severe for cause, and that employees Free-
man Clark, Lee Edward Bond , and Patrick H. Hill, Jr., were not discharged but
voluntarily quit their employment with the Respondents.
Pursuant to notice, a hearing was held in Windsor, North Carolina, on July
30 and 31, 1951, before the undersigned Trial Examiner duly designated by the
Chief Trial Examiner. The General Counsel and the Respondents appeared
by counsel and the Union by its representative, and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues. At the close of the General Counsel's case-in-
chief, the undersigned granted his unopposed motion to dismiss the complaint so
far as it alleged discriminatory discharge by the Respondents of Patrick H. Hill,
' The General Counsel and the staff attorney appearing for him at the hearing are herein
referred to as the General Counsel; the National Labor Relations Board is referred to as
the Board.
COULBOURN LUMBER COMPANY, 625
Jr. When all counsel had rested their cases, the undersigned granted an un-
opposed motion by the General Counsel that the pleadings be amended to con-
form to the evidence with respect to the spelling of names, dates, and places.
All counsel thereupon waived oral argument and the hearing was closed. Since
the hearing, the General Counsel and counsel for the Respondents have submit-
ted briefs to the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondent-partners, doing business as Coulbourn Lumber Company, have
their office and place of business at Windsor, North Carolina, where they have
engaged and are now engaged in the procurement, handling, processing, and sale
of lumber. During the 12 months preceding the hearing, the Respondents pur-
chased raw materials valued at approximately $150,000, none of which was
received from points outside the State of North Carolina. During the same
period, the Respondents produced finished products of an approximate value of
$400,000, of which 70 percent was sold and shipped from their Windsor, North
Carolina, Mills to points outside the State of North Carolina.
The undersigned finds that the Respondents are, and have been at all material
times, engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Woodworkers of America, C.I.O., is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The Respondents are five brothers, who, among other business enterprises of
their partnership, conduct logging and sawmill operations in and around Wind-
sor, North Carolina. Only two of the brothers (i. e., Fenton (G. F.) Coulbourn
and Uriah (U. F.) Coulbourn) are continuously engaged in the local manage-
ment of the Windsor business, although Edwin (E. T.) Coulbourn, who handles
other interests of the partnership in Virginia, also visits the Windsor mills from
time to time and generally attends to the "financial work" of the partnership.
In their Windsor operations, the Respondents run a sawmill, drying kilns,
and a planing mill, for which they secure their logs partly by purchase and
partly by cutting and hauling timber with their own logging crews and trucks.
In the beginning of April 1951, their field operations were supervised by Foreman
Jesse Johnson, who was in charge of 5 trucks and as many drivers, and also of
2 or 3 logging crews consisting of from 4 to 7 men each. At the same time, they
employed approximately 36 men in their sawing and planing mills under Sawmill
Foremen Claud Pierce and J. C. Overton and Planing Mill Foreman Eugene
Price.
In November 1950, International Representative Bruce Davis of the Union
visited Freeman Clark, the head block setter in the Respondents' sawmill, and
arranged with Clark to attempt to organize the Respondents' employees. There-
after, Clark urged his fellow-employees to join the Union and Joseph Bridgett,
another sawmill employee, procured a number of signed membership applications
which he estimated as being approximately 40. Among those who signed these
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union membership applications were employees Steve Cooper, Lee Bond, and
Lonnie Severe.
On April 9, 1951, the Union informed the Respondents by letter that it repre-
sented their production and maintenance employees and asked that a date be
set for the negotiation of a contract. The Respondents received this letter on
April 11, 1951.
On Friday, April 13, 1951, the Respondents discharged Steve Cooper and
notified Freeman Clark that he was to be transferred to the planing mill from
his job as head block setter in the sawmill. On Monday, April 16, and Tuesday,
April 17, respectively, the Respondents discharged Clark and replaced Lee Bond,
a planing mill employee, although it permitted Bond to return to work on the
following Monday, April 23. And, on April 18, the Respondents also discharged
employee Lonnie Severe. Upon the evidence received at the hearing, the General
Counsel contends, and the Respondents deny, that the Respondents discharged
these four men because they engaged in concerted activities with other em-
ployees and joined and were active on behalf of the Union, and also that the
Respondents by these discharges and by other acts interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed in Section
7 of the Act.
B. The discharge of Steve Cooper
On April 13, 1951, 2 days after the Respondents had received the Union's
bargaining request, Fenton Coulbourn told Steve Cooper, who had been em-
ployed as a truck driver for approximately 10 months, that he was discharged
because work was "getting slack," because he could not haul as many logs as
the other drivers, and because, therefore, the Respondents had nothing for him
to do. The General Counsel contends, however, that Cooper, as the first of four
union members discharged by the Respondents within the week following the
Union's bargaining demand, was discriminatorily discharged in violation of
Section 8 (a) (3) of the Act.
