Sunset Lumber Products

1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' WE WILL make the employees named below whole for any loss of pay suffered as a result of the discrimination. Stephen A. Clemins Milton Greyling John Plichta, Jr. Aloysius Hermann James E. Landolt Frank L. Knabe Edward Karjala All our employees are free to become, remain, or refrain from becoming or re- maining members in good standing of any labor organization. I(EARNEY, & TRECKER CORPORATION, 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. Glenn Roennecke, d/b/a Sunset Lumber Products and Interna- tional Woodworkers of America, Local 5-5, CIO. Comae No. 36-CA-489. August 06, 1955 DECISION AND ORDER On February 7, 1955, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed in that respect. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter- 3 The Respondent excepted to the Trial Examiner's refusal to sustain its motion that all evidence relating to its unlawful discharge of Charles Rilea be stricken from the record on -the ground that, at the time of the discharge, the Respondent was not engaged in com- merce within the meaning of the Act. The Respondent commenced construction of its lumber mill early in 1954. This work was completed on June 30, 1954, the date of Rilea's discharge. The Respondent's operations consist of cutting lumber to specified dimensions which is then sent to a local independent mill to be planed and loaded for shipment to the Respondent 's customers. During the 10 working days prior to July 1, 1954, the Re- spondent ran 40,000 feet of lumber through its mill which was valued at $2,000 prior to being planed. On July 2, the day on which full-scale production commenced, the first shipment of lumber left the Respondent's mill for the planer. Intermingled with the shipment of lumber that day was the 40,000 feet of lumber previously cut. The parties stipulated that the Respondent 's out-of-State shipments from July 2 to September 3, 1954, totaled $157,594.66. We do not agree with the Respondent 's contention that its activities at the time of Rilea 's discharge involved nothing more than local construction work, nor do we agree that its operations subsequent to'Rilea's discharge should not be considered in assaying the impact of the Respondent 's unfair labor practice upon inter- 113 NLRB No. 115. SUNSET LUMBER PRODUCTS 1173 mediate Report, the exceptions and brief of the Respondent, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications noted hereafter. 1. We concur in the Trial Examiner's finding that the Respondent violated Section 8 (a) (3) and (1) of the Act by discharging Charles Rilea on June 30, 1954, because of his union activity. We also adopt the Trial Examiner's finding that the General Counsel failed to estab- lish by a preponderance of the evidence that Allen Lowe was dis- criminatorily discharged on September .30, 1954. We shall accord- ingly dismiss the complaint insofar as it alleges that Lowe's discharge constituted a violation of Section 8 (a) (3) and (1) of the Act. 2. The complaint alleged that the Respondent unlawfully threat- ened its employees on July 2, 1954, and September 23, 1954. The record fails to establish that any threatening remarks were uttered on the latter date. The Trial Examiner did find, however, that the Respondent's foreman, Clark, informed an unidentified group of em- ployees on some undisclosed date that, if the mill "went union," the employees might receive less overtime because according to his under- standing of union policy all hours worked on Saturdays were com- puted as overtime work regardless of the number of hours worked during the week, while the Respondent paid overtime for Saturday work only if the total weekly hours exceeded 40. We do not believe that this statement conveyed a threat of reprisal for engaging in union activities. In our opinion, the statement at most conveyed a predic- tion of possible future events beyond the control of the Respondent which the Board in the past has held to be protected under Section 8 (c) of the Act as a mere expression of opinion. 2 We agree with the Trial Examiner that the threat to close the mill if the Union came in, made by Koennecke, the Respondent's owner, and when viewed in the entire context of this case, is too isolated in character to warrant the issuance of a cease and desist order based on it. I We shall therefore dismiss the complaint as to the allegations pertaining to this conduct. 3. The Trial Examiner found that the Respondent refused to bar- gain with the Union on September 27, 1954, and thereby violated Sec- tion 8 (a) (5) of the Act. The Respondent has excepted to this find- ing. -The facts giving rise to this alleged violation are as follows. state commerce. See Calera Mining Company, 97 NLRB 950, 952 As the Respondent's out-of-State shipments in 1954 exceeded $50,000, we find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction over it Jonesboro Gratin Drying Cooperative, 110 NLRB 481. Accordingly, we adopt the Trial Examiner's iuhng denying the Respondent's motion to exclude evidence relating to Rilea's discharge 2E. g., A. L. Gilbert Company, 110 NLRB 2067, 2073; Ca, y Lumber Company, 102 NLRB 406, 409 3 See The Walmac Company, 106 NLRB 1355, 1357 1 174 DECISIONS OF NATIONAL LABOR "RELATIONS BOARD The Respondent commenced construction of its lumber mill in the' early part of 1954 and, on July 2, 1954, launched into full-scale pro- duction. On Junc 21, 1954, a strike occurred in the lumber industry in the Pacific Northwest in which the Union was a participant. On June 30, 1954, the Respondent discharged Rilea, the Union's presi- dent, for reasons which we have heretofore found unlawful. Prior to this time, the Union had made no attempt to organize the Respond- ent's employees although the Respondent had in its employ, in addi- tion to Rilea, several other union members who continued to work for the Respondent at all times material herein. Beginning on July 1, 1954, Rilea and Business Agent Hall com- menced an organizational campaign among the Respondent's employ- ees. Early on the morning of July 2, 1954, Rilea, and Hall appeared at the mill entrance with a petition addressed to the Board which bore a caption indicating that the signatories had selected the Union as their collective-bargaining agent to negotiate an agreement with the Respondent, and that they had requested the Board to investigate and certify the Union as their bargaining representative. Rilea and Hall proceeded to solicit signatures. At this juncture, Koennecke ap- peared, asked the reason for their presence, and was told that Rilea and Hall had a Board "petition." Believing, as the Trial Examiner found, that the petition sought the reinstatement of Rilea, Koennecke advised Rilea and Hall that he would not reinstate Rilea. Koennecke was thereupon informed of the true purpose of the petition and, at the suggestion of Rilea and Hall, Koennecke permitted them to enter the •mill and solicit the employees prior to working time. Rilea and Hall addressed the men, obtained one signature on the petition, and then left. Between July 2 and September 27, 1954, no further contact was had between the Respondent and the Union relative to recognition. On the latter date, Hall and Downing, a representative of a local district council of unions of which the Union was a member, visited the mill with the petition containing the names of 23 employees out of a total of approximately 28 in the unit and a proposed model contract. Downing informed Koennecke that the Union represented a majority and that it desired to negotiate a contract with him. Koennecke re- plied that he did not believe the Union had achieved majority status among his Employees and declined to inspect the proffered petition, stating that he would meet with the Union at some preappointed time when the Union had attained certification.' Downing reiterated that the Union was the majority representative of the employees and again requested a meeting. Koennecke refused the request and proceeded 4 The expression used by Koennecke was that the Union should first get "confirmed" before the Respondent would meet with it. The Trial Examiner found, and we agree, that the word "certified" was intended SUNSET LUMBER PRODUCTS 1175 to walk toward the mill. As the Trial Examiner found, Koennecke at the time "was admittedly in a hurry to deliver certain parts to the mill which had broken down." No further meetings between the parties were had. The Trial Examiner, viewing the foregoing facts, concluded that the Respondent's refusal to recognize the Union and discuss the pro- visions of a collective-bargaining agreement or arrange to meet for such a purpose was not motivated by a good-faith doubt as to the Union's majority status. We cannot agree with the Trial Examiner that the Respondent unlawfully refused to bargain with the Union. As the Board has previously stated, ordinarily an employer faced with the demand for recognition by a labor organization which claims to represent a majority of his employees may refuse to rely upon evi- dence of the union's representation and insist that the union establish its majority by means of a Board-conducted secret election.' But when, as stated in the Joy Silk Mills case,6 "such refusal is due to a desire to gain time and to take action to dissipate the union's major- ity, the refusal is no longer justifiable and constitutes a violation of the duty to bargain set forth in Section 8 (a) (5) of the Act." Whether an employer's refusal to bargain is impelled by a good- or bad-faith doubt as to the union's majority status can only be tested by reference to the total picture of the employer's conduct revealed by the record as a whole. When the General Counsel introduced evidence that the Union rep- resented a majority of the employees in an appropriate unit, that it requested recognition, and that this request was declined, and the Re- spondent came forth, as it did, with evidence establishing that its re- fusal to grant recognition was founded on its desire that the Union first establish its majority before this Board, the ultimate burden of proving that the refusal was motivated by bad faith remained for the General Counsel to sustain. The burden of proving its bona fides did not shift to the Respondent. This burden could be met by the General Counsel through the introduction of evidence that "all the circum- stances of [this] case, including the [Respondent's] background, the `character or extent' of the unfair labor practices, and the sequence of events" 7 demonstrated the Respondent's bad-faith motivation in refusing to bargain with the Union. However, on the state of the rec- ord before us, we are not persuaded that that burden has been success- fully borne. s See A. L. Gilbert Company, 110 NLRB 2067 ; Pyne Moulding Corporation, 110 NLRB 3.700; Wheeling Pipe Line, Inc., 111 NLRB 244. OJoy Silk Mills, Inc. v. N. L. R. B., 185 F. 2d 732, 741 (C. A., D. C.), enfg. 85 NLRB 1263, cert . denied 341 'U. S. 914. T See A. L. Gilbert Company, footnote 5, supra, at p. 2070. See also Beaver Machine t Tool Co, Inc., 97 NLRB 33, 35. 