Coulbourn Lumber Co.

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. C. COULBOURN, E. T. CouLBoURN, G. I. COULBouRN, G. F. CouL- BOURN, AND U. F. COULBOIIRN, PARTNERS D/B/A COULBOURN LUMBER COMPANY and INTERNATIONAL WOODWORKERS OF AMERICA , C. I. 0. Case No. 34-CA-9294. August 16, 1962 Decision and Order On February 11, 1952, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Ex- aminer also found that the Respondents had not engaged in certail1 other unfair labor practices alleged in the complaint and recom- mended that the complaint be dismissed in part. Thereafter, the Union filed exceptions to the Intermediate Report. No exceptions were filed by the Respondents. The Board 1 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 In- termediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 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 Respondents W. C. Coulbourn, E. T. Coulbourn, G. I. Coulbourn, G. F. Coulbourn, and U. F. Coul- bourn, partners doing business as Coulbourn Lumber Company, their agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Woodworkers of America, C. 1. 0., or in any other labor organization of its employees, by discharging or refusing to reinstate any of their employees because of their participation in concerted activities, or by discriminating in any manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating their employees concerning their union activities and membership; threatening to transfer employees to other jobs, to 'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Styles and Peterson]. 2 Exception was taken only to the Trial Examiner's findings that the transfer of Clark and the discharge of Severe did not violate the Act. We find no merit in these exceptions. 100 NLRB No. 104. COULBOURN LUMBER COMPANY 623 discharge them, or to shut down the mills to discourage their union affiliations or activities; or in any other manner interfering with, restraining, or coercing their employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist International Woodworkers of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in labor organizations 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 Freeman Clark, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make whole Freeman Clark and Lee Edward Bond in the manner set forth in the section of the Intermediate Report entitled, "The Remedy," for any loss in compensation they may have suffered by reason of the Respondents' discrimination against them. (c) Upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, time cards, personnel records and reports, and all other records, necessary to analyze the amounts of back pay and the right of reinstatement under the terms recommended in the Intermediate Report. (d) Post at their office in Windsor, North Carolina, copies of the notice attached to the Intermediate Report and marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after having been signed by the Respond- ents or their representative, be posted by the Respondents immediately upon receipt thereof and maintained by them for sixty (60) consecu- tive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for the Fifth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply herewith. a This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof, the words "A Decision and Order." If this Order is enforced by a decree of a United States Court of Appeals, there shall be sub- stituted for said words "A Decision and Order ," the words "A Decree of the United States Court of Appeals, Enforcing an Order." 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondents discriminated against Steve B.-Cooper, Lonnie Severe, and Patrick H. Hill, Jr., and that the transfer of Freeman Clark to the planing mill was discriminatory. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed on'April 23, 1951, by International Woodworkers of America, C. I. 0., herein called the Union, the General Counsel for the National Labor Relations Board,' by the Regional Director for the Fifth Region (Balti- more, Maryland), issued a 'complaint dated June 28, 1951, alleging that W. C. Coulbourn, E. T. Coulbourn, G. I. Coulbourn, G. F. Coulbourn, and U. F. Coul- bourn, partners doing business as Coulbourn Lumber Company, herein called the Respondents, have engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein referred to as the Act: Copies of the complaint, the charge, and a notice of hearing were duly served upon the Respondents and the Union. With respect to the unfair labor practices, the complaint alleges in substance: (1) That on and since April 13, 1951, the Respondents, in violation of Section 8 (a) (1) of the Act, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7, by urging, persuading, warning, and coercing their employees by threats of reprisal and promise of benefit to refrain from assisting, becoming, or remaining members of the Union or engag- ing in concerted activities for the purpose of collective bargaining or other mutual aid or protection ; and by questioning their employees concerning their member- ship in, sympathies with, and activities on behalf of the Union and other labor organizations. (2) That the Respondents, in violation of Section 8 (a) (3) of the Act, dis- charged employees Steve B. Cooper, Freeman Clark, Lonnie Severe, Lee Edward Bolid, and Patrick H. Hill, Jr., between April 13 and 17, 1951, and have since then failed and refused to reinstate these employees, in each case because of the employee's membership in or assistance to the Union, or because he engaged with other employees in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection. The Respondents in their answer deny the commission of any of the unfair labor practices charged in the complaint. They further assert that they dis- charged Steve B. Cooper and Lonnie Severe for cause, and that employees Free- man Clark, Lee Edward Bond , and Patrick H. Hill, Jr., were not discharged but voluntarily quit their employment with the Respondents. Pursuant to notice, a hearing was held in Windsor, North Carolina, on July 30 and 31, 1951, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondents appeared by counsel and the Union by its representative, and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the General Counsel's case-in- chief, the undersigned granted his unopposed motion to dismiss the complaint so far as it alleged discriminatory discharge by the Respondents of Patrick H. Hill, ' The General Counsel and the staff attorney appearing for him at the hearing are herein referred to as the General Counsel; the National Labor Relations Board is