During the morning of April 13, Woods Foreman Jesse Johnson sent Cooper
to the home of F. L. Pierce (who was not employed by the Respondents nor
apparently connected with the management of the business), to procure a link
for the repair of one of the Respondents' tractors which had broken down in
the woods. Cooper testified that Foreman Johnson sent his son-in-law with
Cooper and later followed them in another truck ; and that, upon getting the
link, Johnson sent it back to the woods with his son-in-law in one of the trucks.
On direct examination, Cooper testified (1) that Johnson then rode back with
Cooper from Pierce's home to the woods in the other truck; (2) that during this
ride, Johnson remarked that he had heard Cooper was in the Union, that when
Cooper admitted this was so, Johnson commented in substance that this involved
strikes, that although the truck drivers were not adequately paid, there were
some good features to their employment, and that the Union "ain't no good,"
because somebody was likely "to go hungry";' (3) that upon being unable "to get
2 Counsel for the Respondents argues in his brief that Cooper did not testify that these
remarks were made by Foreman Johnson but rather that they were made by his son-in-
law, whose relationship to the Respondents , if any, is not shown by the record. To
support this contention , counsel points out that Cooper began his testimony concerning
the conversation during the truck ride with a statement that "Mr. Johnson was staying
in the woods with his tractor . So Mr. Johnson sent his son-in-law in the truck with
me"; that Cooper then stated that "He and I went back to the mill and got the link
and took it out . We got on the truck to go back to the woods" ; and that Cooper,
in then continuing his testimony , stated merely that "he" made the remarks which have
been outlined in the text, without otherwise identifying the speaker.
Counsel , however, -falls to note an answer by Cooper interpolated between the two
COULBOURN LUMBER COMPANY 627
the tractor out" when they got back to the woods, they "knocked off" early (4)
that Johnson passed Cooper as the latter drove slowly back to the mill; (5) that
when Cooper reached the mill, Johnson came out of the office and told him Fenton
Coulbourn wanted to see him; and (6) that Coulbourn then discharged Cooper.
On cross-examination, Cooper testified that when they secured the link at Pierce's
house and sent it back to the woods with Johnson's son-in-law, Johnson rode with
Cooper back to the mill and not to the woods as he had testified on direct
examination.
Johnson testified only as to Cooper's unsatisfactory performance of his work
and neither affirmed nor denied having made the interrogation and the remarks
attributed to him in Cooper's testimony, or having preceded Cooper to the office
that afternoon. However, although Cooper testified that he had entered the
office immediately upon Johnson's emerging and telling him to report to Fenton
Coulbourn, both Fenton Coulbourn and Uriah Coulbourn denied that they saw
and spoke with Johnson on April 13 before Fenton Coulbourn discharged Cooper.
In view of these denials, which the undersigned credits, and also in view of
Cooper's confusion as to whether Johnson rode with him to the woods or to the
mill and how it came about that Johnson got to the Respondents' office before
him, the undersigned does not regard Cooper's testimony as being reliable. No
finding is therefore made that, as Cooper testified, Johnson interrogated him
as to his union membership and made antiunion remarks, and then preceded
him to the Respondents' office.
Fenton Coulbourn testified that' Cooper was discharged solely because the
consolidation of two of the Respondents' three logging crews in the beginning
of April made it possible and desirable to eliminate the use of one of the five
trucks, and Cooper, on the basis of his record, was the logical man to be laid
off. In thus explaining his selection of Cooper for layoff rather than one of
the other truck drivers, Fenton Coulbourn further testified (1) that Cooper
had picked up riders along the road, contrary to a rule of the Respondents
which, although apparently not specifically called to Cooper's attention, was
generally observed by the other drivers; (2) that on approximately March 1,
Cooper overturned and damaged his truck; (3) that Cooper had been arrested
and fined for speeding; (4) that Cooper was the slowest of the Respondents'
drivers, being especially slow and inept in turning his truck in the woods for
which he required 15 or 20 minutes as against 12 minutes for the other drivers ;
and (5) that on April 12, the day before Cooper was discharged, Harry Thompson,
a customer of the Respondents, reported to Fenton Coulbourn that Cooper, in
picking up and carrying a load of lumber from Thompson's tract to the Re-
spondents' mill that day, had taken 20 minutes to turn the truck around for
loading and then parked 30 or 40 minutes along the road. According to Fenton
Coulbourn, after receiving this report of Thompson and considering also the
other deficiencies in Cooper's job performance, he decided that Cooper was
the truck driver whom he should lay off and, during the morning of April 13,
instructed the office girl to obtain the necessary cash from the bank to pay off
Cooper that afternoon.
Foreman Johnson corroborated Fenton Coulbourn's testimony as to Cooper's
slowness and Thompson corroborated Coulbourn's testimony as to Cooper's
stopping on the roadside on April 12 and also the report of this fact to Coulbourn
excerpts first quoted from Cooper's testimony , in which he identified "Mr. Johnson" as
his foreman . Thus , in the following answers relating to the remarks made by his
companion during the return truck ride , his use of the pronoun "he" was obviously in-
tended to refer to Foreman Johnson who had followed Cooper in another truck and
then turned it over to his son-in-law and made the return trip with Cooper either to
the mill or to the woods.
