Pacific Lumber Co.

National Labor Relations Board - Board Decisions

May 27, 1943

49 N.L.R.B. 1145 (N.L.R.B. 1943)

In the Matter of PACIFIC LUMBER COMPANY and REDWOOD DISTRICT
COUNCIL, LUMBER AND SAWMILL WORKERS, LOCAL #3008, AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR
Case No. C-2554.-Decided May 27,1943
DECISION
AND
ORDER
I
On March 19, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and that it take
certain affirmative action, as set forth in the copy of the Intermediate
Report annexed hereto. Thereafter the respondent filed 'exceptions
to the Intermediate Report and a brief in support of its exceptions.
The-Board has considered the rulings made by the Trial' Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
Pursuant to notice, a hearing was held before the Board at Wash-
ington, D. C., on May 6, 1943, for the purpose of oral argument.
The respondent was represented by counsel and participated in the
bearing; the Union did not appear.
The Board has' considered the Intermediate Report, the respondent's
exceptions- and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the additions noted below.
The Trial Examiner has found that the respondent, by its dis-
charge of John A. Tucker because of his union membership, and-by
the anti-onion statements made by four of its foremen, discouraged
membership in the Union and interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act. The respondent contends that these acts do not constitute
unfair labor practices, within the meaning of the Act, because there
is no evidence in the record that they in fact discouraged or interfered
with the union membership or activities of the employees. In sup-'
port of-its contention, the respondent cites, N. L. R. B. v. Air Asso-
ciates, 121 F. (2d) 586 (C. C. A. 2), and Stonewall Cotton Mills v.
49 N. L. R. B., No. 168.'
1145
1146 , DECISIONS OF NATIONAL L.1BOR RELATIONS BOARD
N. L. B. B., 129 F. (2d) 629 (C. C. A. 5), cert. denied, 317 U. S. 667.
In so doing, the respondent overlooks the fact that the Court, on
motion for rehearing in the Stonewall, Cotton case, withdrew the inti-
mation'in its original opinion that direct evidence of the discouraging
effect of a discriminatory discharge is necessary to a finding of unfair
labor practices, within the meaning of Section 8 (3) of the Act.'
Similarly, the Court in the Air Associates case sustained the Board's
findings of discriminatory discharge as to three employees, despite
the absence of direct evidence that these discharges had the effect of
discouraging union membership; it reversed the Board's findings of
discriminatory discharge as to two other employees only because of
the peculiar circumstances of those discharges and because of the
absence of appropriate findings by the Board from which discourage-
ment of union membership "might reasonably be inferred." 2 These
cases, therefore; furnish no support for the respondent's position. On
the other hand, the,legislative history of the Act supports, and its
effective, en forcement requires, the view that normally the discharge
of an employee because of his union membership or activity neces-
sarily results in discouraging union membership ; and Board orders
under Section 8 (3) of the Act have in scores of cases been enforced
by the Supreme Court and all the Circuit Courts of Appeals without
direct evidence that the discriminatory discharges have discouraged
union membership. Under Section 8_(3) of the Act, as uncler'Section
8 (1) and (2), a finding of unfair labor practices does not require direct
evidence that employees have been interfered with, restrained, coerced,
dominated, or discouraged by employer conduct which normally
produces that effect.'.
The respondent also contends that the anti-union statements made
by its foremen do not constitute unfair labor practices, because they
were statements of "personal opinion" and because they are protected
by the constitutional guarantee of freedom of speech. But, in de-
termining whether the respondent interfered with, restrained, and
coerced its employees, we may "look at what the Company has said as
well as what it has done." 4 Not all of the ' statements in question
made it clear that the employees could "do as they pleased without
fear of retaliation by the Company."' Moreover, the statements
were made at approximately the time that the Union began to press
its organizing campaign among the respondent's employees in earnest,
1129 F. ( 2d) 633.
' See 121 F . ( 2d) 592, and N. L. R. B . v. Cities Service Oil Co., 129 F. ( 2d) 933, 937
(C. C A. 2). In the Cities Service case the Court stated that the view expressed by it in
the prior Aar Associates case "should be read in its factual context and , accordingly,
should be very narrowly limited " '
8 See, e g, N L. R B. v. Link-Belt Co , 311 U. S 584 ; Bethlehem Steel Co. v . N. L. R. B.,
120 F. ( 2d) 641 (App. D C.) ; N. L R. B v. A S. Abell Co., 97 P. (2d) 951 (C. C. A 4).
4 See N. L. R B. v. Virginia Electric and Power Co , 314 U. S 469, 478.
' Ibid., at 479.