379288-56-vol. 113-75 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The recorded evidence reveals that on July 2, 1954, 2 days after the discharge of Rilea, Koennecke invited Rilea and Hall to enter the mill area and openly solicit signatures of employees for a petition which designated the Union as the bargaining representative of the signa- tories and requested that the Board certify the Union as such repre- sentative. Moreover, the Respondent retained in its employ several union members after Rilea's discharge and continued to employ union adherents between that date and the date of the alleged refusal to bar- gain on September 27, 1954. Furthermore, as the Trial Examiner acknowledged, Koennecke was preoccupied on the afternoon of Sep- tember 27 with a mechanical failure in the mill which necessitated the timely installation of new machine parts if production losses were to be forestalled. This circumstance hardly justified the Trial Exam- iner's characterization of Koennecke's refusal to discuss a contract or recognition and his request that the Union be first certified as an at- tempt to "cavalierly brush aside a union's request for recognition and for contract discussions." Here we have the case of an employer who, during the intervening period from July 2 to September 27, 1954, a period of almost 3 months, not only refrains from engaging in any unfair labor practices but employs and continues to employ union members and actually lays open his facilities to the Union to facilitate its organizational campaign among his employees. Moreover, the Respondent did not commit any unfair labor practices subsequent to the Union's request for recogni- tion. In our opinion, these circumstances hardly portray an employer bent on avoiding collective bargaining by seeking to gain time in which "to take action to dissipate the union's majority." Accordingly, we find, contrary to the Trial Examiner, that the Respondent was not motivated by bad faith when it requested that the Union establish its majority in a Board-conducted election before the Respondent would deal with it as the majority representative of its employees.' We shall therefore dismiss from the complaint the allegation that the Respond- ent violated Section 8 (a) (5) of the Act. ORDER Upon the entire record in this case, and pursuant to Section YO (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Glenn Koennecke, d/b/a Sunset Lumber Products, North Plains, Oregon, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Woodworkers of America, Local 5-5, CIO, or in any other labor organization of its 8 See cases cited in footnote 5, supra. SUNSET LUMBER PRODUCTS 1177 employees, by discharging employees or discriminating in any matter with respect to hire, tenure, or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose 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 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 Charles L. Rilea immediate and full reinstatement to his former or substantially equivalent position without prejudice to seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of the discrimination against him, in the manner set forth in the section of the Intermediate Report attached hereto and entitled "The Remedy." (b) Post at its mill, copies of the notice attached hereto and marked "Appendix A." 9 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. (d) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated Section 8 (a) (1) bf the Act by threaten- ing its employees if they engaged in union activities; Section 8 (a) (3) of the Act by discharging Lowe; and Section 8 (a) (5) of the Act by refusing to bargain with the Union, be, and it hereby is, dismissed. 9In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBERS MURDOCK and PETERSON, concurring in part and dissenting in'part : We concur in our colleagues' findings that the Respondent violated Section 8 (a) (3) of the Act by discharging Rilea. We also agree that the discharge of Lowe was not violative of the Act. However, we reject the majority's findings that the Respondent did not violate Section (a) (5) of the Act by refusing to bargain with the Union, and their companion findings that the Respondent's threats to its em- ployees were not violative of Section 8 (a) (1) of the Act. In A. L. Gilbert Company," upon which our colleagues rely, a ma- jority of the Board stated that whether an "employer is legitimately or illegitimately motivated in asking for an election, whether he sin- cerely or insincerely expresses doubt as to a majority, depends in the final analysis, upon all the facts and circumstances of that case... . It is all the circumstances of the particular case, including the em- ployer's background, the `character or extent' of the unfair labor prac- tices, and the sequence of events which must be considered before a good or bad faith determination can be made." Let us look at all the circum- stances of this case. On June 21, 1954, the lumber industry in the Pacific Northwest became involved in a strike by the Union and various sister locals. The Respondent, whose mill• was not involved in the dispute, was nevertheless aware of its pendency and also was aware that Rilea was the president of the Union. On June 30, the Respondent unlawfully discharged. Rilea because of his attempt to organize the Respondent's employees. In an.affidavit submitted to a Board agent, Koennecke, the Respondent's owner, set forth his reasons for discharging Rilea, stating : After reading the above statement I want to add that it wasn't really that Rilea was trying to get our men to quit work but that he was trying to get them into the union. Of course, with the in- dustry strike on, if they went in the union then they'd go on strike. [Emphasis supplied.] Koennecke further averred in his affidavit : Rilea was a pretty good fellow and I got along with him all right, but I wasn't going to build a mill and then have Rilea run it for me. The day following Rilea's discharge, Rilea and Business Agent Hall commenced an organizational campaign among the Respondent's employees. As the majority decision notes, Rilea and Hall appeared at the entrance to the mill on the morning of July 2 and commenced to solicit signatures for a petition bearing a caption indicating that the employees who signed it thereby selected the Union as their bar- gaining agent and requested the Board to certify the Union. Upon " 110 NLRB 2067, at 2069-2070. SUNSET LUMBER PRODUCTS, 1179 being informed that the union representatives had a petition which Koennecke mistakenly believed sought the 'reinstatement of Rilea, Koennecke admittedly exclaimed that "I'd fire anybody that would sign their petition." Although Koennecke permitted Rilea and Hall to enter the mill and address the employees prior to working tinge, Koennecke also admitted stating to them that "I would junk it [the mill] before I'd operate it union or that'I would move it some other place." Moreover, sometime after July 1, Foreman Clark admitted that he told a group of employees that they might receive less over- time if the Union was successful in its organizational campaign. Then, on September 27, when Business Agent Hall and District Coun- cil Representative Downing approached Koennecke with the petition bearing the names of a majority 'of the employees in the appropriate unit and a proposed contract, and informed Koennecke of their ma- jority status and of their desire for a meeting to discuss contract pro- visions, Koennecke summarily refused to inspect the petition or to arrange for a meeting between the parties. Our colleagues find that the Respondent entertained a sincere doubt as to the Union's majority status on September 27, and that its ante- cedent conduct did not indicate a purpose to gain time in which "to take action to dissipate the union's majority." In doing so, we note that the majority continues erroneously to state' and limit the Joy Silk Mills doctrine. As we have previously pointed out," under that doctrine there is no employer right to an election but rather a duty to bargain with the majority representative of his employees except where there exists a good-faith doubt of majority, in which case the employer may insist upon an election before recognition. The Joy Silk Mills doctrine also is not limited, as the majority indicates, to the situation where an employer is motivated to gain time in which to undermine a union, or to do so by unlawful means. The doctrine is much broader; and the sincerity or lack of sincerity in an employer's expression of doubt concerning a union's majority status may be tested by reference to unfair labor practices occurring before as well as after the request for recognition is made, and to other than unlawful conduct which nevertheless impugns the employer's good faith in questioning the union's majority. We submit that in appraising the Respondent's good faith, the majority has failed properly to appraise "all the circumstances" of this case, shunting into the background those unfair labor practices committed prior to the refusal to bargain. The majority places heavy reliance upon the fact that a period of approximately 3 months intervened between the commission of the unfair labor practices and the refusal to bargain, and the fact that the Respondent continued to employ union members after Rilea's n See our dissent in A L Gilbert Company, footnote 10, supra. See also Pyne Mould- ing Corporation, 110 NLRB 1700 at p 1708, footnote 10 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge and permitted union representatives to enter the mill to address its employees. However, the character of the serious unfair labor practices engaged in by the Respondent, in our opinion, un- equivocally demonstrates that the Respondent's expressed antipathy to the Union constituted the sole reason for its later refusal to meet with the Union's representatives on September 27 and accord recogni- tion to that labor organization, and precludes any conclusion that a good-faith doubt of the Union's majority was the reason for the refusal. The majority agrees that the