Lake Superior Lumber Corp.

In the Matter of LAKE SUPERIOR LUMBER CORPORATION and INTERNA- TIONAL WOODWORKERS OF AMERICA, C. I. O. Case No. 18-C-1216.-Decided December 22, 1947 Mr. Clarence A. Meter, of Minneapolis, Minn., for the Board. Mr. John B. Bennette, of Ontonagon, Mich.; for the respondent. Mr. Harold E. Arnold, of Ironwood, Mich., for the Union. DECISION AND ORDER' On December 2, 1946, Trial Examiner Victor Hirshfield issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto.2 Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.3 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 ' The power of the Board to issue a decision and order in a case such as the instant one where the charging union has not complied with the filing requirements specified in Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended, was decided by the Board in Matter of Marshall and Biuee Company, 75 N. L R B. 90 P Those provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the Trial Examiner herein found were violated , are continued in Section 8 (a) (1) and 8 (a) (3) of the Act, as amended by Labor Management Relations Act, 1947. 3 Our adoption of the Trial Examuiet 's findings of disciinunation with respect to Steve Knoll is based solely on the circumstances surrounding his discharge. 75 N. L R. B., No. 72. 621 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the respondent, Lake Superior Lumber Corporation, Ontonagon, Michigan, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Woodworkers of America, C. I. 0., or in any other labor organization of its employees, by discriminatorily discharging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or a4 y term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the 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 collec- tively 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, as amended. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act, as amended : (a) Offer Steve Knoll immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to, his seniority or other rights and privileges; (b) Make Steve Knoll whole for any loss of pay he may have suf- fered because of the respondent's discrimination against him, by pay- ment to him of a suns of money equal to the amount he would normally have earned as wages during the period from May 24, 1946, to the date of the respondent's offer of reinstatement, less his net earnings. during said period; (c) Post at its lumber camps and its office at Ontonagon, Michigan, copies of the notice attached hereto, marked "Appendix A." 4 Copies_ of said notice, to be furnished by the Regional Director for the Eight- eenth Region, shall, after being duly signed by the respondent's rep- resentative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to^ employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; 4In the event that this Order is entoreed by decree of a Circuit Court of Appeals, there shall be inserted in the notice, before the -words "A Decision and Order," the words "A Decree of the United States Circuit Court of Appeals Enforcing." LAKE SUPERIOR LUMBER CORPORATION 623 (d) Notify the Regional Director for the Eighteenth Region in writing, within ten (10) clays from the date of this Order, what steps the respondent has taken to comply herewith. MEMBER REYNOLDS took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees 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 organiza- tion, 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. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Steve Knoll 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 terns or condition of employment against any employee because of mem- bership in or activity on behalf of any such labor organization. LAKE SUPERIOR LUMBER COMPANY, By ------------------------ ------------ Dated ------------------------ (Representative) (Title) Noun-Any of the above-named employees presently serving in the armed forces of the United States will be oftered full reinstatement upon application in ac- cordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be'altered, defaced, or covered by any other material. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. Clarence A. Meter, of Minneapolis, Minn , for the Board. Mr. John B. Bennett, of Ontonagon, Mich., for the respondent. Mr. Harold E. Arnold, of Ironwood, Mich., for the Union. STATEMENT OF THE CASE Upon all amended charge duly filed by the international Woodworkers of America, C. I 0., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighteenth Region. (Minneapolis, Minnesota), issued its complaint dated September 30, 1946, against Lake Superior Lumber Corporation, herein called the respondent, alleging that the respondent bad engaged in and was engaging in unfair labor practices affect- ing commerce 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. Copies of the complaint accompanied by notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent did (1) on or about May 24, 1946, discharge Steve Knoll, one of its employees, and thereafter refused to reinstate him, because of his membership in, and his activities on behalf of the Union; and (2) from on or about February 2, 1946, advised, urged, and warned its employees against activity on behalf of the Union, promulgated and enforced rules prohibiting entry into its camps to representatives of the Union, expelled Harold Arnold, Ed Evans, Melvin Hagstrom, agents of the Union from one of its camps on February 3, 1946, disrupted union meetings, questioned its employees concerning union activities ; ' and that on May 23, 1946, one of its foremen refused to leave a union meeting held in the camp. Thereafter the respondent filed an answer in which it denied that it had dis- charged Steve Knoll, averred that it has been ready at all times to reemploy the said Knoll, and denied the commission of any unfair labor practices Pursuant to notice, a hearing was held at Ontonagon, Michigan, on November 7, 1946, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by its representative. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was 1 Near the close of the healing, counsel for the Board moved that certain paits of para- graph 6 of the complaint be stricken The motion was granted. The portion of the com- plaint refereed to, follows From on or about February 2. 1946 and at various times thereafter up to and including the date of issuance of this complaint [the iespondent] did advise, urge and warn its employees against affiliation with or activity on behalf of the Union , did promulgate and enforce rules prohibiting entry to and presence at the Camps which are its property, of representatives of the Union, except on unreasonable and restrictive terms and conditions, and has ever since enforced, and does now enforce said rules and has ever since denied, and does now deny, access to the Camps to repre- sentatives of the Union for the purpose of frustrating and preventing self-organization of its employees ; did, on or about February 2, 1946. attempt to evict and eject from one of the Camps Harold Arnold, Ed Evans and Melvin H4gstrom; officials and agents of the Union, and did thereby attempt to prevent their conferring and meeting with members of the Union and other employees and engaging in union activities with them, and did, on or about said date, attempt to disrupt and prevent a meeting of union members in one of its Camps ; and. . . . The complaint as amended, therefore, contains no references to any misconduct prior to May 23, 1946. LAKE SUPERIOR LUMBER CORPORATION 625 afforded all parties The- parties were advised as to their rights to file briefs as well as proposed findings of fact and conclusions of law. Near the close of the hearing a motion to conform the pleadings to the proof in formal matters was granted without objection. Neither of the parties chose to argue orally before the Trial Examiner. Both the respondent and the Board have submitted briefs. Upon the entire record in the case and from his observation of the witnesses the undersigned makes the following: FINDINGS OF FACT I. THE BUSLNESS OF THE RESPONDENT The respondent, Lake Superior Lumber Corporation, is a Michigan corporation, having its principal office and plant at Ontonagon, Michigan. It operates two lumber camps in the vicinity of that city where it is engaged in the production of hardwood and hemlock lumber. During the 12 month period from January 1, 1945, to December 31, 1945, the respondent in the conduct of its business, purchased provisions and food for employees living in the camps, feed for horses used at the camps, and gasoline and coal valued in excess of $100,000, approximately all such materials being purchased at and transported to the plant and camps at Onto- nagon, from points outside the State of Michigan. During the same period prod- ucts manufactured at the plant and camps exceeding $100,000 in value were sold and transported in interstate commerce. Upon the basis of the foregoing findings of fact and upon a stipulation to that effect by the respondent, the undersigned finds that the respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Woodworkers of America, affiliated with the Congress of In- dustrial Organizations , is a labor organization admitting to membership em- ployees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Intei ference, restraint, and coercion 1 Background On September 18. 1945, the Board issued its complaint in Case No 1S-C-1160' against the respondent herein. The complaint alleged that the respondent had engaged in certain unfair labor practices within the meaning of Section S (1). On October 2, 1945, the matter came on for hearing before a Trial Examiner of the Board, who thereafter, on November 19, 1945, issued his Intermediate Report making certain recommendations. Thereafter on August 21, 1946, the Board found that the pertinent provisions of a settlement made in 1938 between the Union and the respondent "are no longer effective." This settlement provided that the Union would enter upon the respondent's property only upon certain stated terms and conditions: ' The Union had refused to continue to abide by the terms and conditions of this settlement, and the respondent had, through its agents, interfered with the Union representatives when they sought to enter upon the respondent's property and organize the employees working there. The 2In the Matter of Lake Snperioi Lumber Corporation and International Wooda; orkeis of America, C 1 O., Local 15, 70 N L. R B. 178. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board held that the settlement contained a conditional terminal date, the lei ins of which were satisfied by the decisions in the Republic Aviation Coipora- tion and Le Tonineau Coni.pany cases decided by the Supreme Court on April 23, 1946. and ordered respondent to cease and desist from the aforesaid unfair labor practices and to take certain affirmative action which included the following: (a) Rescind immediately its rules restricting the right of its employees to engage in union activity on company property during their free time, or to have any person call upon them at its camps during their free time for the purpose of consulting, advising, meeting, or assisting its employees in regard to their right under the Act to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ; (b) Subject to lawful and reasonable conditions, admit representatives of labor organizations to its camps and bunkhouses for the purpose of con- sulting, advising, meeting, or assisting, its