Crag Lumber Co.

CRAG LUMBER COMPANY 917 Central Office Employees.-Operator (including student and junior operator), control operator, junior supervisor, supervisor, ticket clerk, junior clerk, clerk, senior clerk, service observer, junior service observer, senior service observer, pay station attendant, pay station junior supervisor, rest room attendant, chief rest room attendant, dining service matron. District, Division, and General O fflce Employees.-Messenger, junior clerk, junior stenographer, routine clerk, key punch operator, typist, clerk, clerk-high grade, employment assistant, stenographer, engineering clerk, inventory and supply clerk, methods clerk, payroll clerk, personnel assistant, results clerk, force supervisor, senior engineering clerk, senior methods clerk, and senior results clerk; also including "regular" and "temporary" part-time employees, but ex- cluding employees in the office of the General Traffic personnel super- visor, "occasional" employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] CRAG LUMBER COMPANY and LUMBER AND SAWMILL WORKERS, LOCAL UNION No. 598, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL CRAG LUMBER COMPANY and INTERNATIONAL WOODWORKERS OF AMERICA, CIO. Cases Nos. 20-CA-443 and 2O-CA-479. August f2, 1951 Decision and Order On April 20, 1951, Trial Examiner Thomas S. Wilson 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 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 brief, and the entire record in this uase, and hereby adopts the findings, conclusions, and recom- s Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connection with this case to. a three-member panel [Chairman Herzog and Members Houston and Reynolds]. 95 NLRB No. 104. 918 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD mendations of the Trial Examiner with the following additions,and modifications : 2 . The Trial Examiner found that Respondent discharged William Reidel and Al Southard because of their union activity, and thereby violated Section 8 (a) (3) of the Act. Although the matter is not entirely free from doubt, we are not convinced that the preponderance of the evidence establishes. that this was the Respondent's reason. The record discloses that the operations of the Respondent's mill were dependent upon both Sawyer Barregi and Ratchet Setter Reidel; that in the absence of either of these employees operations-could not commence ; and that the other employees-as many as 17-would then remain idle awaiting the arrival of the absentee, unless either the foreman or the millwright substituted for the absentee. , Reidel, as the Trial Examiner found, was prone to be tardy not once, but many times a week over a period of months. Moreover, Reidel ad- mitted that he "was too lazy to get out of bed," and that he was warned at least once before June 1950. On several prior occasions, Foreman Rose had sought authority from Respondent's president, Edward Lessard, to discharge Reidel for tardiness but Lessard, be- cause of Reidel's family, had suggested that Rose "jack" Reidel up rather than discharge him. On June 6, when Reidel reported 20 minutes late, Rose again warned Reidel, and again reported to Lessard, who then ordered Reidel discharged effective June 10, the end of the week.3 Although tardiness may have been a common occurrence at Re- spondent's mill, the record shows that Rose frequently warned the employees about it; that many employees were "docked" and one was previously discharged for being late; and that, except in the case of Barregi and Reidel, tardiness of the other employees did not vitally. affect the Respondent's operations and drastic disciplinary measures against such employees were unnecessary. With respect to Sawyer Barregi, also a frequent offender of punctuality, who had been "docked" more than Reidel, but who had not been discharged, the: Respondent explained its apparent disparate treatment by -pointing out that it was much more difficult to replace a sawyer, who required a year of training, than to replace a ratchet setter, who could be trained in 2 weeks. Unlike Reidel, Barregi lived much farther away from the mill-5 or 6 miles over bad roads-and thus had what the Re- R we have carefully examined the record and find nothing therein to suppoit the Respondent's charge that the Trial Examiner was biased . Accordingly, we overrule the exceptions taken on that ground. 8 Both Rose and Lessard testified credibly to this effect. Contrary to the Trial Examiner, there is no inconsistency between the testimony of Rose and Lessard in this respect., Although Rose stated that Reldel was also late on June 7 through June 10, he - did not • testify that Reidel was discharged for this subsequent tardiness. CRAG LUMBER COMPANY 919 ^spondent, considered legitimate reasons for his tardiness. Moreover, Barregi worked overtime to make up for lost time, never claiming full . time when he was late, whereas Reidel attempted to report his full 8 hours even when late.4 Although Reidel was an advocate of the AFL in its organizational campaign-a fact known to the Respondent- union activity of course does not exempt him from reporting for work on time, nor does it afford him an immunity from discharge for such -delinquency particularly after having been warned.5 While foreman Rose's statements, which the Trial Examiner properly found consti- -tuted violations of Section 8 (a) (1) of the Act, tend to show an anti- union attitude on the part. of the Respondent, we are not convinced that the preponderance of the evidence establishes that Reidel was -discriminatorily discharged. As to Southard, the record shows that, because he was a'good worker, .he was made head loader in the woods crew and became the operator of the arch caterpillar used for "cold decking" logs. On Saturday morning, July 22, Southard, along with Woods Foreman John Caton and the other six employees of the woods crew, drove into the woods to "cold deck" logs. Two of the crew were dropped off to repair a broken.down "cat" while the others proceeded a mile farther into the woods with the other two "cats." After