Mathews Lumber Co., Inc.

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- Neva Schooley, and D. W. Wilson, and within ten (10) days from the date of this Direction, open and count the ballots of Dorothy H. Davis, E. L. Dorris, Mildred Ragsdale, Beulah P. Specht, Bernard Stolzman, Joseph M. Lee, R. W. Johnson, Harry Brown, Margaret P. Burrows, Ona C. Roll, Shirley H. Wade, J. E. Field (Fields), Raymond E. Kennedy, Irma Lockhart, J. McClurkin, M. M. Reid, C. A. Wilner (Willner), Kathryn Wilson, Nellie L. Wilson, Lena Irene Shipp, A. M. Sbabo, Lillie Anderson, Sarah (S. D.) Barton, M. A. Blanken- ship, Elizabeth M. Brinker, Delma (Delya) L. Clemmons, Julia Cloud, Mary S. Glover, Josephine Beam Keller, P. F. McDaniel, and W. S. \Tores, and thereafter prepare and cause to be served upon the parties a ,Supplemental Tally of Ballots, including the count of said chal- lenged ballots. MATHEWS LUMBER COMPANY, INC. and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL. Case No. 20-CA-354. September 24,1951 Decision and Order On April 13,1951, Trial Examiner Robert L. Piper issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and' take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended the dismissal of those allegations. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following addition and modification : 1. We reject the Respondent's contention that McDade was a sup- ervisory employee within the meaning of Section 2 (11) of the Act and that for 'this reason the Respondent's failure to rehire McDade during the 1950 season was not a violation of the Act. McDade was I 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 [Mem- bers Houston, Reynolds, and Murdock]. 96 NLRB No. 52. MATHEWS LUMBER COMPANY, INC. 323 the operator of the planing machine in the lumber mill, and was assisted by one employee, Purdy, who fed lumber into the planer. McDade's duties consisted in starting the planer, oiling it, and changing or setting up the knives. He also directed Purdy in his work and sometimes helped Purdy to feed the planer. Such direc- tions, however, were of purely routine nature. McDade was paid on an hourly basis. Although it was McDade who hired Purdy as feeder, he did so after he had obtained specific permission from Mathews. Nor does it appear that McDade had the authority to make any effective recommendation with respect to the change in Purdy's status. We find that McDade's relationship to Purdy was that of a skilled craftsman to his less experienced helper and there- fore McDade is not a supervisory employee within the meaning of the Act. (Chase Candy Company, 88 NLRB 27; American Finishing Company, 86 NLRB 412.) 2. The Trial Examiner found that the Respondent discriminatorily failed and refused to recall Kaphalos on and after March 20, 1950, in violation of Section 8 (a) (3) of the Act. We do not agree. The Trial Examiner's conclusion is based upon his subsidiary find- ing that Kaphalos was a good grader and in accordance with the Respondent's practice would have been recalled at the beginning of the 1950 season without an application for reemployment .2 We are, however, not satisfied that this finding is supported by a preponder- ance of the evidence. In support of its contention that Kaphalos was not recalled in 1950 because he proved to be unsatisfactory as a grader in 1949, the Respondent adduced at the hearing the inspection reports by the Western Pine Association for the months of October and November 1949. The October report shows that about 34 percent of the lumber graded by Kaphalos was not graded in accordance with the rules of the association, while the same report showed that another grader, Pruitt, made a much better showing. This report also con- tains the following note by the inspector : "Considerable time was spent coaching Kaphalos on W. P. A. rules." Kaphalos admitted that the inspector coached him on how to grade lumber, but only "a little bit, but not much," and further testified that the inspector told him "you are o. k." and "you know your lumber right, but you get a little nervous:" Although the November report showed some im- provement in Kaphalos' grading, it is significant that 10.4 percent of z Kaphalos never applied for reemployment during 1950 season because he heard that the Respondent would not recall the union men. However, Union Representative Williams Informed the Respondent as early as January 25, 1950, that he had conferred with the laid- off men and that all of them were ready and willing to go to work for the Respondent. 324 DECISIONS OF `NATIONAL LABOR RELATIONS BOARD the lumber graded by Kaphalos was graded either above or below grade as compared to a figure of 1.4 percent by grader Pruitt .3 Nor do we regard the testimony of McDade and Rata, set forth in the Intermediate Report, as sufficient to overcome the unfavorable inference as to Kaphalos' ability as grader arising from these reports. Planer McDade's testimony that Kaphalos was a good grader is the opinion of a fellow employee who was engaged on a different opera- tion. McDade furthermore admitted that, having acquired his ex- perience in the lumber industry in Arkansas, he was not too familiar with the rules of the Western Pine Association, under which the grading of the Respondent's lumber was done. Rata, who was super- intendent of another lumber company which subsequently employed Kaphalos, testified that Kaphalos was an "efficient" worker. Rata, however, stated that his company does not have much grading to do and that Kaphalos spends only one-sixth of his time as a grader. Although the matter is not free from doubt, we are not convinced on the record as a whole that there is a preponderance of evidence to show that the Respondent failed to recall Kaphalos at the beginning of the 1950 season because of his union membership rather than be- cause of his record as a grader in 1949. Accordingly, we shall dismiss the complaint as to him. Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Mathews Lumber Company, Inc., Fresno, California, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Brotherhood of Carpen- ters and Joiners of America, AFL, or any other labor organization of its employees, by discharging, laying off, or failing to recall employees or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment. (b) Interrogating its employees about their union affiliation and activities; warning its employees to refrain from such activities; threatening its employees with the layoff and subsequent reemploy- ment of only nonunion men, or with a permanent shutdown of the plant if they joined the Union; conditioning employment upon the 8 Kaphalos testified that Superintendent Thompson instructed him to grade 15 to 20 percent of the lumber higher than required by the western Pine Association rules. This testimony, however, does not furnish a satisfactory explanation for Kaphalos' poor showing. Kaphalos admitted that he did not follow Thompson 's instructions to grade higher . Indeed, the inspection reports indicate that Kaphalos had a tendency to grade lumber lower, rather than higher, than the rules required. ^MATHE,WS LUMBER COMPANY, INC. 325 abandoning of all union activities and warning that union activities were being kept under surveillance by the Respondent; increasing wages of its employees in order to discourage their union activities ; requiring applicants for employment to disclose the name of any labor organization to which they may belong. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join or assist United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any and 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the act : (a) Offer to A. L. Smith, Crow, Johnson, McDade, Purdy, Tillis, and Murdock immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them and Daugherty, Lowe, and Ross whole in the manner set forth in "The remedy" section of the Intermediate Report. (b) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, personnel records and reports, and all other records necessary to determine the amount of back pay due. (c) Post at its yard at Fresno, California, copies of the notice at- tached hereto marked "Appendix A.4 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent 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 Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent has violated the Act otherwise than as found herein, be, and it hereby is, dismissed. 4In the event that this Order is enforced by 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." 974176-52-vol. 96-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Orders of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify ourtemployees that: WE WILL NOT discourage membership in UNITED BROTHER- HOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, or any other labor organization of our employees, by discharging, laying off, or refusing to recall any of our employees or by discriminating in any other manner in regard to their hire and tenure of employ- ment, or any term or condition of employment. WE WILL NOT interrogate our employees about their union affili- ation and activities; warn them to refrain from such activities; threaten them with the layoff and subsequent reemployment of only nonunion men, or with a permanent shutdown of the plant if they joined the union; condition their employment upon the abandoning of all union activities and warn them that their union activities were being kept under surveillance; increase wages of our employees in order to discourage their union activities ; require applicants for employment to disclose the names of any labor organizations to which they may belong; or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organ- izations, to join or assist UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of col- lective 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 A. L. Smith, Dewey Crow, Harry Johnson, B. M. McDade, Richard Purdy, Ellis Tillis, and John Murdock immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them and David Daugherty, Robert Lowe, and Willis Ross whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain or to refrain from becoming or remaining members of the above-named union, or any other labor organization, except to the extent that such right may be MATHEWS LUMBER COMPANY, INC. 327 affected by an agreement requiring membership in a labor organiza- tion as a condition of employment , as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment because of membership in or activity on behalf of any such labor organization. MATIIEws LUMBER COMPANY, INC., Employer. By ---------------------------------------- (Representative ) ( Title) Dated -------------------- 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 STATEMENT OF THE CASE Upon a charge and amended charges duly filed by United Brotherhood of Carpenters and Joiners of America, AFL (hereinafter called the Union), the General Counsel of the National Labor Relations Board (hereinafter called the Board), by the Regional Director for the Twentieth Region, San Francisco, California, issued a complaint dated July 5, 1950, against Mathews Lumber Company, Inc. (hereinafter called Respondent), alleging that Respondent had engaged and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8 (a) (1) and (3) and 2 (6) and (7) of the National Labor Relations Act, as amended (hereinafter called the Act), 61 Stat. 136. Copies of the complaint, notice of hearing, and the charges were duly served upon Respondent. With respect to unfair labor practices, the complaint as amended at the hear- ing alleged in substance that Respondent discriminated against 11 named em- ployees because of their union membership and activities, in violation of Section 8 (a) (1) and (3) of the Act, and engaged in independent violations of Section 8 (a)' (1) of the Act by specifically enumerated statements and conduct. Respondent in its duly filed answer as amended at the hearing admitted the jurisdictional facts alleged in the complaint but denied the commission of the alleged unfair labor practices. - Pursuant to notice a hearing was held at Fresno, California, from August 17 to August 30, 1950, before Robert L. Piper, the undersigned duly designated '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 pertinent to the issues was afforded them. At the opening of the hearing, the General Counsel's motion to amend the complaint was granted, as was Respondent's motion to amend its answer. Re- spondent's motion for a bill of particulars was granted in certain respects, and complied with by the General Counsel. Respondent's motion to segregate the prospective witnesses was granted. Respondent's motion for a continuance of 30 days was denied, Respondent previously having been granted a continuance upon its motion to the said Regional Director. A 3-day continuance was granted upon Respondent's alternative motion for a shorter continuance. Respondent's motion to dismiss certain allegations of the complaint upon the ground that the fourth amended.charge was filed more than 6 months after their occurrence was denied. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the conclusion of the General Counsel's case-in-chief, Respondent's motions to dismiss various allegations of the complaint were denied, except Respondent's motion to dismiss the allegation that Thompson vilified, disparaged, and ex- pressed disapproval of the- Union, which was granted. Respondent's renewed motion for a continuance was denied. At the conclusion of the hearing, the General Counsel's unopposed motion to conform the pleadings to the proof was granted. All parties waived oral argu- ment. Thereafter. pursuant to leave granted to all parties, Respondent filed a brief which has been considered. