The Cuffman Lumber Co., Inc.

In the Matter of THE CUFFMAN LUMBER COMPANY, INC.1 and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA , A. F. OF L. Case No. 15-C-1220.-Decided March 24,1949 DECISION AND ORDER On September 9, 1947, Trial Examiner Peter F. Ward 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 In- termediate Report attached hereto 2 The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended dismissal of these allegations of the complaint. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief; the Union filed a brief in the nature of exceptions. The Board has reviewed the rulings made by the Trial Examiner 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 exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner insofar as they are consistent with this Decision and Order.4 'The article "The;" was omitted from the Respondent 's name in the complaint. The parties stipulated that the above name is the correct one. 'The provisions of Section 8 (1), (3), and ( 5) of the National Labor Relations Act, which the Trial Examiner found were violated, are continued, without any change material to this proceeding, in Section 8 (a) (1), (3 ), and (5 ) of the Act, as amended by the Labor Management Relations Act, 1947. 3 The Respondent also filed a motion to dismiss, on the ground that the Union and Its officers had not complied with the requirements of Section 9 (f), (g), and (h) of the Act, as amended The Union filed exceptions to this motion . As the Board has previously held, the failure of a charging union to comply with the filing provisions of the Act does not pre- clude the Board from adjudicating unfair labor practice cases such as this, in which com- plaint issued before August 22, 1947, or to issue appropriate orders therein . Matter of Marshall and Bruce Company, 75 N. L. R B. 90. Moreover, it appears that the Union is now in compliance. The Respondent 's motion to dismiss is therefore denied. 4 The Trial Examiner made no findings or recommendation with respect to the allega- tions of the complaint that the Respondent violated Section 8 (3) of the Act by discrimi- natorily discharging and thereafter refusing to reinstate those of its employees who struck on November 12, 1946 , because of unfair labor practices on the part of the Respondent. No exceptions have been filed on this issue. 82 N. L. R. B., No. 37. 296 THE CUFFMAN LUMBER COMPANY, INC. 297 1. We find, as did the Trial Examiner, that the Respondent engaged in independent violations of Section 8 (1) of the Act. In so finding, we rely solely upon the following conduct of the Respondent's presi- dent and supervisors, as set forth in detail in the Intermediate Report : interrogating employees about the Union and why the men wanted a union; requesting employees to report on union matters; promising benefits for information about the Union; suggesting that the em- ployees were better off "playing ball" with the Respondent than they would be by having a union; suggesting that an employee would not receive a raise because of his union activities; attempting, during a strike, to poll employees on the picket line as to whether they were for or against the Union, without prior consultation with the Union; threatening to close the plant if the employees did not abandon their strike; and promising an employee possible benefits if he abandoned the strike. 2. The Trial Examiner found that the Respondent discriminatorily discharged Charles Joe Null on August 12, 1946, in violation of Sec- tion 8 (1) and (3) of the Act. We do not agree. Although the circumstances set forth in the Intermediate Report give rise to a suspicion that Null may have been discharged because of his union activities, the record shows that at the time of the dis- charge there was a general reduction in force at the plant, as a result of which several other lumber sorters, besides Null, were given separa- tion notices. Some of these men were also union members. But the complaint does not allege, nor is there any evidence to show, that their discharges were discriminatory.5 Furthermore, although it appears that the Respondent was at that time advertising for skilled labor, including lumber stackers, and that Null had had some experience stacking, there is no evidence that he asked to be assigned to such work or that the Respondent considered him a satisfactory stacker. In all the circumstances, therefore, we believe that the evidence is insufficient to sustain a finding that his discharge was discriminatory. 3. We agree with the Trial Examiner's finding that the Respondent discriminatorily discharged William R. Tanner on August 27, 1946, and with his findings that the Respondent did not discriminate against Frank Cook, Loman A. Davis,6 and Claude Melton. We shall there- fore adopt his recommendations with respect to these four employees. , In the original charge, two of them were alleged to have been discriminatorily dis- charged, but their names were not included in the amended charge or complaint. We note, however, that contrary to the Trial Examiner's finding, Davis at one point in his testimony, denied that he had said that he was quitting his job. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Trial Examiner found, and we agree, that the Respondent, on and after August 3, 1946, refused to bargain collectively with the Union, in violation of Section 8 (1) and (5) of the Act. The Respondent in effect admits that it refused to bargain, but contends that it in good faith questioned the majority status of the Union, and that it was under no obligation to bargain without an election and certification by the Board. We find no merit in these contentions. As we have previously held, "an employer may in good faith insist on a Board election as proof of the union's majority," but it "unlawfully refuses to bargain if its insistence on such an election is motivated, not by any bona fade doubt as to the union's majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union."' On the record in this case, we find no convincing evidence to support the Respondent's de- fense that its refusal to bargain was justified by the good faith of its doubt of the Union's majority. After receiving the Union's letter of July 19, 1946, claiming a ma- jority and requesting recognition, the Respondent, by letter dated August 3, 1946, disavowed any knowledge of the organizational activi- ties of its employees, and also suggested that the Union's request for recognition might, in any event, be premature in view of the incom- pleteness of the plant at that time. Shortly thereafter, however, it orally agreed with the Union to hold a consent election at an unspeci- fied future date to test the Union's majority. From these facts, if they stood alone, we might infer, as does our dissenting colleague, that the Respondent had a good faith doubt of the Union's majority. But in August, before any agreement was reached on a date for the election, and in fact at the very time when the Respondent originally agreed to the Union's request for an election, the Respondent embarked on a course of serious unfair labor practices which would necessarily impair the Union's standing among the em- ployees and prevent the holding of a fair and free election. Moreover, the Respondent on September 6 refused the Union's suggestion that its majority be proved by a cross-check of the Union's membership and authorization cards against the Respondent's pay roll. In view of these circumstances, we do not regard the Respondent's expressed willingness to agree to an election as persuasive evidence of its good faith. On the contrary, we are convinced that its whole course of conduct, including its insistence on an election in an atmosphere which ' Matter of Artcraft Hoa,ery Company, 78 N. L. R. B. 333. THE CUFFMAN LUMBER COMPANY, INC. 299 it had already poisoned by unfair labor practices, was motivated by a desire to undermine the Union and avoid its statutory duty to bargain s The Respondent further contends that, aside from any question of whether it in good faith questioned the Union's majority, the Board is now required, under Section 9 (c) (1) of the amended Act, to conduct an election if it finds the existence of a question of representation. However, this section of the Act is applicable only prospectively and to representation cases, and does not retroactively limit or qualify the duty of an employer to bargain under Section 8 (5) of the Act. In the circumstances, therefore, we reject the Respondent's contention that it had no obligation to bargain without an election and certification by the Board. Furthermore, although the record shows that the Union has filed a petition for investigation and certifi- cation of representatives with the Board and then orally agreed to an election, we do not believe that it was thereby precluded from seeking relief in a complaint proceeding when it found that a free election was impossible because of the Respondent's unfair labor practices.° In any event, the Union withdrew its petition after learning of the Respondent's unfair labor practices; but the Respond- ent nevertheless continued to refuse to bargain. We therefore adopt the Trail Examiner's conclusion that the Re- spondent has violated Section 8 (5) of the Act, and shall order it to bargain collectively with the Union upon request, subject only to the condition set forth below. THE REMEDY The Trial Examiner recommended that the Respondent, upon re- quest, bargain collectively with the Union as the representative of the employees in the appropriate unit. It appears, however, that the Union, which is in compliance with Section 9 (f), (g), and (h) of the Act, has a local at the Respondent's plant, Local #2643, which is not presently in compliance. We have adopted the principle in representation proceedings that an international will not be certified if a non-complying local is in the picture.'° Because an order to , In so holding, we do not mean to imply that , under other circumstances , the existence of unfair labor practices on the part of an employer would necessarily indicate that he was acting in bad faith in insisting on an election as proof of the representative status of a union claiming bargaining rights. Determination of the employer's good or bad faith de- pends on the particular facts in each case. In this case, however, as distinguished from the Chamberlain Corporation and Roanoke Public Warehouse cases cited in the dissenting opinion, the nature and timing of the Respondent's unfair labor practices preclude a finding that it was acting in good faith in demanding an election. 9 See N. L. R. B. v. National Seal Corporation , 127 F. (2d) 776 ( C. A. 2), in which the Court of Appeals for the Second Circuit rejected an employer's contention that it was not obliged to bargain with a union during the pendency of certification proceedings, in view of the Board's finding that the employer had no real doubt of the union 's majority. 10 See Matter of Lane Wells Company, 79 N. L. R. B. 252. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain with a union is in many respects tantamount to a certification, we find this principle equally applicable here. We shall therefore condition our order to bargain upon compliance by Local #2643 with the filing requirements of the Act within 30 days from the date of our Order 11 The Trial Examiner also recommended that the Respondent make Tanner whole for any loss of pay suffered by reason of the discrimi- nation against him. The record shows, however, that although Tanner made some attempts to obtain other employment after his discharge, he did not register with the United States Employment Service until the latter part of February 1947. The record does not enable us to determine whether, or to what extent, he may have in- curred a wilful loss of earnings for which he is not entitled to re- imbursement. However, we shall not, at this time, require additional evidence as to such possible losses, as the parties may be able amicably to adjust the amount of back pay due upon the basis of facts disclosed when compliance with our Order is undertaken.12 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Cuffman Lumber Company, Inc., Malvern, Arkansas, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Brotherhood of Carpenters and Joiners of America, A. F. of L., as the exclusive rep- resentative of all the Respondent's production and maintenance em- ployees, including firemen, but excluding watchmen, office employees, clerical employees, and all supervisors as defined in the Act, if and when Local #2643, shall have complied, within 30 days from the date of this Order, with Section 9 (f), (g), and (h) of the Act; (b) Discouraging membership in United Brotherhood of Carpenters and Joiners of America, A. F. of L., 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 condi- tion of their employment; 11 See Matter of Marshall and Bruce Company, 75 N L R B. 90. 12 This is without prejudice to the Respondent 's right, in the event that this matter is not adjusted , to apply for leave to adduce additional evidence as to whether Tanner wilfully Incurred a loss of earnings subsequent to the Respondent's discrimination against him. Matter of Detroit Gasket and Manufacturing Company, 7 8 N. L. R. B. 670, and cases therein cited. THE CUFFMAN LUMBER COMPANY, INC. 301 (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Brotherhood of Car- penters and Joiners of America, A. F. of L., or any other labor organi- zation, 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, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed by Section 7 thereof. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, and upon compliance by Local #2643 with the filing requirements of the Act in the manner set forth above, bargain collectively with United Brotherhood of Carpenters and Joiners of America, A. F. of L., as the exclusive representative of all the Re- spondent's production and maintenance employees, including firemen, but excluding watchmen, office employees, clerical employees, and all supervisors as defined in the Act; (b) Make whole William R. Tanner for any loss of pay he may have 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 August 27,1946, the date of his discharge, to the date of his reinstatement to the position held by him before his discharge, less his net earnings, and less wilful losses, if any, during said period; (c) Post at its plant at Malvern, Arkansas, copies of the notice attached hereto, marked "Appendix A." 13 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, 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; (d) Notify the Regional Director for the Fifteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent discriminated is In the event that this Order is enforced by decree of a United States 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 COURT OF APPEALS ENFORCING." 