helping the men start to "cold deck" the logs, Foreman Caton left. At 11:30.a. m. the arch "cat" that Southard was driving-the only one capable of pushing logs on-the "cold deck"-broke. Instead of reporting the accident immediately, the men, including Southard, sat down and had lunch. At 12: 30 p. in., after lunch, one of the crew, Moyer, attempted to locate Caton at the place where the other two members of the crew had been _dropped off to repair the broken "cat." He reported back that no one was there. Little, if any, work was thereafter accomplished at the "cold deck" landing. At about 2 p. m., Southard and Moyer, leaving the others at the landing, left to search again for Caton. They finally located him and the other .two crew members rigging a spar tree approximately a half mile beyond the spot where Moyer had looked earlier. Southard told Caton, as the Trial Examiner found, that the men at the landing were "sitting down and not working." 6 {Foreman Caton was disturbed because of Southard's failure to report the accident until between 2: 30 and 2: 50 p. m. although the arch "cat" had broken down at 11: 30 a. in., especially since Caton believed that the men knew where he was working. Caton then went to the 4 on June 6, when Reidel reported 8 hours working time to the bookkeeper, Foreman Rose docked him a half-hour for his tardiness. 5 See Stewart-Warner Corporation, 94 NLRB 607; Chance Vought Aircraft Division of United Aircraft Corporation, 85 NLRB 183. • President Lessard, who had also been. in the woods, noted the lack of activity at the "cold deck" landing. '920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD landing, brought the men back, and had them help rig the 'spar tree during what remained of the workday. At 4:30 p. m. Caton drove the crew into town and discharged Southard.' Southard immediately went to Lessard, who explained that Southard was discharged for. failure to report the accident as soon as it occurred. While it is truethat the Respondent knew of Southard's advocacy of the CIO, the record also shows that Foreman Caton, who discharged Southard, was a union member and had an affirmatively favorable at- titude toward the CIO's organizational campaign. In any event, substantially the same considerations which we deemed controlling in the Reidel case=the failure of the preponderance of the evidence to establish a discriminatory discharge-impels us to disagree with the Trial Examiner's finding that Southard was discharged by the Respondent in violation of Section 8 (a) (3) of the Act. _ On the basis of the foregoing, and upon the entire record, we shall, 'accordingly, dismiss the complaint as to Reidel and Southard. Order Upon the entire record in the,case, and pursuant to Section 10 (c) of.the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Craig Lumber Company, Smith River, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Lumber and Sawmill Workers, Local Union No.'598, United Brotherhood of Carpenters and Joiners of America, AFL, or International Wood- workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in-concerted activities for the purpose of mutual aid or protec- tion, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in, a labor organization, as authorized in Section ,8 (a) (3) of the Act. 2; Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in its mill at Smith River, California, copies of the notice attached hereto and marked "Appendix A." 8 Copies of such notice, to be furnished by the Regional Director for the Twentieth Region, 4' At the hearing,'Caton insisted that he, and not Lessard, decided to discharge Southard for failure to report the accident earlier. Contrary to the Trial Examiner, we do not read Ca.ton's affidavit of August 29, 1950, as indicating the contrary. e In the event that this Order is enforced by a decree of a United States' Court of Appeals, there shall be inserted before the words, "A Decision and Order" the words, "A Decree of the United States Court of Appeals Enforcing." CRAG LUMBER ;COMPANY - 921 shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof, and be 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. (b) Notify the Regional Director for the Twentieth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein, insofar as it alleges discrimination with respect to William Reidel and Al Southard, be, and it hereby is, dismissed. 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 the right to self-organization, to form labor organizations, to join or assist LUMBER AND SAW- MILL WORKERS, LOCAL UNION No. 598, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, or INTERNATIONAL WOODWORKERS OF AMERICA, CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring member- ship. in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. CRAG LUMBER COMPANY, Employer. By •------=---------------------- Dated-------------------- (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 STATEMENT OF THE CASE Upon charges duly filed in Case- No. 20-CA-443 by Local Union No. 598, Lumber and Sawmill Workers, United Brotherhood of Carpenters and Joiners of America, AFL, herein called the AFL, and upon charges duly filed in Case No. 20-CA-479 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by International Woodworkers of America, 010, herein called CIO, the General Counsel of the National Labor Relations Board through the Board's Regional Director for the Twentieth Region (San Francisco, California), herein called the General Counsel and the Board respectively,' issued a complaint dated -No- vember 13, 1950, against Crag Lumber Company, hereinafter called the Respond- ent, alleging that the Respondent had violated Section 8 (a) (1) and •(3) and Section 2 (6) and (7) of the Labor Management Relations Act, 61 Stat. 136, herein called the Act. The charges, the, order consolidating these cases, the complaint, and the notice of hearing thereon were duly served upon the Respond- ent, the AFL, and the CIO. The complaint alleged, in substance, that the Respondent had violated Section 8 (a) (1) and (3) by : (1) Interfering with, restraining, and