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a California corporation maintaining its principal office and lumberyard at Fresno, California, where it is engaged in the production and sale of lumber and lumber products. During 1949, Respondent purchased or use in its operations approximately $160,000 worth of materials outside the State of California, and sold approximately $80,000 worth of its products outside the State of . California. Respondent admitted and stipulated these facts. I find that Respondent is engaged in commerce within the meaning of the Act.' II. THE LABOR ORGANIZATION INVOLVED The Union is a, labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events - Respondent's operations consist of a sawmill in the mountains at Shaver Lake, California, and a yard at Fresno, California, where the green lumber is piled, (tried, sorted, planed, resawed, loaded, and distributed to Respondent's cus- tomers. The issues here concern only the employees and events at the Fresno yard. On November 20, 1949, the Union through Williams, its international representative, began its organizational campaign among Respondent's em- ployees by the distribution of a union pamphlet at the yard. On December 2, Williams distributed among the employees at the yard an open letter from the Union, pointing out the advantages of joining and notifying them of a union meeting that evening at the Labor Temple in Fresno. The same day Respond- ent's officials began interrogating the employees about attending this meeting, and from then on a series of interrogations and threats concerning union activity occurred, which will be discussed more fully hereinafter. Excluding supervisors, officials, and office personnel, Respondent had 26 employees in the yard at the time, and approximately half of them attended the union meeting. Most of those attending signed membership applications at the meeting, and within 8 to 10 days 16 of the 26 employees had joined the Union, as well as 1 other employee who had voluntarily laid off employment shortly before the union activity began. One of the 16 employed members voluntarily laid off employment the day of the meeting, leaving 25 employees on the job of whom 7..I were union members. - 3 StanisZaus Implement and Hardware Company, Limited, 91 NLRB 618. MATHEWS LUMBER COMPANY, INC. 329 On December 7 Williams and other union officials met with Arthur Mathews, Respondent's president and principal stockholder, and Bryant Mathews, his brother and an official of Respondent, and requested Respondent to recognize the Union as the bargaining representative of Respondent 's employees. Mathews z refused, explaining that it was a poor time because a seasonal shutdown was imminent , there might be a turnover in the crew when operations reopened in the spring, and although he would be glad to have that crew back, he didn't know whether he could use more than 25 or 30 percent of them after reopening. Williams offered to prove that the Union represented a majority and suggested an interim recognition agreement to April 1 , 1950, to be reexamined in the light of the employees then working. This was refused and Williams said the Union would file a petition for certification with the Board, which it did that day. The same day Williams sent a formal written request for recognition to Respondent. On December 14 Respondent laid off 12 of its employees , and on December 16, 3 more. Of the 15, all were members of the Union except 1, who was laid off tit his own request. Every employee involuntarily laid off by Respondent was a member of the Union . Of the 10 remaining employees, only 1 was a union member, and the evidence indicates that Respondent was unaware of his mem- bership. Respondent's operations were normally seasonal in character, and were usually accompanied by a shutdown during the wet winter months, when the weather prevented the sawmill from operating and the drying of green lumber. Respondent had had a seasonal shutdown every previous winter except 1947, when unusual weather permitted the continued operation of the sawmill. Although the saWVmill was shut down in November 1949, Respondent retained 10 employees throughout the winter , which equalled the crew retained during the winter of 1947 when the sawmill remained in operation . Not a single employee who was not a member of the Union was involuntarily laid off during the winter of 1949 and 1950. On December 22 a meeting was held by officials of Respondent and the Union and a representative of the Board concerning the possibility of a consent elec- tion. Mathews refused to consent to an election based upon any payroll prior to that time . Williams contended that the laid -off employees should be included, but Mathews refused to do so, contending that he intended to go out of the planing mill business and reduce the crew, and therefore would not need as many employees after reopening the sawmill . Mathews made no mention of such plans on December 7 when Williams asked for recognition . However, Re- spondent continued to operate the planing mill throughout 1950. Sometime during late December or early January , a petition was circulated among Re- spondent's employees by one or two of the employees , to the effect that the signers were satisfied with their wages and working conditions . All of the employees present at the time signed this petition except the one who was a member of the Union. On January 1, 1950, Respondent raised the wages of its labor personnel to $1.371/2 per hour, the same amount listed in the Union's open letter of December 2 to the employees as the minimum wage paid union mem- bers for the same work in the Fresno area. This raise was of course during the so-called shutdown period. The wages of Respondent's laborers had not been increased since July 1, 1947 . On January 3 Mathews wrote the regional repre- sentative of the Board that Respondent did not expect to maintain an inventory of over 4 million feet of lumber throughout 1950 ( less than half of the usual amount ) and accordingly intended to employ only its present crew of 10 and recall only 4 of those laid off in December . The 4 to be recalled were specifically named. , The letter made no mention of discontinuing the planer mill. The 2 Unless otherwise indicated , Mathews refers to Arthur Mathews, Respondent 's president. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record reveals that Respondent had 5 million feet of stumpage under contract 1rr January, and increased this to 11 million by contracts negotiated in March and April. Contrary to Respondent's predictions, a crew in excess of that employed at the time of the 1949 shutdown was employed during the spring of 1950. The record reveals that a number of these men were employed prior to any increase in the stumpage contracts , and were not employees named in the letter of January 3. Sometime in early January Respondent instituted an application-for-employ- ment form which called for , inter alia, the names of societies or organizations with which the applicant was affiliated . All employees then employed and laid-off employees who were later recalled , as well as new applicants, were re- quired to fill out such an application form. On January 23 Respondent raised the wages of Hopkins, the employee who was most active in opposition to the Union, to $1.421/2 per hour. His work assignment apparently remained the same. The same day Respondent reem- ployed the one employee who voluntarily laid off on December 14, and who was not a member of the Union. On January 25, Williams , pursuant to Mathews' prior request, furnished him with a list of all Respondent's employees belonging to the Union, except the one still working, and advised Mathews that they were all ready and willing to return to work as soon as work was available. On Janu- ary 27 Respondent recalled A. L. Smith, a union member and the son of the one union member who was not laid off. On February 2, Respondent employed a new man to operate the planer. This position had previously been held by one of the laid-off union members. None of the men employed in January and Febru- ary was named in Respondent's letter of January 3. On February 15 the Board conducted a representation hearing pursuant to the Union's petition , at which Mathews, among others, testified. During March and April, Respondent hired 24 men , 9 of whom had been laid off and 15 of whom were new employees. Additional new employees were also hired in May, June, and- August. Six of the union members laid off in December were never recalled . On April 14, a meeting was held at Respondent's office among its officials, union officials , and a Board representative concerning a date for a representation election and the details surrounding such an election, -including Respondent's right to an observer. Shortly after this meeting, Mathews summoned Hopkins and D. A. Pruitt, another employee who had not joined the Union and had not been laid off, to his office . Immediately after this meeting Hopkins and D. A. Pruitt engaged in a series of conversations with the other employees which will be discussed hereinafter. On April 21, A. L. Smith was fired . The election was held on April 27. On May 5, Mathews wrote to the Board's Regional Office that if the Board ruled against Respondent on the election, Respondent would not bargain with the Union but would sell out or go out of business before doing so. On July 31, Johnson, another union member , was discharged. B. Interference, restraint, and coercion Aside from its officers, Respondent's only supervisory personnel in the yard were Thompson , its superintendent , and Tipton, his assistant. Both had the power responsibility to direct the work, make assignments , and discipline em- ployees, and Thompson was in charge of the hiring and firing. In his absence, Tipton acted as superintendent. It is clear that both are supervisors within the meaning • of Section 2 (11) of the Act. Tipton was present on November 20 when the first union pamphlet was distributed . After first denying .that -he-had MATHEWS LUMBER COMPANY, INC. 331 received one, on cross-examination he admitted that he had seen the pamphlet. He also admitted having seen the open letter of December 2, which invited the employees to attend a union meeting that night. The same day he interrogated several employees about their intentions concerning the meeting. He asked A. L. Smith, his father Andrew Smith, and McSwain if they were going to the meeting. A L. told him he might, Andrew said he was not. McSwain, one of the employees who did not join the Union, did not testify. Tipton denied this, but his denial was unconvincing, and I find that he made the - inquiries as testified. Shortly after the union meeting, Tipton was quite active in ascertain- ing who had attended and who had joined. Purdy testified that Tipton asked him if he had gone, how many were there, and if Duckworth, one of the em- ployees, was there. Purdy told Tipton that he had attended and how many were there. Tipton told Purdy that he didn't believe in unions, they just caused trouble. McDade, who ran the planer, testified that after Tipton talked to Purdy, who assisted McDade, Tipton asked McDade about the Union. McDade replied that he was a member, was getting union scale, and that he didn't care what the other employees did about it. Tipton told McDade that the Union would cause trouble and that Mathews would shut down before he would " go union." Tipton denied these conversations also. McDade and Purdy impressed me as credible witnesses, and I find that the conversations took place as testified. Tipton also asked Crow if he had joined the Union, and when Crow said he had, asked him who was at the meeting. Tipton told Crow that the Union would do him no good-it would just take his money and give him nothing. Tipton asked Murdock if he had joined the Union, and when Murdock said he had not, asked him if he had signed a slip at the meeting. When Murdock said that he had, Tipton told him that then he had joined. Tipton asked Murdock who was at the meeting, and when Murdock told him 5 or 6, asked Murdock why some of the others said 13 or 14 (which was approximately the correct number). Mur- dock replied that he didn't know why. Tipton also asked Daugherty and John- son if they attended the meeting. Daugherty admitted that he had and Johnson refused to answer. Tipton asked A. L. Smith, Andrew Smith, and McSwain collectively if they had attended the meeting, and the Smiths said they had not. A. L. Smith testified that Tipton then asked them to bear in mind that this was nearly the time for the seasonal layoff and what would happen if Mathews laid off all of the employees and hired back nonunion men. A. L. and McSwain answered that they didn't know. Tipton denied all of the above conversations, but his denial was unconvincing, in the face of the testimony of so many who impressed me as being credible witnesses. A preponderance of the credible evidence con- vinces me, and I find, that the conversations took place as testified. Thompson also saw the open letter of the Union and was aware of the or- ganizational meeting which took place December 2. On December 14 and 16, he laid off all of the employees who had joined the Union except Andrew Smith, who had told Tipton he was not going to join the Union and was not going to attend the meeting. A. L. Smith testified that on January 27, the day he was recalled to work, Thompson told him he could have his job back if he kept his nose clean, that Respondent was not going to have the Union take things over out there, and that if he wanted to work he should stay away from those people. Thompson then said that Respondent knew where it started, that McDade started it, and asked A. L. if McDade wasn't the one who started the union activity. When A. L. replied that he didn't know, Thompson asked him, "Do you mean to tell me that you haven't changed from the way you were?" A. L. replied that he did not mean that, and told Thompson that he would stay away from those people. • Thompson:.thcn 'told A. L: that Respondent"had someone--across town 332 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD who was telling it who went to the union hall. He also told A. L. that A. L. had not received more money but had lost money by joining the Union, because since then Respondent had increased its wages. Thompson denied having any conversation with A. L. that day other than assigning him to work. A. L. Smith impressed me as an honest and credible witness, and I find that the conversa- tion took place as he testified. All of my conclusions as to credibility are forti- fied by the numerous inconsistent and contradictory statements made by Re- spondent's principal witnesses, including Tipton and Thompson, which will be considered in some detail hereinafter in connection with the alleged discrimina- tion in the layoff and recall of employees. In many instances, Respondent's witnesses contradicted their