employees, or any of them, in regard to their right under the Act 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. At the instant hearing, the respondent's attorney stated on the record that the respondent had not complaed with the aforesaid Board order and that it desired to have "its day in court . . before complying with it " 2 The meeting of May 21 Harold E. Arnold is now and has been for some time an officer of the Union.' On May 21, 1946, accompanied by Ed Evans, who was then a business agent of the Union, Arnold visited Camp 17, a lumber camp owned and operated by the re- spondent, and referred to and described in the decision hereinbefore referred to Normally access to the camp is obtained by means of a logging railroad operated by the respondent However, as has been pointed out in the earlier case, per- mission to visit the camp must be obtained from the respondent's main office in Ontonagon, 'Michigan As Arnold and Evans did not have this permission it must be assumed that this was the reason they did not use the railroad and decided, instead, upon a 4-mile walk through the uouds from Towola, Michigan. Arnold and Evans proposed to collect dues and solicit memberships in the camp, but after they arrived, and at the solicitation of a number of men in the camps, they held a short meeting in one of the bunkhouses. Between 60 and 70 men were present, and the meeting was held shortly after supper at about 4:30 p. in. It is undisputed that this meeting was after working hours and lasted some 30 minutes. Prior to the meeting and shortly after their arrival in camp the two union officers were accosted by Ed Hipke, the camp foreman, who told them that they could not hold any meeting or meet with the men in the bunkhouse; that an agreement existed between the Union and the respondent which made it man- datory upon the Union to receive permission from higher m:unagement in Onto- nagon before a meeting could be conducted ; that such a meeting if held under 3 324 U S 793 4In June 1945, at the time of the events described in Case No 18-C-1160, Ainold was riesident of the Union He is presently vice president of the same oiganization. LAKE SUPERIOR LUMBER CORPORATION 627 those conditions, would have to be held at the recreation hall; and that he, Hipke, had received orders from W. D. Gorman, respondent's president and general manager, to bar them from the camp if they did not comply with the terms of the agreement.' Neither Arnold nor Evans complied with Hipke's request and proceeded instead to hold the meeting. Flipke followed Arnold and Evans into the bunkhouse where the meeting was to be held. A motion was made by a member of the Union, Steve Knoll,' who was present in the bunkhouse, that Hipke leave. The motion was voted upon and unanimously approved Hipke, however, refused to leave and remained throughout the entire meeting. After Hipke had made known his determination to remain at the meeting despite the passage of the motion, Knoll said, "to hell with him, leave him stay here if he wants to " "Let him take it all in, he don't know any better ... spit it out in front of him "' The meeting proceeded with Arnold making various reports on union business to the employees present.' At the conclusion of these reports Steve Knoll and John Niksich' made complaints about the food then being served at the camp. Knoll suggested that the respondent either furnish more meat to its employees or reduce the price of the meals." Knoll suggested that a petition concerning this matter be circulated among the employees and after it had been signed by them that the petition should be sent to the respondent by the Union. This was agreed upon by those present and immediately after the close of the formal meet- ing Arnold wrote out the petition. Steve Knoll signed the petition first, Niksich second, and Knoll then passed the petition around for signatures to the other employees present Knoll then gave it to Niksich, who secured additional sig- natures from the men in the other bunkhouses Over 60 men signed the petition." The signed petition was•then given to Arnold, who mailed it on May 22 to the company after his return to Ironwood. Michigan, where the Union maintained its office Foreman IIipke remained present not only during the formal part of the meeting but thereafter when the petition was signed. 3. The discharges Steve Knoll 12 had been a woodsman since 1914. He had spent a good part of this time in the woods working as a sawyer, a highly skilled job" Sawyers usually work in pairs, known as gangs, and since the earnings of the gang will depend upon the full cooperation of both men good sawyers are usually permitted to choose their own partners " This agreement has been fully discussed in Case No 18-C-1160 It has been noted that the Board in its decision in the aforesaid matter held that the agreement was no longer binding upon the parties 0 The complaint' alleged that Steve Knoll was discharged for union activity shortly after this time The events concerning his discharge will be discussed' below. 'The above is based on the credited and undenied testimony of Arnold,, knoll and Niksich s Ainold testified that some of the employees present at the meeting were not union members He gave no accurate estimate as to the number present who were not members of the Union 0 Knoll and Niksich were partners in a sawing team 10 The men paid for the boaid and lodging in the camps. 