coercing its em- ployees by various enumerated acts on and after December 19, 1949; and (2) discharging William A. Reidel on or about June 10, 1950, and Al Southard on or about July 22, 1956, because of their. membership in and activity on behalf of a labor organization. At the hearing, after a motion had been made, and denied, that a default judgment be entered `againstthe Respondent for want of answer, the Respondent made oral answer admitting the jurisdictional facts but denying the commission of any unfair labor practices. After the close of the hearing the undersigned received a sworn answer from the Respondent to the same effect. It is now ordered that this answer be marked as Respondent's Exhibit No. 2, admitted in evidence and made a part of this record. Pursuant to notice, a hearing was held in Crescent City, California, on De- cember 12 and 13, 1950, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the AFL and the CIO by their representatives. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the hearing the parties waived oral argument. Thereafter,' a brief was received from the Respondent. Upon the entire record, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Crag Lumber Company is a Nevada corporation engaged in the logging, manu- facture, and sale of lumber. Its principal office and place of business is located at Smith River where it conducts logging and mill operations ; a branch office is located at Philo, Mendocino County, California. In connection with said operations, Respondent owns timber in the State of Oregon. During the year 1949, in the course and conduct of its business, Respondent purchased approxi- mately 9,500,000 board feet of timber, of which amount approximately 4,500,000 board feet was received from outside the State of California. During the same period, the sales of Respondent were in excess of $500,000, of which amount approximately $43,300 was sold and shipped to places located outside the State of California. 'The term General Counsel will include the counsel appearing for the General Counsel at the bearing. 2 After various extensions of time, the Respondent's brief was duly filed on February 28, 1951. CRAG LUMBER COMPANY 923 II. THE ORGANIZATIONS INVOLVED Lumber and Sawmill Workers, Local, Union No. 598, United Brotherhood of Carpenters and Joiners of America AFL, is a' labor organization within the meaning of Section 2 (5) of the Act. International Woodworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The discharges 1. William Reidel The Respondent's operations, both in the mill and in the woods,' were at the time of the hearing, and always had been, unorganized. In 1947 Reidel had worked for the Respondent for about 8 months on the green chain. Work on the green chain consists of taking boards from a moving belt and stacking them according to size. On this occasion, he voluntarily left the Respondent's employ but returned and was reemployed in June 1949. After working on the green chain for a period, he was transferred to the job of spotter on the trim saw. He was working at this job at the end of 1949. Apparently the first effort to organize the Respondent's operations was made by the Operating Engineers Union beginning in December 1949 or January 1950. Reidel became very active in this effort. He solicited employees to join the union and was active in trying to get them to attend a union meeting. He even invited. his foreman, Carl Rose, who was in charge of the Respondent's opera- tions under the president and general manager, Ed Lessard, to attend. After be told Reidel that he would try to attend the meeting, Rose approached Mervin Goodwin, a scaler, and. asked if he were going 'to attend the union meeting and then suggested : "We better get up to the meeting and vote against the Union." " For some reason unexplained in the record, the efforts of the Operating Engi- neers proved fruitless and soon thereafter died out. In January or February 1950; Reidoi was promoted to the job of ratchet setter by Rose, a job paying approximately 15 cents more per hour than Reidel had been making. previously. The ratchet setter has the job of riding the moving carriage which carries the log to and from the stationary saw when the log is being cut into boards. The ratchet setter changes the. position of the log on the carriage for each cut of the saws in accordance with signals given to him by the sawyer who determines how the log is to be cut in order to get the maximum amount of lumber therefrom. In this particular. mill there is only one ratchet setter riding the carriage. In order for a mill to operate, both the sawyer and the ratchet setter must be present for both are essential to the cutting of logs upon which all subsequent operations of the mill depend. During the Operating Engineers' campaign Reidel asked Rose whether he thought the operation would go union, expressing his own ideas that the union was a good union and that the operation ought to be organized. Rose stated that he did not think that the operation should go union at that time and that "if we went union, the Crag Lumber Company would shut down." Respondent did its, own. logging. This conversation was undenied as were all the rest of the conversations of Rose which are found hereafter. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Efforts to unionize the Respondent's operation were renewed in the latter part of April or early part of May 1950 when both the AFL and the CIO commenced efforts to solicit membership from the employees. Reidel became active again on behalf of the AFL while Al Southard (then in the woods crew) took the lead for the CIO. These efforts apparently got under way when the AFL organizer, Bill Doyle, posted notices of an AFL meeting to be held sometime subsequently in Fort Dick, California, and publicly spoke to a number of employees in and around the mill. This campaign was not secret in any way. Reidel again became extremely active in inviting the employees to attend the meeting and to join the Union. The first AFL meeting was held about the 8th of May and the second meeting about 2 weeks later. Reidel attended both meetings, officially joining the AFL at the second meeting. After this meeting, Reidel wore an AFL button in his cap, the only employee to do so.' Again Reidel asked Rose to attend the first AFL meeting and Rose stated that he would try to do so. Apparently Rose did not attend. Early in May at one of the first of numerous conversations between the two, Reidel asked Rose for his opinion of the Union. Rose replied that he did not think that it was the right time for the Union and that the men ought to forget about it, that the Company was against it. After Reidel had stated that he thought it was the right time, Rose answered that if.he wanted to, he could go to the office and get literature that would put "the skids" under the AFL "just like what happened to the other two unions." Rose saw Reidel passing out AFL application cards to the employees and was even offered one himself by Reidel but refused it. There can be no question but that the Respondent knew Reidel was actively engaged on behalf of the AFL About the middle of May, Rose stated in a conversation with employees Hardy Lancaster and Joe Castle that Reidel was a good workman and that some day he would get a good job with the Respondent. After the conversation had turned to the Union, Rose stated that he did not think much of the Union but knew that unionization was coming and would not stop it. Rose added that if the Union did succeed in getting into the mill, the mill would close down for 2 months and that neither the sawyer, Garregi, nor Reidel knew enough about lumber to hold their jobs and draw union wages. After the first AFL meeting Rose reiterated to Reidel that he did not think that this was the time for a union and that they ought to wait until the new lumber manufacturer, who, according to rumor, was about to build a plant in Smith River about the first of the new year, had completed its plant and be- come unionized so that the two plants could have the same union so as to be sure that the new manufacturer would not refuse to handle the Respondent's product because of a difference in unions. Rose used this same argument with other employees of the Respondent. About a week after the first AFL meeting Rose approached Reidel and stated to him that Southard was organizing very fast for the CIO and that the IWA only needed about two more employees. He their asked how many employees the AFL had signed up. After Reidel had said that the AFL only needed about two more to have a majority, Rose again stated that this was not the right time for the plant to go union and that they should wait until the first of the year because of the new mill. Reidel's answer to that was that, at the first of the year, everybody would be having a "tough time" and would easily be scared out and, therefore. he thought that now was the right time. I 5In his testimony Rose attempted to give the impression that many of the employees wore such buttons. CRAG LUMBER COMPANY 925 About a week later, Rose and Reidel had another conversation in which Rose told him that "Reidel had hurt Mr. Lessard e more than anybody; that Mr. Lessard had been very good to him but that Reidel had called in the union." On June 6, 1950, Reidel appeared for work about 20 minutes late and was docked one-half hour on the payroll for that day. It was not unusual for Reidel to be a few minutes late at the beginning of work at 7,: 30; 20 minutes, however, was unusual. In fact, Reidel himself admitted that he was frequently a few minutes late in the morning and that that happened about two or three times per week. However the only time Reidel was docked for being late was on June 6. When Reidel did appear for work that morning, Rose warned him that if he were late again, he would be discharged. There is a conflict in the testimony as to the number of times Reidel had been- warned about his tardiness. Reidel testified that Rose had warned him once about that matter some months before June 1950. On the other hand, Rose testified that he had warned Reidel innumerable times about this matter and on one occasion had given a final warning that Reidel would be discharged if late again. Although Rose originally testified that this warning was given on June 6, his testimony thereafter became confused as to whether this final warning was given that day or previous thereto. In fact the Respondent's testimony was very persuasive that similar tardiness on the part of the employees was moi a usual than unusual at the plant during this period. Sawyer Barregi was also a frequent offender as was edgerman Don Waites. As a matter of fact Rose publicized to other employees that the next time Waites was late he would be fired.? On the evening of June 7 or 8, Rose drove by the place where Reidel and his friend Dick Smith were busy building Reidel's new home. At Rose's signal Reidel and Smith walked to the automobile and talked with Rose. They first discussed the amount of lumber Reidel had purchased from Respondent for his home and then the question of the Union came up. Rose again stated that this was not the right time for the Union and that the Union would not benefit most of the men for, if the Union came in, the Respondent would have to fire most of the men and hire qualified union men to take their places. Reidel stated that this would be a "bum deal" because the Company thought that the men were doing their jobs all right or they wouldn't have been allowed to work at their jobs. After a little more discussion Rose told Reidel that he "better forget about. the Union until the first of the year." But Reidel stated that he was not going to do so because he thought that this was the proper time for the Union. After say- ing; "All right" Rose departed. Paydays at the Respondent's mill were on the 10th and 25th of the month. On June 10, 1950, when Reidel picked up his check as usual, he found two checks in his envelope which were marked as payment "in full." Reidel surmised from this that he had been discharged. On June 12, 1950, Reidel again reported for work. On this occasion he was 8 or 10 minutes late and found Rose breaking in a new man as ratchet setter. He asked Rose what the two checks meant. After Rose had stated that he "guessed" Reidel was througli` Reidel asked who said so. To which Rose replied, "Ed."' Reidel then inquired whether it was because of his union activities and received no answer. The testimony of Rose and Lessard did not jibe. Rose originally testified that he gave Reidel his final warning on June 6 when Reidel was 20 minutes late reporting for work and that when Reidel was late thereafter, .he determined to fire him at the end of the pay period. However, Lessard "Lessard was president'and general manager of Respondent. - - - 7 However, so far as the record indicates Waites is still employed by the Respondent: 5 A reference to Ed Lessard. 