Sweet Home Veneer, Inc.

SWEET HOME VENEER, INC. 113 Sweet Home Veneer, Inc. and Lumber and Sawmill Workers Local 2791, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Petitioner. Case No. 36-CA-885. July 16, 1959 DECISION AND ORDER On March 18, 1959, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in an unfair labor practice alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint, and recommended that the complaint be dismissed with respect thereto. Thereafter, the General Counsel filed excep- tions to the Intermediate Report and a supporting brief. The Re- spondent also filed exceptions to the Intermediate Report, together with a brief which in part related to its exceptions and in part sup- ported the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner insofar as consistent with our decision herein. 1. Like the Trial Examiner, and for the reasons stated by him, we find that the Respondent's layoff of Morris was not because of his union activity and, therefore, did not violate Section 8 (a) (3) or (1) of the Act. 2. We find, also, like the Trial Examiner, that the discharge of Fagan did not violate Section 8 (a) (3) or (1) of the Act. However, we do not agree with the Trial Examiner that the Respondent violated Section 8(a) (1) of the Act by the discriminatory application to Fagan of a no-solicitation rule. The pertinent facts are as follows: For approximately 2 years prior to August 1958, the Respondent had a policy of keeping unauthorized persons from entering its plant and property. It had posted signs captioned "No Visitors Allowed." This policy had been enforced with respect to both off-duty employees and nonemployees, as to visits during working hours. However, apart from the Fagan incident, discussed below, there is no evidence of 124 NLRB No. 17. 525543-60-vol. 124-9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforcement of this rule against off-duty employees during lunch periods. During August 1958, the Union commenced a campaign to organize the Respondent's employees and, during this period, a day-shift employee, Fagan, joined the Union and advocated the benefits of union organization among the Respondent's employees. He wore a union button, the only day-shift employee to do. so. On August 21, 1958, the Union demanded recognition as bargaining representative of Respondent's employees, which demand was refused, absent Board certification. On August 29, 1958, the Union filed a representation petition with the Board, and, on September 9, 1958, a Board hearing" was held. On September 16, 1958, Fagan visited the night shift during the lunch hour and discussed the Union with two employees. It does not appear that Night Foreman Ramey knew of the incident. In any event, Ramey did not admonish Fagan about this visit. On September 23, 1958, about 9 p.m., Fagan again visited the pond shack of the' night-shift employees during their lunch hour. Upon learning of Fagan's presence, Ramey accosted him and told him that he did not want him spreading his "propaganda," and ordered him to leave the, premises. There is no testimony or contention that during his visit Fagan was discussing the Union, it appearing only that he was en- gaging in general conversation with the night-shift employees. Fagan thrice refused to comply with Ramey's demand that he leave the premises, whereupon Ramey enlisted the assistance of Respond- ent's president, Geil, who ordered Fagan three more times to leave. Fagan finally obeyed Geil's order and left the pond shack, but outside. the shack he engaged in an argument with Ramey and, when Geil approached the scene of the argument, Fagan made a remark which offended Geil, whereupon Geil discharged him. Construing Ramey's admonition to Fagan against spreading his- "propaganda" as referring to union propaganda, the Trial Examiner found that by thus imposing a restriction on union solicitation during nonworking hours, the Respondent violated Section 8 (a) (1) of the Act.' Nevertheless the Trial Examiner found that the discharge of Fagan was not unlawful because, in his view, Fagan's supposed viola- tion of the unlawful no-solicitation rule was not the "proximate cause" of his discharge; the Trial Examiner found rather that the discharge was due to an independent intervening cause-namely, Geil's desire to vindicate his authority in the face of Fagan's insubordinate' and belligerent attitude. I The Trial Examiner deemed it immaterial that Fagan was not, in fact, soliciting for the Union at the time, so long as the Respondent thought he was, and intended to interfere with such solicitation. SWEET HOME VENEER, INC. 115 However, we need not pass upon the validity of the Trial Examiner's analysis of the causal relation between the Respondent's enforcement of the no-solicitation rule and the discharge of Fagan; for Nye find, contrary to the Trial Examiner, that Ramey's admonition to Fagan not to spread his "propaganda" did not constitute an unlawful en- forcement of a no-solicitation rule. As already stated, the Trial Examiner's contrary finding is based on the inference that the term "propaganda" as used by Ramey re- ferred to union propaganda. However, Ramey testified that he meant only to prevent Fagan from talking to the night-shift employees, be- cause of various complaints he had received from employees about Fagan's conduct unrelated to union activities. Although Fagan was