The Whiting Lumber Co.

THE WHITING LUMBER COMPANY 265 The lead men are generally responsible for the performance and behavior of the men under them, and their recommendations regarding transfers, promotions, and dismissals are frequently effective. We find that they are supervisors and shall exclude them .8 We find that all production and maintenance employees of the Employer at its East Greenwich, Rhode Island, plant, including the shipping clerk 9 but excluding the assistant to the superintendent,10 the lead men, office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] United States Gypsum Co ., 93 NLRB 91 ; Metal Textile Corp., 88 NLRB 1326, 1330 (group leader). 9 Frederick West. 10 Thomas Reynolds. ERNEST WHITING, ARTHUR WHITING, E. I. WHITING AND R . E. WII1T- ING D/B/A TIIE WHITING LUMBER COMPANY; LESLIE WYATT AND ERNEST WYATT D/B/A WYATT & WYATT ; AND CHARLES SWAN and NORTHERN ARIZONA DISTRICT COUNCIL OF LUMBER AND SAWMILL WORKERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL. Case No. 21-CA--849. December 6, 1951 Decision and Order On February 7, 1951, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondent Whiting filed exceptions to the Intermediate Report and a brief in support thereof.' .The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner except as modified herein. I Respondent Whiting's request for oral argument is hereby denied as the record and brief adequately present the issues and positions of the parties. 97 NLRB No. 60. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Trial Examiner found that Respondent Wyatt refused to bargain collectively with the Union in violation of Section 8 (a) (5) and (1) of the Act. Wyatt filed no exceptions to this finding. For the reasons given in the Intermediate Report, we agree with the Trial Examiner's finding, that Wyatt violated Section 8 (a) (5) and (1) of the Act. 2. The Trial Examiner also found that Respondents Whiting and Swan refused to bargain collectively with the Union in violation of Section 8 (a) (5) and (1) of the Act. Swan filed no exceptions to this finding. Whiting excepted to the finding on the ground that it was not the employer of the employees in the appropriate unit and was therefore not obligated to bargain with the Union on their behalf. As more fully set forth in the Intermediate Report, the business relationship between Whiting and Swan emerged as follows : The four Whiting brothers purchased a lumber mill and its equip- ment at Flagstaff, Arizona, from a company named Babbitt on May 8, 1950. At the time, Charles Swan was acting as general manager for Babbitt. When the mill was purchased, Swan testified that he quit work as manager, although he visited the mill now and then to straighten his affairs there. A little over 2 weeks later, on May 24 or 25, one of the Whitings approached Swan and asked him to run the mill. An agreement, dated May 25, 1950, was quickly drawn up and signed.2 It provided, among other things, that: 1. Swan was to have full authority in the operation and manage- ment of logging and milling operations owned by Whiting at Flagstaff. 2. Swan was to have exclusive control over hiring and firing and was to comply with all requirements of payroll deductions. 3. Swan was to pay all expenses of the operation. 4. Swan agreed to deliver all marketable lumber to the Hall Lumber Co. in Flagstaff at the rate of $28.00 per thousand board feet. 5. Either party could terminate the contract on 10 days notice. When, pursuant to the contract, Swan took over on May 25, or shortly thereafter, he carried out Whiting's oral agreement with Respondent Wyatt whereby the latter had contracted with Whitinu, ;,o cut timber (on a Government tract of land leased by Whiting) and deliver it to the mill. He hired, on a half-time basis, the bookkeept r of Whiting to keep his books for him, and also wrote to the Arizona Industrial Commission to obtain the Commission policy required by the State as a prerequisite to making out a payroll. Despite the contract and the afore-mentioned acts, the Trial Ex- aminer found that Swan was not an independent contractor, but was, 3 Although we agree with the Trial Examiner that the evidence indicates that the contract was entered into by whiting to avoid its obligation to bargain with the Union, we find no support in the record for his inference that the contract was predated. THE WHITING LUMBER COMPANY 267 on the contrary, Whiting's alter ego. We agree. Like the Trial Ex- aminer, we believe that the actual conduct of the mill operations and its labor policies after the execution of the contract demonstrate that Whiti ig had not divested itself of control over the mill operations and did in fact remain the employer of the mill employees. The record shows, as found by the Trial Examiner, that when Swan took over pursuant to the contract, the actual mill operations con- ducted by Whiting continued unchanged. Whiting's premises re- mained the situs of the operations; Whiting's equipment was used exclusively; and the entire Whiting mill personnel including super- visors was retained on the job. When the contract was executed, Swan was without resources, as indicated by his inability to meet the first payroll. It therefore appears that Swan's sole asset to be of- fered the enterprise was his "know how" of the lumber business.' The failure of Swan to provide the premises, equipment, labor, or capital, or any of the other facilities essential to a working enter- prise, indicates that the contract of May 25 created an employment rather than an independent contractor relationship. Suggestions that Swan was independent are dispelled by the indefinite duration of the May 25 contract and by Whiting's retention of the right, uni- laterally, to terminate that contract-both features of employment contracts, as well as by the fact that ultimate control over employee wage rates and labor relations rested in Whiting. Swan's position under the contract appears to be that of manager of the mill, the posi- tion he held under Babbitt, the former mill owner. As such, Swan was in charge of the mill which was operated by Whiting solely to im- plement the latter's contract for the delivery of lumber to Hall. Swan's power to hire and discharge as well as his obligation to meet the mill payroll are consistent with this managerial position. Among the cases cited by the Respondent Whiting in support of its contention that it is not the employer of the mill employees, are two cases involving lumber operations 4 While it is true that both cases stand principally for the proposition that economic dependence of logging contractors upon the alleged employers is not sufficient to make the latter the actual employers of the contractors' employees, the cases are clearly distinguishable from the present case because in those cases.the logging contractors supplied all their own equip- ment as well as labor. Recent cases more closely akin to the instant one are J. G. Howard Lumber Company, 93 NLRB 1230, and 2 he Stilley Plywood Com- ' However, as the Trial Examiner points out , Swan's failing health made frequent visits by him to the mill impossible from the outset ; hence his contribution of any sub- stantial amounts of "know how" to the operation of the mill could not have been anticipated. * Swanson Brothers Logging Company, 71 NLRB 614 ; and 'Canyon Lumber Company, 59 NLRB 1412. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD puny, 94 NLRB 932. In the former case, the owner of a lumber yard and planing mill contracted to have the green chain and planing will operations taken over by former supervisors. Although the super- visors hired and paid the employees, the Board held that they were not independent contractors and that the owner still remained the employer of the employees. In the Stilley case, the owner of a log- ging operation made an oral agreement with its foreman, Holt, whereby the latter would manage the logging operations as an in- dependent contractor. Despite the fact that Holt hired and dis- charged the employees, the fact that he bought all his equipment from the owner, received instructions as to the size and species of timber to be cut, and was informed of his rates of compensation for any given tract of the owner's land, sufficed for the Board to find that the owner, and not Holt, was the employer of the employees and that the owner therefore violated Section 8 (a) (5) by refusing to bargain concern- ing those employees.6 On the basis of the foregoing, we find that despite its May 25 con- tract with Swan, Whiting remained the employer of the mill em- ployees, and that Swan in carrying out the operations of the mill was acting as Whiting's alter ego. For the reasons set forth in the In- termediate Report, we agree with the Trial Examiner that the Re- spondents, Whiting and Swan, on and after June 5, 1950, refused to bargain collectively with the Union as representatives of the mill em- ployees in violation of Section 8 (a) (5) of the Act. We find no merit in Whiting's contention that the Board cannot find Whiting to be the employer of the mill employees unless the Board finds, as alleged in the complaint, that Whiting and Swan were engaged in a joint venture. The term joint venture was used in the complaint undoubtedly as descriptive of the relationship between Whiting and Swan for the purpose of showing that Whiting and Swan were employers of the mill employees. That Whiting under- stood this to be its purpose is clear from the statement in its brief that in view of the usage of the term "joint venture," Whiting introduced evidence "tending to show that Whiting was not the employer of the people at the Flagstaff mill." Moreover, in introducing this evidence to rebut the allegation that, it was engaged in a