926 DECISIONS . OF .NATIONAL LABOR RELATIONS BOARD testified that Reidel had been warned several times before June 6 according to reports he had received from Rose, and that when Reidel was late on June 6 Lessard ordered Rose to discharge Reidel at the end of the pay period. All parties admit,that Reidel was never at any time informed that he was tobe fired or the reason therefor prior to the receipt of his pay check containing the two checks made "in full." 2. Al Southard Southard commenced working for the Respondent shortly after Labor Day, 1949, driving a lift truck. -Successively he worked on the green chain, in the redwood mill itself, bucking logs for the fir mill, and then was asked by Carl Rose if he would cold deck logs for the fir mill. In May the job of head loader in the woods became vacant and Rose asked Southard if he would take that job, which he did. Lessard explained this last transfer during his testimony by saying that "We figured that Al was a pretty good worker and entitled to the best job, so this job came up and we sent him to the woods." Apparently Southard was an ambitious workman because he tried to get all the extra worktime possible with the result that when he did not work the sixth day of the week in the woods, he would work in the mill. When the CIO began organizing in May 1950, Southard, who held a withdrawal card from the 010, immediately became the leader of the CIO organizational drive. He was made chairman of the CIO organizing committee, arranged for the CIO meetings of May 10 and 25, distributed handbills announcing these meet- ings, and solicited employees to join the CIO. In fact he also invited Rose to attend the first CIO meeting. While travelling in the "crummy"' on the way to work, he solicited the whole woods crew to join the Union, in the presence of John Caton, woods foreman, who not only-made no objection to this activity but also stated that he held a card in the Longshoremen's Union and that the CIO was a good union. About a week or so prior to his transfer to the woods crew, Rose had a con- versation with Southard in which he told Southard that he did not think this was the time for the Union to come in, that the men ought to wait until the Dutton mill10 was built and in production and had been organized so that both Dutton and the Respondent could have the same union thus eliminating the possibility that Dutton would refuse to handle the lumber made by a different union. Rose added that "There was some of the men . . . that couldn't hold their jobs if the Union came in because they had to be skilled men 4to hold these jobs." At the hearing the Respondent was willing to stipulate that Southard was actively engaged in organizing for the CIO. The evidence not only bears out this stipulation but also proves that the Respondent was well aware of his activities on behalf of the CIO. Early in May it will be recalled that when Rose interrogated Reidel as to the success of the CIO organizing campaign, he informed Reidel that Southard was organizing very rapidly for the CIO and only needed a couple more members to have a majority. 0 The evidence proved, as the Respondent pointed out in its brief, that Caton was definitely not opposed to unions, and, in fact, was probably prounion. Inc fact a few days before his discharge on July 22, Southard requested, and re- ceived, permission from Caton for CIO Organizer Simmons to talk to the woods 0 The automobile used to carry the woods crew to their working place. 10 Dutton was a lumber manufacturer who was supposed to build a new mill located in Smith River. CRAG LUMBER COMPANY 927 crew about the Union at some indefinite lunch hour. So long as Simmons talked to the men at lunch time, Caton had no objection to it. On Saturday, July 22, 1550, Caton drove the woods crew consisting of Earl Silva, Kindal, John and Prank Richards, Moyer, and Southard to bring some logs to a landing out in the woods where they could be subsequently loaded on trucks for transport to the mill. Being Saturday work, this would have been paid for at time and a half. After driving a few miles from the will, they came to a spot where they had left the three Caterpillar tractors. Silva and Kindal were left there to make some repairs to one of the cats:" The other members of the crew were transported on the other two cats about a mile further on into the woods to the landing where they were to cold deck the logs. Caton made this journey in the "crummy." He stayed at the landing helping to cold deck logs until about 10 a. in. when he left with the pickup for parts unknown without saying where he was going. The crew continued this work until about 11: 30 a. in. when the cat Southard was driving suddenly broke "in two."2 After examining the broken cat and pushing it out of the way of future operations with the remaining good cat, the men ate lunch. The broken cat was equipped! with an arch which was necessary for pushing logs onto the cold deck. The: remaining cat was not so equipped but could continue to drag logs to the landing: About 12: 30 after having finished his lunch, Moyer set off down the hill to locate Caton'and to report the accident. The other men continued the operation as best they could with the one cat-though the undersigned has no doubt that very little real work was