PACIFIC LUMBER COMPANY 1147
and they were shortly followed by the discriminatory discharge of
Tucker, the most active union member in the respondent's employ.
We are of the 'opinion that this conduct, considered as a whole and
appraised in the light of the respondent's economic power, over its
employees, amounts to coercion within the meaning of the Act. We
find, as' did the Trial Examiner, that the respondent thereby dis-
couraged membership in the Union and interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Acts
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 respondent, Pacific Lumber' Company,
Scotia, California; and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Redwood District Council, Lum-
ber and Sawmill Workers, Local #3008, affiliated with the American
Federation of Labor, or in any other labor organization of its em-
ployees, by discharging or refusing to reinstate any of its employees
or in any other manner discriminating in regard to their hire and
tenure of employment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees, in the exercise's of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a.) Offer to John A. Tucker immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice'to
his seniority and other rights and privileges;
(b) Make -whole John A. Tucker for, any loss of pay he has suf-
fered because of the _ respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he
would normally have earned as wages during the period from August
31, 1942, the date of his discriminatory discharge, to the date of the
respondent's offer of reinstatement, less his net earnings during that
period;
(c) Immediately post in conspicuous places throughout its mills at
BCf. Virginia Electric and Power Co. v . N. L. R. B, 132 F. (2d) 390 (C. C...-A 4) ;
1V. L R. B. V. Sunbeam Electric Mfg Co., 133 F. (2d) 856 (C. C. A. 7)
1148 4)ECISION'S' OF - NATI01\'IAL LABOR REILATIONS BOARD
Scotia,, California, and maihtain for a period of at least sixty (60)
.consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a) and (b) of this Order; and '(3) that
.the respondent's employees are free to become and remain members
of Redwood District Council, Lumber and Sawmill Workers, Local
#3008, affiliated with the American Federation of Labor, and that
the respondent will not in any manner discriminate against any
employee because of membership in or activity on behalf of that
organization ;
(d) Notify the Regional Director for the Twentieth Region in writ-
ing *within\ ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
I
INTERMEDIATE REPORT
Messrs . William B. Esterman and Richard A. Perkins, for the Board.
Pillsbury, Madison and Sutro , by Marshall ' P. Madison, of San Francisco,
California , for the respondent.
Martin Balke, of Eureka, California, for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on September 12, 1942, by Redwood District Council,
Lumber and Sawmill Workers, Local #3008, affiliated with the American Fed-
eration of Labor, herein called the Union, the National Labor Relations Board,
herein called the Board , by the Regional Director for the Twentieth Region
(San Francisco , California ), issued its complaint dated November 20, 1942,
against Pacific Lumber Company , herein called respondent , alleging that the
respondent had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (1) and (3) and Section 2 (6) and ( 7) of the National
Labor Relations Act, 49 Stat .,449,,herein called the Act. '
With respect to the unfair labor practices the complaint alleged in substance:
(1) that the respondent on or about August 31 , 1942, discharged John A. Tucker
solely by reason of his membership in and activities on behalf of the Union ;
and (2 ) that the respondent beginning on April 1, 1942, and thereafter urged,
persuaded , threatened , and warned employees , in its Scotia plant, not to join
or assist the Union and sought to have the employees withdraw from mem-
bership and activity in the Union and to abandon their efforts to organize
and bargain collectively through it. The respondent , by its answer verified on
November 30, 1942, denied that it engaged in the unfair labor practices alleged
in the complaint.