referred to as the Board. COULBOURN LUMBER COMPANY, 625 Jr. When all counsel had rested their cases, the undersigned granted an un- opposed motion by the General Counsel that the pleadings be amended to con- form to the evidence with respect to the spelling of names, dates, and places. All counsel thereupon waived oral argument and the hearing was closed. Since the hearing, the General Counsel and counsel for the Respondents have submit- ted briefs to 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 RESPONDENTS The Respondent-partners, doing business as Coulbourn Lumber Company, have their office and place of business at Windsor, North Carolina, where they have engaged and are now engaged in the procurement, handling, processing, and sale of lumber. During the 12 months preceding the hearing, the Respondents pur- chased raw materials valued at approximately $150,000, none of which was received from points outside the State of North Carolina. During the same period, the Respondents produced finished products of an approximate value of $400,000, of which 70 percent was sold and shipped from their Windsor, North Carolina, Mills to points outside the State of North Carolina. The undersigned finds that the Respondents are, and have been at all material times, engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Woodworkers of America, C.I.O., is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction The Respondents are five brothers, who, among other business enterprises of their partnership, conduct logging and sawmill operations in and around Wind- sor, North Carolina. Only two of the brothers (i. e., Fenton (G. F.) Coulbourn and Uriah (U. F.) Coulbourn) are continuously engaged in the local manage- ment of the Windsor business, although Edwin (E. T.) Coulbourn, who handles other interests of the partnership in Virginia, also visits the Windsor mills from time to time and generally attends to the "financial work" of the partnership. In their Windsor operations, the Respondents run a sawmill, drying kilns, and a planing mill, for which they secure their logs partly by purchase and partly by cutting and hauling timber with their own logging crews and trucks. In the beginning of April 1951, their field operations were supervised by Foreman Jesse Johnson, who was in charge of 5 trucks and as many drivers, and also of 2 or 3 logging crews consisting of from 4 to 7 men each. At the same time, they employed approximately 36 men in their sawing and planing mills under Sawmill Foremen Claud Pierce and J. C. Overton and Planing Mill Foreman Eugene Price. In November 1950, International Representative Bruce Davis of the Union visited Freeman Clark, the head block setter in the Respondents' sawmill, and arranged with Clark to attempt to organize the Respondents' employees. There- after, Clark urged his fellow-employees to join the Union and Joseph Bridgett, another sawmill employee, procured a number of signed membership applications which he estimated as being approximately 40. Among those who signed these 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union membership applications were employees Steve Cooper, Lee Bond, and Lonnie Severe. On April 9, 1951, the Union informed the Respondents by letter that it repre- sented their production and maintenance employees and asked that a date be set for the negotiation of a contract. The Respondents received this letter on April 11, 1951. On Friday, April 13, 1951, the Respondents discharged Steve Cooper and notified Freeman Clark that he was to be transferred to the planing mill from his job as head block setter in the sawmill. On Monday, April 16, and Tuesday, April 17, respectively, the Respondents discharged Clark and replaced Lee Bond, a planing mill employee, although it permitted Bond to return to work on the following Monday, April 23. And, on April 18, the Respondents also discharged employee Lonnie Severe. Upon the evidence received at the hearing, the General Counsel contends, and the Respondents deny, that the Respondents discharged these four men because they engaged in concerted activities with other em- ployees and joined and were active on behalf of the Union, and also that the Respondents by these discharges and by other acts interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharge of Steve Cooper On April 13, 1951, 2 days after the Respondents had received the Union's bargaining request, Fenton Coulbourn told Steve Cooper, who had been em- ployed as a truck driver for approximately 10 months, that he was discharged because work was "getting slack," because he could not haul as many logs as the other drivers, and because, therefore, the Respondents had nothing for him to do. The General Counsel contends, however, that Cooper, as the first of four union members discharged by the Respondents within the week following the Union's bargaining demand, was discriminatorily discharged in violation of Section 8 (a) (3) of the Act. During the morning of April 13, Woods Foreman Jesse Johnson sent Cooper to the home of F. L. Pierce (who was not employed by the Respondents nor apparently connected with the management of the business), to procure a link for the repair of one of the Respondents' tractors which had broken down in the woods. Cooper testified that Foreman Johnson sent his son-in-law with Cooper and later followed them in another truck ; and that, upon getting the link, Johnson sent it back to the woods with his son-in-law in one of the trucks. On direct examination, Cooper testified (1) that Johnson then rode back with Cooper from Pierce's home to the woods in the other truck; (2) that during this ride, Johnson remarked that he had heard Cooper was in the Union, that when Cooper admitted this was so, Johnson commented in substance that this involved strikes, that although the truck drivers were not adequately paid, there were some good features to their employment, and that the Union "ain't no good," because somebody was likely "to go hungry";' (3) that upon being unable "to get 2 Counsel for the Respondents argues in his brief that Cooper did not testify that these remarks were made by Foreman Johnson but rather that they were made by his son-in- law, whose relationship to the Respondents , if any, is not shown by the record. To support this contention , counsel points out that Cooper began his testimony concerning the conversation during the truck ride with a statement that "Mr. Johnson was staying in the woods with his tractor . So Mr. Johnson sent his son-in-law in the truck with me"; that Cooper then stated that "He and I went back to the mill and got