accomplished. Later Moyer returned to the landing and reported that he could not locate Caton although he had gotten as far down as the place where Silva had been fixing his cat. About 2 p. in. Southard and Moyer headed back for the mill leaving the others at the landing. When they reached the point about one-half mile beyond the spot where Silva had been working on his cat, they came upon Caton, Kindal, and Silva rigging a spar tree. and there reported the accident to Caton. It was then between 2: 30 and 2: 50 p. in. Moyer and Southard told Caton that the men were sitting down and not working and that they finally got ashamed and headed for the mill. Caton inquired as to when the breakdown occurred and asked why it had not been reported earlier. He was told that Moyer had gone to notify him but had been unable to find him. The men ex- plained that they had not known where to locate Caton. Caton left Moyer and Southard to help rig the tree with the other members of the crew and drove the pickup back to the landing where he looked over the damage and decided that the men on the landing had not been working. He then brought that crew from the landing to help on the spar tree and he himself drove to the mill to report the accident to Lessard. Lessard had just returned to the mill from a trip with the owner of the timber which took them to a. point on the other side of the canyon from the landing where Lessard had noted that the arch cat was not working and. that the other men seemed to be loafing. On his return to the mill from that trip Lessard had reported to Caton that the ac- tivity at the landing seemed.to have ceased and inquired why. While still at the landing Lessard and Caton discussed the matter and decided to discharge the Richards and Southard, the Richards because they had been loafing and to, reduce the woods crew and Southard because he had failed to report the acci- dent to the cat sooner. 11" Caterpillar. 12 The damage was extensive with repairs amounting to approximately $3,100 and taking approximately 2y2 months to complete. . 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After leaving the landing Lessard returned to the mill while.Caton returned and worked on the spar tree until the quitting hour of 4: 30 when he drove the crew into town in the pickup. As the Richards got out of the pickup, Caton told them that he "guessed that was all." A few minutes later when Southard in turn got out of the pickup, Caton said that he. hated to let Southard go but "Ed said that was all, to let him go." 18 Southard immediately went to the mill where he saw Lessard and inquired as to reason for his discharge. Lessard said that he did not blame Southard for the breakdown of the cats but that he should have come down and told Lessard as soon as the accident happened. Even after Southard explained the circum- stances, Lessard reiterated that he should have reported the matter to him. Southard was paid in full and has never been reinstated to his job. 3. Conclusions Admittedly Reidel was the leading spirit in the AFL drive while Southard 'occupied the same position for the CIO. Although the Respondent's witnesses attempted to minimize their knowledge of the above facts, other undenied facts belie their testimony in this regard. The Respondent contends that Reidel was discharged on June 10, 1950, because of his propensity towards tardiness and that Southard was discharged on July 22; 1950, because he failed to report the accident to the cat promptly.. Are these the real reasons for the discharges or are they mere pretexts used to cover up the fact that these employees were being discharged in order to discourage union activity? In the first case it was conclusively established that Reidel was prone to be tardy, not once but many times per week over a period of at least a month and a half at the smallest estimate and of 4 months at the longest. Reidel's explana- tion was that he "was too lazy to get out of bed." Reidel's propensity in this regard would certainly justify his discharge-if we assume that that was the real reason for the decision to discharge him: But was the Respondent really concerned over this propensity?. The evidence is persuasive that that question must be answered in the negative. This pro- pensity had become a habit among Respondent's employees. The evidence proved too widespread a prevalence towards lateness among too large a group of employees over too long a period for the. Respondent to have considered tardiness to be of importance. Rose testified that he had warned Reidel times without number over a period of many months, that almost daily he issued warnings to all the employees as they reported their time to the timekeeper, that he publicly announced that Don Waites, edgerman, would be discharged the next time he was late but so far as this record shows Waites is still employed by the Respondent. The evidence is also conclusive that the sawyer, Barregi, was a most frequent offender and, indeed, was docked more times and 'for longer periods than Reidel but Barregi remained on the Respondent's payroll regard- less. As a matter of fact, despite all the evidence of the numerous occasions on which Reidel was late over this long period of months, Respondent only saw fit to dock his time on one occasion. This one occasion was on June 6, 1950, when is At the hearing Caton denied' that he had told Southard that Lessard had made the decision to discharge Southard and insisted that he himself was solely responsible for that decision. Caton steadfastly maintained this position even after having been shown an affidavit made by him on August 29, 1950, which indicated that the decision to discharge Southard had been made by Lessard. Lessard's testimony was to the same -effect although he finally admitted that he knew of the proposed discharges and the reasons therefor, a fact he could only have learned while at the landing. CRAG LUMBER'' COMPANY 929 Reidel was docked one-half hour's time for having been 20 minu'te's late°` Ob- viously tardiness of a few minutes was not only a habit of the employees