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against Charles Joe Null, Frank Cook, Loman A. Davis, and Claude Melton. MEMBER MURDOCK, dissenting in part : I cannot agree with my colleagues that the Respondent on and after August 3, 1946, refused to bargain collectively with the Union in violation of Section 8 (1) and (5) of the Act. My disagreement stems from my doubt that the record warrants a conclusion which is indis- pensable to their ultimate finding. I refer to their conclusion that the Respondent's insistence on an election to establish the Union's majority was not motivated by a bona fide doubt of the Union's majority, but instead, by a desire to avoid a statutory duty to bargain. The record shows that on August 3, 1946, Respondent's president, Cuffman, replied to the Union's letter which asserted majority repre- sentation and requested recognition. Cuffman's reply said, "The situ- ation that you refer to as supposed to exist at our plant near Melvern is very much a surprise to me, as this is the first intimation I have had"; and "Evidently, no particular agitation has existed, else it would have come to my attention . . ." (Emphasis supplied.) At the end of the letter, Cuffman said, "None of our employees has said anything about unionizing the plant so far as I know." It seems to me that such statements, reasonably interpreted, expressed doubt that the Union actually represented a majority of the employees. In the remainder of the letter Cuffman further suggested to the Union that its request for recognition was premature because the plant was less than 50 percent completed, and some of the employees engaged in con- struction work might not remain on the job. Cuffman mailed a copy of the letter to our Regional Office. The problem of whether existing personnel in a partially completed plant are sufficiently representative of the ultimate job classification picture to warrant holding an im- mediate election, is a question to which the Board gives serious con- sideration in representation cases involving expanding units such as this. The next contact between Cuffman and the Union was on or about August 10, when Cuffman met with Mowery, a union representative, and Hoffman, a field examiner of the Board. Mowery told Cuffman that a "substantial majority" of his employees had signed union cards, and requested recognition and a contract. Cuffman asked whether he might see the union cards, but was refused permission to do 80.14 Hoffman then told Cuffman that he could either (1) recognize `14 The Trial Examiner generally credited Cuffman's testimony in regard to this August 10 conference in the face of Mowery 's lack of recollection about it. In his recital of the events of this conference, however, the Trial Examiner omitted reference to the request and refusal to see the union cards , and my majority colleagues likewise ignore this mate- rial fact . THE CUFFMAN LUMBER COMPANY, INC. 303 the Union, (2) agree to a consent election, or (3) have an election ordered. Mowery refused to accede to Cuffman's suggestion that they wait until full production was underway and construction employees eliminated. Mowery then asked Cuffman to agree to an election with- out waiting, and Cuffman acquiesced. On or about August 21, Examiner Hoffman and Finley, Respond- ent's plant superintendent, drew up a consent election agreement set- ting the election for September 25. On September 6, when Hoffman, Mowery, and Cuffman met, however, Mowery refused to have the election held on September 25 because the pallet plant had been shut down for economic reasons; 15 Mowery claimed that some employees were scattered and would be unable to vote. Cuffman, however, in- sisted that the election be held on the date provided in the consent agreement, and further refused to assent to Mowery's demand that five employees claimed to have been discriminatorily discharged be per- mitted to vote in any election held. Thereafter, on September 16, the Union filed the original charge herein alleging nine 8 (3)'s and a refusal to bargain, and on Sep- tember 17, withdrew the petition for certification which it had filed prior to July 30. On October 14, 21, and November 9, Cuffman and union representa- tives met with a conciliation commissioner, but reached no settle- ment of their differences and no further meetings were held after the latter date. Cuffman consistently refused to recognize the Union without an election.' On the foregoing facts (and not excluding the 8 (1) statements made contemporaneously by supervisory employees, and the single 8 (3) found), I cannot conclude that Cuffman's refusal to bargain with the Union until it established its majority by an election was not based upon good faith doubts as to its majority. This case is somewhat unusual in that we have the union representative refusing, at the August 10 conference with Cuffman and the Board's fixed examiner, to allow the Employer to see the cards which the union claimed established its majority. Certainly this incident would give rise to reasonable doubts in anyone's mind that the Union actually had the card majority which it claimed. Furthermore, in considering the Employer's good faith, we cannot overlook his willingness to agree to a consent election at the request of the Union, particularly when the Employer would have had reasonable basis to insist on litigating the v The plant actually reopened September 23. ,e On one occasion , the Union was willing to assent to an election only on condition that the alleged 8 (3)'s be reinstated and permitted to vote. On another occasion, Cuffman counterbalanced such a proposition by insisting that the charges be withdrawn before an election was held. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expanding unit question before the Board. The Board has previously recognized such willingness to agree to a consent election as an indiciuln: of good faith?' An employer bent only on avoiding collective bar- gaining would plainly have availed himself of the opportunity here to contest and prolong the representation proceeding. We cannot disregard the fact that an election would have been held here on September 25, 1946, but for the Union's refusal to accept the date agreed upon by the Board's field examiner and Respondent's plant superintendent. Assuming that the Union had a reasonable basis for refusing to go ahead with an election on that date: Does the in- ability of the parties to agree on what date an election shall be held, absolve the Union from its agreement to establish its majority by an election? I think not. I believe that the Employer's continued in- sistence upon an election before recognizing the Union was justified and cannot be said to have been in bad faith. 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 UNITED BROTHER- HOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. OF L., or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL MAKE whole William R. Tanner for any loss of pay suffered as a result of the discrimination against him. WE WILL BARGAIN collectively upon request with the above- named Union as the exclusive representative of all employees in u Roanoke Public Warehouse, 72 N. L. R B. 1281. In Chamberlain Corporation, 75 N. L. R. B. 1188, the Board found the employer 's insistence on an election instead of card proof, not to be in bad faith despite his unwillingness to agree to a consent election it should be noted that in both the Roanoke and Chamberlain cases, the employer was found guilty of other unfair labor practices , but the Board did not deem that fact to preclude the existence of good faith doubt of the union's majority. THE CUFFMAN LUMBER COMPANY, INC. 305 the bargaining unit described herein, provided Local #2643 of said Union complies within thirty (30) days from the date of the aforesaid Order of the Board with Section 9 (f), (g), and (h) of the National Labor Relations Act; and if an understand- ing is reached, we will embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees, including firemen, but excluding watchmen, office employees, clerical employees, and all supervisors as defined in the Act. 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 mem- bership in or activity on behalf of any such labor organization. THE CUFFMAN LUMBER COMPANY, INC., Employer. Dated-------------------- By------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date thereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. George H. O'Brien, for the Board. Mr. L. B. Burrow, of Little Rock, Ark., and Mr. Roy E. Danuser of Malvern, Ark., for the Respondent. Mr. C. W. Mowery, and Mr. Charles F. Mendenhall, of Little Rock, Ark., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed April 29, 1947 by United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued its complaint dated April 30, 1947, against The Cuffman Lumber Company, Inc., herein called the Respondent, alleging that the Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7 ) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint together with 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 (1) from and after July 1, 1946, to the date of the complaint, by its officers, agents and representatives, namely, J. C. Cuffman, president, W. E. Finley, general superintendent, and Thomas Ainsworth, Robert Mackey .and V. T. Aker, foremen, engaged in certain acts of interference, restraint, and 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercion; ' (2) did discharge five named employees because of their Union and concerted activities ;2 (3) by such acts caused and provoked an unfair labor practice strike on or about November 12, 1946; (4) did on or about November 15, 1946 discharge and since that date has refused to reinstate those of its employees who struck on November 12, 1946; (5) did on or about August 3, 1946 and at all times thereafter, fail and refuse to bargain collectively with the Union although the Union was the duly designated representative of its employees within a stated appropriate unit; and (6) by the acts described above, the Respondent interfered with, restrained and coerced its employees in the rights guaranteed in Section 7 of the Act. On or about May 19, 1947, the Respondent filed its answer denying that it had engaged in the alleged unfair labor practices.' Pursuant to due notice, a hearing was held at Malvern, Arkansas, on June 2, 3, 4, and 5, 1947, before Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the Respondent were represented by counsel and the Union by two international officers. All parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing upon the issues was afforded all parties. During the hearing, counsel for the Respondent moved to strike all union authorization cards received in evidence. The examiner denied the mo- tion with privilege to renew at the close of the hearing. The Respondent's counsel renewed such motion at the close of the hearing, the undersigned re- served ruling thereon, and now rules that the motion be denied as to all au- thorization cards except those expressly excluded by the undersigned and set forth in Section III C below. At the close of the hearing counsel for the Board moved without objection that the complaint be amended in formal matters to conform to the proof. The motion was granted. The parties were afforded an opportunity to argue orally before, and file pro- posed findings, conclusions, and briefs, with the undersigned. Oral argument was waived by the parties and no briefs or findings and conclusions have been filed with the undersigned. On the entire record in the case, 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 Respondent is an Arkansas corporation with its principal office and place of business located at Malvern, Arkansas, where it is engaged in the manufacture, production, sale and distribution of lumber and lumber products, including pallets, 1 Such acts stated generally, that the Respondent interrogated its employees regarding their union membership, affiliation and activity ; offered monetary and other inducements to employees to report to Respondent on the activities of their fellow workmen ; promised future benefits to its employees in the event they did not designate the Union as bargain- ing representative; threatened to deny future benefits to the employees if they should designate the Union as their bargaining representative; advised employees against joining the Union ; threatened to close and dismantle the mill ; notified its employees that it would never sign a contract with the Union ; attempted to persuade individual employees to denounce the Union ; attempted to persuade individual strikers to return to work ; and compelled its employees to listen to arguments against the Union. 2 Employees allegedly discharged and the date of their discharge are as follows : Charles J. Null, August 12, 1946; Frank Cook, August 14, 1946; Lowman A. Davis, August 23, 1946 ; Claude H. Melton, August 23, 1946 ; and W. R. Tanner, August 27, 1946. 3 Respondent amended its answer during the hearing to admit certain allegations of the complaint not pertaining to the alleged unfair labor practices. THE CUFFMAN LUMBER COMPANY, INC. 307 crates and boxes. Respondent normally uses raw materials consisting of lumber, nails, etc., valued in excess of $100,000 annually, all of which are locally pur- chased. Respondent's sales are in excess of $200,000 annually, 80 percent of the products are shipped in interstate commerce.' II. THE ORGANIZATION INVOLVED United Brotherhood 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. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint , and coercion The Union began organizational activities on or shortly before July 1, 1946:° By July 19, some 48 to 50 employees then employed in the unit hereinafter found to be appropriate had signed union authorization cards. The Union held its first meeting on or about July 11, at which time temporary officers were elected as follows : President-Frank Cook,' rip-saw operator. Vice president-William R. Tanner, sawyer, Pallet plant. Recording secretary-Harold Phillips, lumber checker. Treasurer-William W. Collie, sawyer, Pallet plant. On or about August 8, Foreman Thomas Ainsworth discussed the Union with Harold W. Phillips, a lumber checker working under Ainsworth's supervision. Ainsworth asked Phillips what the latter knew about the Union "that we (the employees) were getting up". Phillips replied that he did not know much about it and said that Employee Charlie Lewter had told him something about it. To this statement Ainsworth said, "You can't pay much attention to him, he is half-cracked anyhow " Ainsworth then asked Phillips to "find out something about" the Union and report to him. About a day or two after the above conversation, Ainsworth asked Phillips if he had found out "anything about this union." Phillips replied in the negative. Ainsworth then asked when the Union was going to have an election. When Phillips said that he did not know, Ainsworth said, "You know they will have to have an election before they organize a union", and added, that he had been "in an organization of that kind one time and they just wasn't any good." Ains- worth again asked that Phillips find out what he could about the Union and report to Ainsworth, who said that he would help Phillips "to get a better rating" for himself. On another occasion Ainsworth asked Phillips who was organizing the Union. Phillips replied that he did not know. Ainsworth then said "they" thought it was Shorty [Frank] Cook and Joe 7 Null, and asked Phillips to "find out". ' The findings made in this section are based upon a stipulation of the parties , admissions in the Respondent's answer, and credited and undenied testimony. Unless otherwise indicated, all events referred to herein occurred in 1946. Cook resigned as president sometime between his election on July 11 and August 14. He was succeeded by Loman A. Davis. The alleged discriminatory discharges of Cook and Davis are discussed elsewhere herein. ' Charles J. Null, whose discriminatory discharge is discussed elsewhere herein, is fre- quently, in the record, referred to as "Joe" Null. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Phillips agreed that he would do so.' During August, Ainsworth also discussed the Union with George Cotton, a yard employee working under his supervision. Ainsworth asked Cotton how the latter "stood" on the Union. Cotton replied that he was "for it." Ainsworth then said, Well,-I want to keep you out on the yard. You are a good worker and I want to keep you out there. Ainsworth added, "We don't want this Union." Cotton replied, "I am for it, 100 percent for the Union", Ainsworth then said, "We are paying the top prices ;" to this Cotton replied that he was satisfied with the wages so far as they were concerned.' Loman A. Davis signed a union authorization card on July 11 and as indicated above, succeeded Cook as president of the Union some 2 or 3 weeks after July 11. Between the time he joined the Union and his election as president, Ainsworth, on an occasion when they met at the planner's shed, asked Davis how he was getting along with the Union. Davis replied, "All right, I guess." Ainsworth then stated that he didn't see what they needed with a union there, to which Davis replied that a union "when run right was a good thing for the men" and that one that wasn't run right "was the worse thing that ever was". Ainsworth then stated, Well, personally-I think we get more by playing ball with Mr. Cuffman than we would by having a union " On August 12, and prior to the hour he discharged Null, Ainsworth questioned Null concerning the Union election which Ainsworth said he had heard the Union was "going to have" at the plant. Ainsworth asked Null "which way do you think it will go?" Null replied that he did not know and that there might be a joint ballot with the AFL and CIO both on it. Ainsworth then said, "Well, I hear there is more than 50 percent out here signed up with the AFL." Null, replied, "There might be." " 9 These findings are based on the credited testimony of Phillips. Ainsworth testified that he did ask Phillips about the Union ; but stated that he did not " recall" asking Phillips if he had found out anything about the Union or that he had asked him when the Union election was going to be held ; he testified that he told Phillips that he had been `messed up" with a union ; and categorically denied that he had offered to obtain a better rate of pay for Phillips if the latter gave him information concerning the Union. Ains- worth was not questioned concerning his surmise that Cook and Null were organizing the Union. On the foregoing and the record , the undersigned believes and finds that Ains- worth made the statements attributed to him by Phillips substantially as set forth above. 9 These findings are based on Cotton' s credited testimony. Ainsworth denied no part of Cotton's testimony. His contention , however, was not directed to the statement, "We don't want this Union." The undersigned is convinced that he made the statements sub- stantially as attributed to him by Cotton. 11 These findings are based upon the credited testimony of Davis. Ainsworth, as a witness for the Respondent, testified that he might have asked Davis "if there was any- thing" to the Union, but that he " sure don't remember" having told Davis that he "thought it would come out better by playing ball with the boss, Mr. Cuffman." Since Ainsworth admitted that upon two occasions, at least, he had questioned employees concerning the Union, and since his questioning and statements to the several employees as found above were apparently for the purpose of learning the Union' s progress and to discourage its suc- cessful formation, the undersigned does not credit Ainsworth's alleged lack of memory in connection with his statement to Davis that more was to be gained by "playing ball with" Cuffman than by having a union. 11 These findings are based upon Null's credited and uncontradicted testimony. On direct examination Ainsworth testified : Q Mr. Joe Null testified in this case he talked to you on one occasion the after- noon he was let out and you asked him how he was going to vote on the strike vote. Do you remember asking Mr . Null that? THE CUFFMAN LUMBER COMPANY, INC. 309 As is found in greater detail below in connection with Tanner's discriminatory discharge, Foreman Mackey walked through a group of nailers who were signing union authorization cards during a temporary shut down of the Pallet plant. Shortly thereafter, Mackey called to employee Marvin A. Ryan, and said, Come here a minute, Marvin. I think it (the congregation of nailers) is something about the Union. . . . If you find out anything let me know. Ryan replied, "0. K." u On August 10, as is found in more detail below in connection with the alleged discriminatory discharge of Claude Melton, Cuffman called Melton to the former's car and said he wanted to discuss the Union with him, as he had heard the men were organizing the Union. When Melton informed Cuffman that such was the fact, the latter asked why the men wanted a union ; and stated that there were lots of fellows like the plant employees "making people like John L. Lewis rich by payment of dues." Employee Henry Cate worked as a laborer and at times as a sawyer under the supervision of Foreman Aker. Prior to the calling of the strike referred to below, Cate asked Aker for a raise. In this connection Cate testified : Q. Do you remember asking Mr. Aker for a raise? A. Yes, sir. Q. What did Mr. Aker say to you? A. Well, he told me on account of the Union he was afraid that Mr. Cuff- man wouldn't want to give me a raise then until he seen what the Union was going to do. Q. Did he say anything about the Union to you? A. Yes, sir; he said he heard there was going to be a strike. He said, "Now, whatever I might say, don't think I am talking against the Union." He said "You might belong and you may go to their meetings," and said, "I don't know." And I told him I could answer both questions at once : "I do". Well, he said, he didn't think there would be any use to mention about a raise on that account'a On an occasion during June, Claude Melton, in company with employee Her- schel Rood, informed Superintendent Finley that the Carpenter's scale had been increased from $1 to $1.25. Finley stated that the Respondent would not pay Footnote 11-Continued A. No, sir. The record discloses no testimony given by Null with reference to a "Strike" vote. Inso- far as it appears from the record there was no talk of either a strike or a strike vote until some 3 or 4 weeks after Null's discharge, and that Null's discharge was at least one of the reasons which occasioned the strike of November 12. u This finding is based on the credited and uncontradicted testimony of Ryan. Mackey was not called as a witness. The record does not indicate that Mackey was unavailable. At the close of Respondent's case counsel for the Respondent and the Board made state- ments as follows : Mr. BURROw. This is our case. Mr. O'BRiEN. You are not calling Mr. Mackey? Mr. BURROW. No. Everything he knows has been covered here. is Aker was called as a witness subsequent to Cate. He was not questioned concerning the statements above attributed to him by Cate and Cate's testimony is not otherwise denied . Cate impressed the undersigned as a credible witness who sought to be truthful and fair in all of his testimony. The undersigned finds that Aker made the statements attributed to him substantially as testified by Cate as above set forth. 838914-50-vol. 82-21 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such an increased scale on the rough carpenter's work around the mill. Melton then said: The boys is (sic) getting up a union. It looks like we will either have to join it or go in with the Carpenter's Union and if we go in with the Car- penter's Union we will have to get $125 before it will allow us to work. Finley replied, "I can tell us one thing. This will never be a union shop." 14 Conclusions as to interference , restraint , and coercion Cuffman contends in effect that he did not learn of any union activity at the plant until after he received the Union's letter of July 19, which stated the Union's claim of majority and a request that Cuffman set a date for the purpose of discussing recognition of the Union ; that thereafter he called the superin- tendent and the foremen together and told them that, Apparently there was a move on foot to organize the plant and I wanted to admonish them to be careful about what they said. It was our information under our constitution they were guaranteed the right of free speech, and that the men had a right to join the Union or not as they saw fit, and I asked them not to discourage them or encourage them in any respect " The undersigned finds it unnecessary to determine whether or not Cuffman in- structed the superintendent and foremen to refrain from discussing the Union with the employees, since it appears that if such instructions were given they were not followed. Since there is no credible evidence to indicate that the employees were ever informed that Cuffman had issued instructions to the superintendent or fore- men to refrain from interfering with, restraining or coercing the employees in their efforts for union organization , and since the employees were not, prior to on or about November 1, informed that they might join or refuse to join the Union without fear of reprisals on the Respondent's part, the Respondent 14 These findings are based upon Melton's credited and uncontradicted testimony. In this connection Finley testified : Q Did you ever make a statement to Mr. Claude Melton at any time to the effect that the Cuffman Lumber Company would never be a union shop , or be operated as a union shop? A. I believe oa one occasion when the question of wages was brought up, he (Melton ) stated there would be a union shop there, and I made a statement , or merely stated that I doubted that seriously because I had heard Mr. Cuffman expressing himself as being opposed to the union shop. 16 Foreman Aker's version of these instructions varies from that of Cuffman. Aker testified : Q. Do you recall Mr. Cuffman saying anything to you about how you should behave about discussing the Union out there at any time? A. Yes, sir. He called Mr Mackey, Mr. Ainsworth , myself, and Mr. Elmore, I believe ,N as the fourth one and Mr. Finley in the office . He had been out the day before and said that he would be back that afternoon about 4 o'clock and told us he received a letter from some official-I don't remember who it was-about organizing the plant, and that they were going to organize the plant, or something to that effect and he would prefer that we did not mention it in the mill . In other words, if any discussion came up, to let them start talking first. Q. Did he say anything to you about discouraging the men from joining the Union? A. No, sir, he did not say anything about that. Q. You don't remember that? A No, sir, he did not say it. He told us not to say anything about it, and let them mention it to us first. (Emphasis added.) THE CUFFMAN LUMBER COMPANY, INC. 311 is chargeable with the anti-union statements and conduct of its superintendent and foremen. From the foregoing and the record the undersigned concludes and finds, that by Ainsworth's anti-union statements to Phillips ; by his request that Phillips find out what he could about the Union and report the same to Ainsworth ; by Ainsworth's promise "to get a little better rating" for Phillips in return for in- formation concerning the Union's activities; by Ainsworth's questioning Cotton as to how "he" stood on the Union and informing Cotton that "We don't want this Union"; by Ainsworth stating to Davis, "Well, personally, I think we get more by playing ball with Mr. Cuffman than we would by having a union" ; by Ainsworth's questioning Null as to how the latter thought an anticipated Union election would go ; by Mackey's request to Ryan that if the latter fcund out anything about the Union he should let Mackey "know"; by Cuffman's asking Melton why the men wanted a union, and stating that,there were lots of em- ployees like the Respondent's employees, "making people like John L. Lewis rich" by payment of dues; by Aker's statement to Cate to the effect that he could not receive a raise because he belonged to the Union and attended their meetings ; by Finley's statement to Melton that "this will never be a union shop;" and by the totality of such conduct and such statements all as above set forth the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discriminatory discharges (1) Charles Joe1° Null Null was hired by the Respondent on March 11, 1946. He was first assigned to work as a laborer under the supervision of Vencil Aker, foreman of the planer mill. Null next worked as a lumber sorter under the supervision of Thomas Ainsworth, the yard foreman. Prior to July 1, he was made a "leader" with an advance of pay to 65 cents an hour and put in charge of a group of sorters. Null joined the Union on July 11 and succeeded in signing some 15 other em- ployees to union authorization cards. At the Union's first meeting, Null was elected to the temporary office of financial secretary. On August 12, Ainsworth said to Null, Charlie, I hear you going to have an election out here. Which way do you think it will go? Null replied, "I don't know-That may be joint ballot. Maybe a joint ballot with the AFL and CIO both on it." Ainsworth then stated, "Well, I hear there is more than 50 percent out here signed up with the AFL" Null then replied, "There might be." About 4 o'clock on that day, Ainsworth handed Null a discharge slip which gave the reason for his discharge as "Reducing Force To Minimum Permanent Force." As Ainsworth handed the slip to Null, he said, Well, boy, I hate to do this, but,-It's orders.- Maybe at some future day we can take some of you back On or about November 1, Null went to the plant and talked to both Aker and Ainsworth and asked for reinstatement. Both foremen told him that they had enough men. 36 Null is frequently in the record referred to as "Joe" Null. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In December and during the strike hereinafter referred to, Cecil L . Null, a brother of Joe Null , sought employment at the plant. He talked with Superin- tendent Finley, who was later joined by Foreman Aker. He was told in sub- stance that since he was a brother of Joe Null he would have to see Cuffman, personally before he could be employed. Cecil Null then saw Cuffman, who said, "I understand you want to talk to me?" To this Cecil Null replied, "Yes,-they told me I would have to see you first, being that I was a brother of one of the fellows that was dealing with the Union." Cuffman replied, "Well, that doesn't matter you can go on [in ] and go to work." During this conversa- tion between Cecil Null and Cuffman, the latter referring to Joe Null said that "Joe was a good man what time he was" at the plant and had been given some men to work and had his wages raised. Cuffman added that Joe Null "was all right until the Union business come up and-he got to talking union out on the job during the work-." 