227260-53-vol. 100-41
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that afternoon. Furthermore, Uriah Coulbourn also testified that hearing of
Thompson's complaint, he mentioned it to Fenton Coulbourn on the morning
of April 13 and was told by Fenton, "I have already made up my mind about it."
There is no dispute that, as Fenton Coulbourn testified, there was a reduction
in the number of logging crews shortly before Cooper's discharge, that Cooper
was not replaced by another truck driver nor, therefore, that the Respondent
apparently decided for economic reasons that only four instead of five truck
drivers were needed. Nor is there any contradiction of Fenton Coulbourn's
testimony that after Cooper's discharge only four of the trucks were used by
the Respondents.
Furthermore, Cooper admitted having picked up riders and having overturned
the Respondents' truck, and he neither admitted nor denied having been fined
for speeding. He denied, however, that he was slow in his driving or in
turning his truck in the woods and testified that he had parked his truck on
the side of the road on April 12 only for a few minutes. He testified, more-
over, that he had never been told of the company rule against riders and that
he had never been reprimanded nor warned of possible discharge for anything
he had done.
While the absence of any reprimand or warning for an employee's misconduct
or inefficiency certainly has an important bearing upon the credibility of any
claim by an employer that the employee was discharged purely and simply for
unsatisfactory job performance, it obviously does not have the same significance
in a case like the present, where the employers' position is that they were reduc-
ing their staff for economic reasons and therefore chose the employee in question,
for discharge as the least efficient or desirable of their staff. Upon the evidence
before him, therefore, the undersigned credits the testimony of Fenton Coulbourn,
Foreman Johnson, and Harry Thompson, and finds that the Respondents dis-
charged Steve Cooper because the consolidation of two of the Respondents' three
logging crews in the beginning of April made it possible and desirable to elimi-
nate the use of one of the Respondents' five trucks and Cooper, on the basis of
his record, was the logical man to be laid off. - The undersigned accordingly con-
eludes that the evidence does not warrant a finding that the Respondents, in
violation of Section 8 (a) (3) of the Act, discharged Steve Cooper because of
his union membership and activities, thereby discriminating against him in re-
gard to his hire and tenure of employment and discouraging membership in the'
Union.
C. Freeman Clark and Lee Bond
1. The facts
a. The transfer of Clark to the planing mill
The Respondents' mill operations begin in the sawmill where the logs are cut
into planks and the planks are trimmed on the double edger. The green lumber
is then dried in kilns, after which it is planed in the planing mill.
In the initial sawing process, which feeds all the following operations, the
log or block is set securely upon the bed of a carriage which moves the log to and
against a revolving saw and results in such successive vertical cuts as are calcu-
lated to obtain the maximum amount and best quality of lumber from, each log,
both by turning the log and adjusting a controlling ratchet on the carriage to
determine the angle of the cut and the thickness of each plank. The employee
who rides the carriage and sets the ratchet is known as the head block setter or'
the ratchet setter, and for the proper performance of his job requires an intelli-
gence, training, and experience which are not required for the performance of,
the other rank-and-file jobs in the mills.
COULBOURN LUMBER COMPANY 629
Until April 13, 1951, Freeman Clark had been the only ratchet setter employed
in the Respondents' mill for the preceding 5 years, and during that time had been
absent from work only for half of 1 day in February 1951. During this half-day
absence and also in short periods of relief, measurable in minutes, Melvin Spivey,
another sawmill employee, had set the ratchet, but it is apparent from the evi-
dence that the slight amount of training he had thus received for this work had
not yet readied him for the job by April 13, 1951. At the time of his discharge
on April 16, 1951, Clark received 85 cents an hour and the use of a house on the
mill premises, rent free.
On Friday, April 13, 2 days after the Respondents had received the union bar-
gaining request, Clark was called into the office twice to see Fenton and Uriahh
Coulbourn-once in the morning when the Coulbourns asked him what was going
on among the men, and again in the afternoon when they told him that, begin-
ning on Monday morning, he was to work in the planing mill.
It is clear from the evidence, and the undersigned finds, that during the morn-
ing conversation on April 13 nothing was said to Clark about his transfer to the
planing mill ; that, in answer to the Coulbourns' question as to what was going
on, Clark asked if they meant the Union ; that the Coulbourns replied, "Yes"; '
that Clark first said he knew little or nothing about the Union and then, that
every one of the employees was a member ; 4 that during the conversation, saw-
mill employee Simon Spivey ° entered the office; and that Uriah Coulbourn then
asked Simon Spivey whether he was a member of the Union e
On other important points of the morning conversation, however, the testi-
mony is in conflict. Thus, Clark testified that before Simon Spivey entered the
office, Uriah Coulbourn said, "I have enough headaches and worries with all this
logging outfit, let alone having trouble with Mr. John L. Lewis driving these fine
Cadillacs and coming here and telling me what I have got to do ... I have
money enough to last me the balance of my days. I can shut the damned plant
down ; I don't have to run it. Furthermore than that, the first thing you know,
I can take you off that carriage and put you out there piling lumber or doing
anything like that, or I can send you on up the hill [i. e., discharge you]." Ac-
cording to Clark, he replied, "that is all right. If you want to fire me on account
of the Union, go ahead."