the link and took it out. We got on the truck to go back to the woods" ; and that Cooper, in then continuing his testimony, stated merely that "he" made the remarks which have been outlined in the text, without otherwise identifying the speaker. Counsel, however, -falls to note an answer by Cooper interpolated between the two COULBOURN LUMBER COMPANY 627 the tractor out" when they got back to the woods, they "knocked off" early (4) that Johnson passed Cooper as the latter drove slowly back to the mill; (5) that when Cooper reached the mill, Johnson came out of the office and told him Fenton Coulbourn wanted to see him; and (6) that Coulbourn then discharged Cooper. On cross-examination, Cooper testified that when they secured the link at Pierce's house and sent it back to the woods with Johnson's son-in-law, Johnson rode with Cooper back to the mill and not to the woods as he had testified on direct examination. Johnson testified only as to Cooper's unsatisfactory performance of his work and neither affirmed nor denied having made the interrogation and the remarks attributed to him in Cooper's testimony, or having preceded Cooper to the office that afternoon. However, although Cooper testified that he had entered the office immediately upon Johnson's emerging and telling him to report to Fenton Coulbourn, both Fenton Coulbourn and Uriah Coulbourn denied that they saw and spoke with Johnson on April 13 before Fenton Coulbourn discharged Cooper. In view of these denials, which the undersigned credits, and also in view of Cooper's confusion as to whether Johnson rode with him to the woods or to the mill and how it came about that Johnson got to the Respondents' office before him, the undersigned does not regard Cooper's testimony as being reliable. No finding is therefore made that, as Cooper testified, Johnson interrogated him as to his union membership and made antiunion remarks, and then preceded him to the Respondents' office. Fenton Coulbourn testified that' Cooper was discharged solely because the consolidation of two of the Respondents' three logging crews in the beginning of April made it possible and desirable to eliminate the use of one of the five trucks, and Cooper, on the basis of his record, was the logical man to be laid off. In thus explaining his selection of Cooper for layoff rather than one of the other truck drivers, Fenton Coulbourn further testified (1) that Cooper had picked up riders along the road, contrary to a rule of the Respondents which, although apparently not specifically called to Cooper's attention, was generally observed by the other drivers; (2) that on approximately March 1, Cooper overturned and damaged his truck; (3) that Cooper had been arrested and fined for speeding; (4) that Cooper was the slowest of the Respondents' drivers, being especially slow and inept in turning his truck in the woods for which he required 15 or 20 minutes as against 12 minutes for the other drivers ; and (5) that on April 12, the day before Cooper was discharged, Harry Thompson, a customer of the Respondents, reported to Fenton Coulbourn that Cooper, in picking up and carrying a load of lumber from Thompson's tract to the Re- spondents' mill that day, had taken 20 minutes to turn the truck around for loading and then parked 30 or 40 minutes along the road. According to Fenton Coulbourn, after receiving this report of Thompson and considering also the other deficiencies in Cooper's job performance, he decided that Cooper was the truck driver whom he should lay off and, during the morning of April 13, instructed the office girl to obtain the necessary cash from the bank to pay off Cooper that afternoon. Foreman Johnson corroborated Fenton Coulbourn's testimony as to Cooper's slowness and Thompson corroborated Coulbourn's testimony as to Cooper's stopping on the roadside on April 12 and also the report of this fact to Coulbourn excerpts first quoted from Cooper's testimony , in which he identified "Mr. Johnson" as his foreman . Thus, in the following answers relating to the remarks made by his companion during the return truck ride , his use of the pronoun "he" was obviously in- tended to refer to Foreman Johnson who had followed Cooper in another truck and then turned it over to his son-in-law and made the return trip with Cooper either to the mill or to the woods. 227260-53-vol. 100-41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that afternoon. Furthermore, Uriah Coulbourn also testified that hearing of Thompson's complaint, he mentioned it to Fenton Coulbourn on the morning of April 13 and was told by Fenton, "I have already made up my mind about it." There is no dispute that, as Fenton Coulbourn testified, there was a reduction in the number of logging crews shortly before Cooper's discharge, that Cooper was not replaced by another truck driver nor, therefore, that the Respondent apparently decided for economic reasons that only four instead of five truck drivers were needed. Nor is there any contradiction of Fenton Coulbourn's testimony that after Cooper's discharge only four of the trucks were used by the Respondents. Furthermore, Cooper admitted having picked up riders and having overturned the Respondents' truck, and he neither admitted nor denied having been fined for speeding. He denied, however, that he was slow in his driving or in turning his truck in the woods and testified that he had parked his truck on the side of the road on April 12 only for a few minutes. He testified, more- over, that he had never been told of the company rule against riders and that he had never been reprimanded nor warned of possible discharge for anything he had done. While the absence of any reprimand or warning for an employee's misconduct or inefficiency certainly has an important bearing upon the credibility of any claim by an employer that the employee was discharged purely and simply for unsatisfactory job performance, it obviously does not have the same significance in a case like the present, where the employers' position is that they were reduc- ing their staff for economic reasons and therefore chose the employee in question, for discharge as the least efficient or desirable of their staff. Upon the evidence before him, therefore, the undersigned credits the testimony of Fenton Coulbourn, Foreman Johnson, and Harry Thompson, and finds that the Respondents dis- charged Steve Cooper because the consolidation of two of the Respondents' three logging crews in the beginning of April made it possible and desirable to elimi- nate the use of one of the Respondents' five trucks and Cooper, on the basis of his