11 The petition is reproduced in "Appendix B" herein "The following is based on the credited testimony of Knoll and Niksich. u Knoll's earnings at the respondent's camp averaged $21 per day. 14 Hipke admitted that noll was a good sawyer and his earnings were at least as high if not higher than those of any other sawyer in camp. 766972-48-vol 75-41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 17, 1946, Knoll, who had worked for 2 months in another camp oper- ated by the respondent some 2 years previously, began work at respondent' . Camp 18 His sawing partner was John Niksich and the team or gang continued to, work there until May 3, 1946 On that date Niksich and Knoll quit Camp 18, and on May 14, 1946, began work at Camp 17 Knoll and Niksich, whose homes were in Ironwood, a community some distance from camp, were in the habit of going home on week-ends They left camp at the end of their first week's em- ployment for that purpose. On Sunday, May 19, Niksich had his wife telephone Knoll in Ironwood. to ask the latter to come to see him that day. Knoll did so and Niksich told him he had been offered an opportunity to go to work in the mines Niksich also told Knoll that he had arranged with the mine foreman to permit him to defer beginning work in the mines for a week„ in, order to enable Knoll to obtain another sawing partner. Knoll immediately got in touch with Earl Carlson, who was working for another lumber concern, and Carlson agreed to quit his employment and go• to work with Knoll for the respondent after the following week On Tuesday, May 21, the day of the meeting described above, Knoll and Nik- sich talked with Hipke immediately after supper and before the union meeting. This conversation occurred in front of one of the bunkhouses and several other employees were close at hand.15 Niksich told Hipke that he was going to work in the mines. Knoll said that lie was getting a new partner named Carlson and Hipke replied that "that was perfectly 0 K. with hun." However, Hipke, according to Knoll, asked him to have Carlson get 1n employment card at the respondent's main office in Onto- nagon " Hipke also told Knoll that "it was up to me (Knoll) to get a partner but he (Carlson) would still have to get a card through the office." On Thursday, May 23, 1946, Hipke and the camp clerk, Fred Lange, checked the cut logs in the woods Knoll, according to his testimony, took the opportunity of asking Hipke if it would be satisfactory if Carlson worked for a week without the em- ployment card. Hipke said that Carlson would need the card to go to work17 It rained the following day, May 24. Niksich talked with Knoll immediately after breakfast and told the latter that he would "just as soon go home" that day, inasmuch as the rain prevented them from working, and Saturday, in any event, was a half clay. Niksich then went to the office where he saw Hipke Lange, the clerk, was working in the next room After Niksich had told Hipke of the purpose of his visit, Hipke, according to Niksieh, told him to tell Knoll to come to the office because the sawyers were being laid off as they completed their work, since there were too many logs ahead. Niksieh returned to the bunkhouse where he gave Knoll Hipke's message Knoll then went to the office taking along his dinner bucket" where, according 15 Hipke , although not directly denying this conversation , implied as much by his version of the circumstance surrounding the discharge Hipke's testimony will be discussed hereinafter The only witnesses who testified to this conversation were Knoll and Niksieh iB New employees were hied at respondent' s main office at Ontonagon. Such new em- ployees were then given an employment card which they used to get into the camp and which they thereafter presented to the foreman . The foreman apparently had little, if anything, to do with the initial hiring of new employees. 17 Hipke did not directly deny this conversation 1" The dinner bucket was furnished to the men by the company and it was turned in when their employment ceased., LAKE SUPERIOR LUMBER CORPORATION 629 to his testimony, Hipke told him that he was laying off the sawyers just as soon as they got through with their strips.'' Niksich, Knoll and Hipke then went out to the strip to measure the logs which they had cut so that the two sawyers might be paid off 2' According to Niksich and Knoll, the conversation on the way to the strips between Knoll and Hipke included the statement by Hipke: "When we get caught up, we'll call you back " 2i Knoll said, "Too bad to get through now and there aint any work no place anyway " On their return to camp, Niksich and Hipke went to the bunkhouse where they waited for about an hour and a half until the clerk could complete the pay-roll compilation. They then went to Lange, the clerk, to "get their time" and while doing so, Knoll asked Lange what his. separation slip contained inasmuch as it was handed to hun in a sealed envelope G2 Lange told Knoll that he dud not have the right to tell him how the separation slip read and advised him to see Ed Hipke. Knoll then went to Hipke who' advised him that the slip read that Knoll had quit. Knoll protested this, de- claring that he was ready and willing to work and that Hipke had no right to write "quit" on his termination slip, when in fact he had been laid off. Hipke, however, refused to change the wording of the separation slip Aristo David, since deceased, but at that time a supervisor for the respondent, who was standing nearby, said, "The hell with them guys, let them go." On their way back to town on the log railroad, Niksich 2J and Knoll, according to Knoll. met several 'newly employed gangs of sawyers who told hun that they weie on the way to woik as sawyers in both camps 17 and 18. At the respondent 's office in Ontonagon, Knoll was told by a clerk, according to his credited testimony, that: "It's a funny thing. We've been hiring men for camp 17 right along." Knoll applied for unemployment insurance but was told he could not receive any since according to the record furnished by the respondent he had quit