wearing a union button at the time and had previously solicited for the Union, we deem these facts alone insufficient basis for inferring that Ramey suspected Fagan of soliciting for the Union on the night of September 23, and that "propaganda" must therefore have meant "Union propaganda." In reaching this conclusion, we have taken into account the absence of other evidence of any attempt by Respond- ent to interfere with the union activities of its employees, and the uncontradicted evidence of prior complaints by other employees about Fagan's conduct, mentioned above. Accordingly, we find that Ramey's application of the no-solicitation rule to Fagan was lawful, and that subsequent discharge of Fagan was therefore also lawful, whether it be attributed to Fagan's violation of that rule or to his insubordinate attitude. We therefore find that the Respondent did not violate Section 8 (a) (1) of the Act and, as we have affirmed the other findings of the Trial Examiner and have adopted his other recommendations that the remaining allegations in the com- plaint be dismissed, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The amended complaint alleges that Respondent discharged two employees , Vernon R. Fagan and Grover Morris, on or about September 23 and November 21, 1958, respectively , because of their activities in behalf of Lumber and Sawmill Workers Local 2791, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, herein called the Union , and on or about September 23, 1958, discriminatorily in- voked and enforced a rule forbidding employees to engage in union activities during nonworking time, thereby engaging in unfair labor practices within the meaning of Section 8 (a)(3) and (1) of the Act. Respondent's answer denied the commission of any unfair labor practices . A hearing was held before the duly designated Trial Examiner at Sweet Home, Oregon, on January 26 and 27, 1959 . The parties were represented by counsel and were afforded full opportunity to be heard , to examine and cross-examine witnesses, and to introduce relevant evidence . Oral argument was waived and briefs have been submitted by all parties. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Sweet Home Veneer, Inc., is an Oregon corporation which maintains its principal office and place of business at Sweet Home, Oregon, where it operates a green veneer plant. During its fiscal year ending June 30, 1958, Respondent produced and shipped green veneer valued in excess of $50,000 to points outside the State of Oregon. I find that the operations of Respondent affect commerce. If. THE LABOR ORGANIZATION INVOLVED Lumber and Sawmill Workers Local 2791, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization admitting to membership em- ployees of Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues; introduction The primary issues herein are whether Respondent discriminatorily discharged two employees, Vernon R. Fagan and Grover Morris, because of their union activities during an organizational campaign by the Union. The discharge of Fagan also in- volves the invocation of an alleged rule forbidding employees to engage in union activities on nonworking time. Respondent claims that Fagan was discharged for insubordination; that Morris was not discharged but rather was laid off for non- discriminatory reasons; and that Morris has subsequently been utilized when work was available. The competency of these two employees is not challenged herein. Respondent's plant has approximately 29 day-shift employees. An additional 26 or 27 men are employed when a night shift is used during all but the winter months of the year. The supervisory personnel at the time material herein consisted of Plant Supervisor Alvie Leach, who is second in command under President Vernon Geil and in charge of the day shift as well. The other supervisor was Night Shift Foreman James E. Ramey who apparently steps down to a nonsupervisory post when the night shift is eliminated during the winter months. B. The organizational campaign The Union commenced organizational activities at Respondent's previously un- organized plant on or about August 18, 1958, when Special Representative Walter Young came to Sweet Home. He initially contacted employee Paul _Henthorne who is not directly involved herein. On August 21, Young wrote to President Vernon Geil of Respondent, announced that the Union was attempting to organize Re- spondent's employees, and claimed that in the Union's belief certain complaints about Henthorne's work stemmed from his union activities. Geil replied to this letter on August 25. He expressed surprise over the Henthorne allegation and announced that he had investigated the claims made with respect to this employee. He stated that he saw no value in unionization because Respondent provided top wages and good working conditions, but that the decision was one for the employees to make. Geil also made a speech on or about August 24 or 25 to each of the two shifts. The record warrants the finding that Geil read the speech from a document, appar- ently prepared by his counsel, and that he did not deviate from the text. It suffices to state herein that it contained nothing more than an expression of his opinions and supporting reasons why union organization would not benefit the employees. The speech was entirely silent as to any promises of benefit or threats of reprisal. On