joint venture with Swan, Whiting attempted affirmatively to show that- Swan was an independent contractor and thus the sole employer of the mill em- ployees. Indeed, the record shows, as do the briefs of Whiting and the General Counsel, that the case was tried on the independent con- tractor theory. It is clear, therefore, that the status of Whiting as employer of the mill employees was fully litigated and that Whiting s Cf. Long Lake Lumber Company, 34 NLRB 700, enforced , 138 F. 2d 363 (C. A. 9) ; and dlexander Brothers Lumber Company, 78 NLRB 1099. THE WHITING LUMBER COMPANY 269 was in no way prejudiced by the usage in the complaint of the term "joint venture." Accordingly, it is unnecessary for us to determine, as a condition precedent to finding Whiting an employer herein, whether or not the May 25 contract between Whiting and Swan did in fact create a joint venture.6 3. We agree with the Trial Examiner that, in shutting down the mill on June 7, 1950, Respondents Whiting and Swan locked out their employees thereby discriminating against them in violation of Section 8 (a) (3) and (1) of the Act. We also agree with the Trial Examiner that in refusing to reinstate Flano Apadaca, D. L. Berryhill, Samson Brue, Gilbert Holden, Jesus Pozas, Claude Sanders, Sidney M. Stew- art, and A. C. Everett, on June 26, 1950, the date on which the mill reopened, Respondents Whiting and Swan again violated Section 8 (a) (3) and (1). With respect to those employees discriminatorily refused reinstatement, the Trial Examiner recommended that Whit- ing and Swan remedy the discrimination by offering them immediate and full reinstatement. However, he failed to include such an affir- mative order in his "Recommendations." Accordingly, we shall order that these employees be reinstated in the manner set forth in the section of the Intermediate Report entitled "The Remedy." Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders : A. That Respondents Ernest Whiting, Arthur Whiting, E. I. Whit- ing, and R. E. Whiting, doing business as The Whiting Lumber Com- pany, and Charles Swan, all of Flagstaff, Arizona, their agents, successors, and assigns of each of them, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Northern Arizona Dis- trict Council of Lumber and Sawmill Workers, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, as the exclusive representative of their employees in the following appropriate unit : All sawmill employees employed at the Whiting sawmill at Flagstaff, Arizona, excluding office and clerical employees, guards, and supervisors as defined in the Act. (b) Discouraging membership in the Union, or in any other labor organization of their employees, by discriminatorily discharging, locking out, refusing to reinstate, or refusing to promote any of their employees, or by discriminating in any other manner in regard to 6 See 48 Corpus Juris Secundum 809, Sec. 2, where the term "joint venture" is defined in generalities ; see also Chisolm v. Gilmer, 81 F. 2d 120, 124 ( 1936), relied upon by whiting. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their hire or tenure of employment, or any term or condition of employment. (c) Interrogating their employees concerning their union affilia- tions, activities, sympathies, or in any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist North- ern Arizona District Council of Lumber and Sawmill Workers, United Brotherhood of-Carpenters and Joiners of America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the purposes of the Act : (a) Upon request, bargain collectively with Northern Arizona District Council of Lumber and Sawmill Workers, United Brother- hood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, as the exclusive representative of all their employees in the aforesaid appropriate unit, with respect to grievances, labor disputes, rates of pay, wages, hours of employ- ment, or other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to Flano Apadaca, D. L. Berryhill, Samson Brue, Gil- bert Holden, Jesus Pozas, Claude Sanders, Sidney M. Stewart, and A. C. Everett immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their senior- ity and other rights and privileges. (c) Make whole all their Flagstaff, Arizona, sawmill employees locked out on June 7, 1950, including those named in paragraph 2 (b) immediately above, for any loss of pay they may have suffered by reason of the aforesaid Respondents' discrimination against them, by payment to each of them of a sum of money equal to the amount each would have normally earned as wages during the period from the date of the lockout to the date of the aforesaid Respondents' offer of reinstatement, less his net earnings during said period. (d) Post at the aforesaid Respondents' sawmill at Flagstaff, Ari- zona, copies of the notice attached hereto and marked "Appendix A.'!' Copies of said notice, to be furnished by the Regional Director 7In the event this Order is enforced by a decree of a United States Court of Appeals there shall be inserted in the notice, before the words, "A Decision and Order" the words, "A Decree of the United States Court of Appeals Enforcing." THE' WHITING LUMBER COMPANY 271 fot the Twenty-first Region, shall, after being duly signed by Re- spondents' authorized representatives, be posted by the aforesaid Respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the aforesaid Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this order what steps the aforesaid Respondents have taken to comply herewith. B. That the Respondents Leslie Wyatt and Ernest Wyatt, doing business as Wyatt & Wyatt, Flagstaff, Arizona, their agents, suc- cessors, and assigns of each of them, shall : it. Cease and desist from : (a) Refusing to bargain collectively with Northern Arizona Dis- trict Council of Lumber and Sawmill Workers, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, as the exclusive representative of their employees in the following appropriate unit : All employees in their logging operations in and about Flagstaff, Arizona, excluding office and clerical employees and supervisors as defined in the Act. (b) By such conduct, or in any like or similar manner, restraining or coercing their employees in the exercise of the right to self-or- ganization, to form labor organizations, to join or assist Northern Arizona District Council of Lumber and Sawmill Workers, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2, Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Northern Arizona District Council of Lumber and Sawmill Workers, United Brother- hood of Carpenters and Joiners of America, affiliated with the Ameri- can Federation of Labor, as the exclusive representative of all the employees in the aforesaid appropriate unit with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached em- body such understanding in a signed agreement. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at their places of business in Flagstaff, Arizona, copies of the notice attached hereto as "Appendix B." 5 Copies of said notice, to be supplied by the Regional Director for the Twenty-first Region, shall, after being duly signed by Respondents' representatives, be posted by Respondents and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by the aforesaid Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps Respondents have taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondent Wyatt locked out its employees, in violation of Section 8 (a) (3) and (1) of the Act. MEMBERS MuRDocK and Sa'YLEs took no part in the consideration of the above Decision and Order. Appendix A NOTICE TO ALL EMPI{OYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union affiliations, activities, or sympathies ; or in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization to form labor organizations, to join or assist NORTHERN ARIZONA DISTRICT COUNCIL OF LUMBER AND SAWMILL WORKERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities ex- cept to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. WE WILL offer to Flano Apadaca, D. L. Berryhill, Samson Brue, Gilbert Holden, Jesus Pozas, Claude Sanders, Sidney M. Stewart, 8In the event this Order is enforced by a decree of a United States Court of Appeals there shall be inserted in the notice, before the words "A Decision and Order," the words "A Decree of the United States Court of Appeals Enforcing." THE WHITING LUMBER COMPANY 273 and A. C. Everett immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed. WE WILL make whole all our Flagstaff, Arizona, sawmill em- ployees, on the payroll on June 7, 1950, including those named in the foregoing paragraph, for any loss of pay they may have suf- fered as a result of the discrimination against them. WE WILL bargain collectively, upon request, with NORTHERN ARIZONA DISTRICT COUNCIL OF LUMBER AND SAWMILL WORKERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, as the ex- clusive representative of all our employees in the appropriate unit with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All our Flagstaff, Arizona, sawmill employees, excluding office and clerical employees, professional employees, guards, and supervisors, as defined by the Act. All our employees are free to become or remain members of the above-named Union or any other labor organizations. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any labor organization. THE WHITING LUMBER COMPANY, Employer. Date----------------------- By-------------------------------- (Representative ) (Title) CHARLES SWAN, Employer. Date----------------------- By--------------------- - (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT by refusing to bargain or by any like conduct, interfere with, restrain, or coerce our employees in the exercise of 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the right to self-organization, to form labor organizations, to join or assist NORTHERN ARIZONA DISTRICT COUNCIL OF LUMBER AND SAWMILL WORKERS , UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERA- TION OF LABOR, or any other labor organization , to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining and 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 organi- zation as a condition of employment , as authorized in Section & (a) (3) of the Act, as guaranteed in Section 7 thereof. WE WILL, upon request, bargain collectively with NORTHERN ARIZONA DISTRICT COUNCIL OF LUMBER AND SAWMILL WORKERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR , as the ex- clusive representative of all our employees in the appropriate unit, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All our employees engaged in our logging operations irt and about Flagstaff, Arizona, excluding office and clerical employees and supervisors , as defined by the Act. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any labor organization. WYATT & WYATT, Employers. Date ---------------- By ------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge and amended charge duly filed on July 14 and August 9, 1950, respectively, by Northern Arizona District Council of Lumber and Sawmill 1 Unless otherwise noted, all dates refer to 1950 The original charge was filed against "Whiting Brothers, Lumber Company, Chas. Swan, Mgr." The amended charge was flled against the persons named as Respondents herein. THE' WHITING LUMBER COMPANY 275 Workers, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, herein called the Union, the General_ Counsel of the National Labor Relations Board, herein called, respectively, the. General Counsel and the Board, issued his complaint on October 25, against Ernest Whiting, Arthur Whiting, E. I. Whiting, and R. E. Whiting, doing busi- ness as The Whiting Lumber Company,' Leslie Wyatt and Ernest Wyatt, doing_ business as Wyatt & Wyatt,' and Charles Swan,' herein jointly called the. Respondents,' alleging that the Respondents have engaged in, and were engaging in, unfair labor practices affecting commerce within the meaning of Section 8, (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and the aforesaid charges, together with notice of- hearing thereon, were duly served upon each Respondent and upon the Union. With respect to the unfair labor practices, the complaint alleged in substance. that: (1) Since on or about June 5, Respondent Whitings and Respondent Swan, (a) have failed and have refused to bargain collectively with the Union although, it then was, and still is, the designated collective bargaining representative of the respective employees of the said Respondents in certain appropriate units; (b) since on or about June 5, have engaged4n certain conduct and have made. various statements which tended to interfere with, restrain, and coerce their- respective employees in the exercise of the rights guaranteed in Section 7 of- the Act; (c) on June 7, ceased operations of their respective businesses for the. purpose of locking out certain named employees because the said employees were members of and supported the Union; and (d) since June 26, have refused to hire certain named persons because they were members and active in behalf of - the Union; (2) Respondent Wyatt (a) on or about June 7, ceased operations, of its business for the purpose of locking out its employees because they were members and active in behalf of the Union; and (b) since on or about June 8, has failed and has refused to bargain collectively with the Union although the. Union then was, and still is, the designated collective bargaining representative of Wyatt's employees in a certain appropriate unit. The Respondents duly filed separate answers wherein each denied the com- mission of the alleged unfair labor practices. Pursuant to notice, a hearing was held from November 27 to December 1, both dates inclusive, at Flagstaff, Arizona, before the undersigned, Howard Myers,_ the duly designated Trial Examiner. The General Counsel and each respondent were represented by counsel ; the Union by officials thereof. All parties partici- pated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. At the conclusion of the General Counsel's case-in-chief, the General Counsel's motion to strike the allegations of the complaint with respect to Angel Ruis was, granted without objection. The Respondent Whitings' motions to dismiss the complaint in its entirety or, in the alternative, certain stated portions thereof for lack of proof, were denied. Counsel for Respondent Wyatt then moved to, dismiss the complaint in its entirety or, in the alternative, certain stated por-_ tions thereof, for lack of proof. The motions were denied. Counsel for Re- spondent Swan then moved to dismiss the complaint or, in the alternative, certain_ stated portions thereof, for lack of proof. The motions were denied. 2 Herein called Whitings. - ' Herein called Wyatt. ' Herein called Swan. 5 The pleadings and all other formal papers were amended at the hearing to show the. names of the Respondents as they appear above. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the conclusion of Respondent Swan's case, his counsel's motion to amend the answer of this respondent by inserting in paragraph XIV thereof, "because of the serious illness of Charles Swan" as an additional reason for the cessation of operations of Swan's business on June 7, was granted over the objection of the General Counsel. At the conclusion of the taking of the evidence, the General Counsel's motion to conform the pleadings to the proof, with respect to minor variances, but not to include any new unfair practice, was granted without objection. Counsel for Respondent Whitings then renewed the motions to-dismiss the complaint which he had made at the conclusion of the General Counsel' s case-in-chief. Decision thereon was reserved. The motions are hereby denied. Counsel for Respondent Swan then renewed the motions he had made at the conclusion of the General Counsel's case-in-chief to dismiss the complaint. Decision thereon was reserved. The motions are hereby denied. Counsel for Respondent Wyatt then renewed the motions he had made at the conclusion of the General Counsel's case-in-chief. Decision thereon was reserved. The motions are disposed of in accordance with findings as hereinafter set forth in the body of this Report. At the conclusion of the oral argument, in which only counsel for Respondents participated, the parties were informed that they might file briefs or proposed findings of fact and conclusions of law, or both, with the undersigned on or before December 16.° Briefs have been received from the General Counsel and from counsel for the various Respondents which have been carefully considered by the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPECTIVE RESPONDENTS The site of the alleged unfair labor practices is a sawmill located on the outskirts of Flagstaff, Arizona, which has a daily capacity from 20,000 to 35,000 board feet of lumber. The said sawmill was built about 1944, by Babbitts Brothers Trading Company, herein called Babbitts, and until May 8, 1950, was operated by it. On the latter date, Whitings purchased the aforesaid mill together with the factory units, consisting of a planing mill, a box factory, a machine shop, a sash and door plant, and an office building. At about the same time the agreement between Babbitts and the United States Forestry Service, Department of Agriculture, pursuant to which all the lumber used at the mill is, and was, obtained, was assigned to Whitings. Since the commencement of the operation of the mill, Wyatt has been cutting the trees at the Coconino National Forest pursuant to the terms of the aforesaid contract with the Forestry Service, and transporting the logs derived there- from to the mill. In October 1949, Swan became manager of the mill and his son-in-law, Dick Henry, became assistant manager. Each retained his respec- tive position until the mill was purchased by Whitings. Swan then retired from participation in the supervision of the mill, remained on Babbitts' payroll, and performed certain functions for it. Henry was then placed in charge of the mill and was named its manager. Following the purchase of the mill by Whitings, Wyatt continued the logging operations for Whitings. Wyatt is paid, as it had been paid during all times 0 At the request of the parties , the time was extended to January 5, 1951. THE WHITING LUMBER COMPANY 277 material herein, a certain amount per board foot for the logs delivered by it to the mill for the lands under contract with the Forestry Service. From May 8 until September 30, Hall Lumber Company , Flagstaff, Arizona, as agent for Currier Lumber Company, Detroit, Michigan, purchased lumber from the mill having a value in excess of $125,000 , which lumber was shipped immediately upon receipt by Hall to the Detroit , Michigan , plant of Currier. From October 1 until the opening of the hearing herein, 95 percent of the mill's output, valued in excess of $25,000 was sold and delivered to Coconino Box Company, Flagstaff, Arizona, a subsidiary of American Box Company. Whitings bills Coconino Box Company for the lumber delivered to it by Swan, and Swan, in turn, is compensated by Whitings at the rate of $30 per 1 ,000 board feet for the lumber thus delivered to and paid for by Coconino.' Each respondent conceded, and the undersigned finds, that each is engaged in commerce within the meaning of the Act' II. THE ORGANIZATION INVOLVED Northern Arizona District Council of Lumber and Sawmill Workers, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of each of the Respondents. III. THE