work of his own accord. Knoll has not been called back to work.24 "A strip is a section of land which is marked for the sawyers to cut Each gang of sawyers works on its own strip Knoll testified he had about 1 day's more work left on the atrip lie was then working on 20The sawyers are piece workers being paid according to the footage which they cut n Niksich and Knoll's strip lay approximately 1 mile from camp 22 Although the recoi d does not contain specific facts with respect to the practice followed when employees are terminated , the undersigned is convinced that such terminated em- ployees are given records of then last pay together with a separation slip in a sealed envelope Employees apparently are not permitted to open this envelope, presumably because it contains figures as to then earnings The envelope is opened by the clerk at the office in Ontonagon who, on the basis of the figuies in the envelope , calculates the employee 's pay , and pays him off Thus Knoll went to Hipke to inquire as to the reason written on the separation slip, although he had apparently received the slip in the sealed envelope handed to him by Lange Thereafter in Ontonagon Knoll turned the envelope in to the iespondent 's office, whence the separation slip apparently was sent to the Unem- ployment Compensation Department 22 Niksich testified with respect to all matters discussed hereinbefore in substantially the sane mannei as Knoll 24 Although there w as some testunony with respect to a decline in the number of sawyers at this time , Hipke testified that there was much sawing work to be done beginning in June Knoll was not recalled to work at that time. Hipke's testimony was clear that Knoll would probably have been given the opportunity to continue working through the slack period if his employment had not been teiminated. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 The contentions of the respondent a. As to the interference The respondent admitted that Hipke had been present at the meeting of May 21, that he had ordered Arnold off the premises, and according to Hipke, had done both these things at the direct order of Gorman, respondent's president and manager. The respondent contends that this conduct was justified insofar as it believed and believes that the Board's decision in Case No. 18-C-1160 herein- before referred to was erroneously decided by the Board, and that it fully intended to continue such conduct until ordered to desist therefrom by the courts. The undersigned believes and finds that the respondent unlawfully interfered with its employees in their right to engage in union activities *or other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, by instructing Hipke to order the union's officers off the premises and by ordering Hipke to remain present at all union meetings held contrary to his orders ; and that Hipke by carrying out these orders on behalf of the respondent, further interfered with the aforesaid rights of respondent's employees. The undersigned finds that the respondent by the limitation imposed on its employees and on union representatives relative to opportunities for consultation and organization, and by the action of Camp Foreman Hipke in restraining and interfering with Arnold and Evans while they were engaged in legitimate union activities by soliciting union membership and endeavoring to hold a meeting on respondent's premises, has interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act b. As to the discharge The respondent called Foreman Hipke as its first witness. He testified in substance that he did not learn that Niksich intended to quit his employment until the morning of Friday, May 24, 1946. At that time, Hipke, having learned from Niksich that he was quitting, sent for Steve Knoll, in order to tell him that there were "8 or 12" extra sawyers in the camp and that he was to pick a partner from among them a Knoll, according to Hipke, refused to do this because he insisted on having Carlson as his partner. Hipke testified that he then told Knoll that he did not want to bring new sawyers into camp and Knoll would have to choose his partner from among the sawyers then available at the camp. Knoll refused to do this and "asked for his time." It has been noted above, that sawyers usually work in pairs. If a partner in a sawyers' gang quits, the other partner may remain at the camp. This sawyer is then assigned to other work until he is again "mated" or paired with another sawyer. It would appear from Hipke's testimony, therefore, that up to a dozen sawyers were doing other work than sawing and that they had been promised saw- ing work when it became available. The undersigned questioned Hipke on this point endeavoring to ascertain why it was not possible to mate these spare sawyers. a The following- testimony indicates the course of practice with respect to sawyers in lumber camps, at least in the area where the respondent' s camps were located : Mr. BENNETT : . . . it is true that sometimes , or oftentimes a gang of sawyers will go into a camp together, but isn't it also true that if you get a partner and you are dissatisfied, you pick another partner in the camp that is agreeable to the foreman and you go ahead with him 9 KNOLL' If it is agreeable to the foreman, sure. Q What I mean, in all cases you don't pi-ek partners and go sawing, sometimes you go out to a camp and find your partner out there ? [ Italics added.] A. I never did yet. LAKE SUPERIOR LUMBER CORPORATION 631 The respondent's attorney contended that these sawyers were paired with sawyers as other teams broke up. It would seem to the undersigned that such break-ups would normally have led to the pairing of these sawyers at an earlier time, and that there would not be such a large