17 Contentions ; issues ; conclusions Respondent contends in substance and effect that Null's discharge on August 12 grew out of reasons as follows: (1) that the Respondent became overstocked with gum lumber which later became infested with bugs, making it necessary to sub- stantially reduce its purchases of gum and other lumber, and close the Pallet plant in order to devote all mill facilities to the preparation of the gum lumber for shipment and sale; (2) that since it was processing only gum lumber , "it had to take Joe [Null] off because they wasn't going to have to have him on the job to send in any more lumber--"; and (3) that since Null's job as a sorter was discontinued or had been absorbed, in part, by contract stackers, it had no work for him, and his discharge was therefore justified. As to the first contention, the record indicates that gum lumber did in fact become bug infested, to some extent, at least, and that the Pallet plant was in fact closed down from August 27 to September 25. Cuffman , however, testified that at the time Finley and the Board's Field Examiner, Hoffman, drafted a tentative form of election agreement on August 21 (more particularly referred to below), that he (Cullman) had no idea that Pallet plant "would be shut down at all." Thus it would appear ,that at the date of Null's discharge on August 12, the gum lumber could not have reached a state of infestation sufficient to have caused alarm or to require a reduction in purchases of gum or other lumber or necessitate the closing down of the Pallet plant . This contention is without merit. As to the second contention, it is clear from the record that the Respondent did not begin processing gum lumber only , until on or after August 27 or approxi- mately 2 weeks after Null's discharge and it is reasonable to assume that the work of sorting he formerly performed was continued by some other employee. This contention is without merit. As to the third contention, wherein Respondent contends it had no work for Null, the record discloses that prior to the advent of the Union , Null was rated as a "good man" who "had been given some men to work and had his wages raised." IT These findings with reference to Cecil Null's employment and his conversation with Cuffman are based on Cecil Null 's credited and uncontradicted testimony. While Cuffman appeared as a witness subsequent to Cecil Null, he was not questioned concerning Cecil Null's testimony. THE CUFFMAN LUMBER COMPANY, INC. 313 The record further discloses that on or about August 12, the Respondent ran an ad in the Malvern Daily Record, which reads as follows : SKILLED LABOR WANTED We Need Experienced Men In The Following Jobs .. . APPLY ONLY AT OUR PLANT NEAR ROCKPORT LUMBER STACKERS SAW OPERATORS Rip and. Cut-Off PALLET NAILERS OPERATOR FOR BERRLING NO.91 MATCHER Only Experienced, Capable Men Need Apply CUFFMAN LUMBER COMPANY It is undisputed that Null could have qualified for one of the lumber stacker jobs described in the foregoing ad. Thus it is clear that the Respondent had work for Null for which he was qualified at the time it discharged him. This contention is without merit. Conclusions From the foregoing and the record it appearp and the undersigned finds that prior to his joining the Union and engaging in union activities, Null was con- sidered a satisfactory employee by the Respondent, a fact evidenced by his pro- motion to a position of leader with an advance in pay ; that the Respondent was opposed to the Union organizing its plant ; that it learned of Null's mem- bership and activity in the Union, a fact evidenced in part, by Ainsworth's dis- cussion with Null concerning a rumored union election and by Cuffman's state- ment to Cecil Null that Joe Null "was all right until the Union business come up-"; that notwithstanding it had work for which Null was qualified, the Respondent discharged him on August 12 under the pretext that it had no work available for him. The undersigned accordingly finds that Null was discharged by the Respond- ent on August 12, 19411, because of his membership in and activities on behalf of the Union, that the Respondent thereby discriminated in the hire and tenure of his employment and discouraged membership in the Union, and by such action interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. (2) William R. Tanner Tanner was employed in January 1946. He worked as a sawyer in the Pallet plant under the supervision of Robert Mackey.18 In addition to Tanner the Respondent employed three other sawyers in the Pallet plant, namely, William Collie, hired in February 1946, Lee Floyd, hired on May 6, 1946, and Clem Dicks, who worked as a part time sawyer. Tanner operated the largest of the four saws, and as indicated above, had seniority over the three other sawyers. Tanner signed a Union authorization card on July 12 and was subsequently elected vice president of the Union. He became active in soliciting other em- 18 Mackey is sometimes referred to in the record as "Bob" or "Uncle Bob". 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees to join the Union. On or about August 9 a temporary break-down hi the Pallet plant caused Mackey to lay the Pallet crew off at noon. During such noon hour Tanner got a group of the nailers, (employed as part of the Pallet plant crew), interested in signing union authorization cards.19 While different nailers were on their knees signing such cards, Mackey walked through the group. After noting that the nailers were assembled and engaged as above described, Mackey asked Employee Marvin A. Ryan what they were doing. Ryan replied that he did not know. Mackey then went to his office, returned shortly and called Ryan and said "I think it is something about the Union.-If you find out anything let me know." Ryan replied, "O.K." Prior to the time that Tanner joined the Union and succeeded in having the nailers sign union cards, Mackey had complimented him on his work and on occasions when it was necessary for Mackey to be absent from the plant for a time, Mackey would leave Tanner in charge of the employees. Following the signing of the nailers to union cards, Tanner was not again left in charge of the crew .20 On August 27, Mackey laid Tanner off with the following statement: Bill, the Pallet plant is shutting down, it might be 1 week, it might be 2 weeks, or it might be indefinitely.R1 The record discloses that all Pallet plant employees were laid off at this time. At the time of his lay off Tanner was operating the "Big Saw," Collie and Floyd were operating trim saws: The record does not disclose, which, if any, saw was being operated by Dicks, the part time sawyer. On or about September 17, or some 3 weeks after Tanner was laid off, Yard Foreman Ainsworth called on Tanner at the latter 's home,22 and asked him why he did not go down to the plant and go to work in the yard. When Tanner asked, "Do you suppose I can?" Ainsworth replied in the affirmative. Tanner stated he would report for work the next morning. After talking with Ainsworth, as above related, Tanner met Claude Melton 23 and informed him of Ainsworth's statement that Tanner could have work in the yard. Melton in company with Tanner then called on Ainsworth that night and discussed the possibilities that Melton might also get a yard job. Ains- worth indicated that he had work for Melton and told him to report the next day along with Tanner. Tanner and Melton reported the following morning pursuant to Ainsworth's instruction.' Instead of assigning them to work however, Ainsworth informed them that Superintendent Finley wanted to see them. The two called on Finley, who, after referring to himself as the "sorriest man in town", informed them that he had no work for them but told them to report again on the following day. 39 The record discloses that nine nailers signed union authorization cards on this date. 2° From the events of August 9, related above, and from Mackey 's subsequent treatment of Tanner and upon the record as a whole the undersigned concludes and finds that the Respondent became aware of and knew of Tanner's Union activities on and after August 9, 1946. The Respondent's officials and supervisors did not contend otherwise. 21 The record discloses that the Pallet plant was shut down from August 27 to on or about September 23 or 25 22 Tanner lived within a very short distance of the Respondent's plant. 23 Melton's alleged discriminatory discharge is discussed below. THE CUFFMAN LUMBER COMPANY, INC. 315 Tanner and Melton returned to the plant on the following day and again contacted Finley, who said, "I guess you are after some of that 65 cents stuff"." Finley then informed Tanner and Melton that he had no work for them 25 Some 30 days after his lay off, and after the Pallet plant had resumed operations, to the extent, at least, that sawing had been resumed, Tanner went to the plant and talked to Mackey concerning his return to work. Mackey informed Tanner that it would be necessary for him to see Cuffman who was out of town and advised Tanner to return on the following Tuesday. Tanner, however, went on into the plant and found that Collie, although he was junior to Tanner as an employee, operating the saw formerly operated by Tanner. Tanner immediately contacted Mackey and said he would be out to work the next morning. Mackey said that since Cuffman was not back there would be no need for Tanner to report for work the next day. Tanner then said, "Uncle Bob, you don't aim to hire me?" Mackey replied, "No, I don't Bill." Mackey then gave Tanner his release slip which gave the reason for his lay off or discharge as "Pallet plant shutting down." As found in detail below, the Union called a strike on November 12. The Union subsequently lost the strike and under date of February 14, 1947, called it off. On March 17, 1947, Tanner in company with Loman A. Davis ' went to the plant and applied to Cuffman for reinstatement. Cuffman stated in sub- stance, that the Union had sent Tanner and Davis to the plant to ask for reinstatement; and that the Union dropped all the unfair labor practice charges, "with the exception of Joe Null." In response to the foregoing statement, Tanner said, "It looks to me like a man gets whipped, there is no use of pouting about it. I am ready to go to work and get along with you now -." Cuffman then sent 'Canner and Davis to Superintendent Jones'21 who hired Tanner but told Davis there was no work for him. Tanner was put to work stacking lumber at 65 cents an hour " Tanner worked as a lumber stacker for some 3 or 4 weeks, after which Jones sent for him and said, I am going to put bon back in (as a sawyer) and start you at 75 cents.-You have been loyal. You work 30 days for 75 cents and if you are still loyal I will give you the old price back. Tanner was then put to operating a new high speed saw. His rate at the time of the hearing was 80 cents an hour or the same rate he was receiving at the time of his lay-off or discharge. 24 The sawyers rate of pay was 80 cents per hour and the yard rate was 65 cents an hour. It is undisputed that Lee Floyd, a sawyer, hired May 6 and with less seniority than Tanner, who was laid off with Tanner and other sawyers was put to work in the yard about 2 weeks after the August 27 lay off and was paid at the sawyers rate of 80 cents per hour instead of the normal yard rate of 65 cents per hour. 26 In this connection Finley testified : Q. They (Tanner and Melton) said they were there at Mr. Ainsworth's invitation didn't they? A. Yes. Q. And Mr. Ainsworth was in charge of the yard? A. Yes, sir. Q You were then saying that Mr. Ainsworth thought he needed help and you differed with them? A. Yes, I had that authority. =' Davis' alleged discriminatory discharge is discussed below. 21 Jones succeeded Finley as superintendent following the strike. 21 As has been noted above, when Sawyer Floyd was recalled to work some 2 weeks after the Pallet plant shut down and was put to work as a yard man he continued to draw the sawyers rate of 80 cents an hour. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contentions ; issues ; conclusions The Respondent contends in substance and effect that since it became necessary to shut down the Pallet plant all Pallet plant employees had to be laid off, that at the time of such shut down, Mackey was authorized and instructed to offer all employees laid off, including Tanner, work in the yard or elsewhere in the plant ; that such employees had the choice of either accepting yard work or laying off while the Pallet plant was shut down ; that Tanner refused Mackey's offer of such yard work and indicated that he was going to "sell out" and move to California ; and had thereby, in effect, lost his status as an employee of the Respondent. In considering the foregoing contentions it is necessary to determine whether or not Mackey offered Tanner yard work at the time of the latter's lay off ; whether Finley overruled Ainsworth's attempt to hire Tanner in the yard on or about September 17, and whether Mackey's refusal to reinstate Tanner to his regular sawyer job after the reopening of the Pallet plant was occasioned by Tanner's alleged loss of status as an employee. In connection with these contentions Finley testified in substance and effect, that he "allocated" authority to, and directed Mackey to offer the laid off Pallet employees "every one of them" who wanted to work on the upper part of the yard; that Mackey informed him that he (Mackey) had advised every laid off man "that he could have a job some place else in the mill" ; and that the laid off employees were informed that they had a choice of taking a yard job, or laying off during the shut down of the Pallet plant. In this same connection Cuffman testified that he gave Mackey instructions "to offer all employees of the Pallet plant employment elsewhere in the mill during the time the Pallet plant was shut down" ; that Mackey reported to him that Tanner refused to accept yard work, "and was going to sell out in Malvern and move to California;" that some 2 days later when he (Cuffman) met Tanner, he asked him if he was going to leave (for California), Tanner replied, "Yes, sir, I guess so. I am selling my home and moving to California" ; and that when Cuffman asked Tanner, "You don't want to work elsewhere in the plant?1 Tanner answered in the negative. Tanner on the other hand testified, that at the time of his lay off Mackey told him that the shut down may be for 1 week, it might be for 2 weeks, or it might be indefinitely; and that Mackey did not offer him work in the yard or elsewhere in the plant during the shut down. As found hereinbefore, the undisputed testimony discloses that Yard Foreman Ainsworth went to Tanner's home about 3 weeks after the Pallet plant shut down and informed the latter that Ainsworth had work for him in the yard and advised him to report for work on the following day ; that notwithstanding Ainsworth believed he had work for Tanner, Finley, after requiring Tanner to make a second trip to the plant in his effort to obtain yard work pending the reopening of the Pallet plant, overruled Ainsworth and refused to permit Tanner to go to work in the yard. "'Tanner was not recalled as a witness following Cuffman's testimony above, and this statement of Cuffman's is not expressly denied in the record Assuming that Tanner had indicated an intention to move to California, as contended by Cuffman, the fact that he attempted to take the yard job offered by Ainsworth (who was overruled by Finley) and his application for reinstatement made to Mackey upon resumption of the Pallet plant was notice to the Respondent that he had abandoned the idea of moving West, if , in fact he ever had such an idea. THE CUFFMAN LUMBER COMPANY, INC. 317 The undersigned credits Tanner's testimony and finds that he was not offered temporary work during the shut down either in the yard or elsewhere in the plant by Mackey" or by any other representative of the Respondent except Ainsworth whose efforts to hire him were overruled by Finley." It is undisputed that Finley overruled Ainsworth when the latter sought to hire Tanner on the yard crew. It is further undisputed that after Tanner's saw was in operation and he sought reinstatement from Mackey he was advised, first, that he would have to see Cuffman who was out of town before he could be employed, and second, that Mackey had no intentions of hiring him. The Respondent offered no explanation as to why Tanner was not reinstated upon resumption of the Pallet plant except Cuffman's contention that Mackey had offered him work which he refused, and that Tanner allegedly stated that he was going to move to California. The fact that Mackey insisted that Tanner had to consult Cuffman before he could be hired indicates that Mackey must have had express instructions not to reinstate Tanner notwithstanding the fact that Tanner had tried to go to work on or about September 15 at the invitation of Ainsworth at which time he was told there was no work available for him but not told that he had lost his status as an employee. The undersigned is convinced from the statement made to Tanner at the time of his lay off ; from the fact that Finley overruled Ainsworth when he attempted to put Tanner to work in the yard ; from Mackey's statement to the effect that he could not reinstate Tanner at the time he applied for reinstate- ment upon resumption of the Pallet plant without Cuffman's consent ; that the Respondent had, at the time of Tanner's lay off on August 27 predetermined that Tanner would not be given temporary work or be recalled when the Pallet plant resumed operations, all for the reason that it resented that Tanner had joined the Union and had engaged in union and concerted activities. The foregoing conclusions are fortified by the manner in which Tanner was treated after his reemployment following the strike. To start with he had to acknowledge that he was "whipped" before he was taken back ; he was put to stacking lumber at 65 cents per hour, whereas Floyd, a sawyer with less senior- ity was recalled within 2 weeks after the lay off and put to work in the yard at his sawyer's rate of 80 cents per hour ; and finally, even when Tanner was returned to his original job as a sawyer, Superintendent Jones (who had not been hired until after the strike), informed him that he would put him back on the saw at the rate of 75 cents per hour with a statement : "You have been loyal. You work 30 days for 75 cents and if you are still loyal I will give you the old price back." All of which indicates that the Respondent considered that Tanner had been disloyal by joining the Union and engaging in union activities and so advised its new superintendent, Jones. Finally, it was only after Tanner had admitted that he was "whipped"; had worked for less pay as a sawyer than the going rate in order to prove that he was "loyal"; that he was granted his former rate of 80 cents per hour by the Respondent. 