August 29, the Union filed a petition for an election and a hearing was ultimately held on September 9. The question whether Respondent would grant a 7i/2-cent per hour pay raise to its employees, in order to keep up with wage increases granted elsewhere in the industry, presented itself at about this time. The record discloses that the union representa- tives contacted Respondent's counsel in Portland over the matter. On September 17, Geil wrote to the Union, commented on the fact that the Union had contacted his counsel, stated that his policy had always been to meet or top the rates of his com- petitors, pointed out that he had withheld the wage increase until after the representa- lion election on advice of counsel, and offered to put the increase into effect im- SWEET HOME VENEER, INC. 117 mediately if the Union did not object. The Union replied on the same date, confirmed an oral agreement to raise all employees 71/2-cents per hour effective September 1, 1958, and asked that Respondent put the agreement in writing. Geil posted a notice on the plant bulletin board on September 18, wherein he in- formed the employees of the increase and listed the new pay scales retroactive to September 1. The notice also stated that Respondent had not entered into any agreement with a labor organization and that the Union did not oppose Respondent's plan to grant the increases. Fagan was discharged on September 23 and Morris was terminated on November 21 under circumstances to be discussed below. The representation election was not held. On December 19 the Union wrote to Geil, claimed majority representation of his employees, requested recognition, and asked to meet to negotiate a contract as well as take up the cases of Fagan and Morris. The letter was referred to Respondent's counsel who replied on December 23 that a petition for an election was pending, that a bona fide question concerning representation existed, and that the issue could best be resolved by employees under Board procedures. There have been no further con- tacts between the two parties on this issue. C. The discharge of Vernon Fagan; invocation of the rule Respondent contends that it has no rule forbidding union activities by employees during their nonworking hours. Nevertheless, as will appear, a specific problem in- volving the rule, existent or not, arose when Complainant Vernon Fagan, a day-shift employee, visited the plant during the lunch hour of the night shift. Accordingly this discussion involves both the alleged rule and the discharge of Fagan. The plant has a sign reading "No Visitors Allowed" posted in three locations. There is considerable evidence that employees of one shift on occasion visited the plant during the lunch period of the other shift. Except in the case of Fagan, there does not appear to have been any objection voiced as to these visits by management which was aware of at least some of them. Indeed, Respondent stipulated that all employees have visited the plant during off-duty hours. With respect to employee visits while the other shift was at work, the evidence dis- closes that it has in large measure been tolerated, although in a few instances man- agement has intervened when it deemed that the work of the employee on duty was being interfered with. There is also evidence that nonemployee visitors have beem asked to leave the plant; indeed, President Geil testified that he has asked several' nonemployee visitors to leave, but has not taken this step with respect to employees.. Thus, I find that, in general, the no-visiting rule was not invoked against an off-shift employee visiting during a nonworking period such as lunch time. It also follows that the prime intendment of the signs was directed at nonemployees. Fagan, a day-shift employee in Respondent's employ since December 1955, signed a union card on August 22 at the behest of Union Representative Walter Young but refused to circulate cards at that time. On September 11, he donned a union button and agreed to circulate cards and campaign for the Union. He was the only employee on the day shift who wore a union button although Paul Henthorne, a night-shift em- ployee, donned a button on or about August 22. Grover Morris, the other com- plainant herein, did not wear a union button until after his discharge or termination on November 21. There is evidence that Fagan advocated union organization to employees primarily during nonworking time, but there is none that he circulated any cards. On or about September 17 he took a handbill from Young at the plant gate, prior to the start of the day shift, then returned for two more and gave them to employees. While Presi- dent Geil entered the plant shortly thereafter, the record does not disclose that Geil observed this. Fagan did visit the plant on the night of September 16 during the lunch hour of the night shift from 9 to 10 p.m., and discussed the Union with two employees in the pond shack, viz, Rod Andrews and Paul Henthorne. Thereafter, he spoke with Night Superintendent Jim Ramey after 10 p.m., but the discussion related to the technique of sawyer Wayne Harper. It is to be noted that Ramey made no comment about the no-visitors sign and did not ask Fagan to leave on this occasion. President Geil conceded that he knew Fagan had wom a union button for approxi- mately 2 weeks prior to his discharge. Although he knew of no