pool of non-working sawyers available if this rule were followed Since Knoll and Niksich had only worked 8 days, these extra sawyers who had not sawed for 2 weeks or more should have obtained their jobs and they should not have been hired if this rule applied. The contention that Knoll was presented with the alternative of mating up with these unemployed sawyers or ceasing work does not ring true.26 Hipke's explanation that work was gradually going down and that he did not wish to have new sawyers come to camp while other sawyers then available at camp did other work, is likewise lacking in plausibility for it would seem to the undersigned that if the work was going down, it would be unlikely that Hipke would keep spare sawyers on hand. Yet it is his testimony that if Knoll had stayed on, and had picked a partner out of the pool of unemployed sawyers, he would have continued work as a sawyer. The under- signed is convinced that an expert sawyer 21 might work with any one he chose. In addition, it is clear, and the undersigned has so found, that Hipke told Knoll that it "was up to" him to get his own sawing partner. Thus no matter what the general rule might be, in this specific case Hipke authorized Knoll to bring Carlson into camp as his sawing partner. ' The undersigned finds it unnecessary to make a finding, with respect to these contentions, however, inasmuch as he does not credit Hipke in any of his testimony relating to the discharge. Hipke did not impress the undersigned as a credible witness. In addition, the undersigned found it impossible to reconcile Hipke's testimony with the facts described in detail by Knoll and Niksich For example, while both Niksich and Knoll told a detailed story as to the reasons why Niksich found it necessary to quit his employment and with respect to Knoll's arrangement with Carlson to go to work with him, described in detail their conversation with Hipke on Tuesday, Thursday, and Friday of the week in question and gave a reasonable account of the facts that led up to the separation, Hipke's story im- pressed the undersigned as inconsistent and implausible. Thus, while Hipke denied that he had any knowledge of the impending departure of Niksich, or of the fact that Knoll wished Carlson for a sawing partner until the morning of May 24, he did not deny that Knoll protested the wording of the termination slip, or that Knoll offered to continue to work or that no work had been offered to Knoll either at that time or subsequently in June when sawing operations became par- ticularly active. Based on his observation of the witnesses, the undersigned does v not credit Hipke and Lange 28 and does credit Knoll and Niksich. Conclusions as to the discharge Knoll and Niksich in their first conversation with Hipke prior to the union meeting, had no difficulty in gaining Hipke's consent to bringing Carlson into the camp as a partner to Knoll. Immediately thereafter and during the course of 26 Knoll testified that in 1944 when he had previously worked for the respondent, his saw. ing partnei had quit, and that he was then permitted to bring in a new partner from outside the camp 21 Knoll admittedly was an expert saws er 28 Lange's testimony did not convince the undersigned His testimony related mainly to snatches of conversation between Hipke and Knoll, overheard on the morning of Friday, May 24, his testimony Ras to the effect, however, that after hearing these snatches of conversation he was of the impression that Knoll was going to continue to work for the respondent as a sawyer Hipke on the other hand testified that Knoll refused to work unless he could bring in Carlson 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union meeting, at which Hipke was present, Knoll took the lead not only in proposing a petition to the respondent to reduce the price of its meals and furnish more meat to its employees but also criticized Hipke, by becoming the author of a motion to exclude Hipke from the meeting and thereafter when Hipke refused to comply with the wishes of the occupants of the bunkhouses said, "to hell with him." It was obvious to Hipke that both Niksich and Knoll were leaders in the union movement at the camp Niksich's resignation, of which Hipke had been notified a short time previous, removed one active union exponent from the camp Under the arrangement made earlier, however Knoll was going to continue to work at the camp with Carlson as his partner. Knoll was not only an active union exponent but also admittedly one of the best sawyers in the camp Since the termination slips were usually placed in the arrangement made earlier, however, Knoll was going to continue to work at the reason written upon the slip until he attempted to collect unemployment in- surance. However, Knoll's curiosity led to Hipke telling hun of the reason assigned for the termination. At this point, Knoll testified credibly and there was no denial by the respondent, that lie was willing to continue to work for the respondent and did not intend to quit. Hipke, however, refused to change his mind Knoll was no stranger to lumber camps and had quit his job on previous occasions, as indeed seemed to be the custom among a large part of the working forces in the woods As was pointed out in the decision referred to above, labor turnover is very great in these camps Knoll's testimony however is not that of a man who has quit his job. He testified, for example, that he told Hipke on the way to the strip to measure the logs on May 24, it's "too bad to get through now, and there ain't any work no place anyway " If Knoll were quitting because he re- fused to work with one of the spare sawyers in camp this would hardly have been his attitude. Hipke, although questioned about the conversation on this