80 Mackey was not called as a witness, notwithstanding the record indicates that he was available. While the record indicates that some Pallet plant employees were given employment during the shut down, no employee testified to the effect that Mackey had made the statement that all of them could have work elsewhere in the plant during the shut down. 11 The undersigned finds it unnecessary to determine whether or not Mackey was, in fact , insti ucted to offer Tanner, as one of the Pallet plant employees , work in the yard or elsewhere in the plant , since the undersigned is convinced that no such offer was made to Tanner 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The foregoing and the record clearly discloses, and the undersigned finds that Tanner was laid off on August 27 with the predetermination that he would not thereafter be reinstated and was not reemployed until on or about March 17, 1947, at which time he was not reinstated to his former or substantially equiva- lent position until he had worked a sufficient time, at a lower rate of pay than he normally received, to prove that he was "loyal." The manner and events covering Tanner's reinstatement disclose in addition to other facts found above, that the Respondent resented his having joined the Union and discharged him as of August 27, 1946, because of his membership in and activities on behalf of the Union ; that the Respondent thereby discriminated in regard to the hire and tenure of his employment; discouraged membership in the Union and did thereby interfere with, restrain and coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that all production and maintenance employees, includ- ing firemen , but excluding watchmen, office employees, clerical employees, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action constitute an appropriate unit. During the hearing all parties stipulated that the above described unit was appropriate herein. The undersigned accordingly finds that the above described unit at all times material herein constituted and now constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. Representation by the Union of a majority in the appropriate unit During the hearing counsel for the Board offered in evidence some 89 appli- cations for membership or authorization cards purportedly signed by employees of the Respondent. As a result of an off-the-record conference, counsel for the Respondent indicated that it might be possible to compare signatures on the cards with signatures of its employees that were in the possession of the Respondent. The cards were delivered to Respondent's counsel for such pur- poses. The record discloses that the cards were in turn delivered to Gay Mor- rison, Sr.,2 who checked the signatures on the cards against signatures of employees appearing on Tax Exempt Certificates on file in the Respondent's office. Of the 89 signatures so checked, Morrison questioned the signatures on 31 cards. Of these 31 signatures so questioned, the authenticity of the signatures of 26 was successfully established by signees' testimony in some cases, and by the testimony of the employees who procured the signatures in the first instance. In addition to all of which, 19 of the 26 employees were shown to have been initiated into and paid dues to the Union's "Morrison is carried on the Respondent's pay roll as a "clerk " He testified that he had been employed by Cullman since 1942. Morrison on occasion joined Cuffman as a Respondent representative at meetings with Union representatives. 33 The record of initiation and payment of dues by those employees whose signatures were not questioned by Morrison were not put in evidence While the Respondent ultimately objected to the receipt of any of the cards in evidence, including those whose signatures were not questioned by Morrison, it offered no evidence to dispute thhe authenticity of any of the signatures not questioned by Morrison, notwithstanding it had possession of the cards for a time and had means in its records from which their lack of authenticity might have been shown if any existed. THE CUFFMAN LUMBER COMPANY, INC. 319 While the undersigned received all 89 cards in evidence, he has not considered the cards of those Union member employees who left their employment with the Respondent before August 3, 1946. Since as is found below, the Union made its first request for recognition by letter under date of July 19, and the Respondent refused to grant such recogni- tion by letter under date of August 3, the undersigned in arriving at the Union's majority as of August 3, 1946, has not counted the cards of those employees who joined the Union subsequent to August 3. In determining the number of employees in the appropriate unit, the under- signed has used the pay roll of August 3 and has eliminated those employees, both Union and non-union, who were separated from the pay roll prior to that date, together with those whom the record discloses were first employed on dates subsequent to August 3. The record discloses that as of August 3, there were 73 employees in the stip- ulated appropriate unit. The record further discloses that on August 3 the Union had 43 84 members employed in such unit. The undersigned accordingly finds that on August 3, 1946, and at all material times thereafter, the Union was, and now is, the duly designated representative of a majority of the employees in the aforesaid appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment within the meaning of Section 9 (a) of the Act. - 3. The refusal to bargain (a) Sequence of events Under date of July 19, C. W. Mowery, an organizer for the Union, wrote the Respondent's president, Carroll Cuffman, and informed him that a substantial majority of the Respondent's employees had either joined the Union or signed authorization cards, and requested the Respondent to set a date for the purpose of discussing recognition of the Union as bargaining agent for the Respondent's employees. Under date of August 3, Cuffman replied to Mowery's letter as follows : DF&R Six: Reply to yours of July 19th has been delayed because of my absence from my office. The situation that you refer to as supposed to exist at our plant near Malvern is very much a surprise to me, as this is the first intimation I have had. Evidently, no particular agitation has existed, else it would have come to my attention as I am almost daily at the plant, and all men have free access to me. It occurs to me that possibly you have not been informed of the fact that our plant is hardly fifty percent completed, and, consequently not within fifty percent of what will be the normal production when it is com- pleted. I did not know that you were interested in organizing a plant still in the construction stage. Because we are still doing a lot of preliminary work and construction, and because construction will not be completed for sometime to come, it is not possible now to fully classify all jobs nor the men employed in various capacities, for some men work part time on pro- duction and part time on construction just as the demands of the occasion "The record discloses that between August 3 and August 13, 13 additional employees joined the Union, 11 of whom were nailers and 2 were laborers. Thus it appears that by August 13, 56 of the 73 employees employed in the appropriate unit had signed union authorization cards. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may be. It may be, too, that when we finally come into full production a number of men who have been employed in construction will not care to continue on the job, or will not be qualified for production jobs. Produc- tion is rather uncertain and will be until the bottle-neck of uncompleted units is overcome. You know how difficult it is to get construction mate- rials, and also equipment for production. None of our employees has said anything about unionizing the plant so far as I know. A copy of this letter goes to the National Labor Relations Board in Memphis, since they possibly have some jurisdiction. We are not fully informed as to procedure, but assume that if further discussion is desired they will initiate it. Yours very truly, CUFFMAN LUMBER COMPANY, INO. J. C. CUFFMAN On or about August 10 Mowery, accompanied by Roy A. Hoffman, a Field Examiner for the Board, met with Cuffman at the latter's office in Malvern, Arkansas, at which time Mowery told Cuffman that a substantial number of his employees had signed union cards and requested Cullman to recognize the Union and negotiate a contract. During this conference, Field Examiner Hoff- man advised Cuffman that the latter could either, (1) recognize the Union, (2) agree to a consent election, or (3) be forced to have an election. Cuffman then informed Mowery that the plant was still under construction ; that it had reached not to exceed 35 to 45 percent of anticipated production; and suggested that Mowery wait until full production got under way and con- struction employees who would not fit into the "permanent operational pro- gram," had been eliminated, before the Respondent be required to recognize and negotiate with the Union. Mowery refused to adopt Cuffman's foregoing suggestion and asked, "Will you agree to an election?" Cuffman replied in the affirmative. Subsequently and on or about August 21 Field Examiner Hoffman and W. D. Finley, then Respondent's plant superintendent, worked out the tentative terms of a consent election agreement wherein September 25 was selected as the date for the election. On about August 27, the Respondent closed down its Pallet plant which normally employed from 35 to 38 employees. At this time Robert Mackey, fore- man, told William R. Tanner, saw operator, employed in the Pallet plant, "Bill, the Pallet plant is shutting down, it might be 1 week, it might be 2 weeks, or it might be indefinitely." The record discloses that the Pallet plant was shut down from August 27 to September 23. As is found elsewhere herein, the Respondent, during August, discharged Charles Joe Null, William R. Tanner, Frank Cook, Claude H. Melton, and Loman A. Davis. On or about September 6, Mowery, Hoffman and Cuffman had a further meet- ing, at which time Mowery stated that the Union could not agree to a consent election being held on September 25 because the Pallet plant had been shut down, and some of the 35 employees, a majority of whom, Mowery claimed were union members "would be scattered throughout a wide area" and therefore unable to vote. Cuffman insisted on the September 25 date for holding the election. Mowery then insisted, that in the event a consent election be held those employees whom the Union contended had been discriminatorily dis- THEE CUFFMAN LUMBER COMPANY, INC. 321 charged, would be permitted to vote. Cuffman refused to agree that any of the discharged employees could vote at such an election, and further refused to agree to a cross-check of the Union's membership and authorization cards against the Respondent's pay roll. Prior to September 17 the Union had filed a petition for certification of repre- sentatives with the Board's Regional Office. Under date of September 17 the Board's Regional Director informed Cuff- man that such petition had been withdrawn with the Regional Director's con- sent and without prejudice. On or before September 18, the Union filed charges alleging that the Respond- ent had engaged in unfair labor practices in violation of Section 8 (1), (3) and (5) of the Act. Under date of September 18, the Regional Director ad- vised the Respondent that such charges had been filed. On October 14;' and following the filing of unfair labor practice charges, the parties met with Wesley Wood, a Commissioner of the United States Conciliation Service. Mowery and C. W. Mendenhall, an international representative of the Union, represented the Union and Cuffman represented the Respondent. Recognition of the Union was the chief topic of discussion. Cuffman objected to any form of proof of the Union's majority other than by an election. The Union was agreeable to an election but insisted that the employees that it had considered to have been discriminatorily discharged be returned to their jobs," and be permitted to vote. Cuffman refused to agree to any reinstatement, either with or without back pay, contending that since the employees were discharged or laid off for good cause, "We wouldn't reinstate anyone." On October 21, the same group again met with Wood. In addition to Cuffman, two of Respondent's office force, appeared on its behalf. The discussion was an iteration of that had at the October 14 meeting, except that it appears that there was some discussion to the effect that only four of the discharged cases might have merit. Mendenhall suggested that said four men be reinstated with back pay and the matter could thus be disposed of. Cuffman denied discriminating against "any man", and insisted that the only thing he would agree to was an election. When Mendenhall suggested that the Union might forego back pay for the four men if Cuffman would reinstate them and recognize the Union, Cuffman refused to agree to these suggestions. Mendenhall then asked Cullman just what he would agree to do. Cuffman replied that he would reinstate one employee, namely, Loman A. Davis, as a laborer, but without back pay ; and added that he would not recognize the Union without an election in any event. On or about November 1, Cuffman instructed the foremen to have all employees assemble in the Pallet plant at quitting time on that day, as he had a few words to say to them. At the appointed time Cuffman read a speech to the assembled employees. In this speech Cuffman, in substance and effect, set forth his version as to what had transpired between him and the Union representatives ; he stated that he at all times "insisted on having an election so that you men could decide for yourselves whether you wanted to have a union or not to have one"; that the n The parties are not in accord as to this date. The undersigned is satisfied from all the evidence that the date is approximately correct and since the parties are in substantial accord as to the events of this and other meetings, the date has no particular significance. '^ At this time the Union contended that nine union member employees had been dis- criminatorily discharged. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union refused to agree to the election because it had filed charges alleging that the Respondent had discriminated against nine men ; that he requested that such charges be withdrawn and an election held ; that the Union requested reinstate- ment of the nine men with back pay and that he sign a union contract, which he declined to do ; and that the Union, on November 4, offered to withdraw a majority of the charges filed in September and forego back pay for any employee, if the Respondent would enter into a contract with the Union. Cuffman in his speech further stated : I do not feel that it would be fair for me to enter into any contract with any union without knowing what you men think about it. I feel that you as free men have the right to make up your minds. I have insisted upon and practically demanded an election be held because I feel that you men are able to decide for yourselves whether or not you want a union or do not want a union. If an election is held, you'll be free to vote as you please. You may vote for or against joining a union. No one will see your ballot or know how you vote. As in all elections, the majority should rule. Personally, I think you would be much better off without a union at this plant. Any of you may bring your problems to the management at any time; and I believe we can work together in closer harmony. We can work to- gether. I want to assure all of you right now that you do not have to belong to a union to work at this plant. Cuffman continued his speech with statements to the effect that he thought that management had been fair and above board all the time ; that the plant working conditions were better` than any plant in Arkansas; that while he felt more would be accomplished by dealing direct than indirectly with a union, the question was up to the employees, "you may join or not join, as you see fit." The speech concluded with statements to the effect that all parties would lose in case of a strike; that in the event of a strike efforts would be made to operate the plant; that industry and labor needed each other; that he felt perfectly right in insisting that the men have the right of voting for or against a union; and so long as he operated the plant the employees were assured of fair treatment, fair wages, and the best working conditions lie could afford, "and you will not have to belong to a union to work here." On November 9 the parties held a further meeting %N ith Conciliator Wood. The Union representatives offered to "waive" 3i the charges and hold an elec- tion. Cuffman insisted that the charges "be withdrawn entirely" before an elec- tion be held. Cuffman at all times insisted that he would not grant recognition to the Union unless it received a majority of votes at an election. Prior to the November 9 meeting, the Union had taken a strike vote, which carried in favor of calling a strike. The anticipated strike was discussed at this meeting. Also during the November 9 meeting, Cuffman proposed to Mendenhall that he would make the latter a "sporting proposition," and proposed that the parties go to the plant and in the presence of Wood ask the men to vote by a show of hands for or against the Union. Cuffman said he would abide by the majority and 37 Union witnesses testified that by waiving such charges they did not intend to be barred from pressing them in the future if they so desired. THE CUFFMAN LUMBER COMPANY, INC. 323 "come back and talk contract" 98 if the majority voted for the Union. Mendenhall refused to accept this proposal89 (b) The strike The employees went on strike on November 12. All but one of the employees who had been working at the plant when the strike began were on the picket line. At about 8: 30 a in. Cuffman approached the picket line and asked Harold W Phillips to get into his car so that he could drive down the road with Phillips. Phillips accompanied Cuffman some 100 yards as requested. Cuffman told Phillips to tell the men that they could go back and go to work "that day, right then," and could take a "vote as to whether they would have a union or not by raising their hands." If a majority voted by lifting their hands at that time he would "consent to a union organization" and would grant them a contract. Cuffman then left for Malvern. Phillips submitted Cuffman's proposition to the men. They "didn't agree to that at all." When Cuffman returned some 40 minutes later, Phillips reported the results to him. Cuffman then addressed the men on the picket line and stated in substance that he was going to close the plant and sell the machinery and ship it "off some place" unless they all went back to work right away. Cuffman further stated that the Union representatives were "trying to sell the Union group out there down the river", and that they had made him an offer that would not benefit the members of the Union.90 (Emphasis added.) During the strike Conciliator Wood made a number of efforts to get Cuffman to meet with the Union representatives On each occasion Cuffman expressed a willingness to meet, but stated in substance that he had not changed his mind and would not recede from his position that he would not recognize the Union unless and until it had been certified by the Board as the result of an election. On November 13, the Respondent published an ad in the Malvern Daily Record entitled "WILDCAT LABOR STRIKE" in which it set up its contentions con- cerning the issues which gave rise to the strike, and closed its ad, with a state- ment as follows : We are presently taking steps to close the plant; and, unless the men are permitted to return to work we will soon make arrangements to dismantle the plant entirely. as The record discloses without dispute that at or about this time Cuffman talked to Phillips in the former's office After assuring Phillips that there was no occasion to be "scared" about his job, Cuffman asked Phillips if the Union really had a majority of the employees signed up. Phillips replied in substance, that as recording secretary of the Union with access to the authorization cards, he knew that the Union had a majority of the employees signed up, and so informed Cuffman "This finding is based upon Cuffman's testimony when called as a Board witness. As a witness for the Respondent Cuffman, in testifying in this connection, referred to Mowery and made no mention of Mendenhall. The record indicates that both Mendenhall and Mowery were present at this meeting. 40 Cuffman did not specifically deny making the statements that the Union representatives were trying to sell the T nion group "down the river," or that he threatened to close the plant. His version of his picket line speech is as follows ; Any of the [ you] men that would like to operate the plant and any of you that want to come in and go to work may do so. I have endeavored to negotiate with Mr. Mendenhall and Mr. Mowery, but have reached no terms with them. If you want to come in to work , you can start back, and if you refuse to come back to work, obviously I will have to shut the plant down. (Emphasis added ) On the above and the record the undersigned is convinced and finds that Cuffman made the statements to the effect that he would close the plant and thus deprive the employees of their jobs unless they abandoned the strike and returned to work. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the strike Mackey called on employee Fletcher Goodman and told him, in substance, that Cuffman wanted to shut the plant down ; that Mackey had asked Cuffman to wait until Mackey talked to Goodman and four other employees in whom he (Mackey) had confidence, as he believed he could break the strike and get the men back to work ; that if Goodman abandoned the strike and went back to work, he (Mackey) "believed he could get" Goodman more money; and asked Goodman to talk to the "other boys," which Goodman agreed to do. Mackey also called on employee Lee Floyd some 2 or 3 weeks after the strike started and asked Floyd if he wanted to go back to work. When Floyd replied that he could not cross the picket line but that he would go back to work after the strike was cleared up, Mackey stated that he did not want to hire another man in Floyd's place until he had given him a chance to return to work." Contentions ; conclusions The Respondent contends in substance and effect, (1) that it was entitled as a matter of right, and in any event, to require certification of the Union as a condition precedent before it bargained with it; and (2) that it was likewise en- titled to have all charges of discrimination dismissed without prejudice before the holding of such an election, and inasmuch as the Union had not been certified by the Board the Respondent may not be found to have refused to bargain in violation of Section 8 (5) of the Act. As to the /first contention, the undersigned is convinced that Cuffman was sin- cere in his belief that he was entitled to require certification as a condition prece- dent to his bargaining with the Union. He refused to consent that a cross-check of the Union's authorization cards against the Respondent's pay roll be made by either the Board's Field Examiner or by Commissioner Wood of the U. S. Concili- ation Service." Cuffman testified : So far as I know there was no union existing at the'plant. None had been certified by the National Labor Relations Board. Cuffman's position in this regard is clearly untenable, since, The Act is clear in intent, and it has been too well established to require ex- tended discussion, that election and certification proceedings are not the only method of determining majority representation, and that an employer may not require certification as a condition precedent to bargaining where the employer entertains no real doubt as to the Union's majority, or where reasonable proof is available and the employer makes no effort to ascertain whether the Union has a majority" Cuffman at no time expressly stated that he entertained a doubt as to the Union's majority but insisted on his contention that such majority could only be shown through an election and certification proceedings. 41 These findings in connection with Mackey's statements to Goodman and Floyd are based upon their credited and uncontradicted testimony. Mackey was not called as a witness, notwithstanding the record indicates that he was available. The undersigned does not hold that an Employer may not, in good faith , insist upon an election and refuse to consent to a cross -check of a Union's authorization cards against the Employers ' pay roll, but does hold that where he insists upon an election and refuses to consent to such a cross-check and suggests no alternative and then engages in conduct designed to destroy the Union's majority his contention that he acted in good faith should be disregarded. "L. B. Hartz Stores, 71 N. L. R. B. 848 ; and see e. g. N. L. R. B. v. Remington Rand Inc., 94 F. (2d) 862 (C. C. A. 2) ; e. g. N. L. R. B. v. Federbush Co., 121 F. (2d) 954 (C. C. A. 2) ; N. L. R. B. v. Dahlstrom Metallic Door Co., 112 F. (2d) 756 (C. C. A. 2). THE CUFFMAN LUMBER COMPANY, INC. 325 Assuming, however, that such insistence on a certification be equivalent to a contention by the Respondent that its refusal to recognize or bargain with the Union until its status was established in an election was motivated by genuine doubt as to whether the Union had been designated by a majority of the employees in the appropriate unit, the undersigned must nonethftless reject the contention. The record discloses that following the designation of the Union as bargaining representative by a majority of the employees in an appropriate unit-a fact that was called to the Respondent's attention, the Respondent engaged in conduct which was violative of Section 8 (1) of the Act, as more particularly appears in Section III A above, wherein it is found that Foremen Ainsworth, Aker, Mackey, Superintendent Finley and Cuffman engaged in conduct which tended to destroy the Union's majority status. The record further discloses, as found in Section III B above, that the Respondent also engaged in conduct violative of Section 8 (3) of the Act by discriminating in regard to the hire and tenure of employment of Employees Null and Tanner which conduct was intended to discourage mem- bership in the Union and to destroy the Union's majority. The Board and the Courts have frequently held that an employer cannot be heard to say that he entertains an honest doubt as to a union's majority status when he conducts a campaign to destroy the majority" This contention is without merit. As to the second contention, Respondent contends that it was entitled, as a condition precedent to holding an election, to have the unfair labor charges there- tofore filed against it by the Union withdrawn and dismissed with prejudice. Under the circumstances disclosed herein, wherein it appears that the Respondent had, at the very time that it demanded the withdrawal, and dismissal of the charges with prejudice, violated both Section 8 (1) and (3) of the Act. Such demand evidenced its lack of good faith. This contention is without merit. The undersigned finds that the Respondent, by its whole course of conduct, hereinbefore outlined, evinced an unwillingness to take an active and sincere part to the end that a collective bargaining agreement might be consummated and failed to bargain with the Union in good faith. The undersigned further finds that by conditioning its willingness to bargain with the Union upon proof of the Union's majority status only through the conduct of an election, after having engaged in unfair labor practices directed toward the dissipation of the Union's prior and unchallenged representation claim and status, the Respondent refused to bargain with the Union within the meaning of Section 8 (5) of the Act. Accordingly, the undersigned finds that on August 3, 1946, and at all times thereafter, the Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, thereby inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned further finds that by Cuffman' s statements to Phillips made during the strike wherein he sought to induce the employees on the picket line to take a vote by a show of hands for or against the Union without prior con- sultation with Union representatives ; by Cuffman's further statement to the employees on the picket line to the effect that he would close the plant if they did not return to work and abandon the strike; by Mackey's statement to Good- man also made during the strike to the effect that if Goodman abandoned the "N. L. R. B. v. Consolidated Machine Tool Corp ., 163 F. (2d) 376 (C. C. A. 2), 20 L. R. R. M. 2439 , enf'g as modified 67 N. L. R. B. 787 ; Matter of Twin City Milk Pro- ducer. Assn., 61 N. L. R. B. 69. 