Respondent discharged Rilea because "he was trying to get [its employees] into the union" and because "I wasn't going to build a mill and then have Rilea run it for me," reasons which our colleagues find to have been unlawful. The majority also concedes that on July 2, when Rilea and Hall were per- mitted to address the Respondent's employees, Koennecke exclaimed that "I would junk it [the mill] before I'd operate it union or that I would move it some other place," and that Koennecke stated that he ,would discharge anyone who signed a petition which he believed sought the reinstatement of Rilea, the president of the Union, whom Koennecke discharged because Rilea was attempting to unionize his mill. Yet our colleagues dismiss Koennecke's threat to close the mill as being "too isolated" in character, disregard Koennecke's threat to discharge anyone signing the petition, and find that Foreman Clark's statement concerning the elimination of overtime if the Union suc- ceeded in organizing its employees was a protracted expression of opinion. We fail to perceive how the majority can conclude that Koennecke's threat to close the mill is "isolated," particularly when it was uttered just 2 days after the Respondent unlawfully discharged Rilea for the very reason that.formed the basis for the threat, i. e., attempting to unionize the mill. Heretofore, the dismissal of one or two 8 (a) (1) statements as "isolated" has been in instances where no other unfair labor practices were found. The "isolation" approach obviously is in- apposite in a context of a related discriminatory discharge. Moreover, we cannot agree that Foreman Clark's statement about curtailing over- time was protected under Section 8 (c) of the Act because it was a prediction of possible future events beyond the control of the Respond- ent. Certainly, the curtailment of Saturday work would not result from unionization but would be directly attributable to action of the Respondent. In Wheeling Pipe Line, Inc.," the Board found that a statement that the employer would find excuses to cut the workweek to 40 hours 'if a union was successful in organizing its employees was coercive. We see no substantial difference between Foreman Clark's statement and that found violative of the Act in the Wheeling case. In our opinion, Koennecke's threat to close the mill and Clark's state- 12 111 NLRB 244. SUNSET LUMBER PRODUCTS 1181 ment relative to overtime constitute clear violations of Section 8 (a) (1) of the Act. Viewing the character and the extent of the unfair labor practices committed by the Respondent, the sequence of events giving rise to the Respondent's summary rejection of the Union's proffer of proof regarding its majority status, and all the circumstances in this case, we are convinced that the Respondent's refusal to recognize the Union was not because of a good-faith doubt of the Union's majority status. Accordingly, we would find that the Respondent failed to fulfill its statutory duty to bargain with the Union on September 27, 1954, and thereby violated Section 8 (a) (5) of the Act. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in International Wood- workers of America, Local 5-5, CIO, or in any other labor or- ganization of our employees, by discriminating in any manner in regard to hire, tenure, or any other term or condition of employ- ment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist the above- named or any other labor organization, to bargain collectively through representatives of. their own choosing, and to engage in other conceited activities for 'the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment in conformity with Section 8 (a) (3) of the Act. All our employees are free to become or remain, or refrain from be- coming or remaining, members of any labor organization, except to the extent stated above. GLENN KOENNECKE, D/B/A SUNSET LUMBER PRODUCTS, Employer. Dated---------------- By----------------7-7------------------- (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. 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding is brought under Section 10 (b) of the National Labor Relations Act, 61 Stat. 136, and is based upon a charge and amended charge duly filed by International Woodworkers of America, Local 5-5, CIO, herein called the Union, against Glenn Koennecke, d/b/a Sunset Lumber Products, herein called Respond- ent. Pursuant to said charges, the General Counsel of the National Labor Relations Board issued a complaint dated September 10, 1954, and an amended complaint dated October 5, 1954, against Respondent, alleging that it had engaged in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act. Specifically, the original complaint alleged that Respondent had discharged Charles L. Rilea on or about July 2, 1954, because of his union and concerted ac- tivities. The amended complaint alleged, that Respondent had discharged Allen Lowe on or about September 30, 1954, because of his union and concerted activi- ties; had refused to bargain with the Union on and after September 27, 1954, as the representative of its employees in an appropriate unit; and had threatened to discharge employees and close down its plant if employees engaged in concerted activities. Copies of the charges, complaints, and notice of hearing thereon were duly served upon Respondent. Respondent thereafter filed answers to the respective complaints, wherein it alleged that Respondent was not engaged in commerce within the mean- ing of the Act and denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Portland, Oregon, on October 7, 1954. It appearing on that date that the General Counsel had newly issued the amended complaint on October 5, the hearing was duly recessed to and reconvened on Octo- ber 18 and 19, 1954. All parties were represented; participated in the hearing; and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. Ruling was reserved on a motion by Respond- ent to strike the amended complaint on the ground that there had been no investi- gation of the amended charge filed on September 29, 1954. Respondent contended that insufficient time had elapsed between the date of filing of said charge and the issuance of the amended complaint on October 5 so as to permit the Regional Director to properly fulfill his responsibility under Section 102.15 of the Rules and Regulations of the Board.' In view of the quoted language appearing in Section 102.15 of the Rules and Regulations of the Board; the existence of the prior charge and complaint herein whose validity in this respect is not challenged; and noting that both charges timely raised the matter contained in both complaints, I see no basis for alleging mal- feasance or nonfeasance of duty on the part of the Regional Director. There is no evidence that the complaint was issued solely on the basis of an uninvestigated charge. The rule does not provide that the Regional Director deliberate for a mini- mum period of time before deciding that formal proceedings should be instituted pursuant to a charge. Nor do the regulations even imply a requirement for an ex- press finding, as such. And, even if they did, the issuance of the complaint might well constitute such a finding. Accordingly, the motion is hereby denied. At the close of the hearing, the parties were given an opportunity to argue orally and to file briefs. Respondent argued orally in support of the above-described mo- tion and in support of one other which is treated below. A brief has been received from Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Glenn Koennecke, d/b/a Sunset Lumber Products, is a proprietorship with its sole office and place of business at North Plains, Oregon, where it is engaged in the manufacture and sale of dimension lumber Its mill was constructed during I Section 102.15 provides that, "After a charge has been filed, if it appears to the regional director that formal proceedings in respect thereto should be instituted, he shall issue and cause to be served upon all the other parties a formal complaint In the name of the Board stating the unfair labor practices and containing a notice of hearing before a trial examiner at a place therein fixed and at a time not lees than 10 days after the service of the complaint." SUNSET LUMBER PRODUCTS 1183 a period not precisely fixed by the record, apparently early in 1954. Some lum- ber, totaling approximately 40,000 feet, was produced during the 7- to 10-day period, working days only, prior to July 1, 1954. Full-scale production commenced on July 1, 1954, and the first shipment was made on July 2. During the period from July 2 through and including September 30, 1954, Respondent shipped, or caused to be shipped, lumber valued at $157,594 to points outside the State of Oregon. One of the discharges treated below took place on June 30, 1954, and Respondent has moved to strike all evidence with respect thereto on the ground that it was not on that date engaged in operations affecting commerce . Respondent stresses the claim that in the period prior to July 2, 1954, it was engaged solely in the construc- tion of its mill. However that is not entirely the case. It is true that Respondent , prior to commencing the full-scale shipment of manufactured lumber, was engaged in the construction of its mill and that, com- mencing on July 1, it began to produce from 60 to 65 thousand feet of lumber daily. However, as Glenn Koennecke admitted on the stand, approximately 40 thousand feet of lumber was produced during 7 to 10 working days prior to July 1 and approximately 32 thousand feet of this was duly shipped outside the State of Oregon. This picture is not 1 of 2 separate enterprises, namely a construction project and a sawmill, but is rather 1 of a single enterprise. Moreover, this single enterprise was actually producing lumber, although in small quantity, on June 30 for shipment. That Respondent was not then producing at its optimum capacity does not refute the fact that it was at the time under consideration producing for commerce. Respondent cites in support of its position the decision in N. L. R. B. v. George W. Reed and International Hod Carriers, Bldg. d Common Laborers Union, Local 36, AFL, 206 F. 2d 184 (C. A. 9). I do not believe that that decision will support Respondent's position herein. A reading of the case discloses that it merely recognized by dictum, after asserting jurisdiction over the operations of an employer, that an employer may completely change the nature of its business from interstate to intrastate and thereby fall without the jurisdiction of the Board. In the present case, there is present one