record, was the logical man to be laid off. - The undersigned accordingly con- eludes that the evidence does not warrant a finding that the Respondents, in violation of Section 8 (a) (3) of the Act, discharged Steve Cooper because of his union membership and activities, thereby discriminating against him in re- gard to his hire and tenure of employment and discouraging membership in the' Union. C. Freeman Clark and Lee Bond 1. The facts a. The transfer of Clark to the planing mill The Respondents' mill operations begin in the sawmill where the logs are cut into planks and the planks are trimmed on the double edger. The green lumber is then dried in kilns, after which it is planed in the planing mill. In the initial sawing process, which feeds all the following operations, the log or block is set securely upon the bed of a carriage which moves the log to and against a revolving saw and results in such successive vertical cuts as are calcu- lated to obtain the maximum amount and best quality of lumber from, each log, both by turning the log and adjusting a controlling ratchet on the carriage to determine the angle of the cut and the thickness of each plank. The employee who rides the carriage and sets the ratchet is known as the head block setter or' the ratchet setter, and for the proper performance of his job requires an intelli- gence, training, and experience which are not required for the performance of, the other rank-and-file jobs in the mills. COULBOURN LUMBER COMPANY 629 Until April 13, 1951, Freeman Clark had been the only ratchet setter employed in the Respondents' mill for the preceding 5 years, and during that time had been absent from work only for half of 1 day in February 1951. During this half-day absence and also in short periods of relief, measurable in minutes, Melvin Spivey, another sawmill employee, had set the ratchet, but it is apparent from the evi- dence that the slight amount of training he had thus received for this work had not yet readied him for the job by April 13, 1951. At the time of his discharge on April 16, 1951, Clark received 85 cents an hour and the use of a house on the mill premises, rent free. On Friday, April 13, 2 days after the Respondents had received the union bar- gaining request, Clark was called into the office twice to see Fenton and Uriahh Coulbourn-once in the morning when the Coulbourns asked him what was going on among the men, and again in the afternoon when they told him that, begin- ning on Monday morning, he was to work in the planing mill. It is clear from the evidence, and the undersigned finds, that during the morn- ing conversation on April 13 nothing was said to Clark about his transfer to the planing mill ; that, in answer to the Coulbourns' question as to what was going on, Clark asked if they meant the Union ; that the Coulbourns replied, "Yes"; ' that Clark first said he knew little or nothing about the Union and then, that every one of the employees was a member ; 4 that during the conversation, saw- mill employee Simon Spivey ° entered the office; and that Uriah Coulbourn then asked Simon Spivey whether he was a member of the Union e On other important points of the morning conversation, however, the testi- mony is in conflict. Thus, Clark testified that before Simon Spivey entered the office, Uriah Coulbourn said, "I have enough headaches and worries with all this logging outfit, let alone having trouble with Mr. John L. Lewis driving these fine Cadillacs and coming here and telling me what I have got to do ... I have money enough to last me the balance of my days. I can shut the damned plant down ; I don't have to run it. Furthermore than that, the first thing you know, I can take you off that carriage and put you out there piling lumber or doing anything like that, or I can send you on up the hill [i. e., discharge you]." Ac- cording to Clark, he replied, "that is all right. If you want to fire me on account of the Union, go ahead." On the other hand, both Uriah and Fenton Coulbourn testified that although they told Clark that a union was not necessary under economic conditions in the South, they also told him in substance that he and the other employees were free to join and support the Union without fear of discharge; whereupon Clark, apparently worried in spite of this assurance, said that they could discharge him at any time if they wanted to. Simon Spivey testified only that he was questioned as to whether he was a union member, that Clark had been in the office before be came in, that he "wasn't so much interested" in the conversation, and that he did not hear any mention of John L. Lewis or Cadillacs or any remarks about having enough money and not having to work during the rest of his life. The undersigned credits Clark's testimony and finds that Uriah and Fenton Coulbourn told him in this morning conversation on April 13, not only that they -3 There is no dispute as to the substance of this portion of the conversation. Clark, testified, however, that Uriah Coulbourn did the talking for the brothers, although Fenton and Uriah Coulbourn testified that Fenton was the speaker. The conflict on this point is, of course, immaterial. 4 Clark, Uriah Coulbourn, and employee Simon Spivey so testified. There was no specific denial by Fenton Coulbourn that Clark made these answers. Not to be confused with Melvin Spivey. ° Clark and Simon Spivey so testified. In his testimony Uriah Coulbourn did not address himself to this particular point but Fenton Coulbourn testified that perhaps his brother, tJilah; asked Simon Spivey this question 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were opposed to the Union's interference in their business and that they could shut the plant down, but also that they could remove Clark from his job as block setter or discharge him. Uriah and Fenton Coulbourn testified that during the 6 or 8 months-pre- ceding April 13, 1951, they had discussed the advisability of training another head block setter so that they would not have to depend upon Clark alone. They also testified, and Foremen Pierce and Overton corroborated their testi- mony, that in February 1951 they instructed the foremen to begin training Melvin Spivey so that he could alternate with Clark as head block setter, and that, when the matter was again discussed on or shortly before April 13, 1951, they decided that Spivey could better be trained by the sawyers if Clark were not present because of his tendency to interfere. Accordingly, the Coulbourns testified, they concluded that they would temporarily assign Clark to the planing mill and bring him back to alternate