but was also a recognized and acknowledged practice at the Respondent's mill, in- dulged in almost universally by, the Respondent's employees without any real objection from the Respondent. No doubt it was an inconvenience but, if so, the Respondent took no effective steps to correct it, at least until June 10, 1950, when the AFL leader was discharged purportedly because he had been late on :June 6. Tardiness was a matter of small concern to the Respondent actually. Another point to be noted is .the Respondent's attempt to place the. responsi- bility for the discharge of Reidel. onto Lessard and for the discharge of Southard onto Caton. Why this studied effort? The answer to that is easy : Rose had proved. himself by his undenied conversations to have been outspokenly antiunion while Caton was obviously prounion and Lessard, at least superficially on this record, noncommittal. Thus in each instance the least antiunion supervisor was made to take the responsibility for the Respondent's act. Out of perhaps an excess of loyalty to his employer, Caton steadfastly maintained that his was the sole responsibility for discharging Southard despite the excess of evidence to the contrary mounting up against his contention. Caton was obviously an unhappy witness while attempting to maintain his position against such odds. Lessard's own admission of his part in the Southard discharge placed the final stamp of fiction on Caton's loyal attempt. The truth of the matter was that Lessard ordered.the discharge of both Reidel and Southard. The fact is that the Respondent, alias Lessard, was violently antiunion and was prepared to go to the threatened length of discharging employees or of clos- ing the plant, if necessary, to prevent the unionization of its operations. This finding is made on the undenied statements made by Foreman Rose to various and sundry employees which, in truth and in fact, were statements of the coercive policy of the Respondent and of Lessard. In its brief the Respondent argues at considerable length that the numerous verbal expressions of Foreman Rose must be excluded from the evidence under Section 8 (c) of the Act which provides as. follows : (c) The expressing of any views, argument, or opinion, or the dissemina- tion thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence'of an unfair labor practice under any of the pro- visions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. The short answer to the Respondent's long argument on this score is that the statements made by Rose, a responsible supervisory official who was reiterating the Respondent's and Lessard's official position, contained threats of reprisal, force, and promises of benefit, to wit, that the Respondent would close down the plant, that various employees would be discharged, and that Reidel would lose his position of preferment with Lessard-"if the Union came in." Due to the direct and implied threats of reprisal and promises of benefit these statements are not protected under the above-quoted section of the Act. They were intended to interfere with, restrain, and coerce the employees in the exercise of the rights guaranteed to those employees in Section 7 of the Act and thus violate Section 8 (a) (1). of the Act and the undersigned so finds. . It must be noted in passing that the stories of the Respondent's witnesses did not tally. Rose testified that when Reidel was late on June 6,1950, he gave Reidel final warning that the next time he was late he would be discharged, and that Reidel was discharged on June 10 because he was late thereafter on June 7, 8, 9, and 10. On the other hand, Lessard's story was that when Reidel began report- 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing for work late in March in a tardy fashion and Rose desired at that time to fire him, he, Lessard , ordered Rose "ta jack him up" and give him a warning and that when Reidel was 20 minutes late on June 6, 1950, he ordered Rose to dis- charge him for having been late that day but to allow him to finish the pay period. If, as the Respondent attempts to explain the discharge of Reidel , they intended that discharge to be a warning to the other employees who were prone to lateness, is it logical that the Respondent would have waited until June 10 to discharge -Reidel when the offense of which they wanted to make an example occurred on June 6? The Respondent's purpose would have been best served by making a "horrible example" of Reidel on June 6, the day he was late, and not some 4 days later when the so-called lesson would he lost on the other employees. The truth of the matter lies in another direction . On the evening of June 7 or 8 Reidel was given his last chance to recant his union efforts during his con- versation with Rose at the house Reidel was then constructing, and when he refused to succumb to the warnings given him by Rose and affirmed his intention of continuing his union activity, the Respondent determined to, and did , discharge 'him for his refusal to abandon the rights guaranteed him by the Act. The late- ness of June 6 was the pretext , and not the reason, for the discharge. By discharging Reidel on June 10, 1950 , in order to discourage union activity, the Respondent violated Section 8 (a) (3) of the Act. The Southard story is remarkably similar. The Respondent knew him to be the opposite number of Reidel in the CIO group. He was given similar warn- ings to desist therefrom which he also failed to heed. When he failed, he was discharged. Again the Respondent attempted to make it appear that the pro- union Caton was solely responsible for the . decision to discharge him. Al- though Caton did his unhappy best to maintain that position , it was Lessard himself who finally proved it to be untrue. Was the Respondent really perturbed over Southard 's alleged failure to re- port the accident to the cat immediately ? The answer to this, like the tardiness -of Reidel, must be in the negative. The facts prove that Southard tried to report the accident immediately-at least as soon as practicable. Southard and .Moyer failed in this through