own statements, casting serious reflection upon any weight to be accorded their testimony. In others, their testimony contra- dicted or was inherently inconsistent with statements made by other witnesses for Respondent. The above-found facts establish that Respondent, as alleged in the complaint, 'interrogated its employees about their union activities, warned them to refrain from such activities under the threat of laying off all employees and recalling only nonunion men, threatened to go out of business and shut down if they joined the Union, conditioned reemployment upon the abandonment of all union activities, and warned its employees that their union activities were being kept under surveillance by Respondent. Interrogation concerning union activities is per se violative of the Act, and I so find. It is well established that threatening employees with loss of employment unless they cease their union activities, threatening to shut down or go out of business if they join a union, and condi- tioning employment upon the abandonment of union activities constitute inter- ference, restraint, and coercion within the meaning of the Act and independent violations of Section 8. (a) (1) thereof, and I so find. The complaint also al- leged that Respondent threatened to keep and did keep the union activities under surveillance. The only proof offered of this allegation was the statement made by Thompson to A. L. Smith that Respondent had somebody across town telling it who attended the union meetings. There was no direct proof of any acts of surveillance, nor any circumstantial proof other than the threat made by Thompson. In the absence of any other proof, I am not satisfied that the General Counsel has met the burden of proof necessary to establish that Re- spondent actually engaged in surveillance of the Union's activities. In any event, as has been pointed out by the Board, it makes little difference because a state- ment to employees by an employer that it is engaging in surveillance constitutes interference, restraint, and coercion as much as the act itself, and I so find. As the Board has said, a statement indicating that Respondent is engaging in sur- veillance "is as intimidatory in character as surveillance itself." 8 No finding of independent interference, restraint, and coercion is made upon Tipton's statements that he was opposed to the Union, that it caused trouble, that it did no good, and that it took dues and gave nothing in return, as separate and distinguished from his other statements, because these statements clearly were expressions of opinion unaccompanied by threat of reprisal or force or promise of benefit, and as such are protected free speech within the meaning of Section 8 (c) of the Act. In addition to the acts of interference, restraint, and coercion heretofore found, it was.undisputed in the record that on January 1, 1950, Respondent increased the wages of its labor personnel, and during the same month, instituted an appli- cation-for-employment form which required the disclosure of societies and organ- 8 S. W. Evan h Son, 81 NLRB 161; Hgrold W. Baker Co., 71 NLRB 44,; Hilltop Baking Company, 93 NLRB 694. MATHEWS LUMBER COMPANY, INC. 333 izations to which the employees belonged. Respondent required all employees then employed or subsequently hired to execute such an application. Such a requirement is in effect the same as interrogation concerning union membership. As such it is per se interference, restraint, and coercion, and I so find. The circumstances surrounding the increase in pay clearly indicate that its purpose was to discourage the union activity. Respondent had not given a wage increase since July 1, 1947. Yet, approximately 2 weeks after laying off all but one of the union members, during a slack period when according to its own wit- nesses it had little work, and was anticipating a substantial curtailment in future operations, Respondent raised the wages of its remaining laborers to the same figure which the Union had publicized among Respondent's employees as the minimum union scale for that work in the Fresno area. Coupled with the layoff of substantially all of the union members, the effect of such an action upon the employees' attempts to organize is self-evident. In addition, although Respondent had been requested to recognize the Union as the representaive of its employees, it gave the Union no notice of the raise. Thompson's statement to A. L. Smith that he had not received more money by joining the Union but had lost money because Respondent was now paying more illustrates the objective behind Re- spondent's action. It is of course well established that an increase in wages for the purpose of discouraging union activity constitutes interference, restraint, and coercion. The preponderance of credible evidence convinces me, and I find, that Respondent increased its wages in order to discourage union activity, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. In addition to the above-found acts of interference, restraint, and coercion by Respondent's officials and supervisors, the complaint, as amended by the bill of particulars, also alleged various acts of interference, restraint, and coercion by several nonsupervisory employees of Respondent. These employees were Hop- kins, D. A. Pruitt, and Hart. Their jobs were, respectively, feeder, grader, and tallyman, none of which were supervisory positions within the meaning of the Act. It would be necessary, therefore, for the General Counsel to establish either that these employees were agents of Respondent, that they were authorized to so act, that the alleged conduct was ratified or acquiesced in by Respondent, or that the other employees had just cause for believing that they were acting for Re- spondent. An examination of the Board and court cases reveals that one of these elements must be present in order to hold Respondent responsible for the conduct of rank-and-file employees. A great deal of evidence was offered by the General Counsel concerning the activities of these employees and also touching upon some of the elements necessary to establish Respondent's responsibility therefor. By far the most active antagonist of the Union was Hopkins, a laborer whose job consisted of feeding lumber onto Respondent's rough lumber sorting chain. From the outset of the union activity, he engaged in active opposition to the Union. Most of it consisted of interrogation, threats, and warnings similar to the conduct of Tipton and Thompson. He asked various employees if they had attended the meeting or joined the Union, warned them against joining, told them Mathews might shut down if they joined, told them not to join until Mathews gave his approval, aided in the circulation among the employees after the layoff of a petition stating that they were satisfied with their wages and working conditions, warned employees after the layoff that they would not be recalled or would also be let go unless they abandoned the Union, called the pay raise to their attention and pointed out the futility of remaining in the Union, and advised them not to join the Union 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because it would discriminate against colored help. Most of Respondent's labor- ers, including Hopkins, were Negroes. However, with the exception of the inci- dents occurring on April 14, which will be discussed subsequently, there is no direct evidence that Hopkins was authorized to so act, or that his conduct was ratified or acquiesced in by Respondent, or that the employees had just cause for believing him to be acting for Respondent. Hopkins was a most evasive and unreliable witness. The record contains numerous instances of direct contradic- tions in his testimony, in each case only one of which could be true. Certainly there is considerable suspicion raised by the record that Hopkins was acting for Respondent on other occasions than April 14, but suspicion cannot take the place of probative evidence. The record reveals that Hopkins had access to the list of union members sent to Respondent by Williams. Hopkins explained this by saying he saw the list on Mathew's desk while cleaning his office. Hopkins did extra janitor work for Respondent on week ends and after hours, for which he received additional pay. He alone received an additional pay raise in January, after the general pay raise, and this was not explained by Respondent. After interrogating em- ployees about joining the Union, he accused many of them of lying to him, because he had seen the list and knew who belonged. Such conduct would seem to evidence undue concern upon the part of a rank-and-file employee. However, there was evidence that he had a personal conviction against unionism, based upon an experience he had once had when a strike at another company caused him to lose considerable pay. He urged employees to sign the petition. He told several employees he was in a position to find out things they could not. He told A. L. Smith that he had intended to tell A. L. something that would help him, but that it was too late after A. L. admitted that he had joined the Union. He also told A. L. after he was recalled to work in January that the employees who joined the Union were no longer on the job, and that there were a number of employees who expected to be recalled who were not going to be. All of these items of proof raise a strong suspicion that Hopkins was acting for Respondent, but fall short of substantial proof. Hopkins and Respondent's officials denied that he was acting for Respondent, or that Respondent was aware of or ac- 'quiesced in such activities. I am convinced and find that the General Counsel has not sustained the burden of proof in establishing Respondent's responsibility for Hopkins' conduct aside from the activities of April 14. In any event, Re- spondent's supervisors engaged in the same type of conduct, and the recommended order would not be broadened by responsibility for Hopkins' activities. The same conclusions are applicable to the activities of Hart and Pruitt. Hart conceived and distributed the petition, with Hopkins' help. Hart said that he delivered it to Mathews after it was signed. Andrew Smith, the only union member remaining after the layoff, refused to sign it but the other employees did. The petition said that the signers were satisfied with their wages and working conditions. There is no evidence that Respondent was in any way responsible for it, other than the general suspicion attached to Hopkins' activities which has already been discussed . There is no evidence of any disparate treatment by Respondent of the circulation of union literature, and, in fact , the record reveals the circulation by the Union of both the pamphlet on November 20 and the open letter on December 2 without any interference from Respondent. It is established that the circulation of an antiunion petition does not constitute interference, restraint, and coercion, where the employer does not encourage or participate in the formation or circulation thereof, and where there is no MATHEWS LUMBER COMPANY, INC . 335 evidence of disparate treatment of prounion solicitations.` There is no evidence in the record that Respondent was responsible for or acquiesced in any conduct engaged in by Hart or Pruitt, or evidence that would justify the employees in believing that they were acting for Respondent, except, with respect to Pruitt, the incidents of April 14. Both Hopkins and Hart made statements to the employees to the effect that their conduct was authorized or acquiesced in by "higher authorities," inferring that it would be best to heed their warnings. However, it is a firm principle of evidence that agency or authorization cannot be proved by the admissions or statements of the alleged agent. To hold otherwise would be to ignore the principles underlying the hearsay rule. However, the conduct of Hopkins and Pruitt on April 14 is subject to a con- trary conclusion than that heretofore reached as to their other activities, because of the proof surrounding the incidents of that day. A meeting concerning the representation election had been held in Mathews' office, attended by him, other representatives of Respondent, union officials, and a Board representative. Math- ews was informed that Respondent had the right to an observer at the election, and after he had suggested Tipton, that the observer should be one of the non- supervisory employees. The full meeting broke up about 11: 30 a. in., but appar- ently after that Mathews continued to meet with the Board's representative and Aufderheide, Respondent's labor relations counselor, and subsequently with Auf- derheide alone. The employees in the yard had from noon to 1 p. in. for lunch, and most of the laborers ate lunch together upon a table set up in the yard near the drinking fountain. About 12: 30 p. in. Tipton came up to them and informed Pruitt and Hopkins that Mathews wanted them in his office. This was heard and observed by many of the crew, and was naturally a matter of interest because such a thing had never happened before. There is some dispute in the record whether Pruitt and Hopkins went in together. Most of the witnesses thought Pruitt preceded Hopkins, but in any event, all agreed that they were in the office together, except Pruitt, who could not remember that Hopkins was there. However, Mathews and Hopkins both so testified as did numerous witnesses for the General Counsel. According to most of the employees who testified, Pruitt and Hopkins returned to the yard together shortly before 1 p. in. Mathews testified that he dismissed Hopkins first and continued to talk to Pruitt for some time thereafter. This of course conflicts with the evidence that they returned to the yard at the same time. Hopkins, whose testimony is replete with contradictions, said that he was in the office only about 5 minutes, but the evidence of a substantial number of the em- ployees shows that he must have been in the office around 25 minutes. Pruitt said that Aufderheide was there also, but neither Mathews, Hopkins, nor Aufderheide so testified. According to Mathews, he called the two men in because he wanted to choose one of them as the observer for Respondent in the coming election. Both Hopkins and Pruitt said that Mathews made no mention of either of them being an observer. Pruitt merely