with Spivey after Spivey had been trained. Furthermore, still according to Fenton and Uriah Coulbourn, this decision was made on the morning of April 13 because, due to wet weather, the supply of logs had decreased and on the preceding day the only logs on hand had been run through the sawmill and were ready for the double edger. According to the Coulbourns, the slack period afforded them the best opportunity for training Melvin Spivey without pressure. Although the undersigned credits the testimony thus given by Fenton and Uriah Coulbourn as to the reason for deciding to transfer Clark temporarily from his job as head block setter to the planing mill, he also finds, upon the basis of Uriah Coulbourn's specific testimony, that a factor in the Coulbourns reaching this decision at the particular time (i. e., on the morning of April 13 and im- mediately after their conversation with Clark) was what Uriah termed Clark's "insolence" in daring them to fire him that morning, as he had in several previous instances in February' During the late afternon of Friday, April 13, Uriah and Fenton Coulbourn called Clark back to the office and told him that beginning with Monday, April 16, he would work in the planing mill at the rate of 75 cents per hour earned by planing mill employees instead of the 85 cents per hour rate which he was earning as head block setter. However, on the following morning, Saturday, April 14, the Coulbourns again called in Clark and informed him that he would be 85 cents per hour on the planing mill job. According to Clark, in informing him of his transfer to the planing mill, in both the Friday and Saturday conversations, the Coulbourns told him merely that "We see where we need another block setter," and they were therefore trans- ferring him to the planing mill but would not tell him who the new block setter was to be. Furthermore,- Clark specifically denied that the Coulbourns told him that after a new block setter was trained he and Clark would alternate on the job. Fenton and Uriah Coulbourn testified, however, that they told Clark that, his transfer to the planing mill was temporary, and that when they had trained Melvin Spivey on the block setting job , he and Clark would alternate, each work- 7 According to Urlah Coulbourn's uncontradicted testimony, on one of these occasions, Clark, apparently having "had a few drinks." asked Uriah Coulbourn for a raise and said, "Well, you are going to have to do something or I am going to quit. You can fire me." On another occasion at about the same time, according to the testimony of both Fenton Coulbourn and Clark, Clark came to Fenton Coulbourn with a plea for help for an ailing employee and criticized the Respondents for not properly taking care of their employees. Fenton Coulbourn testified, but Clark denied, that in the course of this conversation Clark said, "Boss, if you don't like what I'm doing, you can fire me. You can pay me off right now." The undersigned believes it unnecessary to resolve this particular conflict in the testimony for the purposes of the present case. He finds merely, as the testimony of both witnesses clearly indicates, that the Coulbourns resented Clark's criticism. COULBOURN LUMBER COMPANY 631 ing a half day as block setter and the other half day on the double edger. The undersigned credits Clark's testimony and finds that the,Coulbourns did not inform Clark that his transfer to the planing mill job was to be temporary nor that Melvin Spivey was to be trained as an alternate block setter following which he and Clark would divide the work of that job and the double edger job between them. b. Incidents on Monday, April 16 Shortly before the 7 o'clock work whistle blew on Monday, April 16, Clark ap- peared at the planing mill. According to Planing Mill Foreman Price, he was busy checking and greasing his engine and did not see Clark. But according to Clark's testimony, which the undersigned credits, Price passed near him. In any event, it is undisputed that by the time the whistle blew and for at least a few minutes thereafter, Price gave no assignment or orders to Clark. It is also undisputed that the sawmill men did not begin to work when the whistle blew but walked over to Clark whom they asked what the trouble was. Clark told them he had been taken off the block setting job in the sawmill and transferred to the planing mill and, upon their further questioning him, that he did not know who was going to set blocks for the sawmill. The sawmill men thereupon continued to stand and talk with Clark for, as one of them (Joseph Bridgett) testified, "After Freeman Clark told us they had changed him from block setter to the planing mill, we knowed we couldn't work." And, according to the testimony of Sawmill Foreman Pierce, another employee by the name of Olds asked Pierce why Clark was taken off the block setting job and why he was not put back. Melvin Spivey was one of the sawmill men in the group which stood talking with Clark. Although Fenton Coulbourn testified that he had told Sawmill Foremen Pierce and Overton that Spivey could have the block setting job if he wanted it and that if no one would take the job, they would run green lumber through the double-edged trimmer and separator table, Pierce and Overton -testified, and the undersigned finds, that neither of them so informed Spivey on April 16, and from Overton's testimony it appears that Spivey was not told that he was to be the block setter until probably Thursday, April 19. Furthermore, there is no evidence that the Respondents or any of the foremen told any of the other men on April 16 that Melvin Spivey was to be the new block setter. After the sawmill group including Clark and Spivey had stood talking for about 5 minutes, Fenton Coulbourn told them to go home if they were not going to work. Then Uriah Coulbourn called Clark and all the other men together in front of the office and made a short speech. During this speech, it is undisputed that Uriah Coulbourn told the men in substance that Clark was transferred to the planing mill because he was un- dependable ; that employee Joseph Bridgett said that the men wanted Clark back on the ratchet setting job ; and that Uriah Coulbourn replied that the men were not going to tell him how to run the mill and that if Clark and the rest of the men did not go back to the jobs assigned them they were automatically fired. Although Employee Wallace Williams testified merely that Uriah Coulbourn said he would permit no interference with his operation of the business, Clark and employees Bridgett, Outlaw, and Bond testified that Coulbourn