walk through the woods which took an hour and a half, could not remember any of it Again it is unlikely that Knoll would have made arrangements with Carl- son to come to work with him as a sawyer if he, Knoll, expected to quit. The respondent in its brief points out that Niksich testified that at the earlier con- i ersation on Friday, Hipke told him that Knoll was being laid off and that an hour or two later Hipke told Knoll that he had resigned. The respondent contends that "no reasonable man with an ounce of sense would fire an employee and two hours later tell the employee that lie was not fired, but that he had quit." and that the story of Niksich and Knoll should not therefore be believed This contention, the undersigned finds, has no merit The undersigned has credited the version of the facts as testified to by Niksich and Knoll That this conduct may have been inconsistent with that of "a reasonable and sensible type of man," as the respondent characterizes Hipke, is an element which has been considered, but the undersigned finds that Hipke acted in 'the manner described by both Niksich and Knoll It must be remembered that normally Knoll would not have seen the separation slip since it was placed in a sealed envelope. While there is testimony by Lange that he heard no dispute between Knoll and Hipke in the morning conversation and in fact believed that Knoll was going to continue to work, it is undenied that thereafter when Knoll learned of the reason given by Hipke in the separation slip he heatedly discussed the matter with Hipke Thus, Knoll's conduct is consistent with his story. LAKE SUPERIOR LUMBER CORPORATION 633 The undersigned is convinced and finds that the entire course of conduct of the respondent, both in relation to its general opposition to the union by instructing Hipke to be present at the union meeting and in the specific case of the discharge of Knoll, was motivated by its desire to discourage, un ion activity. It is found upon the entire record that the respondent by discharging Steve Knoll on May 24, 1946, and by failing thereafter to reinstate him discriminated in regard to his hire and tenure of employment, thereby discouraging member- ship in the Union and interfering with, restraining, and coercing its employees in the exercise of the lights guaranteed in Section 7 of the Act. 1C. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set foi th in Section III, above, occurring in connection with the operations described in Section I, above, have a close, inti- mate 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 It has been found that the respondent for the purpose of frustrating and dis- couraging union organization among its employees not only at the time of the dis- charge but in the future as well, discriminatorily discharged Steve Knoll and refused to reinstate him because of his union activities. It has also been found that the respondent has by its conduct in ordering Hipke to refuse access to its camps to union organizers except on such conditions as the Boaid his found illegal, and in ordering Hipke to be present at a union meeting held on the camp premises, also interfered,witli,the union, and as described, such conduct had as its purpose the defeat of self -organization among its employees. The respondent by such conduct violated Section 8'(1) and (3) of the Act. It will be recommended that time respondent pursuant to the mandate of Section 10 (c) cease and desist therefrom. Discrimination such as was engaged in by the respondent strikes at the roots of the employees' rights safeguarded by the Act, and is one of the most effective forms of intimidation which can be conceived." Moreover, it discloses a determination on the part of the respondent to engage in persistent efforts, not necessarily by the same method, to continue to defeat self- organization by its employees. Because of the respondent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices committed by the respondent are related to other unfair labor practices prosciibed, and that danger of their commission in the future is to be anticipated from the respondent's conduct in the past. The preventive purpose of the Act will be thwarted unless the recommended order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7 to prevent a recurrence of unfair labor practices and thereby minimize industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, it will be recommended that the respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Further and in order to rectify the respondent's discrimination in regard to the hire and tenure of employment of Steve Knoll, it will be recommended that 21 5-, N L R B I P'iittoistle Jtfq Co, 120 F (2d) 5522. 530, (C C A 4) , N. L R B V. Aodi uohr, c _ltointeannoc 1fo(,hi)im-it Co, it(; F (2d) 350, 353, (C C A 7) 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent offer him immediate and full reinstatement to his former or substantially equivalent position 30 without prejudice to his seniority and other rights and privileges. It will also be recommended that the respondent make him whole for any loss of pay by reason of the respondent's discrimination against him by payment to him of a sum of money equal to the amount he would have normally earned as wages from May 24, 1946, to the date of the respondent's offer of reinstatement, less his net earnings" (luring said period. Upon the basis of the foregoing findings of fact and the entire record in the case, the undersigned makes the following • CoNcr.ustoNs or Law 1 Iternational Woodworkers of America, Local Union No 15, C 1 O. is a labor organization within the meaning of Section 2 (5) of the Act 2. The respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act - 3. By discriminating in regard to the hire and tenure of employment of Steve Knoll, thereby discouraging membership in the union, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Lake Superior Lumber Corporation, Ontonagon, Michigan, its officers,, agents, successors , and assigns shall: 1 Cease and desist from : (a) Discouraging membership in International Woodworkers of America, C I O , or any other labor organization by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to the hire and tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organiza- tions, t6 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 purpose of collective bargaining or other mutual aid of protection, as guaranteed in Section 7 of the Act. 30 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position" See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N L R B 827. 