838914-50-vol. 82-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike and returned to work Mackey "believed he could get" more money for Goodman ; and by Mackey's statement to Floyd to the effect that another man would be hired in Floyd's position if the latter did not abandon the strike and return to work, all as found above, the Respondent interfered with, restrained and coerced its employeesSin the exercise of the rights guaranteed in Section 7 of the Act" D. The alleged discriminatory discharges (a) Frank Cook Cook was hired by the Respondent in either March or April 1946. He first unloaded lumber cars and later worked as a laborer for a number of weeks under the supervision of Foreman Aker. For some 2 or 3 weeks prior to August 14, he operated a rip-saw. Cook was among the first to become active on behalf of the Union. On July 1, he procured a supply of Union authorization cards and signed the first one him- self. On Tuesday July 2, Cook divided the Union application cards into three parts, gave one part to Null, one to Tanner, and retained the balance for himself. After Null and Tanner secured signatures to the cards they had taken they either turned them in to Cook or in to the Union headquarters. Cook turned all signed cards he received in to the Union headquarters. At the first meeting of the Union, held on or about July 11, Cook was elected temporary president. He resigned the office of president sometime prior to August 14 and became a committeeman. He was a member of the AFL at the time he went to work for the Respondent and wore an A. F. of L. button. While Aker normally supervised Cook's work on the rip saw, he did not do so during August as he had been temporarily assigned to work on the planer Dur- ing Aker's absence, Finley supervised the work in Aker's section, and thus had supervision over Cook. On at least one occasion, which occurred on or about August 7, Finley criti- cized Cook's work and complained that there was a "lot of waste". On August 14,46 Finley again found fault of Cook's work, in that he complained that Cook had been ripping lumber of dimensions contrary to his instructions. On August 15, Aker handed Cook his discharge slip which stated the reason for such discharge as "Careless ripping-work unsatisfactory (third offense) ". Cook did not discuss his discharge with either Aker, Finley or Cuffman, after receiving the discharge papers from Aker. Contentions; issues; conclusions Cook contended in effect that he was unable to perform satisfactory work be- cause the rip saw was an old second-hand, worn out machine, that because of 46 As is set forth hereinbefore, Cuffman, on or about November 1 instructed all foremen to inform the employees that he wished to address them at quitting time on that day, that the foremen relayed the instructions or requests to the employees as directed; and insofar as the record discloses , all employees remained on the premises , gathered in the Pallet plant ; and listened to a speech read by Cuffman. While some of Cuffman's state- ments of fact and contentions contained in the speech are not borne out by the record, the speech contains no threat of reprisal or promise of benefit , express or implied, and is therefore protected by the First Amendment to the U. S. Constitution. It is so found. 49 Cook testified on cross-examination that Finley had said nothing to him concerning his faulty ripping until August 14. On direct examination , however, Cook had testified that someone, who he thought was Finley, had "- - said something about there being a lot of waste to the lumber" ; and that such event occurred about a week before his discharge on August 15. THE CUFFMAN LUMBER COMPANY, INC. 327 the bad condition of the mechanism used to fix the width of the board, it was not possible to keep the saw firmly in place with the result that much of the timber tapered off until it became too narrow for use. On cross-examination, Cook testified that about two-thirds of the lumber he sawed on August 14, was too narrow "on one end" to be used. On rebuttal, Cook testified, to the effect that two-thirds of the lumber sawed on August 14 was not "spoiled." ' Cook testified that, "it wasn't a third of it spoiled, I would not be sure but I don't think so." Henry Cate, a Board witness, testified that he ran the saw in question on the day after Cook was discharged and that he could not remember that he had any trouble with it and that "it seemed to me like it ran all right." Cate further testified that there were times when the boards were "started right" that they would not come through all right and "for the most part the boards came through all right if you started them in there right." Conclusions From the above and the record it appears that on August 14 Cook rip-sawed lumber in such a manner that from one-third to one-half of his output for that day was "spoiled" to the extent that it could not be used for the purposes for which it was intended ; that on that day the total output was in excess of 4,000 feet ; that while the saw he operated was a used or second-handed one, the boards came through for the "most part" when they were started into the saw right ; and that the extent of Cook's spoiled lumber on August 14 discloses that he was in fact guilty of careless ripping and that his work was of an unsatisfactory nature. It is so found. While the record on the whole discloses that the Respondent is opposed to the Union organizing its plant as is more particularly set forth by the findings of in- terference and discrimination made elsewhere herein, and while the Respondent may have resented Cook's union activity found above, the undersigned is convinced under the circumstances disclosed herein, the Respondent would have discharged Cook for his careless ripping even absent any union activity in its plant. On the above and entire record, the undersigned concludes and finds that by its discharge of Frank Cook on August 14, 1946, the Respondent has not dis- criminated in regard to his hire or tenure of employment 48 It will be recom- mended that the complaint insofar as it so alleges, be dismissed. (b) Loman A. Davis" Davis was employed by the Respondent on or about April 16. He worked as a laborer until about July 15, when he was placed in a mechanics position caring 4' By being "spoiled" Cook apparently meant that from one-third to one-half of each board was "too narrow toward the end" to be of use for the purposes intended. 98 Cook testified to the effect that he had an occasion to pass the Respondent' s plant office while on the way to get oil for his rig ; that while so passing the office he heard Finley tell Aker and Ainsworth that there were three more men "they must get rid of"; that when Aker or Ainsworth asked, "Who is that?" Finley answered, "Frank Cook, Bill Tanner and Old Man Kimbrell." Finley, Aker and Ainsworth each denied that such a conversation occurred There was undisputed and credited testimony that when the plant is in operation it is difficult to hear ordinary conversation in the plant office. During the hearing, Cook demonstrated that he was somewhat hard of hearing, and in response to a question stated that he was hard of hearing. The record will not support a finding that the alleged conversation as testified to by Cook ever occurred. It is so found. 11 Davis is at times referred to in the record as "Shorty Davis." 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for and repairing Respondent's trucks. In addition to the mechanical work on trucks Davis on occasion assisted G. A. McCloud, then acting machinist, mill- wright and welder. Davis joined the Union on July 11 and shortly thereafter was elected president of the Union, which position was formerly held by Frank Cook. Following his election as the Union's president, Davis had a conversation with Foreman Ainsworth in which the Union was discussed and, as found above, Ainsworth told Davis, in substance, that more was to be had by "playing ball" with Cuffman than could be had through a union 60 On August 23 all three of the trucks upon which Davis worked were out of commission to the extent that none of them were available for dependable serv- ice and two of them had been taken down for repairs. After the lunch hour on August 23, Finley gave Davis a Notice of Separation which stated as the reason for such separation that "All trucks broken down and unable to get them to run. [Davis] said the trucks had him jinxed and he wanted to give up the job and quit." Davis accepted the separation notice and left the plant. On either the next or the second following day, Davis returned to the plant with the "quit" slip and after a discussion with Finley was given a second "Notice of Separation" slip which recited that the reason for such separation was "Curtailing Automobile Mechanical Work In Shop". It is undisputed that since August 23 all mechanical work on Respondent's trucks has been performed off the plant premises by a Malvern garage operator. Contentions ; issues ; conclusions Respondent contends that Davis quit in a "fit of exasperation" as a result of having all trucks down to the extent that none were serviceable and was there- fore given a separation slip properly indicating that he had voluntarily quit ; and that subsequently Davis returned the "quit" slip with a request that he be given a slip upon which he could draw all of his workman's compensation ; and that inasmuch as the mechanical work in the shop had in fact been contracted out and discontinued as a plant function, Davis was given the second separation slip indicating that the discontinuance of mechanical work in the shop was the reason for his separation. In this connection Finley testified in substance that on the day in question he went to the shop and found that Davis had a part of two trucks torn down for repairs and that the third truck was not in running order ; that he asked Davis if he could not get at least one of the trucks started and that Davis replied, No, I have tried and I cannot do It. These trucks have me jinxed and I'm quitting ; " and thereafter Davis was given the "quit" slip above referred to. In connection with his alleged discharge, Davis testified : 0 Cuffman admitted that on the day Davis left the Respondent 's employ, he (Cullman) knew that Davis was a member of the Union but testified that he had not seen him engage in any union activities nor had he been informed that Davis had done so. 51 Cuffman's testimony in this same connection was to the effect that it was he (Cullman) who had this conversation with Davis ; and that he reported the matter to Finley. Davis however testified that at the time he was allegedly discharged he had his conversation with Finley in the door of the mechanical shop . Under all the circumstances the undersigned finds that the conversation had in connection with Davis' termination was had between Davis and Finley. THE CUFFMAN LUMBER COMPANY, INC . 329 Q. How long did you continue to do this type of work? A. Until August 23, 1946. Q. What happened on that day? A. I got my discharge papers. Q. By whom? A. By Mr. W. E. Finley. Q. Did you have any talk with Finley when you were discharged? A. Yes, sir. Q. Where did the conversation take place? A. In the door of the mechanical shop. Q. Was anyone else present? A. No, sir. Q. What did Mr. Finley say to you and what did you say to him? A. He told me he would have my papers and my time for me when I got back from the noon lunch period. Q. What did you say? A. I asked him why was he getting my papers ready, was he through with me in the shop ? And he said, he thought that after the things that occurred like they had that Carroll ( Cuffman) would insist that he get rid of me. * * * * * Q. Was there any further conversation? A. Yes, sir ; I asked him to let me go out on the yard and work in the common labor crew and he objected to that and I asked him the reason why for objecting and he says that he didn't think I would be satisfied out there and I told him that he wouldn 't know without he let me take a chance at it and he says as good a mechanic as I was that I could get a job in town at $1 or $1.25 and I said, "that may be true but I'd rather work for you,"-you see ; my house is just across the track and its so close and he still insisted he give me my papers. * * * * Q. Did you know at that time that they were going to arrange to have the work done outside of the plant ? Did anybody tell you? A. They told me that the day they give me them papers, (quit slip). Q. They told you they would have to have the work done outside the plant? A. They didn't say they would have to have. Q. Going to have? A. He (Finley) said they decided to send the work to town. While Davis on several occasions denied that he had said the job had him "jinxed" he at no time expressly denied that he had said he was "quitting" his mechanics job. Conclusions The above and the record disclose that Davis was employed as a laborer from April 16 to on or about July 15 ; that from July 15 to August 23, he worked as a mechanic in caring for Respondent's trucks ; that on about July 11 he joined the Union and subsequently succeeded Frank Cook as the Union 's president ; that the Respondent and its officials had knowledge of Davis's Union member- ship and of the fact that he was the Union's president ; that on August 23 all the trucks were either down for repairs or out of commission ; and that Davis accepted a notice of separation indicating that he had quit his job. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While Davis contends that he was discharged and did not "quit" his job, from the circumstances above described and the credible evidence the undersigned is convinced that he did in fact become "exasperated" and expressly stated that he was quitting his job; that he accepted a notice of separation indicating that he had, in fact, quit and later learned that he would not be entitled to draw workmen's compensation promptly under such form of notice of separation, 52 that he returned within a day or two and insisted, not that he had not quit, but insisted that he would not accept a "quit" form of notice of separation, because he could not draw workmen's compensation on it. The record discloses without dispute, that after he had quit his mechanics job Davis requested a job as a laborer and Finley refused to assign him to such work 62 with the statement that he then had an adequate force of laborers. The record contains no evidence indicating that the Respondent did not have an adequate force of laborers on August 23. Nor is there any contention that the mechanical work on trucks was discontinued at the plant and contracted out for the purpose of providing a plausible excuse for the discharge of Davis. The record will not support a finding that the Respondent's refusal to assign Davis to a laborer's job or other work in the plant was discriminatory. The undersigned accordingly finds that by the termination of Davis' em- ployment on August 23, 1946, in the manner and under the circumstances, as above set forth, the Respondent has not discriminated in regard to his hire and tenure of employment. It will be recommended below, that the complaint, insofar as it so alleges ; be dismissed. (c) Claude Melton Melton was hired by Foreman Mackey on or about December 26, 1945. At the time he was hired he and Mackey were the only carpenters then employed by the Respondent. Between December 1945 and August 1946, the Respondent employed a total of some seven or eight carpenters, and by August 1945 all major construction for which materials were available, had been completed. On the latter date Respondent had but two carpenters on his pay roll, namely, Melton and Herschel Rood. On August 10,`4 Cuffman called Melton to the former's car and told Melton that he wanted to talk to him about the Union. Cuffman said that he had heard that the employees were organizing a union. Melton replied that such was a fact ; that about 80 percent of the employees had signed up ; and that the Union had received its charter. Cuffman then asked why the men wanted a union ; said there were "lots of fellows" like his plant employees "making people like John L. Lewis rich by paying in their dues" ; asked what kind of a contract the men were going to ask for ; asked if Melton knew who the officers of the 62 Davis testified that at the time he received the Notice of Separation slip which indi- cated that he had voluntarily quit his mechanics job he did not know that he could not draw unemployment compensation on it. He further testified that he did not look at such slip or learn of its type until after he left the plant. 