referred specifically to interference by the Union. Furthermore, according to Clark, Bridgett, and Outlaw, Uriah Coulbourn again mentioned the fine Cadillac cars which he said were driven by the union people, as he had to Clark on April 13. On the other hand, Fenton Coulbourn testified that he heard only snatches of his brother's speech, and Uriah Coulbourn himself testified merely that he did not recall having made any reference to the Union or to Cadillac cars, and did 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not think that he did so. In addition, although neither Fenton Coulbourn nor any of the employees so testified, Uriah Coulbourn testified that he told the employees that the Respondents were going to put another man on the-carriage to learn the ratchet setting job, after which Clark would come back and alternate with "that man." Upon this state of the evidence, the undersigned finds that in his speech to the men that morning, Uriah Coulbourn told them (1) that, as Clark, Bridgett, Bond, and Outlaw testified, the Respondents would permit no interference with their -operation of the mills by the men or by the Union; (2) that, as Uriah Coulbourn himself testified, the Respondents rejected the men's request for Clark's im- mediate return to the ratchet setting job, explaining however that another man (who was not identified in the speech) would be trained for the job after which he and Clark would alternate as ratchet setters ; and (3) that, as all the witnesses testified, Clark should immediately return to the planing mill job and the other -men to their respective jobs, or they would be discharged. At the end of Coulbourn's speech, Clark reported to Planing Mill Foreman Price and, upon Price's orders, helped employee Lee Bond and another planing mill employee stack and feed about a thousand feet of lumber into the planer. In the meantime, according to the uncontradicted testimony of sawmill em- ployees Outlaw, Williams, Bridgett, and Melvin Spivey, which the undersigned credits, Sawmill Foreman Pierce entered the office and when he came out told the sawmill employees that they could not work until they got a head block setter and that they might as well go home.' Accordingly, they started for home and, in doing so, a group of them including Bridgett and Outlaw, passed Clark and Bond who were just finishing feeding the lumber into the planer in accordance with,Foreman Price's instructions. Outlaw and Bridgett told Clark and Bond that the boss had said that they should go home. As Outlaw testified credibly and the undersigned therefore finds, he told Clark and Bond, "They told us to go home. You haven't got noth- ing to do, so you might as well come too. We are all in the Union together." Ac- cording to Clark's and Bond's testimony, Bond joined the group and went home, leaving Clark standing at the planing mill which had by then stopped running. Clark testified that he waited at least 5 minutes, that the planing mill was still not running, that neither Price nor any of the Coulbourns were there, that he then walked to his house on the Respondents' lot about 500 paces from the mill, and after puttering in his garden, lay down and went to sleep. It is to be noted that neither Bond nor Clark attempted to find the foreman or the Coulbourns for further instructions, either on the mill premises or in the office. As has been found, the sawmill employees, but not the planing mill em- ployees, had been told by Sawmill Foreman Pierce to go home. Although the general purport of Clark's and Bond's testimony is that they left the mills and went home because they reasonably believed that the Respondents had shut down the mills for the day, the undersigned is of the opinion from the evidence, and therefore finds, that they and others of the planing mill employees who may have left with them did so because of the Respondents' refusal to put Clark back as a ratchet setter ; because since Clark was the only available ratchet setter, the Re- spondents shut down the sawmill ; and because the sawmill employees informed Clark and Bond of this fact, reminded them that "we are all in the Union to- gether," and suggested that Clark and Bond also go home. In short, the under- signed finds that Clark and Bond in fact walked off the job with the sawmill em- ployees in protest against the Respondents' transfer of Clark and the resulting 8 Although he testified on other matters, Foreman Pierce did not affirm or deny that he thus told the sawmill boys to go home because they had no block setter. COULBOURN LUMBER COMPANY 633 layoff of the sawmill employees. That the Respondents were also of this opinion, and shortly acted upon it in discharging Clark and refusing to reinstate Bond for a brief period, appears clear from Fenton Coulbourn's testimony that, "when they [the men] walked off the job that morning, they walked off not because of the fact that there was no work there available, but because of the fact that they had gotten together and decided to walk off because of the transfer of Freeman Clark from the ratchet setting job to the planing mill." c. The discharge of Clark After Clark had gone to sleep on returning home from the mill on Monday, -April 16, he was awakened by the sound of the operation of the planing mill at about noon, and went back to the mills. As he stood there, Edwin Coulbourn, who had been summoned by his brothers, came to the mill and before going into the office asked Clark why the sawmill was not operating. Clark said that there was no head block setter, that he was the only one who had been doing that work, and that he had been transferred to the planing mill. Edwin Coulbourn then went into the office and was told by his brothers, Uriah and Fenton, about what had happened. The Coulbourns decided to dis- charge Clark and to evict him from the Respondents' house which he occupied on the mill property. Edwin Coulbourn thereupon immediately drafted the following letter to Clark, called Clark in, and gave it to him : In view of the fact that you walked off the job at the plaining [sic] mill this morning, April 16, thereby terminating your services with us, we hereby notify you that we demand you give up possession of the house now occupied by you on or before Friday Noon, April 20, 1951. Until that time you may enter and leave the house by means of the truck path around the saw mill yard, but we forbid you to come on the mill yard or trespass on any other part of our property. Clark has not worked for the Respondent since April 16, 1951. Although the Respondent started dispossess proceedings Clark still occupied the