31 By "net earnings ' is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, 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 earn- ings. See Republic Steel Corporation v. N. L. R. B ., 311 U. S. 7. LAKE SUPERIOR LUMBER CORPORATION 635 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer Steve Knoll immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges ; (b) Make whole in the inanner set forth in "The -remedy" Steve Knoll for any loss of pay he may have suffered by reason of the respondent's discrim- ination against him; (c) Post at its lumber camps and its office at Ontonagon, Michigan, copies of the notice attached hereto and marked "Appendix A." Copies of the said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being dilly signed by respondent's representative, be posted by respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by respondent to insure that such notices are not altered, defaced or covered by any other material; (d) Notify the Regional Director for the Eighteenth Region in writing within ten (10) days from the receipt of this Intermediate Report, what steps respondent has taken to comply therewith It is recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Director 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 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, 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 ielie5 upon, together with the original and four copies of a brief in support thereof, and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203.39, 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 service of the order transferring the ease to the Board. VICTOR IIIRSHnELD, Trial Examiner. Dated December 2, 1946. 0 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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: i WE WILL NOT 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, CIO, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Steve Knoll 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. LAKE SUPERIOR LUMBER COMPANY. Dated-------------------- By ---------------------------- ------------ (Representative) (Title) NoTE-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B MAY 22, 1946. Mr. W. T. GORMAN, President, Lake Superior Lumber Corporation, Ontonagon, Michigan. DEAR MR GORMAN : Enclosed you will find a petition signed by your employees at Camp 17 requesting that the cost of board be reduced from $1.35 a day to $1.20, the same as in other camps in this area This, however, is not the whole extent of their grievances. They also state that the quality and quantity of the food is not the same as at Camp 1S and have requested that this be adjusted. Your fore- man, Mr Hypki, sat in on the meeting and can inform you both in regard to the employees' attitude and the Union's position on the whole matter, which is also explained in a letter to Mr James Shields of the N. L. R. B., a copy of which is enclosed for your information. As we have stated in our letter td Mr Shields, we will not assume the respon- sibility for the action of your employees, because we do not have the bargaining rights for them. However, we feel that you should adjust your differences with your employees to avoid any further dissension in your camps. LAKE SUPERIOR LUMBER CORPORATION 637 Although we are not responsible for what action your employees take on this matter, as a labor organization we are interested and would appreciate hearing from you as soon as you have decided what you are willing to do in regard to your employees' petition. Very truly yours, INT'L WOODWORKERS OF AMERICA, CIO, LOCAL UNION NO. 12-15, HAROLD E ARNOLD, HEA: hs iwa-la--cio Vice-President. Registered Letter Return Receipt Requested PETITION FROM CAMP 17 OF LAKE SUPERIOR LUMBER CORPORATION TO HAVE THE COST OF BOARD REDUCED FROM $1.35 A DAY TO $1.20, THE SAME AS OTHER CAMPS Dated : MAY 21, 1946. Steve Knoll John Niksich F Skubic Vincent Starpiewicz Pete Krence Henry Kebel Joe Taylor Henry E Moydlico Peter Smith Albert Schmidt R C Peterson Paul Jerko Trofine Kalinowsk! Fred Berg Charles Blazaty Frank Kraulih Peter Lebeck Joe Shubat Frank McCloskey Ch. Ropauh Andrew Piclipon Ole Hanson Theo. Walkowski David Ostrowsky Frank Poxor August Johnson Dan Marwitz Mekoc Vuski Paul Krill R. McNlchail George Topp Jalmer Relamson Joe Rabich Dam Zomski Anthony Sokolowski John 0 Olson Floyd Wicks Anton Paprocky . Rudolph Monka Frank Stonis X Frank Mazua Mike Enright Anton Johnson Edw. Kamhout Stanley Kusich Tony Chalemorvec John Zino x Herold Green Clare Potter Henry Kramp Albert Olson Clemens Sadowski Peter Malvei John Juukovich Alfred Peterson Jim Hauptman Peter Zelube John Aho Joe Atwitch Nick Miller John Butkus N It this matter is not adjusted by Saturday , May 25, 1946 , we, the signers of this petition , will feel that you do not intend to make any adjustments and we will be forced to take whatever action we feel necessary to go our just demands