UNFAIR LABOR PRACTICES A. Background From October 1949 until May 8, 1950, while Swan was manager of the mill for Babbitts, there were very few occasions when any official of Babbitts visited the mill or gave Swan instructions concerning its operations. There were no material changes in the operations of the mill after the Whitings assumed con- trol. All the mill employees were retained by Whitings. The same super- visory employees, except Swan, also were retained. Sidney M. Stewart con- tinued as sawyer and performed the same functions he had performed while in Babbitts' employ except that while working for Whitings he was not classified as a foreman as he had been under the Babbitts' regime. The partners of Whitings, like Babbitts', very seldom visited the mill or gave any instructions about its operations to Henry or to anyone else. Pursuant to a contract dated May 25, Swan became the operator of the mill. This contract is for an indefinite term and may be canceled by either party upon 10 days' notice to the other party. Under the terms of the contract, Swan was to be paid $28 for each 1,000 board feet of lumber delivered to and paid for by Hall Lumber Company, herein called Hall. This concern was then under con- tract with Whitings and it had purchased at least 90 percent of the mill's output before Swan acquired the mill. In fact, the record indicates that while Whitings was operating the mill , Hall was its only customer. When Swan took over the mill he retained all the nonsupervisory and super- visory employees. Henry remained as manager and Stewart , as sawyer, re- ° As hereinafter found, the contract of May 25 by and between Whitings and Swan was orally amended in June, so as to raise Swan's compensation from $28 to $29 per 1,000 feet. It again was amended in the fall of 1950, so as to bring Swan 's compensation up to $30 per 1,000 feet 8 Whitings contended in its answer , at the hearing , and in sit brief that since May 25, it has not been the employer , within the meaning of Section 2 ( 2) of the Act, of the persons here involved . This contention is dealt with below. 986209-52-vol. 97-19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mained in charge of the production.' Since Swan's acquisition of the mill he has visited it on very few occasions. In fact, he has been physically unable to attend to any arduous work for several months prior to May 25, for, during that period, he has been suffering from a severe, long-standing dilation of the lungs, had been under constant care of his physician, and had been confined to his bed almost entirely This condition of Swan's has continued and was un- changed at the time of the hearing. In order to obtain Swan's testimony, it was necessary to adjourn the hearing to his home. He testified while lying abed. Almost immediately after entering into the contract with Whitings, Swan hired Ruth W. Palmer, a former employee of Whitings, as a part-time bookkeeper. Palmer keeps Swan's records and when not so occupied she performs certain bookkeeping and clerical services for Whitings, including presenting bills to Hall, collecting checks in payment thereof, and forwarding the said checks to Whitings' main office in Holbrook, Arizona. All of Palmer's duties, both for Swan and for Whitings, are performed at the mill's offices. Swan's books, fur- thermore, are audited periodically by Whitings' accountant. Although Whitings pays Palmer for the work she performs for it, Whitings does not pay Swan for the use of the quarters occupied by Palmer while performing work for Whitings. In addition to the sawmill in question, there are two other sawmills in the Flagstaff area : the Saginaw; Manistee Mills, herein called Saginaw, and South- west Lumber Mills, herein called Southwest. Each of these Mills has been operating under a contract with the Union for many years last past. During Babbitts' operation of the mill it was its custom to pay its employees the same wages for comparable work as were paid by Saginaw and Southwest under their respective contracts with the Union. Admittedly, the Respondents here involved knew in May 1950 that the Union was negotiating with Saginaw and Southwest for pay increases. In fact, during May 1950, as Stewart credibly testified, Ernest Whiting stated to him that Whitings would continue to treat the mill employees in the same fashion and as well as the Babbitts had treated them and would give the said employees the same increase in wages whenever Saginaw and Southwest increased the wages of their employees. B. The refusal to bargain collectively with the Union 1. The appropriate unit with respect to Whitings' and Swan's employees The complaint alleged that all the employees of Whiting and of Swan who, during all time material herein, were engaged in the operation of the aforesaid sawmill, excluding office and clerical employees, and supervisors as defined by the Act, constituted a unit appropriate for the purposes of collective bargaining. The answer of Swan admitted the appropriateness of the unit. The answer of Whitings averred that it was without sufficient knowledge or information with respect to the aforesaid allegation. At the hearing herein, counsel for Whitings stipulated that Whitings "neither admits nor denies the allegation with respect to the unit, it being the position of [Whitings] that they are not employers of the employees involved Respondent Whiting does not deny that the unit de-. scribed in the complaint is an appropriate unit within the meaning of the Act between the employer and the Union." Under the circumstances, and upon the entire record in the case, the under- signed finds that all the sawmill employees, excluding office and clerical ° Swan and whitings contend that Stewart was not a supervisory employee within the meaning of the Act and that his sole responsibility was to see that the logs were cut in accordance with Henry's instructions. The credible evidence sustains this contention THE WHITING LUMBER COMPANY 279 employees, professional employees, guards, and supervisors as defined by the Act, at all times material herein constituted, and now constitute, a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act, with respect to rates oi; pay, wages, hours of employment, and other conditions of employment, and that the said unit insures to the said employees the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. 2. The Union's majority status in the aforesaid appropriate unit At the hearing, there was introduced in evidence a list prepared by Swan containing the names of all his employees10 in the unit hereinabove found ap- propriate. This list shows that on June 5, Swan had in his employ 22 persons. in the said unit." On behalf of the General Counsel there were offered and received in evidence 12 signed cards expressly authorizing the Union to represent the signers thereof for collective bargaining purposes. The genuineness of the signatures on the cards was proved in some instances directly by the testimony of the signers thereof and in some instances by witnesses to the signatures. The authenticity of the signatures appearing on the cards was not challenged. The undersigned has compared the names appearing on the cards with the list submitted by Swan and received in evidence and finds that as of June 5, 12 em- ployees in the appropriate unit had signed cards designating the Union their collective bargaining representative. Accordingly, the undersigned finds that on June 5, and at all times thereafter, the Union was the duly designated collec- tne bargaining representative of a majority of the employees in the unit found appropriate. Pursuant to Section 9 (a) of the Act, the Union was, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3 The appropriateness of the unit with respect to Wyatt's employees The complaint- alleged, Wyatt's answer admitted, and the undersigned finds that all Wyatt's employees engaged in its logging operations in and about Flag- staff, Arizona, excluding office and clerical employees and supervisors as de- fined by the Act, during all times material herein constituted, and now constitute, a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act, with respect to rates of pay, wages, hours of em- ployment. and other conditions of employment. The undersigned further finds that the said unit insures to Wyatt's employees the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. 4. The majority status of the Union in the aforesaid appropriate unit There were read into the record by counsel for Wyatt the names of the persons in Wyatt's employ in the unit hereinabove found appropriate. The list shows that on its June 4-10 payroll, Wyatt had in its employ 19 persons in the said unit. On behalf of the General Counsel there were offered and received in evidence 11 signed cards expressly authorizing the Union to represent the signers thereof for collective bargaining purposes. The genuineness of the sig- 10 As hereinafter found, Swan is the alter ego of Whitings on and after May 25, 1948, with respect to the operation of the sawmill and hence when reference is made to the persons in Swan's employ the same persons are also found to be employees of Whitings. 11 The list also contains , in addition to the 22 names , the name of Palmer , the bookkeeper- For obvious reasons she is excluded from the unit. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD natures on the cards was proved in some instances directly by the testimony of the signers thereof- and in some instances by witnesses to the signatures. The authenticity of the signatures appearing on the cards was not challenged. The undersigned has compared the names appearing on the cards with the list of names appearing in the record and finds that as of June 5, 11 employees in the appropriate unit had signed cards designating the Union their collective bargaining representative. Accordingly, the undersigned finds that on June 5, and at all times thereafter, the Union was the duly designated collective bar-, gaining representative of the majority of Wyatt's employees in the unit found appropriate. Pursuant to Section 9 (a) of the Act, the Union was, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 5. The refusal to bargain The record discloses no organizational activities by the employees here involved prior to May 25. On the evening of that day, the Union held a meeting at which many mill employees and a few of Wyatt's employees signed authorization cards. By June 5, the majority of the mill employees and the majority of Wyatt's employees had signed cards designating the Union to represent them. As found above, during May 1950, the Union was negotiating for wage increases for the Saginaw and Southwest employees. By the end of that month, negotiations were concluded and wage increases secured. On or about June 1, Stewart, according to his undenied and credible testi- mony, informed Henry that the mill employees were -desirous of knowing whether they would receive the same increase in wages that was given the employees of Saginaw and Southwest and that Henry replied that he would discuss the matter with Swan. Stewart further testified that on June 5, Swan assembled the 18 or 19 mill employees and told them that he "could not give them a raise and did not expect to give them a raise unless the Whiting Brothers would cpme up with their end of it"; that the next morning Swan again assembled the mill employees and stated that he would grant a 6 cent per hour raise ; that Swan then requested that all the employees who were in favor of accepting the proposed increase signify their acceptance by raising their hands ; that only one employee raised his hand ; that Swan then said that he could not grant any larger increase unless Whitings `would do something and that he would see Mr. Whiting again" ; that the follow- ing day, Swan again assembled the employees and offered to give them a 10/ cent per hour raise provided the employees "would not go down and give it to the Union" ; that Swan again requested the employees to signify their acceptance of the proposed increase and that only one employee signi- fied his willingness to accept the proffered raise ; and that Swan then told the employees that the contract which the Union had signed with Saginaw and Southwest "was too stiff for him" and therefore he could not operate. under it. Stewart further testified, and the undersigned credits his testimony, that the mill was closed down on June 7, after the day shift had concluded ; that the employees were paid the wages due them ; and that Henry told him that after- noon, June 7, that the mill was being closed because Ernest Whiting stated to him (Henry), "he (Whiting) would shut down or let the mill rot down before he would operate under a union." Employee Walter C. Burr testified that Swan told the employees assembled at the June 5 meeting that if Whiting would pay him (Swan) more money than THE WHITING LUMBER COMPANY 281 he, in turn, would be able to give the-employees an increase in wages ; that if. the employees were dissatisfied with their wages they should look for jobs elsewhere ; that Henry then stated to Swan, in the presence of the assembled employees, "Let us close [the mill] down" to which Swan replied, "No, I do not want to close it, I want to run it," and then Henry said, "I am not in favor of raising [the wages] a penny" ; that at the June 6 meeting, Swan offered to raise the wages '6 cents per hour, but none of the employees signified their desire to accept the proposed increase ; that Henry then said, "they are not working with you. Shut it down," that Swan replied, "No, I want to run it"; that at about 1 p. m.. on June 6, Swan again assembled the employees and offered to increase the wages 10 cents per hour,' but that amount was not acceptable to the employees ; and that Henry again stated that the mill should be closed but Swan replied that he would try to keep the mill open. Burr then testified, without contradiction, and the undersigned credits his testimony, that at about 5 p. in. on June 6, Henry assembled the mill crew and that the following then ensued : I understand all of you men joined the Union-you do not have, to take it if you do not want to. I want to find out which ones of you want it and which ones don't want it. I have to call Mr. Whiting tonight and have to. tell him what you all want.-All of you who want the Union, raise your hands... . Burr further testified, and the undersigned finds, that he and two other em- ployees stood up (all the employees had been seated) ; that Henry then asked the three who arose why they had joined the Union ; and that each of them told Henry their respective reasons. Henry did not testify. Swan testified that he had three meetings with the employees, one on June 5, and two on June 6. His testimony with respect to the first two meetings is in substantial accord Nwith Stewart's and Burr's versions, as summarized above. With respect to the third meeting, Swan testified that at about 1 p. in., on June 6, he told the employees that he would give them a 10 cents per hour in- crease and that they accepted it; that he then turned to Henry and Stewart and informed them he was leaving town for an indefinite period ; that he did not know when he would return ; that Henry and Stewart were responsible henceforth for the output of the mill and if production did not increase there would be "some changes made" ; and that he thereupon left Flagstaff. Swan denied that the 10 cents increase was conditioned upon the employees not giving any part thereof to the Union or to "the Union man." The undersigned is convinced, and finds, that Stewart's version and Burr's version of what transpired at the aforesaid three meetings between Swan and the employees are in substantial accord with the facts. Stewart and Burr impressed the undersigned as forthright and credible witnesses. Swan, on the other hand, did not so impress the undersigned. His entire testimony evidences a desire on his part to conceal the true facts. Besides categorically denying the commission of the alleged unfair labor practice, despite the fact that the record belies his denials, Swan also attempted to conceal Whitings' connection therewith. While Swan was dealing directly with the employees in an attempt to per- suade them to accept a wage increase, the Union was endeavoring to bargain collectively on behalf of those employees. Thus, the undenied and credible testi- mony of Ralph Juarez, the secretary of the Union's Northern District Council, u The record indicates that the Saginaw and Southwest employees secured a 101/2-cent increase in May 1950. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L•learly shows that on June 5 he visited the mill's offices and there informed Henry, in Palmer's presence," that the Union represented the majority of the mill employees ; that Juarez then handed to Henry the 12 authorization cards the employees had signed ; that Henry examined the cards and then admitted that the majority of the employees had authorized the Union to represent them ; that Juarez then presented Henry with copies of the Union's contracts which the Saginaw and Southwest mills had signed a few days before; that Henry then stated he would read the contracts and meet with Juarez the following day ; and that when Juarez returned to the mill the following day, he was informed that Henry was out of town. After his second meeting with the employees on June 6, Swan left Flagstaff, presumably to go to Phoenix, Arizona, for an indefinite stay because of his ill health. En route to Phoenix, Swan stopped to see his daughter, Henry's wife, who resided at Winslow, Arizona, and was there informed by her, according to his testimony, that Henry had telephoned her stating, "lie was coming back to Winslow to work for Babbitt and I would have to find somebody else to run the mill." Swan then testified that he then went "to Holbrook and talked to Whiting Brothers and told them that I had been ordered by the doctor to go to a lower altitude and take a rest and my foreman had quit and the only thing I saw to do was to close the mill down" ; that he then returned to Flagstaff about 3 or 4 p in. on June 7, instructed Palmer to draw checks for the wages due the employees because he was closing the mill; that he then instructed Henry "to get all the men and have them paid off" ; that at 5 p. in., the end of the work day, he told the 10 or 12 employees who came to the office for their pay, "Boys, Dick (Henry) has quit and I am sick and have to leave and I am going to. shut down. It is indefinite. I am going to pay everybody what I owe them and if and when I ever need you, I will call you You are free people to go and shift for yourselves." ' Swan denied any knowledge 01 any union activity on the part of the em- ployees prior to the mill's shutdown. He also denied that "anyone contacted him with regard to the union." In view of the credible testimony of Juarez that he had conferred with Henry, in Palmer's presence, on June 5, at which time Henry was informed of the Union's designation as collective bargaining representative of the employees and then given a copy of a proposed contract, coupled with the fact that Stewart credibly testified that on June 6, Swan told the employees that the mill could not operate under the Union's proposed con- tract because it was "too stiff," these denials are not credited. It seems in- credible to the undersigned that neither Henry nor Palmer informed Swan of