said that Mathews told him there was going to be an election, and never said anything about him being an observer. Hopkins said that Mathews said there was going to be an election, and told Hopkins that he, Mathews, had no objection to Hopkins joining the Union. Clearly this latter remark was extraneous to the alleged subject of conversation, and Mathews made 4 Tennessee Coach Co., 84 NLRB 703; Louisville Shirt Co., 69 NLRB 145; of. Editorial "El Impartial" Inc., 92 NLRB 1795, where the Board said : "In finding interference, re- straint, and coercion by the petition repudiating the Union , we base our finding solely on Respondent's disparate treatment of prounion and antiunion solicitation , and the active efforts of Respondent through Diaz and Burgos to secure signatures for the petition." [Emphasis supplied ] 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no mention of it in his testimony. On the other hand , Mathews said that he told Hopkins upon his inquiry that he did not have to join the Union . Mathews said that after he dismissed Hopkins he went into detail with Pruitt about the election and how Pruitt would represent Respondent , which of course is contrary to what Pruitt said. Hopkins' testimony about this -meeting was extremely confused and contradictory. His written statement, given to a Board representative prior to the hearing and signed by Hopkins , was received in evidence. He testified several times that the statement was true and correct, yet testified to many facts directly opposite to the statement , both concerning this meeting and other incidents. After testifying positively that Mathews did not tell him when the election would be, and that he knew the date because a notice of it was already posted (which was obviously impossible because the date was agreed upon at the full meeting that day), when confronted with his written statement to the contrary, he changed his testimony and said that if Mathews told him the date of the election, he could not remember it. After avoiding the General Counsel's questions con- cerning what happened in the office, Hopkins made, an extraordinary reply to my question concerning the purpose of his meeting with Mathews. Hopkins said to me : "I ain't supposed to tell you what for. He called me in for my own per- sonal business." It is apparent that even Respondent's witnesses are not in ac- cord concerning what happened in the office. In any event , about 5 minutes before 1 p. m. Hopkins and Pruitt returned to the yard. Hopkins immediately called aside and started talking to Russell, one of the laborers. According to Russell , Hopkins said that there would be an election April 27, and that, although he would not tell Russell who told him, he got it from responsible authorities that Russell should not have anything to do with the Union . While Hopkins was talking to Russell the whistle blew, signalling the termination of the noon hour and the beginning of work. Ac- cording to numerous witnesses , Hopkins continued to talk to Russell and ignored the whistle, although the sorting chain was in order and lumber was ready for sorting. All of the witnesses, including Hopkins, agreed that he was a very prompt starter and that it was unheard of for him to ignore the starting signal. Russell said Hopkins kept on talking even though Russell told Hopkins they should go to work. A number of the employees testified that Tipton was standing close by and did nothing, even though the chain was not operating and its entire crew was idle . A. L. Smith testified that Tipton was close enough to hear what Russell and Hopkins were saying. During the course of the afternoon Hopkins continued to stop the chain and talk against the Union to individual employees. This was also without precedent , and was observed without comment by Tipton. Greenwood, one of the crew on Hopkins' chain, saw all of this and was called over by Hopkins after Russell. Hopkins told Greenwood he wanted to talk to him about the Union , and that Greenwood had deceived him about joining. He told Greenwood he had asked Greenwood not to join, and told him it would be best if he did not. He told Greenwood it would cost him too much to belong, and asked him if the Union ever sent any colored men to union jobs in Fresno. He told Greenwood the election was going to be April 27, and asked him how he was going to vote. When Greenwood refused to tell him, Hopkins said that if Greenwood voted for the Union, Mathews did not want it and might shut down the plant . Hopkins asked Greenwood to vote against the Union . None of the employees -knew before this time when the election would be held Green- wood said Hopkins stopped the chain several more times that afternoon to talk to others . Each time Tipton was within observing distance and made no pro- test. During these periods when the chain was stopped Pruitt was doing the same thing-contacting employees _ individually and campaigning against thb Union. MATHEWS LUMBER COMPANY, INC. 337 During the afternoon Hopkins also talked to Andrew Smith , who was working elsewhere in the yard and had come up to the water shed near the chain to get a drink. Hopkins came over and straddled the door of the shed while Smith was inside. Smith asked Hopkins to let him out, and Hopkins said he wanted to talk to Smith. Hopkins told him that if he had not joined the Union not to do so, that Hopkins had never told him anything wrong, and that Mathews said he would shut down or sell out if the employees joined the Union. Smith again asked to be let out , saying that they had to get to work, and Hopkins told him they could stop the chain a half hour or an hour and nothing would he said. Smith, an older hand than Hopkins, testified that he was so amazed by this conduct that he thought Hopkins was out of his mind, and that such a thing ( deliberately not working ) had never happened before or since. Smith also saw the chain stopped several more times , when it was not broken and lumber was available. Both Duckworth and Daugherty said that Hopkins con- tinued to talk to Russell for some time after the whistle blew, with lumber :available and the chain in working order. That evening , on the way home in -a car with Savage, Macklin, and A. L. Smith, Hopkins asked Daugherty if he thought he would have a job there if Respondent operated for the next 5 years. After telling Daugherty that if the Union got in Mathews would sell out and that the Union would not dispatch any colored help to jobs from its hall, and after asking him to promise to vote against the Union , Hopkins told Daugherty that Hopkins would not say who told him these things, but that it came from higher authority and he was telling Daugherty for his own good . Hopkins alternately denied and admitted all of these conversations . His testimony seemed to vary depending upon the questioner. A careful analysis of the record reveals that at least twice , he both denied and admitted talking to the men that afternoon after the meeting. After denying that he had told them that Mathews might shut down if they joined the Union , he subsequently admitted it. He also so stated in his written statement . He flatly denied that on other occasions he had told the employees that Mathews would tell them when to join the Union, but after being shown his statement to the contrary, admitted that he had told them substantially that, and reiterated that his statement was true and correct. After denying that he had ever talked to Greenwood all of the time he worked there , upon the question of Respondent 's counsel, Hopkins recalled several conversations with Greenwood and specific details thereof. Without burdening this Report with all of the many examples , Hopkins' testi- mony is such a mass of contradictions , only one version of which could be true, that I find him to be a completely incredible witness. Pruitt's actions after the meeting on April 14 were substantially similar. He too stopped working a number of times during the afternoon , in the presence of Tipton, to campaign against the Union among the employees . Greenwood, Ross, and A. L. Smith all testified that Pruitt told them Mathews would shut down or sell out before he would let the Union in. All three said that Pruitt stopped the chain several times to talk to men and that Tipton observed it without comment. Pruitt also told Greenwood that Mathews had given them a raise and that that was all he could afford and would give, and that it was union wages. Pruitt complained to Greenwood about the cost of joining and the dues of the Union . Ross and A. L. Smith testified to substantially the same conversation with Pruitt as Greenwood . Pruitt talked to Greenwood and A. L. Smith together and asked Smith where he could get another job. Tipton denied that the chain was stopped that day, that Hopkins and Pruitt engaged in such conversations, and that he had been instructed to condone any such activities. He admitted summoning Hopkins and Pruitt to the office 338 DECISIONS OF NATIONAL LABOR-RELATION S BOARD upon Mathews' request, but denied any' knowledge of what Mathews wanted. Mathews denied telling Hopkins and Pruitt that he would shut down rather than permit the Union, and denied that he told either of them that he was against the Union or suggested that they try to influence the other employees against the Union. Mathews' credibility was seriously impeached by direct proof, which will be discussed subsequently in connection with the alleged discrimination. Tipton's testimony consisted of a general denial of everything. The General Counsel's witnesses testified in a clear and straightforward manner, and sub- stantially corroborated each other's testimony concerning many of the incidents. The preponderance of credible evidence convinces me and I find that on April 14 Hopkins and Pruitt engaged in the above-described conduct in the presence of Respondent's supervisor. To summarize, the record reveals that two rank-and-file employees after a private meeting of some 25 minutes with Respondent's president, an extremely unusual event noticed by all of the employees, immediately engaged in a series of interrogations, threats, and warnings concerning the Union and the coming election. It further reveals that while doing this they repeatedly stopped work during the afternoon, thereby making idle the entire crew of one chain, in the, presence of the supervisor who had summoned them to the meeting and without any protest upon his part, which was entirely contrary to normal operations. The record also reveals that 3 weeks later, shortly after the election, Respondent advised the Board that it would sell out or go out of business before it would bargain with the Union. These facts establish that Respondent, if it did not specifically authorize the conduct, condoned and acquiesced in it. They further establish that the em- ployees had just cause for believing that Hopkins and l'ruil t were acting for Respondent. The record also reveals that Respondent's supervisors had pre- viously engaged in the same type of conduct It is well established that ac- quiescing in or condoning such conduct by rank-and-file employees places the responsibility for it upon the employer, particularly where it coincides with conduct engaged in by supervisors' The Supreme Court has determined that rank-and-file employees can be found to be agents of an employer, where the other employees have just cause to be- lieve that they are acting for the employer.6 For the reasons stated, I find that Respondent, by the acts of Hopkins and Pruitt on April 14 in interrogating employees about their union activities, warning them to refrain from union ac- tivities, threatening them with termination or the closing of the plant if they did not refrain from union activities, and warning them not to vote for the Union for their own good, interfered with, restrained, and coerced its employ- ees in the exercise of the rights guaranteed by Section 7 of the Act. C. The discriminatory layoffs, refusals to recall, discharges, and demotion im earnings 1. The discriminatory layoffs As has been found, Respondent on December 14 and 16 laid off all of its employees who were members of the Union except one. Andrew Smith, the one union member retained, denied his membership to Tipton and Hopkins be- fore the layoff. Although all of the men involuntarily laid off were union members, 6 Yale -Filing !Supply Co., 91 NLRB 1490 ; Union Twist Drill Company, 88 NLRB 1361 ; Bibbs Mfg. Co., 82 NLRB 338; Macon Textiles, Inc, 80 NLRB 1525. 