business enterprise functioning in its intended manner. In fact, Respondent had actually embarked on its interstate venture during the 7- to 10-day period of working days prior to July 1. It had produced some lumber for shipment but did not ship until July 2. I find, in vie* of the foregoing, that Respondent is engaged in operations affecting commerce within the meaning of the Act, and more particularly that it was so engaged on June 30, 1954, the date it discharged Charles Rilea. Accordingly, Respondent's motion is denied. II. THE LABOR ORGANIZATION INVOLVED International Woodworkers of America, Local 5-5, CIO, is a labor organization admitting to membership the employees of Respondent. Ill. THE UNFAIR LABOR PRACTICES A. The issues At issue herein are the alleged discriminatory discharges of Charles Rilea and Allen Lowe on June 30 and September 30, 1954, respectively; an alleged refusal to bargain with the Union on September 27, 1954; and certain alleged acts of inter- ference, restraint, and coercion. The operation involved, as indicated, was a new one, formed shortly before the period material herein and organizational activity by the Union did not commence until July 1, 1954, subsequent to the discharge of Rilea. B. The discharge of Charles L. Rilea Charles L. Rilea has been president of the Union since late in 1953. He entered the employ of Respondent on or about May 3, 1954, and was discharged on June 30, 1954. Relevant to a consideration of his case is the fact, as counsel stipulated herein, that a widespread strike commenced in the lumber industry in the Pacific Northwest on June 21, 1954. This strike was participated in by the Union, although not at the plant of Respondent, and was still current at the time of Rilea's discharge on June 30. The existence of this strike and Rilea's position in the Union became, as will appear, the motivating factor behind Respondent's decision to terminate his employment. Rilea applied for work with Respondent several days prior to May 3 and com- menced work on the latter date. It may be noted, and I so find, that insofar as this record indicates , his was a bona fide application for work , his application was 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accepted, and he duly went to work. See The Babcock & Wilcox Company, 110 NLRB 2116. Rilea credibly testified and I find that during his tenure with Respondent he took no time off for union affairs. Nor is there any evidence that he engaged in any organizational work among the employees of Respondent prior to his discharge. At the time of his application for employment, Rilea expressed a preference for,truckdriving. During May and much of June the mill was under construction and Rilea was assigned from time to time to various duties which differed in nature. In fact, at the time of his discharge, and for the previous week, he had been assigned to the placing of logs on the log haul from the pond to the mill. It is to be noted that during his tenure of almost 2 months he was assigned to driving duties only on five occasions, hauling lumber on 1 day and gravel on 4 others. Respondent contends that it hired Rilea with the intention of ultimately assigning him as driver of 1 of 2 new trucks to be devoted to the hauling of lumber waste, pursuant to an anticipated contract which Respondent hoped to conclude with a local utility for the sale of such waste. This transaction allegedly fell through several days prior to Rilea's discharge and, as a result, Respondent never utilized two new trucks purchased for this purpose. But, as will appear below, on Koen- necke's own testimony, this was not the true cause for the discharge of Rilea. On Friday, June 18, the mill suffered a mechanical breakdown. On Sunday morning, June 20, Rilea, accompanied by a neighbor, one Sheratt, visited Koennecke at the mill office and inquired whether the necessary repairs had been made and if the mill would be operating on Monday morning. There is no substantial conflict between the testimony of Koennecke on the one hand and that of Rilea on the other; the testimony of Rilea is supported by that of Sheratt who was present for a portion of the talk. Koennecke informed Rilea that the mill would operate on Monday, June 21. The conversation between the two then turned to the anticipated lumber strike which, on Friday afternoon, June 18, had been set for June 21 and was to seriously affect a wide area of the lumber industry in the Pacific Northwest. As is apparent, it was not scheduled to and did not affect the operations of Re- spondent. This strike, it may be noted, had been set for an earlier date, had been called off, and the setting of another strike had been widely anticipated. Koennecke asked Rilea what effect that strike would have on Rilea's position with Respondent. Rilea replied that it would have none, pointing out that quite a few union members were working in nonunion operations. Koennecke replied that it would not look right for Rilea to be working at the mill while the strike was on; that he, Rilea, would undoubtedly support the strike; and that he should not be working while the majority of the men in the lumber industry were out of work. Koennecke admitted herein that he told Rilea that men looking for jobs with Respondent were complaining to him, Koennecke, that it was improper for the president of the Union to be working while union members were on strike; that some people who were out of work were friends of Koennecke; that they claimed to be out of work because of Rilea (apparently a reference to the strike); and that these friends had informed Koennecke that they disapproved of his retaining Rilea in his employ while they were out of work. In fact Koennecke admitted herein that he had received such complaints during the prior week. Koennecke finally instructed Rilea to report for work on Monday morning, stating that he would think the matter over. Rilea did so and was permitted to go to work. Rilea worked until June 30 when, at approximately 11:45 a. m., the mill shut down temporarily for repairs until the following morning. Rilea approached Koennecke and asked him for instructions for the pond crew; Koennecke replied that they should return on the following morning. As Rilea started to leave, Konnecke called him back and said, as Rilea testified, "You know the conversation we had a few days ago.... I'm going to have to let you go. . . . Public opinion . . . is against you working here. . . . The men come around and see you as President working, and they complain to me.. .• I'm going to have to let you go. . Surely you can see my line of reasoning on that." Rilea protested that he could not follow this line of reasoning and asked if his work had been satisfactory. Koennecke replied that it had but, nevertheless, proceeded to discharge him. On the following day, Rilea returned for his tools and also asked Koennecke for a letter of recommendation. Koennecke agreed to furnish him with one and dictated a letter reading as follows: TO WHOM IT MAY CONCERN. Mr. Charles F. Rilea worked for this company for 2 months. His see erance [sic] with this company had in no way any connection with his work. SUNSET LUMBER PRODUCTS 1185 Contentions and Conclusions (1) Respondent's primary contention herein is that it hired Rilea with the intent of ultimately assigning him at a later date to driving a truck carrying lumber waste known as hog fuel; that a local utility with which Respondent expected to conclude a contract for the sale of this hog fuel refused to enter into the contract; that this trans- action fell through at the time of or shortly before Rilea's discharge; and that, as a result, Respondent had no further need for the services of Rilea. Koennecke claimed that he has never utilized two new trucks which he purchased expressly for the de- livery of this waste material and that he now sells the waste to another concern which picks it up in its own trucks. As is apparent, the alleged change of circumstances which obviated the need for the services of Rilea took place almost 2 months after he was hired. The record discloses that Rilea, in seeking employment with Respondent, had in- deed expressed a preference for driving. However, he had also at the time stated that he would take any position that was available. And that appears to be precisely what took place, because he was assigned to numerous jobs both on construction as well as on the operating level, apparently wherever he was needed. Significantly, when Koennecke originally told Rilea to come to work he instructed him to bring his calks which, under State law, are required to be worn by men working in a pond. Moreover, at the time of his discharge, Rilea had been working for at least the previous week on the log haul, a device which moves logs from the pond to the mill. He had expressed no displeasure with this assignment and, for that matter, there is no evidence that Koennecke was anything but satisfied with the performance of Rilea in that post. In fact, Koennecke admitted that Rilea was a competent and satisfactory workman. It is obvious that this was a post vital to the continued operation of a sawmill and that Koennecke continued to require the services of someone in that position after the discharge of Rilea. Finally, at the time of Rilea's discharge Koen- necke admittedly did not tell him he was terminating his employment because his services were not required as a truckdriver. When asked why he failed to mention this to Rilea, who, as I find, protested against his discharge at the time, Koennecke's answer herein can only be described as evasive or nonresponsive. Thus, while it may well be that Koennecke no longer had any use for the two trucks and that he had abandoned any intent to use Rilea as a truckdriver, a pre- ponderance of the evidence warrants a finding that, absent other considerations, Koennecke would not have discharged Rilea at that time from the permanent mill position to which he was then assigned. (2) As a subsidiary reason to the foregoing, Respondent also raises the contention that it was Koennecke's policy, based upon what he deemed to be sound industrial psychology, not to assign a superior man to an inferior job. Thus, Koennecke testi- fied that when the need for Rilea's services as a driver vanished, he did not place him upon another job because Rilea had too much intelligence for a low paying job, and too little experience for a high paying job. As found, Rilea was indeed competent on his existing job; had expressed no dis- pleasure with it while assigned thereto; and the job was still in existence. It is note- worthy