On the other hand, both Uriah and Fenton Coulbourn testified that although
they told Clark that a union was not necessary under economic conditions in the
South, they also told him in substance that he and the other employees were free
to join and support the Union without fear of discharge; whereupon Clark,
apparently worried in spite of this assurance, said that they could discharge him
at any time if they wanted to. Simon Spivey testified only that he was questioned
as to whether he was a union member, that Clark had been in the office before
be came in, that he "wasn't so much interested" in the conversation, and that
he did not hear any mention of John L. Lewis or Cadillacs or any remarks about
having enough money and not having to work during the rest of his life.
The undersigned credits Clark's testimony and finds that Uriah and Fenton
Coulbourn told him in this morning conversation on April 13, not only that they
-3 There is no dispute as to the substance of this portion of the conversation. Clark,
testified, however, that Uriah Coulbourn did the talking for the brothers, although Fenton
and Uriah Coulbourn testified that Fenton was the speaker. The conflict on this point is,
of course, immaterial.
4 Clark, Uriah Coulbourn, and employee Simon Spivey so testified. There was no
specific denial by Fenton Coulbourn that Clark made these answers.
Not to be confused with Melvin Spivey.
° Clark and Simon Spivey so testified. In his testimony Uriah Coulbourn did not
address himself to this particular point but Fenton Coulbourn testified that perhaps
his brother, tJilah; asked Simon Spivey this question
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were opposed to the Union's interference in their business and that they could
shut the plant down, but also that they could remove Clark from his job as block
setter or discharge him.
Uriah and Fenton Coulbourn testified that during the 6 or 8 months-pre-
ceding April 13, 1951, they had discussed the advisability of training another
head block setter so that they would not have to depend upon Clark alone.
They also testified, and Foremen Pierce and Overton corroborated their testi-
mony, that in February 1951 they instructed the foremen to begin training
Melvin Spivey so that he could alternate with Clark as head block setter, and
that, when the matter was again discussed on or shortly before April 13, 1951,
they decided that Spivey could better be trained by the sawyers if Clark were
not present because of his tendency to interfere. Accordingly, the Coulbourns
testified, they concluded that they would temporarily assign Clark to the planing
mill and bring him back to alternate with Spivey after Spivey had been trained.
Furthermore, still according to Fenton and Uriah Coulbourn, this decision was
made on the morning of April 13 because, due to wet weather, the supply of logs
had decreased and on the preceding day the only logs on hand had been run
through the sawmill and were ready for the double edger . According to the
Coulbourns, the slack period afforded them the best opportunity for training
Melvin Spivey without pressure.
Although the undersigned credits the testimony thus given by Fenton and
Uriah Coulbourn as to the reason for deciding to transfer Clark temporarily
from his job as head block setter to the planing mill, he also finds, upon the basis
of Uriah Coulbourn's specific testimony, that a factor in the Coulbourns reaching
this decision at the particular time (i. e., on the morning of April 13 and im-
mediately after their conversation with Clark) was what Uriah termed Clark's
"insolence" in daring them to fire him that morning, as he had in several previous
instances in February'
During the late afternon of Friday, April 13, Uriah and Fenton Coulbourn
called Clark back to the office and told him that beginning with Monday, April
16, he would work in the planing mill at the rate of 75 cents per hour earned
by planing mill employees instead of the 85 cents per hour rate which he was
earning as head block setter. However, on the following morning, Saturday,
April 14, the Coulbourns again called in Clark and informed him that he would
be 85 cents per hour on the planing mill job.
According to Clark, in informing him of his transfer to the planing mill, in
both the Friday and Saturday conversations, the Coulbourns told him merely
that "We see where we need another block setter," and they were therefore trans-
ferring him to the planing mill but would not tell him who the new block setter
was to be. Furthermore,- Clark specifically denied that the Coulbourns told him
that after a new block setter was trained he and Clark would alternate on the job.
Fenton and Uriah Coulbourn testified, however, that they told Clark that, his
transfer to the planing mill was temporary, and that when they had trained
Melvin Spivey on the block setting job , he and Clark would alternate, each work-
7 According to Urlah Coulbourn's uncontradicted testimony, on one of these occasions,
Clark, apparently having "had a few drinks." asked Uriah Coulbourn for a raise and said,
"Well, you are going to have to do something or I am going to quit. You can fire me." On
another occasion at about the same time, according to the testimony of both Fenton
Coulbourn and Clark, Clark came to Fenton Coulbourn with a plea for help for an ailing
employee and criticized the Respondents for not properly taking care of their employees.