6 International Association of Machinists v. N. L. R. B., 311 U. S. 72. MATHEWS LUMBER COMPANY, INC. 339 the complaint only alleged that five of them were discriminatorily laid off. Four of them, A. L. Smith, Daugherty, Lowe, and Ross, were alleged to have been discriminatorily laid off from December 14 to January 27, March 8, March 16, and April 3, respectively. The complaint also alleged that Crow was either discriminatorily discharged or laid off December 14, but there is no evidence in the record to support the allegation of discharge, and accordingly he is in- cluded with the other four alleged to have been discriminatorily laid off. He was never recalled. The General Counsel conceded the economic necessity for the layoff, which is undisputed in the record. Respondent contended that senior- ity on the job was not a factor in determining who should be laid off and that the decision was based solely upon the employees' ability and versatility as workmen. This contention is not supported by the record. Lowe and Daugherty were green lumber pilers, and were the oldest nonskilled laborers on the job. Pruitt had greater seniority, but he was a grader, a skilled occupation. The General Counsel contended that green lumber pilers were skilled laborers, but the record does not establish this. It does establish, how- ever, that green lumber pilers were scarce in the lumber industry in California, and that such work required a stronger and harder worker than Respondent's other laboring jobs, because green lumber weighs about three times as much as dry lumber. The green lumber pilers worked on piecework and averaged sub- stantially higher wages than the other laborers who were not on piecework. A. L. Smith was a general laborer, occasionally working on piecework in the dry lumber at higher net wages, and frequently working as a laborer at the hourly rates. He was senior in service to all of the unskilled laborers except the four green lumber pilers and his father, who was hired by Respondent at the same time as A. L. The other two green lumber pilers had voluntarily laid off before December 14 Crow was an equipment operator, a skilled classi- fication, and was senior to one of the equipment operators retained . Ross was a general laborer and was senior to two of the general laborers retained . Smith, Lowe, and Daugherty had been working for Respondent since 1946 , Ross and Crow since 1948. The record reveals that seniority, while not controlling, was probably a fac- tor in determining who should be laid off. It also reveals that even upon the sole basis of ability and versatility, Respondent's choice was discriminatory. The evidence shows that the green lumber pilers, Lowe and Daugherty, were the oldest unskilled laborers, were retained in 1946 to the complete shutdown, were retained throughout the winter of 1947 and 1948, and were retained until the general shutdown in 1948. The only laborer retained longer in 1 948 was Hopkins, who was kept on an additional week. It was undisputed that both Lowe and Daugherty were excellent workers and that they were fully qualified to per- form the general labor jobs , which were substantially easier than green lumber piling. It was also undisputed that many of the general laborers , particularly the older men, were not able to do green lumber piling , at least at a satisfactory speed. During November 1949, Thompson called the four green lumber pilers together, told them the sawmill was going to shut down shortly, that he would have to lay off some of the crew, and that he wanted to know which of the four pilers wanted to work through , so he could make his plans for the layoff. This of course jibed with the contention that the employees with the most seniority were retained. Russell and Duckworth told Thompson they -wanted to lay off, and subsequently did so voluntarily . Lowe and Daugherty said they wanted to work through. All four of them corroborated this conversation . Thompson substantially admitted all of it, and said that he told them that as long as there was other work they could continue on. Yet his only explanation for laying 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off Lowe and Daugherty on December 14 and retaining others of less seniority and general ability was the rather lame statement that he did not need so many men-which obviously was no explanation at all. Lowe testified that Respondent normally kept on the older men. Duckworth , who voluntarily laid off , testified that Thompson told him he could have work at any time as long as Thompson ran the yard. The conversation between Thompson and the four pilers pre- ceded the union activity. Duckworth also said that the green lumber pilers did the general labor work in the winter when there was no green lumber to pile. Daugherty testified that Thompson said that he wanted to know which of them would work through before he started laying off men who were younger on the job than they, and that they could work through the winter, which was corroborated by Lowe. During December, Lowe and Daugherty pulled lumber off the chain , which was general labor work. Even on the sole basis of ability and versatility, Respondent's choice is unexplainable. Five general laborers were retained who clearly did not possess the ability and versatility of Daugherty and Lowe. None of them were green lumber pilers, and the record reveals that two of them , Andrew Smith and Horner, were too old for such work . Horner was a man 77 years old who did general cleanup work and obviously lacked the all-around ability of Daugherty and Lowe. Another of the five retained' had only worked in the industry 3 months. The work of any of the five could have been done by either Daugherty or Lowe with greater ease than green lumber piling, and had been done by them in the past , including the last month they worked. In the face of Daugherty and Lowe's undisputed excellent work, gen- eral ability, and versatility , and the shortage of green lumber pilers, Respondent obviously did not observe its alleged criterion in choosing men to be retained. Thompson emphatically stated that ability and versatility were the only factors considered, but when asked directly why Lowe and Daugherty were laid off, tailed to refer at all to such a test, for obvious reasons. Mathews , who also contended that general ability was the only factor considered, under cross- examination admitted that at the representation hearing on February 15 he testified that the oldest men and the most proficient men were retained , not just the most proficient. In any event , the undisputed evidence establishes that under either criterion , Lowe and Daugherty should have been retained. Re- spondent's antiunion conduct preceding and following this layoff has already been discussed herein. The preponderance of credible evidence convinces me and I find that Respondent laid off Daugherty and Lowe from December 14, 1949, to March 8 and 16, 1950, respectively , because of their union activities , thereby discriminating against them in regard to their hire and tenure of employment, discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. Substantially the same conclusions are applicable to the layoff of A. L . Smith. He had been employed since 1946 and was senior to all of the unskilled laborers except the 4 pilers. It was substantially undisputed that he was an excellent worker and had performed all of the different labor jobs in the yard, including green lumber piling. He was one of the 10 employees retained through the 1947-48 winter. Of the 5 unskilled laborers retained , 4 had less seniority than he and at least 3 of them, if not all 5 , were demonstrated by the record to have less ability and versatility. Thompson himself testified that A. L. performed all of the jobs in the yard at various times. When asked why he had not retained A. L., Thomp- son replied that he filled A. L.'s job with another man who was retained, which was in effect no answer to the question. No proof was offered that the individuals retained possessed greater ability and versatility than A. L., and in fact the MATHEWS LUMBER COMPANY, INC. 341 record demonstrates the contrary. I am convinced and find that Respondent dis- criminatorily laid off A. L. Smith from December 14, 1949, to January 27, 1950, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. Ross was a general laborer employed since 1948. It is undisputed in the record that he was a good worker. He testified, and it was not denied, that when he was laid off in 1948, Thompson told him it was because he was the youngest in seniority. Thompson admitted that he had no complaint about Ross' work at the time of the 1949 layoff. Again, Thompson's only explanation for laying off Ross was because he did not need so many men. Ross was obviously superior in, general ability and versatility to Horner and Salley. Salley had only been on the job for 3 months. Horner was 77, and unable, according to Thompson's own admission, to do many of the laboring jobs. Both Thompson and Hopkins testified that Hart, a tallyman hired for the first time in 1949, did laboring work after the layoff as there was not much, if any, tallying to be done. As a green hand it is doubtful if he had Ross' ability to do that work. It is obvious that Ross would not have been laid off based upon Respondent's alleged criterion of ability and versatility. Coupled with the many actions by Respondent establishing its union animosity, I am convinced that the real reason for Ross' layoff, as well as those previously discussed, was to discourage and prevent union activity. Accordingly I find that Respondent discriminatorily laid off Ross from December 14, 1949, to April 3, 1950, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. Crow was an equipment operator, a skilled classification, employed by Respond- ent since 1948. It is undisputed in the record that he was an excellent worker. Even Hopkins admitted that he was a very good worker. It is also established in the record that skilled workers were retained in times of layoff. This accords with Respondent's claimed test of ability and versatility, because the skilled workers could also perform any of the general laboring jobs. Yet five ordinary laborers were retained and Crow was not. In addition, he was senior in service to one of the two equipment drivers retained, who had been employed just that year and had no previous experience in the industry. The record also reveals that Crow was probably a better operator than the other equipment operatoi retained, although junior in service. Thompson told Lowe that Crow was a good man, told Russell that Crow was one of the best lift operators Respondent had, told Crow he was a good operator in 1948, and told A. L. Smith that Crow learned faster and would make a better operator than Pearce, who was his senior on the fob. From the undisputed facts it is obvious that Respondent did not observe its alleged test in laying off Crow, and for the reasons heretofore mentioned, I am convinced that the real motivation was to discourage and prevent union activity. Accordingly I find that Respondent discriminatorily laid off Crow on December 14, 1949, and has since failed and refused to recall him, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. 2. The discriminatory refusals to recall As previously mentioned, only five of the union members laid off were alleged to have been discriminatorily laid off. However, the complaint also alleged that Respondent discriminatorily failed and refused to recall five of the other employees who had been laid off December 14 and 16. All except Crow, here- tofore found discriminatorily laid off, were subsequently recalled in the spring of 1950. Respondent never recalled Tillis, Murdock, McDade, Purdy, and 974176-52-vol. 96-23 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kaphalos, all union members., Although Crow was not recalled, it is unneces- sary to consider him,again because I have found that he was discriminatorily laid off and not recalled. Although Mathews had previously advised the Board that he intended to re- employ only the 4 green lumber pilers and would not need the men he had in 1949 because he anticipated contracting for less stumpage than in past years, the record reveals that Respondent during the spring of 1950 hired a crew larger than it had at the time of the 1949 shutdown. The stumpage ultimately, under contract in 1950 more than doubled the amount predicted by Mathews. Again although Mathews had told Williams that Respondent would be glad to have all of the crew back, Respondent never recalled the 5 above named or Crow, and replaced all of them with new men. In addition, before any negotia- tions for an increase in lumber contracts occurred, Respondent employed a number of men prior to recalling any of the 4 green lumber pilers. When, questioned about this, Mathews was unable to explain it. Respondent's posi- tion on the general subject of recalling employees after the layoff and the particular issue of failing to recall the 5 union members developed into a mass of inconsistencies. After advising the Union that it intended to dispose of the planer and as a result would not need the laid-off employees, apparently in order to avoid including them as employees eligible to vote in an election, it did not dispose of the planer. A few weeks later, apparently having abandoned the disposal plans, it advised the Board that it planned to maintain an in- ventory of only 4 million feet of lumber throughout 1950, and accordingly would employ only, its then-employed crew of 10 men and recall only the 4 pilers, again apparently in order to limit the number of employees eligible to vote Yet during January, February, and part of March, it hired a number of employees, none of whom were the 4 pilers, before any increase in its stumpage contracts had been effected. Ultimately its stumpage figure for 1950 was about the same as usual-more than twice the amount estimated in its letter to the Board. Mathews at first emphatically insisted that former or laid-off employees had no preference in being recalled, and that Respondent hired whom it pleased upon reopening for the season. Subsquently, when confronted with his former testirony'at the representation hearing, he admitted that Respondent gave pref- erence to those previously employed when reopening, called them and tried to get them back, and that he had testified in response to such a question : "Right, we do that, you bet you." The record also shows that Mathews had previously told Williams that Respondent would be glad to get the old crew back. Thomp- son again attempted to place the determination of who would be employed after a seasonal shutdown upon the basis of ability and versatility and not seniority. Such a test would of course accord preference to experienced employees who had rendered good service over new inexperienced applicants. The record re- veals that a substantial number of new men without experience in the industry were hired in 1950, and that ultimately Respondent replaced each of the five union members not recalled with either less qualified or inexperienced help, com- pletely contrary to its admitted practice of preferring laid-off employees to new applicants, and its alleged test of ability. Thompson, although urging that ability and versatility were the test, admitted that he had hired a number of inexperienced men in 1950, while the five men and Crow were not recalled. Ap- parently recognizing some of these inconsistencies, Respondent attempted to explain its failure to recall the five men by proof that some of them never ap- plied for reemployment and that some were unsatisfactory employees. On both counts it failed. With respect to the first, the record is replete with evidence that laid-off employees were not required to apply but were recalled by MATHEWS LUMBER COMPANY, INC . 