Pursuant to notice , a hearing was held at Eureka, California , on December
14 and 15, 1942 , before James C. Batten, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner., The undersigned authorized the
taking of the deposition of A. S. Murphy, respondent's president .' The Board
1 Instead of the deposition , the parties , on February 3, 1943, stipulated and agreed as to
the testimony A S. Murphy would have given had he been present at the bearing. The
stipulation is hereby made a part of the record. '
1
PACIFIC LUMBER COMPANYt 1149
and the respondent was represented by counsel and the Union by its repre-
sentative. All parties participated in the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues. At the commencement of the hearing, the
undersigned denied the respondent's renewal of a motion for a continuance 2
• At the close of the hearing, the undersigned granted the Board's' motion to
conform the pleadings to the proof as to minor details. Also at the close of
the hearing, counsel for the Board and counsel for the respondent argued
orally before the undersigned. The Board and the respondent filed briefs
with the undersigned.
From the entire record thus made and from his observation of the witnesses,
the, undersigned makes, in addition to the above, the following :
FINDINGS OF FACT
I THE, BUSINESS OF THE RESPONDENT
The 'respondent, Pacific Lumber Company, is a Maine corporation with its
principal offices at San Francisco and Scotia, California, and mills in Scotia,
California, where it is engaged in the manufacture and sale of lumber products
and kindred products. Of the raw materials, principally redwood logs and'
supplies used by the respondent in its manufacturing processes, approximately
8 percent were shipped to the Scotia mills through the channels of interstate
commerce from points outside the State of California. Of its finished prod-
ucts, annually valued in excess of $500,000, the respondent shipped in excess
of 60 percent through the channels of interstate commerce to points outside
the State of California. The respondent employs approximately 1100 production
and maintenance, workers in the Scotia mills.
II. THE ORGANIZATION INVOLVED
Redwood District Council, Lumber and Sawmill Workers, Local #3008,
chartered by the United Brotherhood of Carpenters and Joiners of America,
affiliated with the American Federation of Labor, is a labor organization;
admitting to membership production and maintenance employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Prior to the organization of the Union in December 1941, the employees of the
respondent were unorganized, although there is some evidence to indicate that in
1935 there had been some organizational activities in the respondent 's mills.
In April 1942, the Union became active amongst the respondent's employees,
especially after the arrival of Organizer Martin Balke in June. During this
month, Balke with the assistance of several employees, started the weekly dis-
tribution of copies of the Redwood Empire Labor Journal, at the mill gates The
issues of this paper carried articles disclosing the activities of the Union, the elec-
tion of officers, and the progress of the organizing campaign in the mills. Some-
2 Prior to the commencement of the hearing, the respondent had filed with the Regional
Director for the Twentieth Region a motion for a continuance and upon its denial by the
Regional Director the respondent appealed to the Board. The Board denied the request
for a continuance.
1150 DECIS'ION'S OF NATIONAL LABOR RELATIONS BOARD
time in August, the members of the Union started to wear their union buttons in
the plant, prominently displayed upon their -caps. John A Tucker, an officer
and the most active member of the union, was discharged on August 31, 1942. Up
to the time of Tucker's discharge, details of which 'are fully set forth below, the
employees had shown an ever increasing interest in self-organization. Balke
testified that after Tucker's discharge the employees were "scared" and afraid'
they would "get fired like Tucker did" if they joined the organization. Subse-
quently the efforts of the Union to organize the mills practically ceased and the
interest of the employees waned.
The respondent, fully aware of these organizational activities and the interest-
of the employees in the Union, from the outset of-the Union's efforts, proceeded to
undermine and destroy the effectiveness of the organizational campaign. This
the respondent did through its agents, George McWhorter, Ernest Petersen, Curtis
Meng, and Fred Reese.'