that Koennecke was hiring additional employees at the time in a number of classifications which he conceded Rilea was capable of handling. While he contended that these jobs bore a wage rate of $1.82 per hour, instead of the $2 rate he then paid Rilea, he also hired men at a higher rate. He contended that, to his knowledge, Rilea was not qualified at these other jobs, but no evidence was adduced as to what his "knowledge" was based upon. Moreover, Koennecke's own testimony contains the refutation of his theory on industrial psychology for he later testified that he once reduced the wages of a carpenter because the work did not warrant the higher rate of pay and that he had assigned his cat skinner, normally paid at the rate of $2.20 an hour, to pond work at $2 per hour. I believe that considerations other than those stated by Koennecke in this respect, dictated his failure to do likewise in the case of Rilea whose case actually involved not a reduction in pay but merely the retaining of a competent employee in a position which he was filling satisfactorily. (3) Actually, the true reason for the termination of Rilea appears in Koennecke's own testimony as well as in an affidavit he furnished to a Board field examiner. While he contended that the affidavit did not contain everything that he, Koennecke, said on that occasion, he conceded that it was true so far as it went. Respondent contended that Koennecke reasonably knew that Rilea was a union member at the time he was hired, in view of Rilea's prior employment at plants known to be unionized. It is urged therefore that Koennecke had no cause to discharge him for union activities. And it is true that the record disclosed no evidence that Rilea engaged in any union activities as such in the plant prior to his discharge. 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the testimony of Koennecke discloses that Rilea was discharged not for union activities but rather because he was identified with the Union. Koennecke admitted that he learned I or 2 weeks after he hired Rilea in May that Rilea was_ president of the Union. Apparently this did not cause Koennecke any undue con- cern at the time and he saw no cause to interrupt the employment of Rilea who had proved himself to be an exemplary employee. But subsequent developments changed this point of view. When the anticipated widespread lumber strike became imminent and actually commenced on June 21, 1954, Koennecke's own testimony discloses that pressure from outsiders caused him to view the employment of Rilea in a different light. These unidentified people, consisting of friends and job seekers, expressed displeasure to Koennecke over the situation of Koennecke employing a union leader, and in fact the president of the Union, while the Union was on strike at other plants. And while Respondent points to the fact that it had in its employ other employees whom it reasonably could believe to be union members, in view of their prior employment, a contention which I accept, I do not deem it to be of diapositive weight herein. For the record discloses, on Koennecke's testimony, evidence only of displeasure expressed at the employment of Rilea and not at that of anyone else The same criterion applies to the later hiring by Koennecke of men whom he reasonably could have believed to be union members. The testimony of Koennecke points this up. He admitted that the case of Rilea was different from that of the other union men in his employ because Rilea was president of the Union. He informed Rilea on June 20 that men out of work had complained to him over the fact that he was employing the president of the Union while men thrown out of work because of the imminent strike were seeking jobs. Koennecke claimed that he was accused, in view of this situation, of having an inside arrangement with the Union despite his mill being ostensibly and actually a nonunion mill. He also informed Rilea on June 20 that he, Rilea, would probably support the strike. Koennecke admittedly told Rilea that it was improper for him, Rilea, to be working while members of the Union were out on strike and even proposed, on June 20, that Rilea quit voluntarily. This Rilea refused to do, claiming that he had a right to work if he chose. Koennecke did permit the matter to remain unresolved until June 30 when he discharged Rilea, saying, as the latter testified, "You know the conversation we had a few days ago.. . I'm going to have to let you go. . Public opinion is against you working here. . . . The men come around and see you as President working, and they complain to me. .. I'm going to have to let you go. . It is significant that Koennecke on this occasion gave no other reason for terminating the employment of Rilea. Moreover, he admitted that the work of Rilea was satis- factory and a letter of recommendation to that effect was given him on the following day. It may be noted that this letter was silent as to the lack of need for the services of a truckdriver. And the record demonstrates that on the following day, July 1, an employee named Mohn was newly assigned to Rilea's former post at the log haul. The affidavit of Koennecke, dated July 31, 1954, deals with the failure of the job of truckdriver to materialize, with certain facts relative to commerce, and con- tains admissions directly germane herein. In his affidavit, Koennecke admitted as follows: Before the other mills went on strike-the day before-I talked to Rilea. [June 20.] 1 told him that if there was a strike I didn't see why he should work and be getting his pay here. Rilea said he didn't see why he shouldn't work. I didn't think it was fair for him, the president of the union, to be working when he had the other men vote to strike. I told Rilea at that time that I would think it over. The industry strike started the next day. It's my position that this is non-union here, we pay good wages, and if a fellow wants to cause union trouble he should go to work in a union place. If the men want to belong to a union it's all right as long as they keep their bickering to themselves. In fact I've hired five men since I fired Rilea that have told me- they were union men. Rilea was a pretty good fellow and I got along with him all right, but I wasn't going to build a mill and then have Rilea run it for me. . The reason I don't want Rilea is not because he's president of the_ union, nor because he's a union member but because he was a troublemaker by trying to get my men to quit work. . . Another thing after the strike began, I've had a lot of men coming here looking for work. One such man; SUNSET LUMBER PRODUCTS 1187 and I've heard.talk of others, didn't like it'at all that Rilea was working when he was out of work on account of the strike. * * * * After reading the above statement I want to add that it wasn't really that Rilea was trying to get our men to quit work but that he was trying to get them into the union. Of course, with the industry strike on, if they went in the union then they'd go on strike? In sum, the evidence heavily preponderates in favor of a finding that Rilea was dis- charged by Respondent pursuant to antiunion pressure exerted upon Koennecke by persons resentful of the fact that Respondent retained the president of the Union in its employ in the face of the widespread lumber industry strike. Koennecke yielded to this pressure, and this, I find, was the direct cause of Rilea's discharge. How- ever, it is well established that unfair labor practices are not excused by pressure of this nature which may be exerted upon an employer. N. L. R. B. v. Star Pub- lishing Co., 97 F. 2d 465 (C. A. 9); N. L. R. B. v. Lloyd A. Fry Roofing Company, et al., 193 F. 2d 324 (C. A. 9); N. L. R. B. v. Price Valley Lumber Co., et al., 216 F. 2d 212 (C. A. 9); N. L. R. B. v. Gluek Brewing Co., 144 F. 2d 847 (C. A. 8); N. L. R. B. v. Hudson Motor Car Co., 128 F. 2d 528 (C. A. 6); N. L. R. B. v. Oertel Brewing Company, et al., 197 F. 2d 59 (C. A. 6); and I. A. Utley Co. v. N. L. R. B., 217 F. 2d 885 (C. A. 6). I find that by discharging Charles Rilea on June 30, 1954, Respondent has dis- criminated with respect to the hire and tenure of his employment, thereby discour- aging membership in a labor organization. It is further found that by such con- duct Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8 (a) (1) thereof.3 C. The discharge of Allen Lowe Following the discharge of Rilea on June 30, the Union commenced an organ- izational campaign among the employees of Respondent. It is apparently the po- sition of the General Counsel that the discharge of Lowe on September 30 resulted, in part at least, from this campaign. Initially, Rilea and Business Agent Mike Hall of the Union prepared a petition whose caption, addressed to the Board, indicated that the employees of Respondent who affixed their signatures thereto had designated the Union to represent them and negotiate an agreement covering working condi- tions and were also requesting the Board to'investigate and certify a bargaining representative. On the night of July 1, six signatures were obtained, including that of Rilea. On the morning of July 2,4 at approximately 7 a. in., Rilea and Hall sta- tioned themselves at the junction of the highway and an access road which leads to the plant. They proceeded to solicit the signatures of employees reporting for work and one employee did sign the petition. At this point, Koennecke, who had been in the mill and had been informed of the presence of the 2 union officials at the intersection, approached the 2 men, asked the reason for their presence, and was informed that they had "a National Labor Relations Board petition." Koennecke concluded that this was a petition for the reinstatement of Rilea whom he had discharged 2 days earlier; he stated that Rilea was mistaken if he thought he could get his job back and that he would discharge any man who signed the petition.5 It appears that the two union officials finally en- lightened Koennecke as to the true purport of the petition and suggested that he invite them in to address the employees. Koennecke agreed to do so and stated that they might speak to the employees prior to 8 a. in., the customary starting hour. 7 There is no evidence that Rilea, prior to his discharge, was trying to get the men to strike, as alleged in the affidavit. 3It may be noted that, in evaluating the case of Rilea, I have not relied on certain statements, set forth hereinafter, allegedly made by Koennecke to employee Lowe subse- quent to the discharge of Riles. It is also found that the evidence preponderates in favor of the position of the General Counsel herein, even without reliance upon Koennecke's affidavit. - * Riles originally placed this incident as taking place on July 1. However, his subse- quent testimony and surrounding events demonstrate, and I find, that it was actually July 2. 