Juarez' visit. Moreover, on direct examination, Swan testified that when he returned to Flagstaff on June 7, in order to close the mill, he requested Henry "to get all the men and have them paid off" whereas on cross-examination, he testified that he had not seen Henry at the plant after his daughter had informed him that Henry had quit his employment at the mill. On June 8, Juarez again returned to the mill offices. This time he conferred with Henry, Ernest Wyatt, and Palmer. According to Juarez' credible testi- mony, at the commencement of this meeting he handed to Ernest Wyatt the authorization cards Wyatt's employees and the mill employees had signed ; that Wyatt examined the cards but made no comment ; that he then stated that inasmuch as the mill was closed the situation was complicated, but he was of the opinion that something could be worked out ; that Henry replied that the mill was closed for an indefinite period, but that consideration had been given to the contracts submitted but the terms thereof were "too stiff" as far as Henry is Palmer testified, but was not questioned about this incident. THE WHITING LUMBER COMPANY 283 was concerned ; that Henry then said that no time had been fixed for the re- opening of the mill because the "companies were bankrupt, that they were draw- ing their last cent" ; that he thereupon turned to Ernest Wyatt and stated that all the Wyatt employees had signed authorization cards and inquired what Wyatt proposed to do ; that Ernest Wyatt replied, to quote Juarez, "he was not able to go along with" the proposed contract, adding that due to the mill's closing his employees could not do any logging for the mill because there was no place to store the logs, and as far as he (Ernest Wyatt) was concerned he "had other things to do besides logging." 14 Despite Juarez' repeated statements at this meeting that if the parties would discuss with him the terms of a contract he was sure that a contract more favorable to the Respondents than the proposed contract could be worked out, Henry and Ernest Wyatt remained adamant in their refusal to discuss any contract with Juarez, the Saginaw contract or any other contract. From this position the Respondents never receded. On June 18, Juarez met at the mill with Ernest Whiting, Ernest Wyatt, and Palmer. According to Juarez' testimony the following transpired at that meeting : I told Mr. Ernest Whiting that I was very much disturbed over the shut- ting down of the mill, of the complications there had been and that as he was the owner, I would like to go over this thing; that I thought at this time he had seen its [proposed] contract. He told me that he had seen the contract and I asked Mr. Ernest Whiting about the possibilities of signing a contract. He said that the mill was down and that he did not know when the mill would open ; that lie was in no position to sign the contract at this time. I, asked him again what was his objection. He told me he could not see why a small operator like that, where the Union was going to bene- fit the men. I told him that the men were asking for the Union ; that they had signed these authorization cards I had them in my hand and Mr. Whiting told me he was sorry that he was in no position to sign a contract at that time. I again mentioned that we were willing to make some kind of a contract which would be favorable. However, the only response I could get was the mill was shut down. Juarez further testified that at this meeting, Ernest Wyatt stated that he would not sign a contract with the Union and as the meeting was breaking up, he informed Whiting and Wyatt that he was available at all times to discuss a contract and "would be happy to help locate the men that had been working there" when the mill reopened Ernest Wyatt did not testify about this meeting. Ernest Whiting testified that he refused to discuss any contract with Juarez and that he told Juarez, "I have nothing to do with this operation or the men in this mill whatsoever. I have nothing to say regarding hiring, firing or managing and, therefore, I do not think it is my place to make or sign a contract." Juarez was a forthright and credible witness. The undersigned was favorably impressed with the sincerity with which Juarez testified. On the other hand, Ernest Whiting's demeanor on the witness stand indicated to the undersigned that he was withholding the true facts. Despite Whiting's testimony that he had "nothing to do regarding hiring, firing, or managing" the employees, the credible evidence clearly discloses that on June 8, the day after the shutdown. 14 Regarding this meeting , Ernest Wyatt testified that Juarez informed him at the June 8 meeting that 90 or 98 percent of Wyatt's employees had signed authorization cards, and when Juarez proposed that Wyatt sign a contract similar to the Saginaw contract, he rejected the suggestion saying, "I could not sign that kind of a contract" because "no small operator could work under those working conditions." 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he discharged Jack Barnes and A. C. Everett, the mill's watchmen. The cred- ible testimony also shows that on June 8, Swan told Barnes to ascertain from Ernest Whiting whether Whiting wanted Barnes to remain on the job; that while waiting to see Whiting, Barnes overheard Whiting say, "I will not join the Union. I cannot pay these wages. I will move a little mill in here and cut this timber out" ; and that Whiting informed Barnes that the latter's serv- ices were no longer needed. Moreover, when Everett was laid off, Whiting said to him, to quote Everett's credible testimony, "I cannot pay the Union wages, and if we have to, we can just put a small mill in the mountains.,' Furthermore, each time the mill employees received a wage increase, Whitings increased the contract price it paid Swan 1i Under the circumstances , the undersigned finds Juarez' version of what transpired and what was said by him, Whiting, and Wyatt at the aforesaid meeting of June 18, to be substantially in accord with the facts. Sometime between June 19 and 28, Juarez telephoned Swan at his home re- questing an appointment to discuss a contract for the mill employees. Swan replied that he had no further obligations to the employees since whatever obligations he had were terminated when the mill had been shut down. On June 26 the mill was reopened. At the time of the reopening only six of the employees who had worked at the mill on the day of the shutdown were reemployed and by the end of the following week three more of said employees were rehired. On June 28 the final meeting between the parties was held at the mill offices attended by Ernest Whiting, Ernest Wyatt, Swan, Juarez, and Federal Coun- eiliator Halloran , the last named attending at the request of the Union. Juarez requested that all the men who were on the mill's payroll the day the mill closed be reemployed. Whiting replied that he did not know who were working at the mill then or at the time of the shutdown. Swan stated'that all the jobs were filled and if he needed any additional employees he would obtain them through the United States Employment Service. Juarez then asked Swan why most of the former employees were not returned to work. Swan replied that the jobs of those not rehired were abolished and they were not put on other jobs because they were unable to perform those tasks. When the discussion turned to a collective bargaining contract, Halloran suggested that "an informal election be held and that means of working out a new contract to fit the opera- tion" of the mill "be drawn up." Juarez did not take kindly to that suggestion, maintaining that most of the employees who had signed authorization cards were not rehired and therefore the Union "would not have much of a chance" of winning an election. Just prior to the conclusion of the meeting, Juarez suggested to Whiting, Wyatt, and Swan that each of them submit counterproposals or proposed contracts for his consideration , adding that if this procedure was followed he was sure that contracts• acceptable to all could be adopted speedily. This suggestion was rejected by the Respondents. About a month subsequent to the June 28 meeting , and subsequent to the filing of the original charge herein , Swan telephoned Juarez and stated that he would like to confer with Juarez in the hopes that something might be worked out'e '6 When the mill was reopened the employees thereof were granted a 10 cent per hour increase. At the same time , Whitings increased Swan's compensation from $28 per 1,000 board feet of lumber to $29 Likewise, in the fall of 1950 , the mill employees' wages were raised simultaneously with the increase in Swan 's compensation from $29 to $30 16 Swan admitted that the only reason he telephoned Juarez was to ascertain when "we were going to get together and hold the election ." Juarez, on the other hand, testified that he thought that Swan wanted to meet with him to discuss a bargaining agreement. THE WHITING LUMBER COMPANY 285 Juarez replied that he would meet Swan within a few days Despite Juarez' repeated efforts to reach Swan by calling at the mill office and by telephoning the mill and Swan's home, Juarez was unable to contact Swan. At no time prior to June 28 did any of the Respondents question the Union's majority status. It was at the meeting held on that date that Swan, for the first time, demanded, to quote from the brief of Swan's counsel, "confirmation of the fact that his employees wanted a union and insisted that he was entitled to an election." Normally, the Board does not hold an employer in violation of the Act if he in good faith questions the union's majority status, and asks to have the matter determined in an election, since that is a