On July 27, 1942, Balke, the Union organizer, and Davis, president of Local
#3008, were distributing copies of the Redwood Empire Labor Journal at the
ball park adjacent to the respondent's plant, where the employees customarily
went to smoke on their lunch hour Balke and Davis distributed copies of the
paper to about 20 of the employees. One of the employees asked Balke, "Well,
who are the leaders of the Union, and who are its officers?" Balke replied, "Men
employed right on the job here; all of your officers, your leaders, are men that you
know.' For instance, right here is the president of the local Union, Ray Davis;
your recording secretary is John Tucker, who works in the shredding department.
Your financial secretary is Bullock, who works in Mill `A'." At this point in
Balke's conversation George McWhorter, foreman of the sorting and loading
department interrupted and stated, "Well, all the unions are a bunch of organized
-rackets. Their leaders are racketeers and sons-of-bitches
Sometime in June 1942, McWhorter, during the lunch period, went to the ball
park and entered into a discussion with several of the employees concerning the
longshoremen and stevedore situation in-Eureka, stating that the difficulties aris-
ing from the organizational efforts of this group resulted in the discontinuance
of shipping out of that port. During the discussion, McWhorter stated to the
employees "that the Unions was nothing more than organized rackets and the
leaders were racketeers."
McWhorter, sometime in September, subsequent to the discharge of John A.
Tucker, hereinafter referred to, approached Franklin W. Purdy on the platform,
two or three minutes before starting time. Purdy stated to McWhorter, "It looks
as though they handled Tucker for Union activities, they kind of handed it to
Tucker for Union activities." - McWhorter replied, "Yes, and Ray Davis will,be
next."
During the months of July and August 1942, Ernest Petersen, who was the
night foreman in the shredding plant, and his entire crew of workers rode to the
3 All of these individuals are admittedly supervisory employees
'The above finding is based upon the credible testimony of Balke McWhoiter admitted
being , present during this incident and participating in the discussion , but denied making
the statements attributed to him by Balke. i
5 This finding is made upon the testimony of Ammer , a credible witness, and other testi-
mony which the undersigned believes fully. supports Ammer's recital-of McWhorter's
remarks on this occasion. McWhorter testified that the conveisation was amongst a group
of employees and confined to a discussion of the strikes in- and around , San Francisco. He
denied making any remarks about union aftairs i
6 The testimony of Purdy which the undersigned accepts, is the basis for this finding.
McWhorter denied that he made the statement to Purdy, "Yes, and Ray Davis will be next."
He further testified that he talks to Purdy every day in the course of his employment and
that he is not certain whether Purdy discussed with him the Tucker matter
PACIFIC LUMBER COMPANY. 1151
mill in a truck owned by Chambers, a worker in Petersen's department.' Peter-
sen testified that on several occasions there had been some discussion concerning
strikes on the Pacific Coast and that they all expressed their opinions pro and
con. Petersen testified that he had made statements, with regard to unions, of a
general nature, that on occasions these conversations would continue during the,
lunch hour. Several of the Board's witnesses testified that during these discus-
sions both on the way to work and during lunch hour, Petersen consistently dis-
paraged unions in general, stating that unions were all right when they first
started, but that they usually later surrendered to graft and became rackets
The evidence is clear that Petersen's crew received the impression from his re-
marks that he considered unions just a bunch of grafters and racketeers. On or
about August 27, 1942, Petersen, in a conversation with Harvey Milbury, advised
him against joining the Union, adding that union people were a bunch of racke-
teers and grafters and all they were after was money. Petersen also advised
Milbury "that lie believed that the Company probably had the names of all the
Union men," and that if the Union was not well organized before the war ended,
it would never become organized. Petersen did not deny taking part in these
discussions.'
In the latter part of August, according to the testimony of Zimmerman, an
employee, under the supervision of Foreman Meng, he asked Meng if it was all
right to join a union. In reply, Meng stated that it was all right to pjoin a union
Zimmerman further testified, that Meng told him that in 1935 the i espondent
"fired the union" and might "fire them" after the war Following this conversa-
tion, Zimmerman withdrew from the Union and returned his Union button to
Tucker!