343 Respondent and other companies in the industry after seasonal layoffs. Mathews admitted that Respondent, as a matter of practice , called and tried to get back its old employees after a layoff . A number of the'older employees so testified. Testimony that it was a general custom in the industry to recall employees after a seasonal shutdown was given by Williams , McDade, aild_ Andrew Smith , who had, respectively , 20, 32, and 35 years' experience in the industry . As in the case of the layoffs , I do not believe that the record sup- ports a finding that the order of recalls was based solely upon seniority in service. However, as between former experienced help and new applicants, it is undisputed that the former was always preferred . Thompson admitted that as a matter of practice he sent specific persons to notify former employees to return . In addition to the admissions by Mathews and Thompson, the record contains other substantial evidence that Respondent recalled its former employees after a layoff and did not require them to apply or to contact Respond- ent in order to return to work. In 1949 Thompson recalled Murdock by sending Duckworth for him, and recalled A. L. Smith , Hopkins, and Lowe by personally going to see them. In 1950 Thompson recalled Greenwood by sending Duckworth for him, Ross by sending Daugherty for him, A. L. Smith by send- ing Hopkins for him, and Johnson by sending Lowe for him. A consideration of the facts developed with respect to each of the five em- ployees reveals Respondent 's defense that they were unsatisfactory to be without merit. McDade was employed as the operator of the planing machine, a skilled classification . He had been in the industry for 32 years , 90 percent of which he had spent as a planer operator. Purdy, Greenwood , and Rata, superintendent of another company where McDade had worked, all testified that he was an excellent planer operator. He was hired by Mathews and apparently did not have too much contact with Thompson . Mathews testified that he and not Thompson hired and fired Respondent 's planer operators . It will be recalled that both Thompson and Hopkins identified McDade as the man who started the union activity. He was never recalled . On February 2, 1950, Respondent employed a new operator , Penner. This was long before its lumber contracts were increased and therefore contrary to its statements in its letter to the Board in January . In regard to the employment of Penner , Mathews gave testimony which establishes that he testified falsely under oath at the representation hear- ing on February 15, 1950. This was the direct proof impeaching his credibility previously mentioned . DMatbews testified on February 15 that he had tried to lease the planer without success, that Respondent was operating it and would continue to do so, and that he himself was the only operator and was going to continue to operate it through the summer of 1950. Yet at the present hearing he testified , and it is positively established by Respondent 's payroll records, that he hired Penner on January 30, 1950, to run the planer , and that from and after February 2, 1950, Penner did operate the planer. This was undisputed in the record. One of the purposes of a representation hearing, of course, is to deter- mine the appropriate unit and the classifications of employees entitled to vote. When asked about his former testimony , Mathews admitted that it was correct and that he had so testified . He attempted to explain that he must have testified before January 30, 1950, which is obviously refuted by the official record of the former hearing. There is no evidence in the record that Penner, a new man, was better qualified than McDade, and there is direct evidence by employees who observed both, that McDade was a better operator . In addition , he was a laid-off employee, by Respondent's own admission entitled to preference over a new man . Although it has been found that Respondent had a practice of recalling its laid-off em- 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees and did not require them to apply, McDade actually applied for reemploy- ment several times in 1950. In the early part of February; he and Purdy 'went to Respondent's office to see about returning to work. They saw Mathews' father, who referred them to Bryant, Mathews' brother. They asked Bryant when the work would start up and they would be needed, and he told them that he didn't know, that Mathews had been sick 3 or 4 days and Bryant didn't know when he would be back. At this time Respondent had already replaced McDade with Penner but did not mention this to McDade. McDade subsequently went to the office several more times to contact Mathews about returning, but never got to see him. This was not denied. Neither Mathews nor Thompson contended that Penner was a better operator than McDade. Mathews testified that he had once tried to hire Penner before hiring McDade, but was unable to because of Penner's health. Under all of the circumstances, bearing in mind Respondent's established activities against the Union, I am convinced and find that Respondent discriminatorily failed and refused to recall McDade on and after February 2, 1950, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. Before considering the 4 other men not recalled, it may be helpful to outline briefly the chronology of Respondent's hiring in 1950.' After the layoff, 10 men remained on the job. On January 23, Respondent recalled Truitt, the nonmem- ber of the Union who had voluntarily laid off December 14; he was an equipment operator, hired the year after Crow was employed. On January 27, Respondent recalled A. L. Smith. On February 2 Respondent hired Penner. On March 8 Davis was hired as a laborer and Daugherty was recalled. On March 15 Schroth was hired as a grader at the same wage as Kaphalos had received, and Duck- worth was recalled. On March 16 Lowe was recalled. On March 20 Ward was hired as a laborer and Ray Siler, Roy's brother, was hired as an equipment operator, at the increased wage which exceeded that made by Crow. On March 27 Ostrum was hired as a grader, Schroth having lasted only 3 days. On March 29 Russell was recalled. On March 31 Graves was hired as a tallyman. On April 3, Looper and Aufderheide were hired as laborers and Ross, Russell, Adam, Pruitt, and Holland were recalled. (Although Holland had left Respondent's employ on October 3, 1949, Respondent had claimed he had been given a leave of absence and should be counted as an employee for voting purposes as of March 24.) On April 4 Giannopulos was hired as a laborer. On April 6 Pride was hired as a laborer. On April 7 Macklin was hired as a laborer and Greenwood was recalled. On April 10 Rogers and Wiggins were hired as laborers and John- son was recalled. On April 11 Marter and Riley were hired as laborers. At no time after the layoff did the Union represent a majority of the employees. The election was held on April 27. Respondent continued to hire laborers up to the last date of its records, a week before the hearing. Respondent had urged that the March 24 payroll be used to determine eligibility for voting, at which time only 5 of the union members were on the job. Returning to a consideration of the remaining four who were not recalled, Purdy worked as a laborer feeding the planer and assisting McDade. He had been hired upon McDade's recommendation , and it was undisputed that he was a very good worker. Thompson described him as a very willing worker. Purdy testified at the representation hearing on February 15, and attended the April 14 conference in Mathews' office as the Union's proposed observer at the election. He too applied for reinstatement. Early in February he went with McDade to Respondent's office and asked Bryant Mathews about his job, as McDade testi- fied, and was told to see Mathews. After the conference on April 14 he asked Mathews about his job. Mathews told him to see Thompson, who was not there. MATHEWS LUMBER COMPANY, INC. 345 Purdy saw Tipton and told him he wanted to return to work, but Tipton only said that Purdy had to see Thompson. Thompson admitted that he had said in March he intended to call Purdy back. Thompson said that the only reason he did not do so was because Purdy had not asked him for a job. As previously found, Respondent had a practice of calling back its former employees. Although Purdy twice asked for employment he was never recalled. There can be no, question but that he had more ability than most of the new men hired, many of whom had no previous experience. Respondent hired its first new laborer on March 8, its second on March 20, and at least two on April 3. There was no contention made that any of them were more able workers than Purdy. Addi- tionally, as a laid-off employee he was entitled to preference over new men. Under all of the circumstances I am convinced and find that Respondent dis- criminatorily refused and failed to recall Purdy, thereby interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed b, the Act. Tillis worked as a laborer. He normally helped on the planer and ripsaw, and also pulled lumber from the rough lumber sorting chain. He was described as a good worker by five witnesses, including Thompson. Thompson also admitted that he had said in March that he intended to recall Tillis but that he had not. He explained that he and Tillis had never made connections, and that when they finally did, he had hired someone in Tillis' place. This explanation does not have merit, because Respondent hired a number of laborers both before and after the time referred to by Thompson. Thompson further contended that he had sent word to Tillis to return through "several of the boys," but when asked specifically who, said no certain one. This does not jibe with Tillis' testimony nor with Thompson's usual practice, and was uncorroborated by any of the employees, including Respondent's witnesses. Tillis in fact testified that he went out to the yard five different times, saw Thompson each time, and was rejected for various reasons each time. Each occasion was during the period when Respondent was increasing its staff and hiring new men. According to Tillis, he saw Thompson twice in January, once in February, once in April, and once in May. Thompson said that he could not recall if he saw Tillis more than once in 1950. Tillis impressed me as a credible witness, and was able to recall details of his conversations with Thompson. Tillis said that in April he asked Thompson why he hadn't sent Tillis a card or sent one of the men after him, and Thompson replied that he never thought of that. This was not denied by Thompson. Yet it is established that his regular practice was to recall men by sending a specific employee for them. Respondent of course had in its records the addresses of all the employees. Tillis was probably mistaken about the date of his third visit, because he said ,that he saw new men working then. Only Penner had been hired by then, but several more were hired in March. In any event, Respondent did not recall Tillis, in accordance with its usual practice, and hired a number of new men with knowledge that Tillis was seekin, to return. Respondent urged as to some of the five who were'not recalled that they had not asked for a job, yet in this instance, where a former good employee contacted It five times, Respondent did not employ him. Under the circumstances, it seems obvious that Respondent had no intention of recalling Tillis even though as a laid-off employee he was entitled to preference over new applicants. It may be coincidental, but it seems significant that at no time after the layoff and during the period when Respondent was recalling some of the union members and hiring new men, did the number of union members on the job even approach a majority of the employees. I am convinced and find that Respondent discrimi- 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD natorily failed and refused to recall Tillis, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. Murdock also worked as a laborer , primarily as a cleanup man, and occa- sionally helping to pull lumber from the sorting chains. McDade and Crow both said that he was a good worker . Thompson said that he didn't recall. .Murdock because he,was not a good worker , but then on cross-examination ad- mitted that he stated in Mar& of 1950 that he planned ' to recall Murdock. This of course was long after the layoff , and contradicts Thompson 's original testimony. Murdock contacted Thompson during March and April, and was told there was no job available . Yet during March and April Respondent hired 10 or 11 new men as laborers, and continued hiring during the succeeding months. Thompson also testified that if he knew definitely at the time of the layoff that he did not want a man back, he would tell him so and it would be the only fair thing to do . Of course Thompson acquired no additional knowledge of Mur- dock's ability or lack thereof while he was laid off. For the reasons previously discussed , I am convinced and find that Respondent discriminatorily failed and refused to recall Murdock, thereby interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. As previously noted, Respondent hired new laborers on March 8, March 20, and April 3 Absent discrimination , Purdy, Tillis, and Murdock all would have been recalled by April 3 . As has been found, Respondent did not base its recall decisions on seniority in service. Using Respondent's own test of ability and versatility, I believe the record establishes that of these three Purdy would have been recalled first, Tillis second, and Murdock third. Purdy was able to assist the planer operator, and was paid a higher wage than the other two. He was of course qualified to perform the general labor work. Respondent's statements, as well as the other proof in the record, establish that Tillis was a more able and versatile worker than Murdock, and hence would have been recalled before him. Murdock , while sometimes assisting on .the chain , normally performed what was considered to be the least difficult work. Thompson testified that he hired a new cleanup man in April , which also would correspond with the time of recall allotted to Murdock by the above test. For the reasons stated, I find that Respondent discriminatorily failed and refused to recall Purdy, Tillis, and Murdock on and after March 8, March 20, and April 3, 1950 , respectively. Kaphalos worked as a grader, a skilled occupation . As the lumber is fed onto the chain , the grader marks the grade, or quality , upon each piece. Each worker in turn pulls off a specific grade, as