Fenton Coulbourn testified, but Clark denied, that in the course of this conversation Clark
said, "Boss, if you don't like what I'm doing, you can fire me. You can pay me off right
now." The undersigned believes it unnecessary to resolve this particular conflict in the
testimony for the purposes of the present case. He finds merely, as the testimony of
both witnesses clearly indicates, that the Coulbourns resented Clark' s criticism.
COULBOURN LUMBER COMPANY 631
ing a half day as block setter and the other half day on the double edger. The
undersigned credits Clark's testimony and finds that the,Coulbourns did not
inform Clark that his transfer to the planing mill job was to be temporary nor
that Melvin Spivey was to be trained as an alternate block setter following which
he and Clark would divide the work of that job and the double edger job between
them.
b. Incidents on Monday , April 16
Shortly before the 7 o'clock work whistle blew on Monday, April 16, Clark ap-
peared at the planing mill. According to Planing Mill Foreman Price, he was
busy checking and greasing his engine and did not see Clark. But according to
Clark's testimony , which the undersigned credits, Price passed near him. In
any event , it is undisputed that by the time the whistle blew and for at least a
few minutes thereafter, Price gave no assignment or orders to Clark.
It is also undisputed that the sawmill men did not begin to work when the
whistle blew but walked over to Clark whom they asked what the trouble was.
Clark told them he had been taken off the block setting job in the sawmill and
transferred to the planing mill and, upon their further questioning him, that
he did not know who was going to set blocks for the sawmill. The sawmill men
thereupon continued to stand and talk with Clark for, as one of them (Joseph
Bridgett) testified, "After Freeman Clark told us they had changed him from
block setter to the planing mill, we knowed we couldn't work." And, according
to the testimony of Sawmill Foreman Pierce, another employee by the name of
Olds asked Pierce why Clark was taken off the block setting job and why he
was not put back.
Melvin Spivey was one of the sawmill men in the group which stood talking
with Clark. Although Fenton Coulbourn testified that he had told Sawmill
Foremen Pierce and Overton that Spivey could have the block setting job if he
wanted it and that if no one would take the job, they would run green lumber
through the double-edged trimmer and separator table, Pierce and Overton
-testified , and the undersigned finds, that neither of them so informed Spivey on
April 16, and from Overton's testimony it appears that Spivey was not told that
he was to be the block setter until probably Thursday, April 19. Furthermore,
there is no evidence that the Respondents or any of the foremen told any of
the other men on April 16 that Melvin Spivey was to be the new block setter.
After the sawmill group including Clark and Spivey had stood talking for
about 5 minutes, Fenton Coulbourn told them to go home if they were not going
to work. Then Uriah Coulbourn called Clark and all the other men together in
front of the office and made a short speech.
During this speech, it is undisputed that Uriah Coulbourn told the men in
substance that Clark was transferred to the planing mill because he was un-
dependable ; that employee Joseph Bridgett said that the men wanted Clark back
on the ratchet setting job ; and that Uriah Coulbourn replied that the men were
not going to tell him how to run the mill and that if Clark and the rest of the
men did not go back to the jobs assigned them they were automatically fired.
Although Employee Wallace Williams testified merely that Uriah Coulbourn
said he would permit no interference with his operation of the business, Clark
and employees Bridgett, Outlaw, and Bond testified that Coulbourn referred
specifically to interference by the Union. Furthermore, according to Clark,
Bridgett, and Outlaw, Uriah Coulbourn again mentioned the fine Cadillac cars
which he said were driven by the union people, as he had to Clark on April 13.
On the other hand, Fenton Coulbourn testified that he heard only snatches of
his brother's speech, and Uriah Coulbourn himself testified merely that he did
not recall having made any reference to the Union or to Cadillac cars, and did
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not think that he did so. In addition, although neither Fenton Coulbourn nor
any of the employees so testified, Uriah Coulbourn testified that he told the
employees that the Respondents were going to put another man on the-carriage
to learn the ratchet setting job, after which Clark would come back and alternate
with "that man."
Upon this state of the evidence, the undersigned finds that in his speech to the
men that morning, Uriah Coulbourn told them (1) that, as Clark, Bridgett, Bond,
and Outlaw testified, the Respondents would permit no interference with their
-operation of the mills by the men or by the Union; (2) that, as Uriah Coulbourn
himself testified, the Respondents rejected the men's request for Clark's im-
mediate return to the ratchet setting job, explaining however that another man
(who was not identified in the speech) would be trained for the job after which
he and Clark would alternate as ratchet setters ; and (3) that, as all the witnesses
testified, Clark should immediately return to the planing mill job and the other
-men to their respective jobs, or they would be discharged.
At the end of Coulbourn's speech, Clark reported to Planing Mill Foreman
Price and, upon Price's orders, helped employee Lee Bond and another planing
mill employee stack and feed about a thousand feet of lumber into the planer.