63 Finley admitted that Davis requested that he be assigned to other work in the plant and testified that he had informed him that the Respondent had an adequate force ; that he offered to help Davis get another mechanical job ; and told Davis to refer prospective employers to him for recommendation. "This was the date on which Cuffman, for the first time met with Mawrey, the Union organizer, and the Board 's Field Examiner Hoffman , which meeting is discussed in further detail in Section III C above. THE CUFFMAN LUMBER COMPANY, INC. 331 Union were and if Davis was not the president; and further asked who was on the grievance committee. Melton replied that he knew who the Union officers were ; stated that he per- sonally was on the grievance committee and that the men would ask for a, "livable contract" agreeable to both sides " On August 23, Melton and Rood were laid off by Superintendent Finley, who stated that he could not find sufficient work to keep them employed " Rood was recalled to work on September 6, and reported on September 9. He was absent on leave when the strike, referred to elsewhere herein, began. He did not appear on the picket line during the strike and did not apply for work after the strike ended. He signed a Union application for membership card on July 7 and his name was included in the Union's charge of discrimination filed with the Board on or about September 18, notice of which charge which included Rood's name was sent to the Respondent on or about September 18 by the Regional Director. On August 24, Melton told Aker that he understood Aker needed an edgerman on the saws and applied for the job. Aker replied that he had "nothing loose" in his department. As found above, in connection with Tanner's discharge, Melton accompanied the former when they, at Ainsworth's suggestion, reported for work in the yard on or about September 20. Also as found above, Tanner and Melton were referred to Finley, who, after telling them that he was "the sorriest man in town," instructed them to report on the following day, and when they did so Finley informed them that there was nothing for them. Melton joined the picket line during the strike and heard Cuffman's speech to the men then on the picket line. In response to the speech Melton told Cuffman that Mendenhall would be in town in "a day or two" ; that he (Melton ) would get in touch with Mendenhall , and that any agreement reached with Mendenhall would be satisfactory to the employees. Cuffman stated that he did not "want to even talk to" Melton. A considerable time after the close of the strike Melton met Cuffman who informed him that the Respondent was going to erect some additional buildings m These findings are based on Melton 's credited, and in the main, uncontradicted testimony. Cuffman testifying subsequent to Melton , stated in part , that he called Melton to his car and told him that the construction work had about reached the end of the road and would , with completion of a temporary shed then being built , be com- pleted. Cuffman testified , in part, as follows : I said, "Claude, it looks like we have about reached the end of the road when we finish the shed. You have done a good job and made a good man , but I don't know what else to do. There is no more building and we are running out of money and materials are hard to get, and we will not be able to build the 'dry kiln '." He said. "That is all right. There is plenty of work and I can get $1.25 an hour working elsewhere. That I have got some work to do at home. I have enjoyed working here. You know I am a union man?" I said, "No, I didn 't." He said, "Yes, I am on the grievance committee " I said, "I didn't know that. Who else is on it 1" That was about the text of the conversation." Thus it will be noted that other than by his statement , "That was about the text of the conversation," Cuffman made no direct denial of Melton 's version of their conversation on this occasion as above referred to. se It is undisputed that at the time of their lay-off, Melton and Rood were working on an uncompleted culvert that would have required upwards of a week to complete. It is further undisputed that the culvert was never fully completed thereafter and that a portion of it had been so laid that it could not be used as a drain , since the outlet was higher than the intake. The record does not disclose that Finley was aware of this defect when the two carpenters were laid off. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and would need carpenters. Cuffman stated that he would take Melton back if he would come back "and be a good boy." When Melton asked when the work would start Cuffman stated that it would be in about a week. Some 3 weeks later Melton again met Cuffman and asked concerning the proposed new building. He was informed by Cuffman that such work had not been started and told Melton that he could have a job at that time if he wanted to take a nailer's job. Melton stated that if he decided to take the nailer job he would report for work the following Monday. Insofar as the record discloses, Melton did not report for or accept the nailer job. Contentions ; issues ; conclusions Counsel for the Board contends in substance and effect that Melton was dis- charged on August 23 along with Hershell Rood, and that Rood with less seniority than Melton, was recalled to work on or about September 6, in preference to Melton, who was discharged in the first instance and not recalled because of his union membership and activity. The respondent, on the other hand, contends in substance and effect, (1) that Melton was employed as a construction carpenter and due to shortage of materials and for other reasons construction work had to be discontinued, and thus it had no further need for construction carpenters; and (2) that Rood was recalled to work on September 6 in preference to Melton for the reason that Respondent proposed to have Rood succeed to Millwright Sweitzer's position, (Sweitzer was resigning due to advanced years) and it had information that Rood had worked many years as a millwright. As to Respondent's first contention, the credible evidence in the record indicates that all major construction work that the Respondent proposed to have done or was able to construct had, for the time being at least, been completed ; that for some time it had kept Melton and Rood occupied on minor repair jobs which had been sought out in order to keep them occupied ; and since it was difficult if not impossible to continue to find or "make" work for the carpenters, it was necessary to terminate their employment. The one fact that may seem to militate against the foregoing conclusion, is that Melton and Rood were laid off before the culvert or drain upon which they were working had been completed. The record dis- closes, however, that the culvert or drain box was never fully completed as it was originally planned. This contention has merit. As to Respondent's second contention, Finley testified in substance that Mill- wright Sweitzer informed him that because of advancing years he desired to resign his millwright job with Respondent; that from information received from Rood and from Mackey, Finley understood that Rood had had many years' experi- ence as a millwright, and that he sent for Rood and offered him the job with an opportunity to break in under Sweitzer, which offer Rood had accepted. Melton testified that he, too, had had many years experience as a millwright.o7 Counsel for the Board therefore contends in effect, that since Melton had seniority over Rood, the former should have been recalled rather than the latter, and that the Respondent's failure to recall Melton under these circumstances indicates that such failure to recall was occasioned by Melton's union membership and activity. While the record discloses that both Melton and Rood had joined the Union, and that Cuffman was aware of Melton's membership it will not support a finding that Rood was recalled to work in preference to Melton because of the 67 The record does not disclose that the Respondent had any knowledge of Melton's experience as a millwright. THE CUFFMAN LUMBER COMPANY, INC. 333 latter's Union activities. It is so found. Respondent's second contention has merit. Conclusions From the foregoing and the record, the undersigned concludes and finds, that while the record as a whole indicates that the Respondent by certain acts and conduct and by Cuffman's statement to Melton more particularly found and set forth in Section III A above, the Respondent has engaged in interference, restraint, and coercion against its employees, such record will not support a find- ing that by terminating Melton's employment on August 23, and by recalling Rood to work on September 6 in preference to Melton that the Respondent has discriminated in regard to Melton's hire and tenure of employment. It will be recommended below that the complaint insofar as it so alleges, be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that the Respondent 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 on August 3, 1946, and at all times there- after, refused to bargain collectively with the Union as the exclusive representa- tive of its employees in an appropriate unit, it will be recommended that the Respondent, upon request, bargain collectively with the Union. The undersigned has further found that the Respondent discriminated in regard to the hire and tenure of employment of Charles Joe Null and William R. Tanner, thereby discouraging membership in the Union. It will be recommended that the Respondent offer to Charles Joe Null immediate and full reinstatement to his former or substantially equivalent position " without prejudice to his seniority or other right's and privileges. Since Tanner had, at the time of the hearing herein, been reinstated to his former position, it will be recommended that the Respond- ent make him whole for any loss of pay he may have suffered by reason of the discrimination practices against him by payment to him of a sum of money equiva- lent to that which he normally would have earned as wages from the date of the discrimination to the date of offer of full reinstatement, less his net earnings so during such period. Upon consideration of the entire record, the undersigned is convinced that the Respondent's conduct indicates an attitude of opposition to the purposes of the Act generally. In order, therefore, to make effective the interdependent guaran- "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 Ctity of New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 0 Matter of Crossett Lumber Co., 8 N . L. R. B. 440, 497-498. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tees of Section 7 of the Act,80 thereby minimizing industrial strike which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist in any manner infringing upon any of the rights guaranteed in Section 7 of the Act. On the basis of the foregoing findings of fact and upon the entire record, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Brotherhood 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 regard to the hire and employment of Charles Joe Null and William R. Tanner, thereby discouraging membership in United Brotherhood of Carpenters and Joiners of America, affiliated with the American 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. A unit consisting of all production and maintenance employees, including firemen, but excluding watchmen, office employees, clerical employees and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action constitutes a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 4. United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, was at all times material herein and now is, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing to bargain collectively with the Union as the exclusive repre- sentative of all the employees in the above-described appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 6 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. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Cuffman Lumber Company, Inc., Malvern, Arkan- sas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, as the exclusive representative of all production and maintenance employees, in- cluding firemen, but excluding watchmen, office employees, clerical employees, and all supervisory employees with authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees or effectively 60 See May Department Stores, etc., 326 U. S. 376; Matter of D. C. Beck & Co., 63 N. L. R. 13.1426 ; Matter of Caroline Miils Ino., 64 N. L. R. B. 376. THE CUFFMAN LUMBER COMPANY, INC. 335 recommend such action in respect to rates of pay, wages , hours of employment and other conditions of employment. (b) Discouraging membership in United Brotherhood of Carpenters and Join- ers of America, affiliated with the American Federation of Labor , by discharging and refusing to reinstate any of its employees or in any other manner discriminat- ing in regard to the hire and tenure of employment or any term or condition of employment ; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organi- zations, to join or assist United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choos- ing, 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 effectuate the policies of the Act. (a) Upon request, bargain collectively with United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, as the exclusive bargaining representative of all production and maintenance em- ployees in the bargaining unit hereinbefore described, with respect to wages, rates of pay, hours of employment or other conditions of employment ; (b) Offer to Charles Joe Null immediate and full reinstatement to his former or substantially equivalent position, and make both Null and Tanner whole for any loss of pay they may have suffered by reason of the Respondent's discrimina- tion in the manner provided herein in the section entitled "The remedy" ; (c) Post in conspicuous places at its plant near Malvern, Arkansas, in all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon re- ceipt thereof and maintained by it for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other material ; (d) Notify the Regional Director for the Fifteenth 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 therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Di- rector in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges the discriminatory discharge of Frank Cook, Loman A. Davis, and Claude Melton. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (includ- ing rulings, upon all motions or objections) as he relies upon, together with the 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of excep- tions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46, 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 trans- ferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the afore- said Rules and Regulations, the findings, conclusions, recommendations and recommended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections and exceptions thereto shall be deemed waived for all purposes. PETER F. WARD, Trial Ewamiiner. Dated September 9, 1947. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their rights to self-organization , to form labor organizations, to join or assist UNITED BRoTHERHooD OF CARPENTERS AND JOINERS or AMERICA, affiliated with the AMERICAN FEDERATION OF LAROR, or any other labor organization, to bargain collectively through representa- tives 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, if not reinstated hereto- fore, immediate and full reinstatement to their former or substantially equiv- alent positions without prejudice to any seniority or other rights and priv- ileges previously enjoyed and make them whole for any loss of pay suf- fered as a result of the discrimination. Charles Joe Null William R. Tanner WE WIIL BARGAIN collectively upon request with the above named union as the exclusive representative of all the employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, including firemen, but exclud- ing watchmen, office employees, clerical employees and all supervisory em- ployees with authority to hire, promote, discharge, discipline or otherwise THE CUFFMAN LUMBER COMPANY, INC. 337 effect changes in the status of employees or effectively recommend such action. 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 the hire or condition of employment , or the term or condition of employment because of membership in or activity on behalf of any such labor organization. Tn CVFPMAN LUMBER COMPANY, INC., Employer. Dated ------------------------------ By --------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material.