other employee who wore a button, he testified that he did not know Fagan was the only day-shift employee who did. This presents for consideration the critical night of September 23, 1958. Fagan went to-the plant that evening between 9 and 10 p.m. during the lunch period for the purpose of retrieving his lunch pail. Fagan, however, did not initially pick 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD • up his pail; to the contrary, he proceeded to a shack by the pond where three of the night crew, Paul Henthorne, Rod Andrews, and Norman Norton, were eating lunch. He joined the group which proceeded to discuss matters of general interest, but nothing relating in any way to the union campaign. Shortly thereafter, but still during the lunch period, Ramey entered the shack., Ramey told Fagan that he did not want his spreading his "propaganda" and asked him to leave. I find that Ramey, in his use of this term referred to union propaganda.2 Fagan replied that he had come in to get his lunch pail, that he was not bothering anyone and that he was not hurting anything. According to Fagan's direct testimony, this reply was preceded by a period of a few minutes during which he, Fagan, stared at Ramey; whether this was in amazement, disgust, or in an attempt to stare him down is not revealed. Ramey again asked Fagan to leave and drew attention to the no-visitors sign. Fagan replied that this had reference only to the mill while it was in operation and that he did not have to leave if he did not choose to. Ramey told Fagan a third time to leave. Fagan replied that he had as much right to stay as Ramey and that he would not leave until he was ready. Ramey replied that he would see about that and left. He got into his pickup truck and drove to the home of President Geil, a few minutes' drive distant. He aroused Geil who had retired for the evening, told him that he had difficulty at the plant with a man who had disobeyed his order to leave, and asked him to intervene. Geil immediately got dressed, and, as he testified, did not ask Ramey why he had asked the man to leave because this was a problem of first impression which caught him unprepared. While Geil testified that Ramey told him at his home that Fagan had refused to obey an order, Ramey claimed that he did not name the employee until they got into the truck and started toward the plant. Ramey claimed that there was no mention of union activities during the brief drive to the plant. Although he at one point testified that he used the word "propaganda" in reporting the incident to Geil, Ramey later testified that he did not know whether the word was used. In any event, he claimed that there was no reference to union activities by Fagan during this drive; that Geil asked why he wanted the employee to leave; and that he, Ramey, replied that he had received complaints about Fagan bothering employees at work. The record discloses one such complaint between September 16 and 23 from employee Wayne Harper; this related to the fact that Fagan had developed a practice of standing by and observing sawyer Harper while he was at work, to the discomfiture of the latter. On arriving at the plant, Geil immediately proceeded to the pond shack, Ramey remaining outside in the vicinity of the parked pickup truck .3 Geil entered, joined the four employees, and immediately told Fagan to "hit the road." Fagan replied that he was not bothering anyone. Geil again instructed him to leave and Fagan replied that he had merely come in to get his lunch pail. Geil told him to get it and leave. Fagan still did not depart and Geil then asked if he wanted to get his check. Fagan replied,in the negative and left. This conversation between Geil and Fagan lasted several minutes. It is clear and I find, as both Fagan and Geil testified, that Fagan was not discharged at this point .4 1 Findings as to the ensuing conversation are based upon the testimony of Andrews and Norton which is substantially corroborated by that of Ramey. Indeed, the testimony of Fagan and IIenthorne is not in basic disagreement with that of the others present, al- though there are several divergencies. 2 While Ramey claimed that he did not have in mind union propaganda, that the word is a pet word of his and that he really meant that he did not want Ramey talking to the men "on the job," it has been noted that the men were not on the job. I therefore do not accept Ramey's explanation that he had in mind the period of time after the men re- sumed work. There is no evidence of any other type of propaganda in the offing and I find that Ramey assumed Fagan was engaging in or would engage in talk about the Union. This is buttressed by the previous evidence concerning Respondent's lenient policy toward visiting by employees during nonworking time. Moreover, there is evidence that Ramey was opposed to the Union, and that he questioned employees concerning the Union, the latter conduct not attacked herein. 3 No one placed Ramey in the immediate vicinity of the shack except IIenthorne who claimed that Ramey was near the door in a position to hear what was going on. I do not credit Ilenthorne's testimony in this respect. 