In the meantime, according to the uncontradicted testimony of sawmill em-
ployees Outlaw, Williams, Bridgett, and Melvin Spivey, which the undersigned
credits, Sawmill Foreman Pierce entered the office and when he came out told
the sawmill employees that they could not work until they got a head block setter
and that they might as well go home.' Accordingly, they started for home and,
in doing so, a group of them including Bridgett and Outlaw, passed Clark and
Bond who were just finishing feeding the lumber into the planer in accordance
with,Foreman Price's instructions.
Outlaw and Bridgett told Clark and Bond that the boss had said that they
should go home. As Outlaw testified credibly and the undersigned therefore
finds, he told Clark and Bond, "They told us to go home. You haven't got noth-
ing to do, so you might as well come too. We are all in the Union together." Ac-
cording to Clark's and Bond's testimony, Bond joined the group and went home,
leaving Clark standing at the planing mill which had by then stopped running.
Clark testified that he waited at least 5 minutes, that the planing mill was still
not running, that neither Price nor any of the Coulbourns were there, that he then
walked to his house on the Respondents' lot about 500 paces from the mill, and
after puttering in his garden, lay down and went to sleep.
It is to be noted that neither Bond nor Clark attempted to find the foreman or
the Coulbourns for further instructions, either on the mill premises or in the
office. As has been found, the sawmill employees, but not the planing mill em-
ployees, had been told by Sawmill Foreman Pierce to go home. Although the
general purport of Clark's and Bond's testimony is that they left the mills and
went home because they reasonably believed that the Respondents had shut down
the mills for the day, the undersigned is of the opinion from the evidence, and
therefore finds, that they and others of the planing mill employees who may have
left with them did so because of the Respondents' refusal to put Clark back as a
ratchet setter ; because since Clark was the only available ratchet setter, the Re-
spondents shut down the sawmill ; and because the sawmill employees informed
Clark and Bond of this fact, reminded them that "we are all in the Union to-
gether," and suggested that Clark and Bond also go home. In short, the under-
signed finds that Clark and Bond in fact walked off the job with the sawmill em-
ployees in protest against the Respondents' transfer of Clark and the resulting
8 Although he testified on other matters, Foreman Pierce did not affirm or deny that he
thus told the sawmill boys to go home because they had no block setter.
COULBOURN LUMBER COMPANY 633
layoff of the sawmill employees. That the Respondents were also of this opinion,
and shortly acted upon it in discharging Clark and refusing to reinstate Bond for
a brief period, appears clear from Fenton Coulbourn's testimony that, "when
they [the men] walked off the job that morning, they walked off not because of
the fact that there was no work there available, but because of the fact that they
had gotten together and decided to walk off because of the transfer of Freeman
Clark from the ratchet setting job to the planing mill."
c. The discharge of Clark
After Clark had gone to sleep on returning home from the mill on Monday,
-April 16, he was awakened by the sound of the operation of the planing mill at
about noon, and went back to the mills. As he stood there, Edwin Coulbourn,
who had been summoned by his brothers, came to the mill and before going into
the office asked Clark why the sawmill was not operating. Clark said that
there was no head block setter, that he was the only one who had been doing
that work, and that he had been transferred to the planing mill.
Edwin Coulbourn then went into the office and was told by his brothers,
Uriah and Fenton, about what had happened. The Coulbourns decided to dis-
charge Clark and to evict him from the Respondents' house which he occupied
on the mill property. Edwin Coulbourn thereupon immediately drafted the
following letter to Clark, called Clark in, and gave it to him :
In view of the fact that you walked off the job at the plaining [sic] mill
this morning, April 16, thereby terminating your services with us, we hereby
notify you that we demand you give up possession of the house now occupied
by you on or before Friday Noon, April 20, 1951. Until that time you may
enter and leave the house by means of the truck path around the saw mill
yard, but we forbid you to come on the mill yard or trespass on any other
part of our property.
Clark has not worked for the Respondent since April 16, 1951. Although the
Respondent started dispossess proceedings Clark still occupied the Respondents'
house at the time of the hearing in the present case.
d. The refusal to reinstate Lee Bond
Lee Bond reported back to Foreman Price on Tuesday, April 17, found Cal
Nathan, another planing mill employee, working at his job, and asked Foreman
Price what he was to do. With Price, Bond went to Uriah Coulbourn who told
Bond, "I will give you the same treatment I gave Freeman Clark. You are all
fired." However, on the following Monday, April 23, Bond was reinstated and
has worked for the Respondents since that time.
2. Conclusions
Upon the evidence and findings of fact already made concerning the Coulbourns'
conversation with Clark and Simon Spivey during the morning of Friday, April
13, the undersigned concludes that the Respondents, in violation of Section 8 (a)
(1) of the Act, interfered with, restrained, and coerced their employees in the
exercise of their right to self-organization under Section 7, by questioning Clark
and Spivey concerning their union membership and, in the course of stating their
opposition to interference by the Union, by threatening to shut down the plant or
transfer or discharge Clark from his job as block setter.