conclusive means of establish- ing the extent of a union's strength. But here the Respondents did not act in good faith in questioning the union's majority status. The record herein clearly shows that immediately upon being apprised of the Union's claim of majority the Respondents embarked upon a campaign to destroy employee support for the Union through means proscribed by the Act. This conduct demonstrates that their refusals were not based upon any desire to resolve a bona fide doubt of the Union's majority. The belatedness of the demand for an election, further- more, conclusively shows that the Respondents' refusal to bargain was not based upon a good-faith doubt of the Union's majority, but was only the adoption of another ruse to forestall the-Union's plea for a bargaining conference. Upon the entire record in the case the undersigned concludes and finds that : (1) By failing and refusing to recognize the Union as the exclusive bargaining representative of all the employees in the appropriate unit; (2) by locking out all employees on June 7, to avoid dealing with the Union; (3) by bargaining individually with the employees and unilaterally increasing the employees' wages; and (4) by failing and refusing to offer reinstatement to all employees locked out, upon reopening of the mill, Respondents Whitings and Swan have refused, and are now refusing, to bargain collectively within the meaning of the Act. The undersigned further finds that by Respondent Wyatt's refusal and failure to recognize or deal with the Union, as set forth above, as the ex- clusive bargaining representative of all employees in an appropriate unit, it has refused, and now refuses, to bargain collectively within the meaning of the Act: By such refusals each of the Respondents herein violated Section 8 (a) (5) and (1) of the Act, thereby interfering with, restraining, and co- ercing their. respective employees in the'exercise of the rights guaranteed in Section 7 of the Act. The undersigned further finds that by Henry's interro- gation on June 6, of the employees' union affiliations, the Respondents Whit- ings and Swan violated Section 8 (a) (1) of the Act. C. The shutdown of the mill; the locking-out of the employees; and the refusal to reinstate former employees upon reopening of mill Under date of August 21, Swan wrote the Board "that substantial evidence can be presented that the shut down"of the mill "was brought by reasons incident to the change of ownership." In the sworn answer filed in the instant pro- ceeding, Swan averred that the shutdown was "for the purpose of making certain .needed repairs to said sawmill and for the further purpose of permitting re- spondent Whiting to clarify its contract for disposal of manufactured lumber." At the close of the testimony with respect to Swan, his answer was amended to add an additional defense for the shutdown, viz, Swan's serious illness. There is not a syllable in the record to justify the first two assertions and they were made out of whole cloth. The belated assertion that the shutdown was neces- sitated because of Swan's poor health is likewise a fabrication. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is apparent, and the undersigned finds, that the mill was shut down when Whiting, Swan, and Henry were convinced that the employees would not abandon their support of the Union . It is significant that no reason was advanced by either Whiting or Swan for the sudden reopening of the mill on June 26. Admittedly, Swan's health was no better on that date than on the date the mill was closed . In fact, it was increasingly worse. The record is manifestly clear, and the undersigned finds, that when it became evident to Swan and to Whitings that the employees would not forsake the Union, coupled with the fact that the employees demanded a wage increase equal to that which the Union had secured for the Saginaw and Southwest employees, Swan and Whitings decided to close the mill. The undersigned is convinced, and finds, upon the entire record in the case, that Swan's illness played no part 'in Whitings' and Swan's determination to close the mill. Its closing was part and parcel of Whitings' and Swan's campaign to forestall the unionization of the employees here involved. Swan's illness was a mere pretext. The mill was closed solely for the purpose of replacing union adherents with nonunion employees. Swan's explanation for the reasons why all former employees , many of whom had worked at the mill for years , were not rehired upon the reopening of the mill is as incredible as his testimony regarding the reasons for closing the mill. His testimony that he had instructed his newly appointed foreman, Rupert Brown 17 to notify all former employees that the mill would open on June 26, and that the said employees should report for work that day, does not ring true. When three known union adherents,' reported for work at the hour specified for the mill 's reopening they were refused jobs. Moreover, the credible evidence shows that not more than a handful of the employees who supported the Union were notified to return to work. Despite Swan 's testimony that he instructed Brown, who , incidentally , did not testify, to recall all the former em- ployees, only 5 or 6 of them reported , presumably because they were not notified to do so On the other hand, when the mill reopened , about 35 or 40 men who had not previously worked at the mill sought jobs. Swan and Brown were present at the reopening , but, as far as the record discloses, Swan made no inquiry of Brown, or anyone else, why the balance of the former employees had not reported for work. Instead , Swan filled the jobs with new employees including the jobs that Burr, Brue, and Holden had held prior to the shutdown. When they saw that their jobs had been filled by new employees, Burr, Brue, and Holden left the mill. The credible evidence, as epitomized above, leads to the inescapable con- clusion that upon the reopening of the mill the persons whose names appear on Appendix A, hereto annexed , were not recalled and offered reemployment solely due to the fact that they were union adherents . This finding is but- tressed by the fact that when Juarez, at the aforesaid June 28 meeting , requested that all former employees not previously recalled and put to work be rehired, Swan refused to do • so, adding that when , and if, additional employees were needed they would be secured through the United States Employment Service. Upon the entire record, the undersigned finds that the mill was shut down on June 7, for the purpose of ( 1) ridding the mill of all known union supporters; (2) discouraging membership in the Union ; and (3 ) evading the Respondents' statutory duty to bargain collectively with the Union. The undersigned further finds that by such locking out of the employees and by the subsequent refusal to reinstate the eight persons whose names appear on Appendix A, the Respondent Swan and Respondent Whitings violated Section 8 ( a) (3) and ( 1) of the Act. 17 At the time the mill was closed, Brown was a nonsupervisory employee. 11 Namely, Walter C. Burr , Samson Brue , and Gilbert Holden. THE WHITING LUMBER COMPANY, % 287 At the hearing and in its brief Respondent Whitings contended that it is not responsible, and therefore cannot be held accountable, for any of the unfair labor practices allegedly committed by Swan after May 25, 1950, because it had divested itself of any and all employer-employee relationship with respect to the persons employed at the mill on that date. The record, however, does not support this contention. The credible evidence reveals that in the month of May, Whitings was well aware that the mill employees would request a wage increase equal to that obtained by the Union for the employees of Saginaw and Southwest. When it became evident to Whitings that the employees of these mills had been given, or were about to be given, a substantial wage increase it took steps to escape the giving of comparable wage increases to its mill employees. Thus, to fulfill this plan, a paper relationship was entered into by and between Whitings and Swan whereby the former's rights to control the mill and the labor policies thereof would remain untouched. Prior to entering into the agreement with Swan, Whitings well knew of Swan's serious illness, of his physician's often-repeated admonitions to Swan not to work but to leave Flagstaff because of its high altitude, and of Swan's poor financial conditions. Against this background, it is reasonable to infer, which the undersigned does, that the partners of Whitings, who are men of acumen and of wide business experience, would not have entered into a business deal whereby they would have to entrust to an ill and financially irresponsible person, like Swan, the entire management of a going mill and with the carrying out of a most ad- vantageous contract which Whitings then had with Hall, if Whitings had to relinquish in any manner its control of the mill and its labor policies. Swan's impecunious situation was brought to Whitings' attention immediately after the execution of the aforesaid agreement when Swan called upon it to advance his first payroll and to advance him sufficient money to pay the premium on the policy with the Industrial Commission of Arizona, which policy Swan had to secure before he was able to commence business. The contract is dated May 25, 1950, the day of the Union's first organizational meeting of the employees here involved No witness, however, was able to tes- tify with any degree of positiveness or certainty including its draftsman, an accountant in the employ of Whitings and who later also became the auditor of Swan's books of account, the date when the contract was prepared