marked , and stacks it in piles . Grading requires good experience and judgment , because the quality of lumber determines its price range. McDade testified that Kaphalos was a good grader . Kaphalos said that Thompson had told him that he was o. k. as a grader. Rata said that Kaphalos was a good grader and was employed by Rata's company as its first grader after leaving Respondent. Kaphalos had 18 years of experience as a grader. Respondent introduced certain exhibits, consisting of inspection reports by the Western Pine Association in October and November 1949 of lumber graded by Kaphalos and Pruitt , apparently to support contention that Kaphalos was not a satisfactory grader. I am unable to perceive in what way these exhibits sustain such a contention . The November report shows a substantial improve- ment by Kaphalos over the October report. Kaphalos testified , and it was not denied, that Thompson had instructed him to grade 15 or 20 percent of the lumber higher. Kaphalos also said , and it was undisputed , that the Western Pine Association inspector had told him that he was o. k. as a grader, and that although he got nervous ( presumably during inspection ), he knew the lumber all right. Thompson again contradicted himself in this matter . Upon questioning MATHEWS LUMBER COMPANY, INC. 347 by the General Counsel, he testified that Kaphalos was a good willing worker. Yet later , upon questioning by Respondent 's counsel, he said that Kaphalos was a very poor grader, and that that was why Thompson didn't recall him. Because Kaphalos worked only as a grader, Thompson's first statement cannot be recon- ciled with his second . Kaphalos never contacted Respondent after the layoff, because he had heard that Respondent wouldn 't recall the union men. Crow, who also never contacted Respondent , said that he had not done so because Mathews testified at the representation hearing that he was going to recall only the four greet lumber pilers. It has been found that Respondent had a practice of recalling its laid-off employees , and did not require them to apply before being recalled. It is undisputed that Respondent made no effort to recall Kaphalos. On March 20 Respondent hired a new grader. For reasons undisclosed in the record he stayed only 3 days. On March 27 Respondent hired another new grader. Under all of the circumstances , for the reasons previously discussed, I am convinced and find that • Respondent discriminatorily failed and refused to recall Kaphalos on and after March 20, 1950 , thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. 3. The discriminatory discharges The complaint further alleged that Respondent discriminatorily discharged A. L. Smith and Johnson. Smith was discharged April 21, 6 days before the election. The record reveals that on April 21 Smith was working on the rough lumber chain with Greenwood, Ross, Macklin, Hopkins, and D. A. Pruitt. A brief de- scription of the chain and its operation may help to elucidate the events of that day. Respondent's sorting chains consist of a wooden platform, several feet above the ground. In the center of the platform, and slightly above its level, three chain belts run parallel to each other so that on their upper surface, the three chains are constantly moving toward one end of the platform and carrying the lumber which is placed crosswise on them at the opposite end. Hopkins fed the lumber onto the chain from stacks which were piled next to him on the ground. Pruitt, the grader, was up on the platform near the front, or feeding end, and graded each piece of lumber by marking it as it passed him. The other four men had stations further down the platform, and as the particular grade of lumber they were assigned to reached their station, they pulled it off the chain and stacked it alongside the platform in piles. When such a pile reached a specified height, a carrier machine removed it for shipping or other purposes. Two 3 by 6 pieces of lumber were placed on the ground as a base whenever a new stack of a particular grade of lumber was to be built by the men pulling from the chain. The chain operated continuously, as long as lumber was fed onto it and it was not broken. Smith and Greenwood were pulling on one side of the platform, and Macklin and Ross on the other. It is undisputed that the chain belts, which consisted of a series of metal links, broke from time to time. When this happened repairs were made at once by the crew. Usually the broken chain would tangle, unless the power was immediately cut off. Normally some of the crew would have to get under the platform to disentangle the broken chain. It was repaired by inserting a new link in place of the broken one. If there was lumber on the particular broken chain, it had to be moved before the chain could be fixed. Two of the men might have to pull each end of the broken chain to provide slack for the insertion of the new link, and another two hold it at the point of the break to insert the link. Once this was accomplished, work resumed as usual. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent contended that Smith was fired for not helping to fix the chain April 21. According to Smith, Greenwood, and Ross, they had been running 6/4-inch lumber and Hopkins advised them that they were going to change to 4/4-inch lumber shortly. Accordingly they placed some 3 by 6 blocks on the edge of the platform, in anticipation of setting them on the ground as the base for a new pile. However, the 6/4-inch lumber kept coming and these blocks were in the way. At that point the chain broke, for about the third time that day. Smith, after helping Greenwood remove the lumber from the chain, told him to help the others fix the chain. Smith said that he would in the meantime remove the blocks which were impeding their work because the 6/4-inch lumber was still being run on the chain. Thereupon Greenwood went to help fix the chain, and Smith proceeded to remove the blocks. According to Smith, after he had removed the last block, he went up to the front of the platform. Thompson called him over and asked him what was wrong and if he didn't want to work any more. Smith asked Thompson what he meant, and he said that Smith didn't do anything any more, that whenever the chain broke he didn't help to fix it. Smith denied this and told Thompson that he had always helped to fix the chain when it broke before, whereupon Thompson told Smith to get his time at the office. Smith told Thompson to get it, and sat down to wait at the table where the men ate. Smith told Ross that he had been fired. In a few minutes Thompson brought Smith his final two checks. It was undisputed that Smith previously had helped to fix the chain twice that day, and he testified that he had never refused to help fix it. Greenwood and Ross substantially corroborated the above version of the incident, although neither could hear the conversation between Thompson and Smith. Greenwood said that Smith had never refused to fix the chain or do other necessary work. Both Ross and Greenwood said that while the chain was being fixed Smith was pulling the blocks out of the way, and that this was necessary in order to continue the work. According to Ross, Smith said that he had been fired and didn't know why. Ross said that Smith never refused to fix the chain, and that Thompson had been standing in the vicinity for 3 or 4 minutes while the chain was being fixed and Smith was removing the blocks. Respondent's witnesses, as was so often the case, did not testify consistently about this incident. Thompson said that he was standing near the platform and observed Smith standing on the platform doing nothing while the chain was broken. Thompson said on direct examination that he called to Smith, whereupon Smith jumped to the ground, and that when Thompson spoke again, Smith got up on the platform, crossed to the other side, and just stood there. At that point Thompson summoned Smith and their conversation ensued. On cross-examination, Thompson said that he was 100 to 125 feet away when be first observed Smith, that when Smith crossed the chain Thompson wai about 20 feet away, and when he first spoke to Smith, was about 16 feet away. This obviously conflicts with his direct testimony, and it is not entirely clear just what Thompson claims happened. In any event, after summoning Smith to him, Thompson said that he asked Smith what the trouble was, why he wasn't helping to fix the chain, and if he didn't want to work. Thompson then told Smith to get his time. According to Thompson, Smith never said a word during the entire incident. However, on cross-examination Thompson admitted that he brought Smith's checks to him, although still insisting that Smith never said a word the whole time. Thompson said that he did not see Smith pull any lumber off the chain or any blocks off the platform. Although Thompson insisted that he talked to Smith before and after he crossed the chain, Thompson's testimony on cross-examination shows that he did not. MATHEWS LUMBER COMPANY, INC. ' 349 Hopkins' testimony concerning this incident was replete with the usual con- tradictions . He testified that Smith was fired because he would not help fix the chain. However, Hopkins then admitted that he was under the platform fixing the chain and couldn 't see Smith from there . He testified that he saw Smith between two stacks of lumber doing something , but that he didn't know what, and that the foreman was looking at Smith . He testified that he saw Smith doing something he shouldn 't have done that day, but when confronted with his written statement , admitted that he had said that he did not see Smith doing anything wrong. He attempted to explain this by saying that he had meant Smith wasn't doing anything at all , which was obviously contradictory. Hop- kins admitted that his statement was correct , and that he had said in it that he did not know why Smith was fired. He also admitted that Smith had helped to fix the chain that day when it broke previously . After these admissions, he then repeated that Smith was fired for standing around and doing nothing. He also insisted that Pruitt helped to fix the chain when Smith was fired , yet Pruitt admitted that he did not . It is obvious that Hopkins was willing to say what- ever he thought most advantageous under the circumstances , but in the process was unable to avoid serious contradictions . His attitude is illustrated by his testimony that Smith had never given satisfaction in his work since the day he was hired, which is contrary to the overwhelming weight of undisputed evidence, and to the admitted fact that Respondent had employed and recalled Smith for five successive years. Pruitt, the grader working on the same chain , testified as to what happened and substantially contradicted both of Respondent's other witnesses. Accord- ing to Pruitt, Smith was fired because he was letting his lumber stack up and was not pulling it off the chain . Pruitt said that he had noticed this, and that Smith was just standing there with his arms folded . Pruitt said that he in- tended to censure Smith , but then noticed that both foremen (Thompson and Tipton ) were observing Smith so Pruitt left it to them and just stood there and watched. He said that Smith never crossed the platform . Pruitt admitted that he did not help to fix the chain. He said that subsequently Thompson called Smith to the table, but Pruitt could not hear what was said. No one else, in- cluding Tipton , said that Tipton was present at this incident . No one else said that Smith was fired because he was letting his lumber stack up on the chain. The apparent inconsistencies in the testimony of Respondent 's witnesses lend support to Smith's testimony concerning his discharge, corroborated as it was in the essential elements by two other employees. Greenwood particularly im- pressed me as an _ honest and reliable witness. While once a member of the Union , he was no longer in Respondent 's employ, was not named in the com- plaint, and had no personal interest in the outcome of the' hearing. It has al- ready been found that Smith was discriminatorily laid off on December 14. It seems clear that Thompson 's threats to Smith upon his return in January were not idle ones . I am convinced that Respondent's alleged reasons for discharg- ing Smith were mere pretexts , and that the real reason was his union activity. I find, upon a preponderance of the credible evidence in the whole record, that Respondent discriminatorily discharged A. L. Smith on April 21, 1950, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. Johnson was discharged on July 31, 1950. He had been recalled after the lay- off on April 10. Respondent contended that Johnson quit. The record reveals that on July 31 Johnson was pulling lumber off the rough sorting chain with Andrew Smith and one or two other employees . According to Johnson, he saw Thompson standing at the office door with Bryant Mathews. Shortly thereafter 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thompson came up to Johnson and accused him of dropping a board onto one of the stacks in the wrong place. Johnson said that if he had, he would straighten it. Thompson told him , "No, I think that this is all." Johnson then said that if that was the way Thompson felt about it, whereupon Thompson said that it was and told Johnson to get his time. Johnson filled out his time card and asked Thompson to get his check. When Thompson refused, Johnson asked Tipton to do so. Tipton asked Johnson why he was fired. Johnson told Tipton that he didn't know and couldn 't understand it, and Tipton replied that he thought Johnson would be the last one to be fired. While Thompson was talking to Johnson, Smith got down from the platform and straightened the stack. It was undisputed that a board too wide to fit evenly with the edge of the stack had been placed on the layer of boards . Johnson testified that he didn't know whether he or one of the other men had done it. He also said that he had never been warned about doing this before. It was undisputed that the stacks of lumber had to be kept even. If a board overlapped the side edge the load might not fit in the carrier, the carrier might tip the stock, or the board might get crushed and broken. The record revealed that a board 10 inches wide would have fit where a board 12 inches