During the month of October 1942, subsequent to the discharge of John A
Tucker, hereinafter referred to, Fred Reese, foreman in the Linderman depart-
ment, approached Lewis Cornelius during working hours in the Presto Log plant,
after the shift was over and pointing at his union button, which Cornelius was
wearing, said, "So you are wearing one of them damn things too, are you." e
From the facts found above concerning the activities of the respondent's agents,
George McWhorter, Ernest Petersen, Curtis Meng, and Fred Reese, during the
period from the spring of 1942 to the late fall of 1942, it is clear that the respond-
ent has engaged in a course of action for tl4e purpose of interfering with the self-
organization of its employees. The undersigned finds that the respondent by the
various acts set forth above, has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act 10
° These findings are predicated upon the mutually corroborative testimony of the Board s
witnesses and Petersen ' s testimony , " I knew a person couldn ' t go too stiong but I didn't
think it hurt to say a little that didn't anoint to much "
8 The undersigned believes that Zimmerman ' s account of the conversation with Meng is
credible,' although during his testimony , it was apparent that he lacked the ability to
clearly express his thoughts . Meng's denial that he made any reference to union men being
fired in 1935 is rejected
D This finding is based upon the testimony of Cornelius which the undeisigned accepts
Reese testified that he does not recall whether he made reference to Cornelius ' union but-
ton or not but that he has never discussed with any of the men in the factory union
matters
10 The respondent contends that it had officially established a policy of neutrality and had
issued instructions to its supervisory force of such a policy The evidence disclosed that
it was not until after the above incidents occurred , including the discharge of Tucker, that
the neutrality policy was announced to the supervisors . Assuming arguendo that such
was the respondent ' s policy at the time of the incidents , the policy of the iespondent was
never communicated to the employees and the employees under such circumstances would
be justified in believing that Mcwhoiter , Petersen , Meng, and Reese were speaking for the
management See No) th 'Carolina Finishing Company v. N. L R. B., 44 N. L R B 184,
February 17, 1943 (C C A 4)
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discharge of Tucker
The complaint alleges that on August 31, 1942, the respondent discharged John
A. Tucker solely by reason of his membership in and activities on behalf of the
Union ; the answer admits that Tucker was discharged on August 31, 1942, and
denies that the discharge was by reason of membership or activities on behalf of
the Union.
John A. Tucker's first employment , after leaving school , was with the respond-
ent in 1935. Tucker worked continuously for the respondent, except for three
voluntary interruptions of short duration until his discharge in August 1942.
During the period of his employment with respondent Tucker worked in the
Bark Plant , where he became thoroughly familiar with all of the machinery and
the various operations in that plant. His work, attitude and conduct were always
satisfactory to his foremen , of whom he had at least five. Tucker was never
criticized for his work nor ever disciplined for misconduct or violation of company
rules or for poor work or for failure or refusal to obey instructions. Not once
during his employment with the respondent of more than seven years was he sus-
pended or reduced in rank or classification . The only occasion on which Tucker's
hourly rate was lowered was when , at his own request, and for considerations of
health, he asked to be transferred from the night shift to the day shift . Tucker
worked under the supervision of Meng, the day foreman in the Bark Plant for
sometime prior to his discharge on August 31. While working under Meng ' s super-
vision, Tucker's work was satisfactory. On no occasion did he fail or refuse to
perform a job requested of him by Meng."
Tucker was unusually active in the affairs of Local #3008, by far more active in
its behalf than any other member. He obtained applications from fifteen or more
of the twenty men on the shifts at the Bark Plant, a percentage far above that
brought in by any other member. He devoted 'all his spare time to union affairs,
including evenings and Sundays, and once weekly, after June 1942, with, few
exceptions , assisted in the public distribution of the Redwood Empire Labor
Journal . After Tucker joined the Union in June 1942, he held office as a Trustee,
and in July and August 1942, as Recording Secretary. His union activity, and
that of the other officers, trustees and district council delegates , was fully publi-
cized in the Redwood Empire Labor Journal, which many of the foremen , includ-
ing Meng, were known to have read regularly. Tucker and other member of the
Union distributed union buttons to the membership on or about August 27, and
Tucker always wore a union button , having started to wear the button prior to
his discharge on August 31.