4 Findings as to this meeting are based upon the credited testimony of Norton and Andrews as supported by that of Geil. Indeed Fagan and Henthorne were not in sub- stantial disagreement, although Fagan attributed to Geil the statement that Geil knew SWEET HOME VENEER, INC. 119 Geil sat down in the shack and chatted several minutes with the three employees. The record warrants the finding that the episode was closed at this point, so far as Geil was concerned, and that he believed Fagan was leaving or had left the premises. Everyone in the shack agreed that at this point two voices were heard outside the shack. Although what was said was indistinguishable , the preponderance of the testimony is that they were the voices of Ramey and Fagan and were raised as though in argument . Geil promptly got up, left the shack, and proceeded to the pickup truck. Ramey testified and I find that Fagan left the shack several minutes before, proceeded 15 or 20 feet in the direction of the plant beyond where Ramey was standing near the pickup truck, and then turned back . Fagan spoke first and asked what was bothering Ramey. The latter replied he was in charge nights and that ' Geil would back him up 100 percent.5 Geil appeared on the scene at this point. As Geil entered the truck, Fagan approached Geil and asked why he had run him out and whether it was true that Geil was a "nice fellow" or a "righteous guy." Geil replied that this was so and asked if he had mistreated Fagan; the latter replied in the negative. Then, as both Fagan, on cross-examination, and Ramey testified, Fagan asked if he was fired. Geil replied that he was and that he could pick up his check in the morning. Both Ramey and Geil testified that Fagan was belligerent in his manner during this last episode, and Geil claimed that he decided at that moment , as a result of this last conversation with Fagan near the truck , to discharge him. The record supports this contention and indeed Fagan agrees with the timing of the decision. Moreover, Geil was demonstrably an impulsive man who, consistent with his tem- perament, was apt to have suddenly made the decision at that moment to terminate , Fagan's employment. While it is manifestly clear that Foreman Ramey was applying the no-visitors rule, if indeed there was such a rule , on a discriminatory basis in seeking Fagan's de- parture from the plant, it does not follow that this was the proximate cause of his discharge. For Fagan had flouted Ramey's authority at least three times, had then proceeded to flout that of Geil in similar fashion , and had finally left the shack only after a threat of discharge . However, he had not been fired at that point. Had his presence in the plant been the direct cause of his discharge, why then was he not fired in the shack by Geil ? All this tends to lend support to Respondent's claim that it was Fagan 's persistent flouting of managerial authority , capped by his lingering behind and a final belligerent query as to whether he was fired that caused his discharge. The evidence, I believe, preponderates in favor of the view that Fagan engaged in a battle of wills with management , was insistent on having his way, and was discharged therefor . When Fagan left the shack there was no basis for him to conclude that he was discharged , as he in fact conceded . He next engaged in further argument with the foreman but still was not disciplined therefor. Fagan then pro- ceeded to ask Geil if he was fired , a query for which there was no basis ; this was hardly an indication that he was complying with Geil's orders and his discharge followed immediately . True this was not the very flagrant type of disobedience .what : Fagan had been saying and further that Geil did not want him stirring up his crew . 1-lenthorne supported the latter portion of Fagan 's testimony . Norton, Geil, and Andrews disputed these statements in part or in whole. Fagan originally attributed to Gell the statement that he did not want Fagan "stirring up the crew" : on cross-examination this was told as "bothering my crew." Fagan re- turned to the original version thereafter . As indicated, Henthorne was in error as to the proximity of Ramey during this meeting. The testimony of the other three witnesses has impressed me as the more reliable . Furthermore , the conclusions that follow would be unchanged on either version . For the issue here is dells motivation in discharging Fagan shortly thereafter , as set forth below . In the Trial Examiner 's view, the same conclusions stem from either version. ' S Fagan 's version was that he passed Ramey ; Ramey then approached him, stated he ran a good clean crew , he did not want him around , and Geil would back him up 100 per- cent . Fagan allegedly said nothing and walked on at this point . I do not accept Fagan's version here where in conflict with that of Raney, for, as appears below , Fagan ad- mittedly took the initiative almost immediately thereafter in commencing another con- versation with Gell . It was entirely consistent for him to act similarly with one lower in the management echelon . And his persistence with Ramey in this instance was en- tirely consistent with his conduct in the shack with both Ramey and Geil. Even Hen- thorne, who for the most part supported Fagan's testimony , testified that he heard both men talking. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which the Board has frequently recognized as a cause for discharge and I deem the case to be a close one. If the General Counsel's theory is valid it would mean that the victim of the discriminatory application of a no-solicitation rule may stand his ground and defy all managerial authority , rather than resort to the processes of the Board consistent with the policy of the Act "to provide orderly and peaceful procedures" to resolve labor disputes . I am not aware that the Board has gone this far. Stated otherwise, Fagan lingered on the premises despite all that had taken place and proceeded to develop a further discussion with Ramey which was not of a cordial nature. Thereafter there was no reasonable basis for Fagan's last query to Geil and the latter not unreasonably deemed the query to be insubordinate. Al- though this insubordination was not of a most flagrant nature, it was the final step in a.battle of the wills between Fagan and management. Geil, who significantly did not have anything to do with the original decision by Ramey to have Fagan leave the plant, discharged Fagan on the basis of a quick, unpremeditated decision in order to vindicate his managerial position . While Geil admittedly went to the plant to enforce a rule, which had been unlawfully invoked by Foreman Ramey, Geil did not intend to discharge Fagan therefor, despite the latter's repeated refusals to leave the plant, and did not do so until a new element was introduced. The discharge of Fagan resulted therefore from an independent intervening cause which was unrelated to Fagan's union activities . Accordingly, the evidence does not preponderate in favor of the position of the General Counsel and I recommend that the case of Fagan be dismissed. See N.L.R.B. v. Chronicle Publishing Co., 230 F. 2d 543 (C.A. 7); Safeway Stores, Inc., 122 NLRB 1369; Polish National Alliance, 121 NLRB 89; Empire Manufacturing Corp., 120 NLRB 1300; General Electric Co., 122 NLRB 165; Santa Clara Lemon Association, 116 NLRB 44; Cotwool Manufacturing Corp., 115 NLRB 1018; Armstrong Tire and Rubber Co., 111 NLRB 998; and Lloyd A. Fry Roofing Company, 85 NLRB 1222, 1223.6 The record warrants the finding that Foreman Ramey applied Respondent's no- visitors rule on a discriminatory basis. And even if there were no rule, as Respond- ent contends , this constituted an improper restriction on the rights of employees to engage in union activities during nonworking time. That Fagan was not discussing the Union on September 23 is not material. The fact is that Ramey thought he was, was motivated thereby, and intended to prevent it. I find, therefore , as alleged in the complaint, that by preventing employees from engaging in union activities during nonworking time, Respondent has interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7, thereby engaging in conduct violative of Section 8(a)(1) of the Act . Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 803, and N.L.R.B. v. Essex Wire Corp., 245 F. 2d 589 (C.A. 9).T D. The discharge of Grover Morris The complaint alleges that Respondent discharged Grover Morris on or about November 21, 1958, because of his union activities . This was the date that Respond- ent reduced its force including Morris and eliminated the night shift for the winter months, pursuant to custom . Respondent contends that Morris was not discharged but rather was laid off and further that this was not because of his union activities. Morris entered the employ of Respondent as a puller on the green chain in September 1956. On June 20, 1957, he left for the summer months to engage in commercial fishing in Alaska and returned on August 11 of that year . An issue herein is whether this was a "leave of absence" whereby he retained his seniority, or whether his seniority was broken . Thereafter, when the night shift was laid off on or about November 21, 1958, this caused a substantial reduction in force and Morris was included in the layoff. Respondent claims that Morris, admittedly a competent employee, was included in the layoff because of his low seniority . It is undisputed that if Morris' seniority did not date back to 1956, he would have been reached legitimately in this reduction in force. It is further to be noted that subsequent to November 21, Plant Superin- tendent Leach called Morris in to work on Wednesday , November 26, 1958, the day O The General Counsel introduced evidence of statements by Plant Supervisor Leach, who then worked days, reflecting his opposition to the Union . I deem it unnecessary to set these forth, for even if this evidence were credited , it would not be probative herein as there is no evidence that Leach played any part in the discharge of Fagan. 7 Respondent does not appear to distinguish between off.-shift and on-shift employees visiting on nonworking time. Accordingly there is no need to explore what difference, if any, there is between their respective rights in this context. SWEET HOME VENEER, INC. 121 before Thanksgiving, as well as on Friday, November 28, in place of an ill employee. In December 1958 Leach also offered Morris a job of 2 weeks' duration in place of a man on vacation. Morris accepted and worked 1 of these weeks, other employ- ment preventing his acceptance for the entire 2-week period. In view of the fore- going, I find merit in the contention of Respondent that Morris was laid off rather than discharged on November 21. Turning to a consideration of his union activities, they may best be described as negligible. Late in August of 1958, Union Representatives Young and Lyon came to his home and solicited his