no fault of their own 'but solely through the Re- spondent's fault-Caton had failed to tell the men where he could be located. Lessard attempted to make it appear that Southard should have immediately come to the mill to report the accident to him in person . But that also would have been futile for if the employees had gone to the mill to report the accident on that Saturday afternoon , they would have failed because at that time Les- sard was himself up in the hills across from the landing studying the timber on the other side of the canyon from the landing and was not to be found at his office in the mill to receive the report. The Respondent was, therefore, de- manding not only the ridiculous but also the impossible from its employees. • The truth is that Southard reported the accident as soon as it was humanly possible under the circumstances which the Respondent itself had created. It must be recalled that neither Lessard nor Caton blamed Southard for the breakdown of the cat as Caton very honestly testified that it was just luck 'that the cat had not broken while lie was driving it earlier that morning be- cause he drove it harder than Southard did. Although - Lessard very rightly objected to the loafing of the woods crew while being paid overtime on Saturday, he made it very clear that , lie did not discharge Southard for having' loafed. Such a claim would have been highly inappropriate in view of all the other evidence relating to Southard , to wit, that he was an extraordinarily good, con- scientious, and hard-working employee. Lessard made it clear that the only reason he had Southard discharged was because of his alleged failure to report the accident sooner-which , in fact, was an impossibility. CRAG LUMBER COMPANY 931 What then was. the reason that the Respondent discharged Southard? Ob- viously because he too, like Reidel, refused to abandon his attempt to organize the Respondent's employees into the CIO after having been warned to do so. Therefore, the undersigned finds that by discharging Al Southard on July 22, 1950, in order to discourage union activities, the Respondent violated Section 8 (a) (3) of the Act. 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 ob- structing 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. It has been found that the Respondent discriminated in regard to the hire and tenure of-employment of William Reidel on June 10, 1950, and of Al Southard on July 22, 1950, by discharging them on those respective days and by refusing thereafter to reinstate them in order to discourage membership in the AFL and the CIO. The undersigned will, therefore, recommend that the Respondent immediately reinstate each of the above-named employees to their former or substantially equivalent employment and, in addition, make each of said employees whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination to the date of the Respondent's offer of reinstatement to him less his net earnings during said period." In computing the amount of back pay due to each of them the customary formula of the Board set forth in F. W. Woolworth Company, 90 NLRB 289, shall be applied. 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 guarantees of Section 7 of the Act, thereby minimizing industrial strife 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 the rights guaranteed to the employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record, the undersigned makes the following : CONCLUSIONS OF LAW 1. Lumber and Sawmill Workers, Local Union No. 598, United Brotherhood of Carpenters and Joiners of America, AFL, and International Woodworkers of America, CIO, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and. tenure of employment of Williin- Reilael`an'd. Al Southard by discharging them on June 10, 1950, and 14 Crou.c'lt Lumber Co.. 8 NLRB 440. 961974-52--vol. 95--G0 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 22, 1950, respectively, and by refusing thereafter to reinstate them, thereby discouraging membership in Lumber and Sawmill Workers, Local Union No. 598, United Brotherhood of Carpenters and Joiners of America, AFL, and in Inter- national Woodworkers of America, CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in . and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. . [Recommended Order omitted from publication in this volume.] FORD MOTOR COMPANY CANTON FORGE DIvIsION) and INTERNATIONAL BROTHERHOOD OF BLACKSMITHS, DROPFORGERS AND HELPERS, AFL, PETITIONER. Case No. 8-RC-935. August 2, 1951 Order Vacating Decision and Decision and Order Upon a petition duly filed, a hearing was held in this case at Canton, Ohio, before John H. Garver, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' On July 11, 1951, the Board issued a Decision 2 in this case in which it found that the contract of September 28, 1949, entered into by the Employer and the Intervenor, International Union, United Automo- bile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, was no bar to the present proceeding. In that decision the Board also granted the request of the Petitioner for oral argument, limiting the scope of the argument, however, to the appropriateness of the unit sought by the Petitioner. Thereafter, the Intervenor filed a motion for reconsideration of the Board's decision on the contract bar question, and requested enlargement of the scope of oral argument to include that issue. The Board granted the request, and also granted the application of the Congress of Industrial Organizations to appear as amicus at the oral argument on the contract bar issue. On July 23, 1951, all parties participated in oral argument before the Board, the Intervenor, the Employer, and the CIO presenting arguments for holding the contract to be a bar not theretofore considered by the Board. Upon consideration, for reasons set forth in paragraph 3, below, a majority of the Board are of the opinion that the September 28; 1949, 1 The motion to dismiss made at the hearing by the Employer and the Intervenor is granted for reasons set forth In paragraph 3, below. 2 95 NLRB 127. 95 NT.RB No. 121.