The undersigned, however, agrees with the Respondents that the evidence shows
that they decided to transfer Clark temporarily to the planing mill to permit the
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
training of an additional block setter so that they would not have to continue in
their dependence upon Clark alone for that work. Accordingly, the undersigned
also finds that Clark's transfer to the planing mill job was not motivated by a
desire to discriminate against Clark and discourage membership in or support
of the Union, nor therefore was the transfer a violation of Section 8 (a) (3)
of the Act.
But, while the Respondents were thus justified in transferring Clark to the
planing mill, the employees were also exercising their protected right to engage
in concerted activities under Section 7 of the Act when they protested Clark's
transfer and when, as the undersigned has already found, some of them, including
Clark and Bond, stopped work on Monday, April 16, and left the mills. Viewed
properly, these planing mill men who stopped working were not quitting their
employment but were doing no more than engage in an economic strike. Further-
more, it appears from the evidence, as the undersigned has also found in part upon
the explicit testimony of Fenton Coulbourn, that the Respondents clearly under-
stood what the situation actually was and discharged Clark and refused to rein-
state Bond because, acting concertedly, they had stopped work in support of their
protest against Clark's transfer. Moreover, from Uriah Coulbourn's statement
of the Respondents' objection to union interference during his speech to the
employees, it is clear. and the undersigned accordingly finds that by discharging
Clark and refusing to reinstate Bond, the Respondents not only interfered with,
restrained, and coerced their employees in the exercise of the right to engage in a
concerted stoppage of work, thus violating Section 8 (a) (1) of the Act, but also,
by so discriminating against Clark and Bond, discouraged membership in the
Union in violation of Section 8 (a) (3) of the Act.
D. The discharge of Lonnie Severe
Lonnie Severe was hired by the Respondents on April 2, 1951, to stack firewood
for the mills' engine boiler. His job was to take the slabs used for that purpose
from a conveyor and to pitch them onto a pile near the boiler door where they
could be reached by the fireman. Severe joined the Union on the day he was
hired and, according to his testimony, wore a union button.
According to the testimony of Uriah Coulbourn and Foreman Price, the
Respondents had trouble with previous employees on Severe's job because
they failed to pile the slabs uniformly and made it difficult for the fire-
man. Therefore, according to Uriah Coulbourn, he instructed Foreman Price
to tell the next man he hired that he would be on probation for 2 weeks ; and, ac-
cording to Price's testimony, although Severe in his testimony denied it, Price
told Severe when he was hired that he would be on trial for 2 weeks. The
undersigned credits Price's testimony on this point.
Foremen Pierce, Overton, and Price testified that although each of them
showed Severe several times how to pile the wood, he failed to pile it properly.
Fireman Wallace Williams, too, complained to Price about the way the wood
was being piled. According to Price, when the first 2 weeks of Severe's
employment ended on April 13, he told Severe his work was unsatisfactory and
he was being discharged.
Severe, however, testified that he had been shown how to pile the firewood
only once ; that he was not discharged on Friday, April 13; that he did not
work on Monday, April 16, because he was sick ; that when he reported to work
on Tuesday, April 17, nobody was at work so he went home ; that later in the
day he met Uriah Coulbourn who asked him whether he was a member of the
Union and he admitted that he was ; that Uriah Coulbourn said that he was not
angry because the boys joined the Union but because they walked off the job ;
COULBOURN LUMBER COMPANY 635
that Coulbourn also said he could not take Severe back because he would then
have to take Bond back too ; and that Coulbourn finally told him to get his pay
from Foreman Price. Uriah Coulbourn gave no testimony as to this alleged
conversation.
The undersigned credits Severe's uncontradicted testimony concerning his
conversation with Uriah Coulbourn on Tuesday, April 17, and finds that Coul-
bourn, in discussing the possibility of Severe's resuming work for the Respond-
ents, questioned him about his union membership, thereby violating Section 8
(a) (1) of the Act. Considering all the evidence relating to Severe's discharge,
however, the undersigned does not believe that by his remarks to Severe during
this conversation, Coulbourn either then discharged Severe or refused him rein-
statement because of his union membership, or even indicated that Severe had
been or would be discharged by Price because of his union membership and
activities. For the undersigned credits the testimony of Williams and Foreman
Pierce, Overton, and Price that Severe did not satisfactorily perform his work,
and also Price's testimony that, for this reason, he discharged Severe on April
13. Upon this evidence the undersigned concludes that the Respondents dis-
charged Severe fir cause and did not discriminate against him in violation of
Section 8 (a) (3) 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 Respondent set forth in section I, 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 thereof.
V. THE REMEDY
Since it has been found that the Respondents have engaged in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act, the
undersigned will recommend that they cease and desist therefrom and take cer-
tain affirmative action in order to effectuate the policies of the Act.
