Rouch's Sawmill, Ltd.

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