Respondents' house at the time of the hearing in the present case. d. The refusal to reinstate Lee Bond Lee Bond reported back to Foreman Price on Tuesday, April 17, found Cal Nathan, another planing mill employee, working at his job, and asked Foreman Price what he was to do. With Price, Bond went to Uriah Coulbourn who told Bond, "I will give you the same treatment I gave Freeman Clark. You are all fired." However, on the following Monday, April 23, Bond was reinstated and has worked for the Respondents since that time. 2. Conclusions Upon the evidence and findings of fact already made concerning the Coulbourns' conversation with Clark and Simon Spivey during the morning of Friday, April 13, the undersigned concludes that the Respondents, in violation of Section 8 (a) (1) of the Act, interfered with, restrained, and coerced their employees in the exercise of their right to self-organization under Section 7, by questioning Clark and Spivey concerning their union membership and, in the course of stating their opposition to interference by the Union, by threatening to shut down the plant or transfer or discharge Clark from his job as block setter. The undersigned, however, agrees with the Respondents that the evidence shows that they decided to transfer Clark temporarily to the planing mill to permit the 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD training of an additional block setter so that they would not have to continue in their dependence upon Clark alone for that work. Accordingly, the undersigned also finds that Clark's transfer to the planing mill job was not motivated by a desire to discriminate against Clark and discourage membership in or support of the Union, nor therefore was the transfer a violation of Section 8 (a) (3) of the Act. But, while the Respondents were thus justified in transferring Clark to the planing mill, the employees were also exercising their protected right to engage in concerted activities under Section 7 of the Act when they protested Clark's transfer and when, as the undersigned has already found, some of them, including Clark and Bond, stopped work on Monday, April 16, and left the mills. Viewed properly, these planing mill men who stopped working were not quitting their employment but were doing no more than engage in an economic strike. Further- more, it appears from the evidence, as the undersigned has also found in part upon the explicit testimony of Fenton Coulbourn, that the Respondents clearly under- stood what the situation actually was and discharged Clark and refused to rein- state Bond because, acting concertedly, they had stopped work in support of their protest against Clark's transfer. Moreover, from Uriah Coulbourn's statement of the Respondents' objection to union interference during his speech to the employees, it is clear. and the undersigned accordingly finds that by discharging Clark and refusing to reinstate Bond, the Respondents not only interfered with, restrained, and coerced their employees in the exercise of the right to engage in a concerted stoppage of work, thus violating Section 8 (a) (1) of the Act, but also, by so discriminating against Clark and Bond, discouraged membership in the Union in violation of Section 8 (a) (3) of the Act. D. The discharge of Lonnie Severe Lonnie Severe was hired by the Respondents on April 2, 1951, to stack firewood for the mills' engine boiler. His job was to take the slabs used for that purpose from a conveyor and to pitch them onto a pile near the boiler door where they could be reached by the fireman. Severe joined the Union on the day he was hired and, according to his testimony, wore a union button. According to the testimony of Uriah Coulbourn and Foreman Price, the Respondents had trouble with previous employees on Severe's job because they failed to pile the slabs uniformly and made it difficult for the fire- man. Therefore, according to Uriah Coulbourn, he instructed Foreman Price to tell the next man he hired that he would be on probation for 2 weeks ; and, ac- cording to Price's testimony, although Severe in his testimony denied it, Price told Severe when he was hired that he would be on trial for 2 weeks. The undersigned credits Price's testimony on this point. Foremen Pierce, Overton, and Price testified that although each of them showed Severe several times how to pile the wood, he failed to pile it properly. Fireman Wallace Williams, too, complained to Price about the way the wood was being piled. According to Price, when the first 2 weeks of Severe's employment ended on April 13, he told Severe his work was unsatisfactory and he was being discharged. Severe, however, testified that he had been shown how to pile the firewood only once ; that he was not discharged on Friday, April 13; that he did not work on Monday, April 16, because he was sick ; that when he reported to work on Tuesday, April 17, nobody was at work so he went home ; that later in the day he met Uriah Coulbourn who asked him whether he was a member of the Union and he admitted that he was ; that Uriah Coulbourn said that he was not angry because the boys joined the Union but because they walked off the job ; COULBOURN LUMBER COMPANY 635 that Coulbourn also said he could not take Severe back because he would then have to take Bond back too ; and that Coulbourn finally told him to get his pay from Foreman Price. Uriah Coulbourn gave no testimony as to this alleged conversation. The undersigned credits Severe's uncontradicted testimony concerning his conversation with Uriah Coulbourn on Tuesday, April 17, and finds that Coul- bourn, in discussing the possibility of Severe's resuming work for the Respond- ents, questioned him about his union membership, thereby violating Section 8 (a) (1) of the Act. Considering all the evidence relating to Severe's discharge, however, the undersigned does not believe that by his remarks to Severe during this conversation, Coulbourn either then discharged Severe or refused him rein- statement because of his union membership, or even indicated that Severe had been or would be discharged by Price because of his union membership and activities. For the undersigned credits the testimony of Williams and Foreman Pierce, Overton, and Price that Severe did not satisfactorily perform his work, and also Price's testimony that, for this reason, he discharged Severe on April 13. Upon this evidence the undersigned concludes that the Respondents dis- charged Severe fir cause and did not discriminate against him in violation of Section 8 (a) (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in section III, above, occurring