membership in the Union, and Morris signed a card. On this occasion Morris requested that the union representatives not divulge this to anyone, and there is no evidence that his request was disregarded. There is also no evidence that Morris engaged in any union activities thereafter. Indeed, one may infer that Superintendent Leach did not consider Morris to be a union adherent. For during September Leach mentioned to Morris that 60 percent of the men signed union cards, that Respondent was "beat," and that Respondent did not "know what . to do." And on another occasion Leach mentioned to Morris that Fagan was a union man. Morris did not wear a union button during this period of his employment prior to his layoff on November 21. As noted, he was called back to work on Wednesday, November 26. During the noon lunch period on that date, Morris visited the union hall and conferred with Union Representative Young. At the suggestion of the latter, Morris accepted a union button, affixed it to his hat, and returned to work. He worked the rest of the day as well as Friday, November 28, with no comment from any management representative; the record is also silent as to any comments on the button during his employment in December. There is no contention that the sick man replaced by Morris for 2 days in November did not return to work the following week. And there is no other evidence from which one may infer that Respondent knew or suspected Morris to be a union member or supporter prior to his layoff on November 21, 1958. As is readily apparent, the foregoing does not constitute substantial evidence that Morris was laid off on November 21 because of union activities or sympathies. And a consideration of Respondent's defense does not provide any additional sustenance to the position of the General Counsel herein, as will appear below. The General Counsel contends that Morris was terminated on November 21 and that Respondent thereby deliberately distorted and misinterpreted its own seniority rule so as to deprive him of work. The record lends little support to this. Morris spoke with Plant Supervisor Leach about 3 weeks before his departure in 1957 for the fishing venture and told him of his wish to go to Alaska. Leach did not oppose the trip and Morris advised him that he planned to return around the first of September. While Morris testified that Leach told him he could return to work upon his return, he also admitted that a question whether he could bump a man at that time did not arise. Nor did Leach say anything about an employee losing his job in order to make room for Morris upon his return. Respondent has a group insurance plan, paid by the employees, and Morris was desirous of retaining this coverage for his family during the fishing trip; accordingly he took up this subject with Office Manager George Seward. It is to be noted that Morris did not discuss his insurance with Leach and he did not discuss his seniority with Seward. • In his talk with Seward, Morris explained his desire for the coverage and Seward agreed to continue the coverage if Morris advanced the July and August premiums; this was done. According to Morris, Seward stated that Respondent would treat this as a "leave of absence." Morris then departed 1 or 2 days later, approximately June 20, 1957. Seward testified that the insurance carrier does not object to brief coverage of this nature and admitted he told Morris that if any objection was raised, Respondent would take the position that Morris was on a leave of absence. It ap- pears to be a regular policy both of Respondent and the insurer to permit employees who leave the employ of Respondent to maintain their policies in effect for periods up to 90 days by continuing the specified premiums. Seward testified that Respond- ent has done this for other employees who were laid off or terminated so as to give them an opportunity to find other coverage. It was done for a laid-off office worker during a 2-month period after she moved to another State. As is apparent, everyone assumed that Morris, a competent employee, would be put back to work upon his return from Alaska, and he was, although, because the, job was then filled, he was placed in another post. The topic of his seniority was not raised by anyone at the time of his return. The General Counsel stresses the fact that unlike his experience in 1958 which is attacked herein, Morris weathered the 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD winter layoff which took place late in 1957. However, many employees with lesser seniority or tenure than those laid off were retained on that occasion. It is undis- puted that Respondent, as it contends, did not follow any particular seniority policy in that year, and presumably prior thereto, and based its retention policy primarily upon the ability of employees. In 1958 conditions had changed. According to President Geil, the original charge in the instant proceeding relating to the termination of Fagan was filed on October 6, 1958. Respondent then concluded that the best way to avoid any additional charges or difficulties during a union organizational campaign would be to follow a strict seniority rule in the coming winter layoffs. A seniority list was prepared. and Morris' seniority was listed as dating back to August 15, 1957, the date he returned to Respondent's employ after his Alaska fishing