5 Koennecke testified that he came to this erroneous conclusion concerning the purport of the petition. The testimony of Riles at one point discloses that Koennecke indicated he so construed the petition which, it may be noted, Koennecke did not inspect. Koen- necke's testimony herein is credited. 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At this point, it may be helpful to fix the precise status of Lowe at that time. Rilea, the record indicates, was discharged shortly before noon on June 30. Koen- necke had contacted a former applicant for employment, one Jones , sometime that day and solicited his employment . Jones was then employed elsewhere and decided not to make the change . He did encounter Lowe in the town of Forest Grove and advised him of the employment opportunity and, according to Lowe, of the dis- charge of Rilea. Lowe claimed that he met Jones at a time he thought was "in the morning." This, as is apparent, poses a problem of close timing, because Rilea was discharged at a time Koennecke uncontrovertedly placed at 11 : 30 or 11 :45 a. in. that day. The testimony of Lowe appears to place him in the position of learning of the discharge of Rilea, while in a nearby town , at the time Rilea was in the process of being fired , if not earlier. Lowe proceeded to the mill at approximately 5:30 p . in. on June 30 and applied for work. He was hired by Koennecke as a headrig operator and was instructed to report for work on the following morning of July 1. There is a marked con- flict between the testimony of Lowe and Koennecke as to what was said on this occasion as well as on others . According to Lowe, Koennecke , after hiring him, went on to say that "he didn't want no union in there." Lowe allegedly asked if Rilea worked there, saying he had heard that Rilea had been discharged and Koen- necke allegedly replied that he had discharged Rilea because he was "a union mem- ber and a troublemaker ." Koennecke flatly denied that he discussed the Union or Rilea in any sense when he hired Lowe and I credit his denial. It is apparent, as Koennecke testified , that he could reasonably have believed Lowe to be a union member at the time ; in fact, Lowe was then on a withdrawal card from the Union . For, when Koennecke hired Lowe , the latter informed him of the mills at which he had previously worked , and Koennecke knew these mills to be union mills. Hence, had Koennecke a prejudice against hiring a union man , he would not have hired Lowe in the first instance . Similarly, the record discloses that Koennecke had hired other persons during this period whom he, for the same reason, could reasonably have regarded to be prounion in their sympathies. In fact, he hired Rilea, knowing of his union membership and it is significant that Rilea was fired , not because Koennecke wished personally to eliminate a union adherent , but because he yielded to pressure critical of his employment of the union president during the lum- ber strike. Finally, Koennecke impressed me as a straightforward witness who told the truth, as demonstrated substantially by his affidavit, whereas the testimony of Lowe, particularly on matters directly implicating Koennecke in significant conver- sations, was presented in an unimpressive manner, as in the nature of an afterthought. Hence Koennecke's denial herein is credited. Returning to the sequence of events on July 2, Rilea and Hall, on arriving at the mill premises proper, addressed a group of employees in the open . Hall read the heading of the petition and asked employees to sign. Hall specifically asked Lowe, who was in the group , if he would sign . Lowe pointed out that he had started work on the previous day, but, upon being assured by Hall that he was eligible to sign, proceeded to do so. He was the only employee who signed at that time. It then being almost 8 a. m. Rilea and Hall left the scene . As will be discussed here- inafter, they obtained additional signatures during July and September. While Koennecke was in the immediate vicinity at the time the two union repre- sentatives entered and started talking to the men, the record will not support a finding that he saw Lowe sign the petition. The testimony of Rilea and Hall was uncer- tain and did not place Koennecke on the scene at the time Lowe signed ; I so find. Here as well, Lowe presented vague testimony that he thought Koennecke, at an un- fixed date, asked him if he signed the petition, but that he, Lowe, was not sure if Koennecke had done so. Koennecke denied that he saw Lowe sign the petition. He further testified that on that very morning Lowe approached him and volunteered the information that he had signed the petition , but that this did not mean that he, Lowe, would vote for the Union. Here as well the testimony of Koennecke im- pressed me as the more reliable and I credit it. Lowe continued in Respondent 's employ and there is no evidence that his work was complimented or criticized save in certain alleged criticism expressed by Fore- man Clark to Koennecke. 6 On September 10, a minor dispute arose between Lowe and Koennecke, the details of which are not entirely clear . Lowe apparently had been interested in performing certain extra work involving the changing of saws and had solicited this work from Koennecke . Lowe had hoped to do this additional work 9 Some testimony was developed as to whether Clark was a foreman. I find that at least from July 8 on he was endowed with and enjoyed supervisory status in the mill. SUNSET LUMBER PRODUCTS 1 189 after working hours and thus earn overtime pay. This saw changing was a two-man operation, the other participant being the head sawyer who actually directed the oper- ation. On September 9, as Lowe testified, Koennecke informed him that he could change the saws twice daily at 10 a. in. and 2 p. m. Somehow or other, Lowe rationalized this into an authorization by Koennecke to perform the saw changing at the end of the day after working hours and thus earn overtime pay. Lowe proceeded to do so that evening. On the following day, according to Lowe, Koennecke informed him that he was to assist the sawyer in changing the saws only during working hours. Lowe allegedly protested the decision and stated that he disapproved of this policy. He allegedly further said to Koennecke that "if we get a union it would be different." To this Koennecke allegedly replied, "If they get a union in here, I'll shut it down." Lowe did comply with this instruction and proceeded to change the saws just during working hours, with saw changing on an overtime basis being performed by the filer. Here as well, Koennecke diametrically contradicted the testimony of Lowe. He testified that one night Lowe asked if Koennecke was angry with him because he, Koennecke, had told Lowe not to change the saws but was permitting the filer to per- form this operation after work; Lowe stressed the fact that he actually desired this work. Koennecke testified that since overtime work was expensive and Lowe was slow, he refused Lowe's request for this work, and informed him that the filer would continue to perform this task. Koennecke denied that he uttered a single word rela- tive to the Union on this occasion. Here as well, the testimony of Koennecke is credited. He openly conceded that the filer was a higher paid man than Lowe, but, because of his efficiency and by contrast Lowe's slowness , claimed that it was cheaper to have the filer change the saws on overtime . Koennecke pointed out that the filer in any event had to remain after the end of the day to perform certain filing oper- ations. - On September 27, as will appear in more detail , the Union requested recognition from Koennecke and was refused. On September 30, Koennecke presented Lowe with a final paycheck. According to Lowe, Koennecke said that there was nothing wrong with his work; that he was no longer needed; and that "as I told you before, I didn't want no union in here." This too Koennecke flatly denied. He testified that he had discharged Lowe because his work was unsatisfactory and so informed him; that Lowe merely walked away stating that "that was not what he had heard"; and that neither man referred to the Union. The testimony of Koennecke is credited. Contentions and Conclusions As is apparent, the case of the General Counsel rests primarily upon the fact that Lowe had been the only person to sign the petition on July 2 at the plant, allegedly in the presence of Koennecke, and upon certain statements allegedly made to Lowe by Koennecke at the time of his hiring on July 1; on or about September 10; and at the time of Lowe's discharge, which reflect a discriminatory motive in selecting Lowe for discharge. As indicated, I have been unable to accept the testimony of Lowe as to these alleged statements . And as to the signing of the petition on July 2, the testi- mony of Koennecke indicates that Lowe had voluntarily disclosed the fact of his signing to Koennecke on that occasion. The surrounding factors do not lend sustenance to the position of the General Counsel herein. 