On August 31, shortly after the starting hour, the shredding operations in the
Bark Plant which were continuous and integrated, stopped due to a "choke-up",
at a point toward the end of the operations, some distance from where Tucker
worked on the first operation as a shredder feeder. Tucker, after discontinuing
his operation went to the other end to learn the cause of the choke-up. Tucker
met Foreman Meng, and was requested by Meng to perform an errand. He
performed the errand and then started back toward the shredder feeder. As
"Earl Williams , a present employee of the respondent , formerly , for a period of three
years, night shift foreman, under whom Tucker worked as a machine operator , testified
that he was the best man in the shift. H. A. Olsen, a millwright, presently employed by the
respondent , testified that Tucker was "a very good man." Early in 1942 when Tucker first
requested a transfer to the day shift , his foreman , Einest Petersen , persuaded him to stay
by arranging for him a three -cent per hour increase , stating to Tucker. "I hate to see you
go on the day shift because you will be a hard man to replace as machine operator "
Petersen testified that Tucker knew machinery quite well , that he "was a good operator."
PACIFIC LUMBER COMPANY, 1153
Tucker Was returning to his machine, Earl Waggoner, an employee who operated
the dryer, asked him to watch the dryer while Waggoner went to the lavatory, in
order that the dryer might be turned on promptly if the operation resumed while
Waggoner was absent. The evidence indicates that this was a customary request
in order to properly protect equipment and to insure the efficient performance of
the operation. When there was a shut down, Waggoner on other occasions had
asked fellow-workers to watch his machine. Whenever there was a breakdown in
the plant it was customary for the employees to all work clearing lip the situation
.so that the Bark Plant might promptly resume, it being a more or less continuous
operation. On this particular day, Tucker's machine was the furthest away from
the choke-up. Tucker was at the dryer while the operation was still down when
Meng appeared, asked Tucker what he had been doing for the last half hour and
then discharged him. Although Tucker attempted to explain the situation, Meng
gave him his termination notice, without one word of reason or explanation.
The next day after Tucker's discharge, Tucker went in to see French, the per-
sonnel officer and asked him why he had been discharged. French's only
explanation was to repeat three times, "It wouldn't work."
There is no dispute concerning the facts heretofore related.
The respondent contends, that Tucker was discharged for refusal to obey Meng's
instructions to perform certain duties assigned to him. Meng testified, that when
Tucker appeared at the point in the operations where the choke-up occurred,, he
directed Tucker to get an extension light cord as the choke-up was in an elbow,
under the platform. -Meng testified,- that he also at the same time instructed
Tucker to "take the elbow apart."
Tucker testified that the only instruction he received from Meng was to get an
extension light cord, that he complied with the request and then walked to the
dryer to be on hand in case operations were resumed.
The undersigned finds no merit in the respondent's contention that Tucker was
discharged for failure to obey the instructions of Meng. If, as Meng testified,
Tucker deliberately walked away after being instructed to "take the elbow apart",
an emergency job, it is inconceivable that Meng, with the entire operation shut
down, would have permitted Tucker to walk away from the job without in some
way indicating disapproval of such action. The contradictions and implausibili-
ties found throughout Meng's testimony lead to the conclusion that the alleged
reason given by Meng was not the operative factor in Tucker's discharge. In
view of the general incredibility of the testimony of Meng, who made the decision
to discharge Tucker, the activity of Tucker in behalf of the Union, the respond-
ent's expressed opposition to the Union and all of the other circumstances sum-
marized above, the undersigned is of the opinion and finds that Tucker was not
discharged for the non-discriminatory cause advanced by the respondent, but
because of his activities in behalf of the Union.
The undersigned finds that respondent has discriminated in regard to the hire
and tenure of employment of John A. Tucker, by his discharge on August 31, 1942,
thereby discouraging membership in the Union.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respondent de-
scribed 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.