The undersigned has found that the Respondents discriminatorily discharged
Freeman Clark on April 16, 1951, and have since failed and refused to reinstate
him to his former or a substantially equivalent position ; and that the Respond-
ents also discriminatorily refused reinstatement to Lee Edward Bond on
April 17, 1951, although they did reinstate him on April 23, 1951.
As to Lee Bond, the undersigned will recommend that the Respondents
make him whole for any loss of pay which he would normally have earned
asi wages from April 17, 1951, to his reinstatement on April 23, 1951, less his
net earnings, if any, during said period.
At the time of his discharge, Freeman Clark had been temporarily assigned
to the planing mill to permit the training of Melvin Spivey as an alternate
ratchet setter. The undersigned has found that in thus transferring Clark
temporarily to the planing mill and planning eventually to permit Clark and
Spivey to alternate as ratchet setters, the Respondents did not violate the Act.
The evidence shows that after Clark's discharge Melvin Spivey completed his
training as ratchet setter. In order to effectuate the policies of the Act by
restoring Clark to the position which he would have occupied if he had not been
discriminatorily discharged,° the undersigned will recommend that the Respond-
9 See Underwood Machinery Company, 95 NLRB 1386.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents offer Freeman Clark immediate and full reinstatement to his former posi-
tion, either as sole ratchet setter or alternate ratchet setter or, in the apparently
unlikely event that both of these positions have been abolished by the Respondents
for nondiscriminatory reasons, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges previously enjoyed by
him.
In the case of Clark, the undersigned also finds that at the time of his dis-
charge, his compensation for his work for the Respondents consisted of cash
pay at an hourly rate of 85 cents and the rent free use of a house on the Re-
spondents' mill premises as his living quarters. In order to effectuate the
policies of the Act, the Respondents should make Clark whole for any loss of
compensation suffered by him by reason of the Respondents' discrimination
against him, including not only his cash wages but also the reasonable value of
the use of the living quarters supplied by the Respondents. Although at the
time of the hearing, Clark still lived in this house, it cannot now be determined
whether, since that time, he has been required by the Respondents to vacate or
may be required to vacate before the Respondents' offer of reinstatement. The
undersigned will therefore recommend that the Respondents make whole Free-
man Clark for any loss of earnings which he may have suffered by reason of the
Respondents' discrimination against him, by payment to him of a sum equal to the
compensation which he would have earned from the Respondents (including
the reasonable value of the use of the living quarters supplied to him by the
Respondents as an employee should he have been required to vacate them before
being offered reinstatement) from April 16, 1951, to the date of the Respondents'
offer of reinstatement, less his net earnings during said period 10
Clark's loss of compensation shall be computed on the basis of each separate
calendar quarter or portion thereof during the period April 16, 1951, to the
date of a proper offer of reinstatement. Quarterly periods, herein called quar-
ters, shall begin with the first day of January, April, July, and October._ Clark's
loss of compensation shall be determined by deducting from the sum equal to
that which he would normally have earned for each such quarter or portion
thereof, the amount of his net earnings in any other employment during that
period. Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other quarter. It will also be recommended that the
Respondents, upon reasonable request, make available to the Board and its
agents, all payroll and other records pertinent to an analysis of the amounts due.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Woodworkers of America, C. I. 0., is a labor organization
admitting to membership employees of the Respondents.
2. By discriminating in regard to the hire and tenure of Freeman Clark and
Lee Edward Bond, thereby discouraging membership in International Wood-
workers of America, C. I. 0., the Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By the above unfair labor practices, and by interrogating their employees
concerning their union activities and membership, and by threatening the
transfer of an employee to another job, to discharge him, and to shut down the
mills to discourage their union affiliations and activities, the Respondents have
10 Crossett Lumber Company , 8 NLRB 440
COULBOURN LUMBER COMPANY
interfered with, restrained , and coerced their employees in the rights guaran-
teed in Section 7 of the Act, thereby 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.
5. The Respondents did not discriminate in regard to the hire and tenure of
employment of Steve B . Cooper or Lonnie Severe , as alleged in the complaint.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union activi-
ties or membership ; threaten to transfer employees to other jobs, to dis-
charge them, or to shut down our mills to discourage their union affiliations
and activity, or in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor
organizations , to join or assist INTERNATIONAL WOODWORKERS OF AMERICA,
C. I. 0., or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as authorized in Section 8 (a) (3) of the Act. -
WE WILL offer Freeman Clark immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to any
seniority or other rights and privileges previously enjoyed.
WE WILL make whole Freeman Clark and Lee Edward Bond for any loss
of earnings suffered by them as a result of discrimination to the extent and
in the manner recommended by the Trial Examiner in his Intermediate
Report.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any .such labor
organization.
W. C. COULBOURN , E. T. COULBOURN, G. I. COULBOURN,
G. F. COULBOURN, and U. F. COULBOURN, partners
doing business as COULBOURN LUMBER COMPANY,
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.