or when it was actually executed. Furthermore, the manner and speed of the negotiations leading up to the execution of the agreement conclusively shows that it was conceived as a device to escape Whitings' obligations under the Act. Whitings' control over, the operation of the mill after May 25 is more dis- cernible when consideration is given to the fact that it permitted Swan to close the mill for an indefinite period on June 7, allegedly because of his poor health, without a protest. Moreover, when all the facts are analyzed they disclose that all that Swan actually was called upon to do by the terms of the agreement of May 25, was to carry out the terms of the then existing contract between Whit- ings and Hall. For so doing, Swan was to be paid a certain compensation which, the record shows, was barely sufficient to pay him a small salary after Wyatt had been paid its logging charges and after the mill employees had been paid their wages. The fact that Whitings' connections with the mill remained an employer- employee relationship after the execution of the May 25 agreement is further demonstrated by the fact that when the employees' wages were increased in June and again in the fall, Swan's compensation was accordingly increased. When in June, the Union demanded an increase in wages, Swan immediately consulted Whitings and sought his instructions with respect thereto. When 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the mill shut down, it was done so with the advice and consent of Whitings. In short, Whitings continued as employer of the mill irrespective of the contract of May 25, and the undersigned so finds. The undersigned further finds that Swan was the alter ego of Whitings with respect to the mill operations on and after May 25, and therefore Whitings is responsible and accountable for the unfair labor practices found above. D. The alleged lockout of Wyatt's employees The complaint alleged that Wyatt locked out its employees on the same day, June 7, that the mill closed. The record is barren of any substantial evidence to sustain this allegation. The evidence shows, and the undersigned finds, that Wyatt's employees con- tinued to work for several days after the mill shut down and delivered logs to the mill during that period ; that when it became apparent to Wyatt that it could not transport any more logs to the mill for lack of storage space, it laid off some employees ; and that when the mill reopened on June 26, Wyatt im- mediately rehired all the laid-off employees. The undersigned further finds that Wyatt was an independent contractor and that, as such, neither Swan nor Whitings exercised any control over the employees of Wyatt. Accordingly, the undersigned will recommend that the allegations of the complaint that Wyatt locked out its employees in violation of the Act, be dismissed. IV. THE EFFECT OF THE UNI'AIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, and each of them, set forth in Section III, above, occurring in connection with the operations of the Respondents, and each of them, described in Section I, above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and-tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Whitings and Respondent Swan have en- gaged in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act, and that Respondent Wyatt had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (5), it will be recom- mended that they, and each of them, cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondents Whitings and Swan, on June 5, 1950, and at all times thereafter, have refused to bargain collectively with the Union as the exclusive representative of their employees in an appropriate unit, it will be recommended that they, upon request, bargain collectively with the Union. Having found that Respondents Whitings and Swan locked out and discharged all their employees on June 7, 1950, and refused the said employees reinstatement, with certain exceptions, upon the reopening of the mill, it will be recommended that Respondents Whitings and Swan offer all the employees on the payroll on June 7, 1950, excepting those already rehired, immediate and full reinstatement to their former or substantially equivalent positions,19 without prejudice to their seniority or other rights and privileges, discharging if necessary all employees hired since June 7, 1950, and that the said Respondents make whole each of the employees discriminated against for any loss of pay he may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equivalent to the amount each would have normally earned as wages during the period from the date of the lockout to the date of the said 19 See Chase National Bank of the City of New York, etc., 65 NLRB 827. THE WHITING LUMBER COMPANY 289 Respondents' offer of reinstatement, less his net earnings during said period.30 The back pay shall be computed in the manner established by the Board in F. W. Woolworth Companap.21, The unfair practices found to have been engaged in by Respondent Whitings and Respondent Swan are of such a character and scope that in order to insure to the employees here involved and to prospective employees of the mill their full rights guaranteed them by the Act, it will be recommended that the said Respondents, and each of them, cease and desist from in any manner inter- fering with, restraining, and coercing their employees or prospective employees in their right to self-organization 22 Having found that Respondent Wyatt on June 8, 1950, and at all times there- after, has refused to bargain collectively with the Union as the exclusive bar. gaining representative of its employees in an appropriate unit, it will be recom- mended that it, upon request, bargain with the Union. It will be recommended further that the allegations of the complaint that Respondent Wyatt discriminatorily locked out its employees, be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Northern Arizona District Council of Lumber and Sawmill Workers, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All the employees of Respondents Whitings and Swan engaged at their Flagstaff, Arizona, mill, exclusive of clerical and office employees, professional employees, guards, and supervisors as defined by the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Northern Arizona District Council of Lumber and Sawmill Workers, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, was on June 5, 1950, and at all times thereafter has been, the exclusive representative of all the employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on June 5, 1950, and at all times thereafter, to bargain col- lectively with the Union, as the exclusive representative of all employees in the appropriate unit, Respondent Whitings and Respondent Swan have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of all the employees on the payroll of June 7, 1950, thereby discouraging membership in the Union, Respondent Whitings and Respondent Swan engaged in, and are engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By interrogating the mill employees regarding their union affiliations, Re- spondent Whitings and Respondent Swan have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. By interfering with, restraining, and coercing their employees in the exer- cise of the rights guaranteed in Section 7 of the Act, Respondent Whitings and Respondent Swan have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 20 See Crossett Lumber Co., 8 NLRB 440. 2190 NLRB 289 21 See May Department Sto2 es, etc , 326 U S. 376. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. All employees of Wyatt engaged in its logging operations in and about Flag- staff, Arizona, excluding office and clerical employees and supervisors, as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 9. Northern Arizona District Council of Lumber and Sawmill Workers, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, was on June 5, 1950, and at all times thereafter has been, the exclusive reprdsentative of all the employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9 ,(a) of the Act. 10. By refusing on June 8, 1950, and at all times thereafter, to bargain col- lectively with the Union, as the exclusive representative of all employees in the appropriate unit, Respondent Wyatt has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 11. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent Wyatt has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 12. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ' 13. Respondent Wyatt did not discriminatorily lock out its employees, as alleged in the complaint. [Recommended Order omitted from publication in this volume. Appendix A Flano Apadaca Jesus Pozas D. L. Berryhill Claude Sanders Samson Brue Sidney M. Stewart Gilbert Holden A. C. Everett H. PAUL PRIGG, AN INDIVIDUAL, DOING BUSINESS UNDER THE NAME AND STYLE OF PRIGG BOAT WORKS and INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, C. I. O. Case No. 10-0- 1660. . December 7, 1951 Amendment to Supplemental Decision and Recommendation On October 31, 1950, the Board issued its Supplemental Decision and Recommendation in the above-entitled case.' Upon further con- sideration it appeared to the Board that said Supplemental Decision and Recommendation should be amended. Accordingly, on Novem- ber 9, 1951, the Board issued a Notice to Show Cause, returnable on or before November 23, 1951, why the proposed amendment attached to said notice should not issue as an amendment to Supplemental Decision and Recommendation. None of the parties has responded to said notice. IT IS HEREBY ORDERED that the said Supplemental Decision and Re- commendation be, and it hereby is, amended by substituting for the 191 NLRB 1379. 97 NLRB No. 56.