wide had been placed . The men had continued to pile lumber and there were several courses piled on top of the course which was too wide before Thompson ap- proached Johnson. Andrew Smith , who was working with Johnson , substantially corroborated his testimony . , Smith said that there was a 12-inch board on the pile where a 10-inch board would have fit better . He also said that he didn't know whether he or Johnson had placed it there, that it frequently happened when pulling fast, that it was not serious because they subsequently would correct it, and that he had never seen anyone discharged for it. It will be recalled that Smith had worked in the industry for 35 years . Smith said that Thompson came up and asked Johnson why the wrong board was in the course , whereupon Smith got down and replaced it with a 10 -inch board . Smith said that Thompson then told Johnson to get his time, and that Johnson asked Thompson to bring it to him. Smith said that Johnson was a good and hard worker , and frankly ad- mitted that Johnson was a better worker than he. In addition McDade, Lowe, Russell, A. L. Smith, and Murdock all testified that Johnson was a good worker. Greenwood said that Johnson worked when pushed , but that he had to be pushed. Thompson admitted that he , had said in March of 1950 that Johnson was a good worker and that he would be recalled when work was available. Ac- cording to Andrew Smith , only he, Thompson , and Johnson could hear the conversation between Thompson and Johnson . Smith said that the nest day D. A. Pruitt came to him and said Johnson quit . Smith refused to talk to Pruitt. Smith said that Pruitt, Hopkins , and Thompson were all claiming that Johnson quit, although the first two were not close enough to hear what was said. Tipton admitted Johnson's request to Tipton to get the check and that he did so, but denied the balance of the conversation testified to by Johnson. Thompson contended that Johnson quit . Thompson, when asked by Re- spondent's counsel what happened with respect to Johnson on July 31 , answered, "That was the day he was-quit work." Thompson said that he saw Johnson drop a wide board where a narrow one should have been, and that he said nothing but watched to see if Johnson would correct it, because he had had trouble with Johnson doing that before. Thompson said that he had spoken to him numerous times about it, but Johnson denied that Thompson or anyone had ever spoken to him about it before . After Thompson saw Johnson cover MATHEWS LUMBER COMPANY, INC. 1 351 up the overlapping board with more layers of boards, Thompson went up to him, pointed out what he had done, and asked him why he didn't quit if he couldn't do it right. Johnson then said that he would quit, and pulled off his apron and did so. This conversation was denied by Johnson. Thompson admitted that Smith replaced the board right after this conversation, but could not explain why or how Smith knew the board needed replacing. It is obvious that Smith heard the conversation, as he testified. Thompson denied that Johnson asked him to get his check, but admitted that Tipton brought it to him, as Johnson and Tipton both testified. Thompson made no mention of talking to Bryant Mathews before the incident as claimed by Johnson. Bryant Mathews said that Thompson came in the office and told him Johnson had misplaced a board and that Thompson was going to give Johnson a chance to correct it before saying anything. According to Mathews, Thompson did so by staying in the office for awhile. Mathews said that it was customary for Thompson to discuss such things with him. While it seems unusual for a super- intendent admittedly in charge of hiring and firing to discuss such a minor matter with the assistant manager in charge of the office, and Thomson made no mention of it in his testimony, it is of course undisputed in the record. D. A. Pruitt, Respondent's witness, testified that he saw Thompson call Johnson off the chain, but did not hear the conversation. After Johnson returned, Pruitt .asked him what was wrong, and Johnson said that Thompson had fired him. According to Pruitt, he in effect told Johnson that he had warned him that it might happen, because of his careless manner of stacking lumber. Pruitt did not deny Smith's testimony that Pruitt claimed the next day that Johnson had quit. Thompson did not impress me as a credible witness. As previously noted, his credibility was impeached by several contradictions in his testimony. He also .contradicted himself with respect to Johnson. He testified that Johnson was not a good worker, and that he knew this in March of 1950. However, he then ad- mitted that in March, before Johnson had been recalled, he had stated that John- son was a good worker and that he intended to recall him. Respondent's efforts to establish, contrary to considerable substantial evidence, that Johnson was a poor worker seem inconsistent with its position that Johnson had quit. Mur- dock testified that in 1949 Thompson asked Johnson to show the new men how to place the different grades of lumber. Thompson did Y not deny this. For reasons unexplained, Thompson made no mention of his visit to the office and his discussion with Bryant Mathews before the incident with Johnson, although Johnson had testified that he saw them together before Thompson fired him. Thompson said that he continued watching Johnson after he dropped the board until he went up and spoke to him, contrary to Mathew's statement. Thompson admitted on cross-examination that he did not normally refer to a man's quitting by saying. "That was the day he was-quit." Pruitt, Respondent's witness, ' admitted that immediately after the incident Johnson said that lie had been fired by Thompson. Neither Pruitt nor Hopkins denied Smith's testimony that the next day they were claiming that Johnson quit, although it is undisputed that neither of them could have heard the conversation. Pruitt's testimony indi- cated that he had no doubt that Johnson was fired and had warned him previ- ously that he might be. The preponderance of credible evidence convinces me that Johnson was fired and did not quit. Having determined that Johnson was discharged it becomes essential to decide the motivation. Respondent was apparently blowing hot and cold. Although contending that Johnson had quit, it attempted to prove that he was a poor worker, had been warned before, and was guilty of misconduct apparently justi- 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tying a discharge, even if he had quit. This very inconsistency of course weakens Respondent's position. It has been found from substantial evidence that John- son was a good worker, and Thompson so admitted, albeit reluctantly. Andrew Smith, who impressed me as an honest and sincere witness, said that he did not even know who misplaced the board. Johnson said the same thing. Smith also said that it happened frequently, was easily corrected, and had never been the cause for a discharge. Johnson denied that he had ever been warned about misplacing boards, and I credit his testimony. Based upon the undisputed physical facts, it would seem quite possible to honestly mistake a 10-inch space for a 12-inch space, or a 10-inch board for a 12-inch board. To discharge a person for such a mistake, without any previous warning and after admittedly good work, would seem to be an unusually severe penalty. Johnson's testimony is corroborated by the undenied testimony that Thompson had him teach new men how to place boards. If Johnson habitually piled boards in a slipshod manner, Thompson would hardly select him to instruct new men. With the exception of Andrew Smith, Respondent knew all of its employees who had joined the Union, including Johnson. In view of all the circumstances, and particularly Respon- dent's series of antiunion activities, I am convinced and find that the real reason for Johnson's discharge was his union activity, and not his alleged misconduct, and therefore that Respondent discriminatorily discharged Johnson on July 31, 1950, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. 4. The alleged discriminatory demotion The complaint also alleged that Respondent discriminatorily demoted and reduced the earnings of A. L. Smith from January 27, 1950, the date of his recall, to April 21, 1950, the date of his discharge. In support of this allegation, the General Counsel offered certain evidence that A. L. had done piecework during part of 1949 and in previous years. This type of work consisted of building loads, filling orders, and work,of a similar nature, including green lumber piling. It was undisputed that piecework resulted in higher net pay than straight hourly wages, about 40 percent on the average. After A. L.'s recall in 1950 until his discharge, he was employed at straight labor at the regular hourly rate. The record, however, does not sustain the contention of demotion. It is true that during 1949, and in other years, A. L. had done piecework upon occasion. How- ever, in 1949, the record of A. L.'s earnings, as stipulated by the parties, indicates that he received the regular hourly rate as a laborer up to at least April 16, and did no piecework before then. A. L.'s wages from January 27 to April 21, 1950, were also at the regular hourly rate, exceeding his earnings in 1949 because of the wage increase. There is nothing in the record to indicate that he was given any different employment than during the same period in 1949, or that he might not have received piecework after the date of his discharge if he had not been, discharged. Coincidentally, his piecework in 1949 began at almost the same time of the year as his discharge in 1950. I do not believe that the record supports nor that the General Counsel has sustained the burden of proof, that Respondent discriminatorily demoted A. L. during his 1950 employment, and accordingly will recommend that this allegation of the complaint be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section II, above, occurring in connec- tion with the operations of Respondent described in Section I, above, have a MATHEWS LUMBER COMPANY, INC. 353 close, intimate, and substantial relation to trade, traf ic, 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 Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent discriminatorily laid off A. L. Smith, Daugherty, Lowe, and Ross from December 14, 1949, to January 27, March 8, March 16, and April 3, 1950, respectively. I shall therefore recommend that Respondent make each of them whole for any loss of pay he may have suffered by reason of such discrimination, by payment to each of a sum of money equal to that which he normally would have earned as wages during the period of his layoff, less his net earnings' during said period. The back pay shall be computed in the manner established by the Board, and Respondent upon request shall make available to the Board payroll and other records to facilitate the checking of the amount due.' It has been found that Respondent discriminatorily failed and refused to recall McDade, Purdy, Kaphalos, Tillis, and Murdock on and after February 2, March 8, March 20, and April 3, 1950, respectively. It has also been found that Respondent discriminatorily laid off Crow on December 14, 1949, and discriminatorily dis- charged A. L. Smith and Johnson on April 21 and July 31, 1950, respectively. I shall therefore recommend that Respondent offer to each of them immediate and full reinstatement to his former or substantially equivalent position,' without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered by reason of such discrimination, by payment to each of a sum of money equal to that which he normally would have earned as wages from the date of the discriminatory failure to recall, layoff, or discharge, as the case may be, to the date of the offer of reinstatement, less his net earnings '0 during such period. Back pay shall be computed, and records made available, as above provided." The character and scope of the unfair labor practices committed by Respond- ent indicate an intent to defeat self-organization of its employees. I shall therefore recommend that Respondent cease and desist from in any manner inter- fering with, restraining, or coercing its employees in the exercise of the rights guaranteed by the Act'z Upon the basis of the above findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAw 1. Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. - 7 Crossett Lumber Co., 8 NLRB 440, 497-98. 8P. W. Woolworth Company, 90 NLRB 289. 9 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 10 See footnote 7, supra. u See footnote 8, supra. 12 May Department Store8 v. N. L. R. B., 326 U. S. 376. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of the employees listed above in "The remedy" section, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. Respondent has not engaged in the unfair labor practice, as alleged in the complaint, of discriminatorily demoting and reducing the earnings of A. L. Smith. [Recommended Order omitted from publication in this volume.] KENNEDY BROADCASTING CO. ; 1 CHARLES E. SALIK; DON LEE BROAD- CASTING SYSTEM ; SAN DIEGO BROADCASTING CO. STUDEBAKER BROAD- CASTING Co. and NATIONAL ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS, CIO, PETITIONER. Cases Nos. 21-RC-1927, 21-RC-19,28, 21-RC-1933, 21-RC-1934, and 21-RC-1935. Sep- tember 24,1951 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Arthur Hai ley, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record in these cases, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act.3 I The name of the Employer, formerly Jack Gross Broadcasting Co., Inc., appears as amended at the hearing. 2 The hearing officer referred to the Board the Petitioner's motion made at the end of the hearing to set aside the order of consolidation on the ground that it would delay the selection of a bargaining representative in those cases having no issues. Setting aside the order of consolidation at the end of the hearing would have resulted in no material expedition in the handling of these cases. Accordingly, the motion is hereby denied. 3 Each of the Employers herein operates a radio station at San Diego, California. The Kennedy Broadcasting Co., the Employer in Case No. 21-RC-1927, also operates a tele- vision station located at San Diego. 96 NLRB No. 51.