in connection with the operations of the Respondent set forth in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Since it has been found that the Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, the undersigned will recommend that they cease and desist therefrom and take cer- tain affirmative action in order to effectuate the policies of the Act. The undersigned has found that the Respondents discriminatorily discharged Freeman Clark on April 16, 1951, and have since failed and refused to reinstate him to his former or a substantially equivalent position ; and that the Respond- ents also discriminatorily refused reinstatement to Lee Edward Bond on April 17, 1951, although they did reinstate him on April 23, 1951. As to Lee Bond, the undersigned will recommend that the Respondents make him whole for any loss of pay which he would normally have earned asi wages from April 17, 1951, to his reinstatement on April 23, 1951, less his net earnings, if any, during said period. At the time of his discharge, Freeman Clark had been temporarily assigned to the planing mill to permit the training of Melvin Spivey as an alternate ratchet setter. The undersigned has found that in thus transferring Clark temporarily to the planing mill and planning eventually to permit Clark and Spivey to alternate as ratchet setters, the Respondents did not violate the Act. The evidence shows that after Clark's discharge Melvin Spivey completed his training as ratchet setter. In order to effectuate the policies of the Act by restoring Clark to the position which he would have occupied if he had not been discriminatorily discharged,° the undersigned will recommend that the Respond- 9 See Underwood Machinery Company, 95 NLRB 1386. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ents offer Freeman Clark immediate and full reinstatement to his former posi- tion, either as sole ratchet setter or alternate ratchet setter or, in the apparently unlikely event that both of these positions have been abolished by the Respondents for nondiscriminatory reasons, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed by him. In the case of Clark, the undersigned also finds that at the time of his dis- charge, his compensation for his work for the Respondents consisted of cash pay at an hourly rate of 85 cents and the rent free use of a house on the Re- spondents' mill premises as his living quarters. In order to effectuate the policies of the Act, the Respondents should make Clark whole for any loss of compensation suffered by him by reason of the Respondents' discrimination against him, including not only his cash wages but also the reasonable value of the use of the living quarters supplied by the Respondents. Although at the time of the hearing, Clark still lived in this house, it cannot now be determined whether, since that time, he has been required by the Respondents to vacate or may be required to vacate before the Respondents' offer of reinstatement. The undersigned will therefore recommend that the Respondents make whole Free- man Clark for any loss of earnings which he may have suffered by reason of the Respondents' discrimination against him, by payment to him of a sum equal to the compensation which he would have earned from the Respondents (including the reasonable value of the use of the living quarters supplied to him by the Respondents as an employee should he have been required to vacate them before being offered reinstatement) from April 16, 1951, to the date of the Respondents' offer of reinstatement, less his net earnings during said period 10 Clark's loss of compensation shall be computed on the basis of each separate calendar quarter or portion thereof during the period April 16, 1951, to the date of a proper offer of reinstatement. Quarterly periods, herein called quar- ters, shall begin with the first day of January, April, July, and October._ Clark's loss of compensation shall be determined by deducting from the sum equal to that which he would normally have earned for each such quarter or portion thereof, the amount of his net earnings in any other employment during that period. Earnings in one particular quarter shall have no effect upon the back- pay liability for any other quarter. It will also be recommended that the Respondents, upon reasonable request, make available to the Board and its agents, all payroll and other records pertinent to an analysis of the amounts due. 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. International Woodworkers of America, C. I. 0., is a labor organization admitting to membership employees of the Respondents. 2. By discriminating in regard to the hire and tenure of Freeman Clark and Lee Edward Bond, thereby discouraging membership in International Wood- workers of America, C. I. 0., the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By the above unfair labor practices, and by interrogating their employees concerning their union activities and membership, and by threatening the transfer of an employee to another job, to discharge him, and to shut down the mills to discourage their union affiliations and activities, the Respondents have 10 Crossett Lumber Company, 8 NLRB 440 COULBOURN LUMBER COMPANY interfered with, restrained, and coerced their employees in the rights guaran- teed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act. 5. The Respondents did not discriminate in regard to the hire and tenure of employment of Steve B . Cooper or Lonnie Severe, as alleged in the complaint. [Recommendations omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union activi- ties or membership ; threaten to transfer employees to other jobs, to dis- charge them, or to shut down our mills to discourage their union affiliations and activity, or in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL WOODWORKERS OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act. - WE WILL offer Freeman Clark immediate and full reinstatement to his former or a substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed. WE WILL make whole Freeman Clark and Lee Edward Bond for any loss of earnings suffered by them as a result of discrimination to the extent and in the manner recommended by the Trial Examiner in his Intermediate Report. 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 membership in or activity on behalf of any .such labor organization. W. C. COULBOURN, E. T. COULBOURN, G. I. COULBOURN, G. F. COULBOURN, and U. F. COULBOURN, partners doing business as COULBOURN LUMBER COMPANY, Employer. Dated-------------------- By---------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.