't'he record warrants the inference that Koennecke knew Lowe to be a union member, or reasonably suspected this, when he hired him ; that he knew Lowe had signed the union petition ; but that nevertheless he retained him in his employ for approximately 3 months. This impresses me as quite contrary to the rela- tively hasty action taken in the case of Rilea when pressure was brought upon Koen- necke to eliminate Rilea from his employ. Moreover, during this period , Koennecke was hiring other employees, who, either in his knowledge or in that of Foreman Clark, had a background of employment in union mills. In addition , Lowe, so far as this record indicates, was not prominent in the union organizational campaign which was being conducted by Rilea and Hall. In fact, there is no evidence of any union activi- ties on his part, other than his signing the petition 3 months before his discharge, a fact which he promptly brought to Koennecke' s attention. On the other hand, I do not find the evidence in support of the reason for the dis- charge of Lowe, as advanced by Respondent, to be particularly impressive. There is actually no evidence of specific instances of malfeasance or nonfeasance by Lowe. Respondent offered testimony by Foreman Clark that he complained to Koennecke several times during Lowe's tenure with Respondent, beginning soon after Lowe started there, to the effect that he did not like the way that Lowe " cooperated." Clark never spoke to Lowe about this and neither did Koennecke . Clark testified that he 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disliked discharging an employee or sending a man home , that as a result he discussed the matter with Koennecke, and that both men ultimately agreed that Lowe should be discharged. The essence of Clark's complaint is that he liked to have an employee take an interest in his work and try to get the job done. Lowe did not so impress him and, as a result, he did not consider him satisfactory. According to Koennecke, Lowe's job on the headrig required a high degree of coordination with the head sawyer because both operated a set of dual controls. He claimed that the head sawyer would come to him and complain that Lowe was unwilling to help clean up and seemed interested only in pushing buttons. In fact, Lowe herein described his job as that of button pusher and appeared to be unfamiliar with the term of headrig operator. Koennecke pointed out that these two men operated a set of dual controls which regulated the procedure of the logs through the saws, this requiring a high degree of cooperation, and claimed that Lowe was not that type of person. In this respect, the record also demonstrates that the testimony of Lowe is not reliable. He testified that he received no instructions from Foreman Clark and in- sisted that Clark was not the foreman. Clark on the other hand testified, and I so find, that he did give Lowe instructions about his work and there is evidence that he so instructed others, at least after July 8, a date almost 2 months prior to the discharge of Lowe. In sum, while I deem the case of Respondent as to the reason for selecting Lowe for discharge to be weak, and there is present the suspicious element that the dis- charge of Lowe followed but 3 days after the Union requested and was refused recognition, I am unable to conclude, on this record , that the' evidence preponderates in favor of the position of the General Counsel. I have rejected Lowe's testimony as to the statements made by Koennecke, whose testimony in turn I have credited. This leaves the situation one of Respondent employing a man whom it reasonably believed to be a union member or supporter and in any event knowing that he had signed a union petition, but nevertheless retaining him for approximately 3 months in its employ. His union activities were nonexistent so far as this record indicates. On this posture, although not entirely free from doubt, I conclude that the evidence does not preponderate in favor of the position of the General Counsel. I accordingly will recommend that the case of Lowe be dismissed. D. The refusal to bargain 1. The appropriate unit The amended complaint alleges that all employees of Respondent, excluding office clericals, guards, supervisors, and professional employees , constitute a unit appropri- ate for the purposes of collective bargaining. Respondent's answer generally denied the appropriateness of this unit , but raises no specific challenge with respect thereto, the evidence being confined primarily to the duties of certain personnel ostensibly within or without the scope of the unit. I find that the above-described unit consti- tutes the commonly established plantwide unit, with customary exclusions, which the Board has long found to be appropriate in this industry. See J. G. Howard Lumber Company, 93 NLRB 1230; Cape Arago Lumber Co., 83 NLRB 394; J. E. Stone Lumber Co., 86 NLRB 575; and E. C. Olson Lumber Company, 106 NLRB 856. An issue does arise as to the precise composition of the unit on September 27, the date of the alleged refusal to bargain. Koennecke testified that there were approxi- mately 30 employees including a bookkeeper and Foreman Clark. He also testified that there were 28 positions, but in enumerating them , it appears that the total may well be 29, these including Foreman Clark, the bookkeeper, an electrician, and a carpenter. While it is not entirely clear whether this figure is 28, 29, or 30 , this is immaterial to the issue herein which requires a resolution only of the status of the 4 named above, because it is clear, and I find, that all the other positions are those which fall within the scope of the customary millwide unit and are properly to be included therein. As to Foreman Clark, I find that he was a supervisory employee on and after July 8 and without the scope of the unit . The bookkeeper, not identified by name, is clearly an office clerical and is therefore to be excluded from the unit. The part-time elec- trician, not identified by name, operates an electrical concern in a nearby community and is called in from time to time when his services are required . The rate he charges, $4.10 per hour, is apparently that of an independent contractor and not that of an employee; moreover he has a number of employees of his own. The record does not disclose the frequency of his visits, although they are apparently not often. I find that he is not an employee of Respondent, part-time or otherwise, and is therefore not within the scope of the unit. SUNSET LUMBER PRODUCTS 1191 The carpenter does not maintain a regular place of business and is used only for occasional jobs by Respondent when and as needed. His jobs can be as much as a month apart. Apparently simple construction tasks are performed by Respondent's regular employees and this carpenter is used only when something more complicated arises. It would appear, and I find, that he is at best a casual and irregular workman who is utilized when needed by Respondent; that he is not a regular part-time em- ployee; that the prospects of his continued employment by Respondent are uncertain; and that he is therefore to be excluded from the scope of the foregoing unit. I find that the above-described unit, excluding the foreman, bookkeeper, carpenter, and the electrician, constitutes a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. 2. Majority representation in the appropriate unit The foregoing unit had approximately 24 or 25 employees at the time material herein. In support of the allegation that the Union represented a majority of the employees in the unit at the time of the alleged refusal to bargain on September 27, the General Counsel introduced in evidence the petition whose circulation was com. menced by Union President Rilea and Business Agent Hall on July 1, 1954. The respective -signers affixed their signatures on different dates between July 1 and September 21. The testimony of Rilea and Hall uncontrovertedly discloses that they solicited the signatures of the signers, that the signers had due opportunity to inspect the caption of the petition, in part designating the Union as bargaining representative, and Respondent in fact raises no serious contention as to the authenticity of the signatures. The petition, moreover, impresses me as a reliable indication of what it purports to disclose, namely, that the signers thereof desire the Union to be their collective-bargaining representative and, further, that they desire the Board to certify the Union. The petition contains 23 signatures, including those of Rilea and Lowe. It having been found that Rilea was discriminatorily discharged on July 2, he retained his status as an employee and his signature is properly to be counted in ascertaining the issue of majority representation. Computed also is the signature of Seeling who left Respondent's employ on July 6 but was reemployed on August 9 and is still in its employ. Although Lowe was still an employee on September 27, not being discharged until September 30, I deem it unnecessary to pass upon or rely upon his signature herein. There is also a group of four, namely, Martinsen, Reynolds, Hunger, and Seffert (Seiffert), whose employment was terminated prior to September 27 and, accordingly, their signatures are not relied upon herein. The same consideration applies to W. W. Jones who was discharged prior to noon on September 27, several hours prior to the request of recognition by the Union. Thus, excluding the last S and Lowe, a total of 6, this leaves 17 signers of the petition who were in the employ of Respondent on September 27. The record does not disclose the names of the carpenter, electrician, and bookkeeper, but the various signers of the petition did affix their job classifications thereto and none listed these designations. Accordingly, I find that all 17 signatures may be com- puted and considered herein. And, in any event, even were these 3 signers of the petition, this would only serve to reduce the union majority to 14 instead of 17 of the approximately 24 or 25 in the appropriate bargaining unit. I find, therefore, that at all times material herein, and particularly on Septem- ber 27, 1954, and thereafter, the Union, having been validly designated as bargaining representative by a majority of the employees in the above-described appropriate bargaining unit, was and is the representative of the employees in said unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 3. The refusal to bargain On the afternoon of September 27, Business Agent Hall, accompanied by Don Downing, visited the plant. The latter is a representative of the Columbia River: District Council with which the Union is affiliated and which assists local unions in collective bargaining. The two men waited several hours for Koennecke who finally appeared on the scene. As this conversation commenced, I find that Downing had the above-described petition, a 1-page document, in his hand. I also find, as Hall testified, that Hall had a model proposed contract in his hand.? I The findings herein and below are based upon the testimony of Hall and Downing, both clear, forthright witnesses. Their testimony is substantially supported by that of 379288-56-vol. 113-76 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hall introduced Downing to Koennecke and Downing promptly stated that the Union represented a majority of the employees of Respondent and that they desired to negotiate a contract. Koennecke replied that they did not represent a majority whereupon Downing extended his hand with the signed petition . Koennecke replied that he did not want to look at the petition and thrust it away . Downing asked if Koennecke was refusing to meet with them and Koennecke replied that he was not refusing, but that he would not meet anyone without an appointment . Downing forthwith asked for an appointment to discuss the provisions