1154 DE 'CTSIONS OF NATIONAL LABOR RELATIONS BOARD
.V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action which the undersigned finds necessary to effectuate
the policies of the Act
Having found that the respondent discriminated in regard to the hire and
tenure of employment of John A Tucker, by discharging him on August 31, 1942,
the undersigned will recommend that the respondent offer immediate and full
reinstatement to John A Tucker to his former or substantially equivalent posi-
tion, without prejudice to his seniority and other rights and privileges, and
make him whole for any loss of pay he may lime suffered by reason of the
respondent's discrimination against him by payment to him of a sum of money
equal to, the amount which he normally would have earned as wages from the
date of such discrimination to the date of the offer of reinstatement, less his
net earnings 12 during said period. '
Upon the foregoing findings of fact, and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS or LAW
1. Redwood District Council, Lumber and Sawmill Worker-,, Local #3008,
chartered by the United Br9therhood of Carpenters and Joiners of America,
affiliated with the American Federation of Labor, is a labor organization within
the meaning of Section 2 (5) of the Act
2 By discriminating in regaid to the hire and tenure of employment of John
A. Tucker and thereby discouraging membership in the Redwood District
Council, Lumber and Sawmill Workers, Local #3008, affiliated with the Amer-
ican Federation of Labor, the respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (3) of the Act
3 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the•Act,• the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (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
i RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Pacific Lumber Company, its
officers, agents, successors and assigns shall:
1 Cease and desist from :
(a) Discouraging membership in the Redwood District Council, Lumber and
Sawmill Workers, Local #3008, affiliated with the American Federation of Labor,
or any other labor organization of its employees or in any other manner dis-
criminating in regard to their hire or 'tenure of employment, or any term or
condition of their employment;
32 By "net earnings ' is meant earnings less expenses, such as for transportation , room, and
board, incuiied by an employee in connection with obtaining work and working elsewhere
than for the respondent, which would not have been incurred but for his unlawful dis-
chaige and the consequent necessity, of his seeking employment elsewhere. See Matter of
Crossett Lumber Cobnpany, etc., 8 N. L R B. 440 Monies received for work performed
upon Federal , State, county, municipal , or other work-relief projects shall be considered
as earnings See Republic Steel Corporation v N L R. B , 311 U. S 7
PACIFIC LUMBER COMPANY " . - 1155
(b) Engaging in like or related acts or conduct, interfering' with. restraining,
or coercing its employees- in the exercise of the rights to self-organization, to
form, join, or assist labor organizations, and to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the,
purpose of collective bargaining, or other mutual aid or protection; as guaranteed
in Section 7 of the Act
2 Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act : I
(a) Offer to John A. Tucker immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges ;
(b) Make whole John A Tucker for any loss of pay he may have suffered
by reason of the respondent's discrimination against hnn, by payment to •him of
a sum of money equal to that which he would normally have earned as wages
from August 31, 1942, to the date of the respondent's offer of reinstatement,
less his net earnings" during said period;
(c) Post immediately in conspicuous places throughout its mills, at Scotia,
California, and maintain for a period of at least sixty (CO) consecutive days from
the date of posting, notices to its employees stating (1) that the respondent
will not engage in the conduct from which it has been recommended that it cease
and desist in paragraph 1 (a) and (b) of these recommendations; (2) that the
respondent will take the affirmative action set forth in paragraph 2 (a) and (b)
of these recommendations; and (3) that the respondent's employees are free to
become or remain members of Redwood District Council, Lumber and Sawmill
Workers, Local #3008, affiliated with the American Federation of Labor, and
that the respondent will not in any manner discriminate against any employees
because of membership in or activity on behalf of that organization ;
(d) Notify the Regional Director for the Twentieth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply herewith.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party'may within fifteen (15) days from the date of, the entry of
the order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, D. C, an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire _permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case
to the Board.
JAMES C. BATTEN,
Trial Examiner.
Dated March 19, 1943. ^
u See footnote 12, sop; a. ,
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