venture. The layoff took place on November 21, 1958, and the line of demarcation reached Morris. It is undisputed that there was no deviation from the seniority figures which appear on Respondent's list, except in one instance where a markedly superior sawyer was retained over a less able man. There is one point which does lend support to the position of the General Counsel. Respondent has a vacation plan under which an employee who is with the Company' for 1 year receives 1 week's vacation pay. In June of 1958, Morris received such a benefit despite his August 15, 1957, seniority date. From this the General Counsel' contends that Respondent considered Morris' seniority as dating back to 1956, the date he originally entered the employ of Respondent. Geil's explanation for this was that the vacation check was one of a group prepared by the bookkeeper and that he, Geil, signed it without any appreciation of the fact that by Respondent's seniority standards Morris had been there some 6 weeks less. than a full year. There is, of course, the additional factor that the seniority lists were not promulgated until sometime later that year, as set forth above. Several other factors developed by the General Counsel add little' or no support to his case. I see no probative value to the fact that employee Hyde in August of 1958 asked for "leave" to go to Oklahoma because of the death of his father. Hyde: received permission to make the trip, left on August I1 and returned on September 2. This in Respondent's view did not affect his seniority date of August 28, 1956, and' it is of course immediately apparent that Hyde did not leave the employ of Re- spondent to go to work for another employer. I view similarly certain testimony by Morris that in August of 1958 he asked for and received a transfer to a day job and that Supervisor Leach then stated either that Morris "deserved the job" or that he "had the seniority." Morris was uncertain which term was used and I can attach no weight to this under the circumstances. Upon a consideration of the entire picture the following is apparent: (1) There is no evidence that Respondent had any policy on leaves of absence or that the term had any defined meaning in this operation. (2) The. fact is that Morris did leave and work for another employer in a. different industry. It does not follow that Respondent's failure or refusal to extend; his seniority back prior to this break of approximately 2 months is unreasonable. (3) Morris at best was promised a job when he returned from Alaska, but it does. not follow that this may be equated with a promise of seniority particularly where there was no reference to that topic in his discussions with his -superior, Plant Supervisor Leach. . (4) The insurance coverage is readily explained by the fact that Respondent does this for all employees who are laid off as well as terminated. In view of all the foregoing considerations, and particularly in view of the insub- stantial union activities of Morris and Respondent's lack of knowledge thereof, it is, recommended that the case of Morris be dismissed. 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 operations set forth in section I, above, have a close, intimate, and _ substantial relation to trade, traffic, and commerce among the several States and' tend to lead to labor disputes burdening and obstructing commerce and the free, flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action. designed to effectuate the policies of the Act. LAKELAND BUS LINES, INCORPORATED 123 On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Lumber and Sawmill Workers Local 2791, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Sweet Home Veneer, Inc., is an employer within the meaning of Section 2(2) of the Act. 3. By invoking and enforcing a rule preventing employees from engaging in union activities during nonworking time, thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not discriminated against Vernon Fagan and Grover Morris within the meaning of Section 8(a) (3) of the Act. [Recommendations omitted from publication.] Lakeland Bus Lines, Incorporated and Robert Gibson. Case No. 2?-CA-178. July 16, 1959 DECISION AND ORDER On April 2, 1959, Trial Examiner Thomas A. Ricci 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 Interme- diate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions and modi- fications.2 The Trial Examiner found that the discharge of Gibson on June 6, 1958, was due to his refusal to waive his claim for back pay under a 'The Respondent's request for oral argument is hereby denied because the record, in- cluding the exceptions and the brief, adequately presents the issues and the positions of the parties. 2 The Respondent contends that the Board should reverse the Trial Examiner's resolu- tions of credibility which were adverse to Respondent. However, under the rule of Standard Dry IVall Products, .Inc., 91 NLRB 544, we find insufficient basis in the record for overruling the Trial Examiner in this respect. Nor do we find any prejudicial error in the various rulings by the Trial Examiner on admissibility of evidence, to which Re- spondent takes exception in its brief. Finally, we do not believe that the other matters raised by the Respondent with regard to the Trial Examiner's alleged lack of objectivity establish a basis for corrective action by the Board. 124 NLRB No. 15.