of the contract, and Koennecke replied , "No, not until you have been confirmed ." I find that Koen- necke meant to use the word certified . Downing again stated that the Union rep- resented a majority and persisted in his request for a meeting. Koennecke replied that they had had their meeting and proceeded to walk away. There was no fur- ther contact between the parties. I find that Koennecke, who since July 2 had known about the existence of this petition, refused to inspect it on September 27, and also refused to discuss provisions of a contract with the union representatives . I further find that he refused to make an appointment for a meeting with them until the Union was certified by the Board. Conclusions As demonstrated, , Respondent had been aware of the existence of the petition since July 2, when he saw Hall and Rilea soliciting signatures thereto on the high- way near the plant ; although he originally believed it to be a petition for the rein- statement of Rilea he was quickly disabused of that notion by Hall and Rilea on that occasion . Although the request for recognition came almost 3 months later, an in- dication of Koennecke's attitude on the subject of union recognition was his admis- sion herein that he informed Rilea and Hall on July 2 that he would "junk" the plant before he would operate it "union" and that he would move it to another location. Section 8 (a) (5) of the Act makes it an unfair labor practice for an employer to refuse to bargain with the representative designated by a majority of his employees in an appropriate unit. And I am not unaware of the line of cases holding that an employer who entertains a genuine good-faith doubt as to the majority status of a labor organization seeking representation of his employees is entitled to have that doubt resolved by a Board election and certification before being required to bargain with that labor organization. But it must be borne in mind that Section 8 (a) (5) does not state that an em- ployer's obligation to bargain is conditioned upon a Board certification , or even upon the submission by a labor organization of any proof of its representative status. Thus, refusal-to-bargain findings have often been made where a union majority, established by other means, has remained unchallenged. I have given considerable thought to Koennecke 's conduct on this occasion and I do not believe that he in any way manifested a good -faith doubt as to the majority status of the Union. Firstly, he refused to inspect their proffered proof of a majority; this is hardly an act of one attempting to consider or evaluate the reliability of the evidence presented to him by the Union. Secondly, there is no evidence that Re- spondent was in possession of any information demonstrating in any way , real or fancied, any lack of reliability in the proffered evidence; nor for that matter is there any evidence in this record other than that the signing of the petition was a free and full expression by the employees of Respondent of their true wishes. Thirdly, there is no evidence that Koennecke in refusing to inspect the petition and to give the Union another appointment until certified was acting pursuant to any company policy favoring negotiations with a certified union. In sum, I believe and find that the law requires an employer to do something more than to cavalierly brush aside a union's request for recognition and for con- tract discussions, with the uttering of a phrase dealing vaguely with certification. True, the burden is upon the General Counsel to prove majority representation by the Union in an appropriate unit , a request for recognition , and an ensuing refusal. However, the burden then shifts to a respondent to establish that his refusal of Koennecke , although the testimony of the latter did deviate somewhat In those in- stances the testimony of the two union representatives has been accepted . They had been on the scene waiting for Koennecke and were prepared to take up the question of recognition . Koennecke , on the other hand, appeared suddenly and was admittedly in a hurry to deliver certain parts to the mill which had broken down . I therefore conclude that he was less apt to accurately perceive and appreciate what was taking place. Thus, I do not accept his testimony that the petition was not displayed by Downing on this occasion. SUNSET LUMBER PRODUCTS 1193 recognition, allegedly based upon the lack of a Board certification, is motivated by a good-faith doubt as to union majority. There is, on this record, simply a failure by Respondent to prove such a motiva- tion and Respondent has not therefore sustained its burden. Stated otherwise, a statement that a labor organization in order to receive recognition should first get certified, may not, standing alone, be equated with the entertainment of a good-faith doubt that the Union has a majority representation. Other factors may well serve to balance the scales so as to equate the two views. In the present case, their exist- ence has not been established. See United States Gypsum Company, 90 NLRB 964. Accordingly I find, on this record, that Respondent, after receiving the Union's request for recognition and contract discussions on September 27, 1954, refused to bargain with the Union within the meaning of Section 8 (a) (5) of the Act. I fur- ther find that by said refusal to bargain, Respondent has interfered with, restrained, and coerced its employees within the meaning of Section 8 (a) (1) of the Act. E. Alleged interference, restraint, and coercion The complaint also alleges two instances of alleged coercive threats to discharge employees or shut down the mill because employees engaged in union activities, uttered on or about July 2 and September 23, 1954. The only remarks on July 2 were those of Koennecke to Rilea and Business Agent Hall to the effect that he would shut down the mill or move it elsewhere if it was organized by the Union. There is no evidence of any remarks on or about September 23, the record disclosing only an ambiguous statement by Foreman Clark on an undetermined date to an un- identified group that if the mill "went union" there might be less overtime. The latter statement, according to Clark, was intended to refer to ostensible union policy of requiring time and one-half pay for Saturday work as such, rather than Respond- ent's apparent policy of paying overtime only for hours over 40. In any event, I deem these statements to be isolated and not warranting the issuance of a separate order based upon a violation of Section 8 (a) (1) of the Act, which, in this case, has already been found to have been violated. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with its business operations described in section I, above, have a close, inti- mate, 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 Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent has unlawfully refused to bargain with the Union as the representative of its employees in an appropriate unit, I shall recommend that Respondent, upon request, bargain with the Union and, if an understanding is reached, embody such understanding in a signed agreement. Having found that Respondent has discriminated with respect to the hire and tenure of employment of Charles L. Rilea, I shall recommend that Respondent offer him immediate and full reinstatement to his former or substantially equivalent posi- tion without prejudice to seniority or other rights and privileges. See The Chase Na- tional Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. It will further be recommended that Respondent make Rilea whole for any loss of pay suffered by reason of the discrimination against him. Said loss of pay, based upon earnings which he normally would have earned from the date of the discrimination against him to the date of the offer of reinstatement, less net earnings, shall be com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. See N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Woodworkers of America, Local 5-5, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating with respect to the hire and tenure of employment of Charles L. Rilea, thereby discouraging membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 1194 bii ISIONS OF_ NATIONAL LABOR ILLATIONS BOARD 3. All employees of Respondent , excluding office clerical employees, guards, su- pervisors, and professional employees, constitute a unit-appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. International Woodworkers of America, Local 5-5, CIO, was on September 27, 1954, and at all times thereafter has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargain- ing within the meaning of Section 9 (a) of the Act. 5. By refusing on September 27, 1954, and at all times thereafter to bargain col- 'lectively with the Union as the exclusive representative of the employees in the afore- said appropriate unit , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act_ 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 8. Respondent has not discriminated with respect to the hire and tenure of employ- ment of Allen Lowe. [Recommendations omitted from publication.] The Lux Clock Manufacturing Company, Inc. and International Association of Machinists, AFL. Cases Nos. 10-CA-2069 and 1O-RC-2818. August 26, 1955 DECISION AND ORDER STATEMENT OF THE CASES Pursuant to a Decision and Direction of Election in Case No. 10-RC-2818,1 an election was conducted among certain of the Em- ployer's employees on September 17, 1954, in which a majority of the employees voted not to be represented by the Petitioner. On Sep- tember 21, 1954, the Petitioner timely filed objections to the election based on an unfair labor practice charge it filed at the same time. Upon the charge, as amended by the Petitioner (hereafter called the Union), the General Counsel of the National Labor Relations Board (herein called respectively the General Counsel and the Board), by the Regional Director for the Tenth Region, issued a complaint in Case No. 10-CA-2069, dated November 8, 1954, against the Em- ployer (hereafter called the Respondent), alleging that the Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and Section 2 (6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondent and the Union. The complaint alleged, in substance, that the Respondent, by and through its president, Frederick Lux, on or about September 15, 1954, unlawfully threatened its employees that a plant expansion would be canceled and the plant closed if they persisted in their union and 1 Not reported in printed volumes of Board -Decisions and Orders. 113 NLRB No. 117.