Cowlitz Veneer Co.

COWLITZ VENEER COMPANY 299 the only factor common to all is that each Respondent has a separate contract with the same union local . In our opinion, consolidation of these cases is not warranted . We therefore grant the joint motion to sever. [The Board remanded the above-entitled cases to the Regional Director for the Second Region for the purpose of arranging a further hearing herein and authorized the Regional Director to issue notice thereof. The Board also severed the above-entitled consolidated cases.] Cowlitz Veneer Company and Lumber & Sawmill Workers Union, Local No. 2767 of United Brotherhood of Carpenters and Join- ers of America, AFL-CIO. Case No. 19-CA-2219. January 16, 1962 DECISION AND ORDER On October 25, 1961, Trial Examiner Stephen S. Bean 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 Intermediate Report at- tached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, a supporting brief, and a request for oral argument.' 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 McCulloch and Members Rodgers and Fanning]. 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 Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusion's, and recommendations of the Trial Examiner? 1 Because. in our opinion the record. exceptions . and brief adequately set forth the Issues and positions of the parties , this request is hereby denied -1 In adopting the Trial Examiner's findings, we correct the following inadvertencies which appear in the Intermediate Report Audrey Meade is excluded from the list of employees recalled arter May 5, 1961 ( page 304, line 25). The finding that Respond- ent engaged In discrimination against Local 2767 of United Brotherhood of Carpenters and Joiners of America is corrected by deleting the name of the Union and Inserting the names of employees Zelia Hessler , Dorothy Callahan, Lowell Hessler, and Byron Barker (page 305, lines 50 and 51). Member Rodgers agrees with his colleagues that Respondent had knowledge of the union activities of those employees found to have been discriminatorily selected for discharge. However, in reaching this result, Member Rodgers does not rely upon the small comple- ment of Respondent's employees or the fact that Respondent's plant Is located in a town of few inhabitants. - 135 NLRB No. 31 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board adopts the Recommendations of the Trial Examiner with the modification that paragraph 2(e) read : Notify the Regional Di- rector for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith.' 3In the notice attached to the Intermediate Repoit marked "Appendix A," the words "A Decision and older" are hereby substituted for the words "The Recommendations of a Trial Examiner " In 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" INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case, presented by a representative of the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, respectively, involves allegations that Cowlitz Veneer Company, herein called the Respondent, in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, here- in called the Act, terminated the employment of four employees at its Randle, Wash- ington, plant, on May 5, 1961, has refused to reemploy them, and has since on or about May 18, 1961, refused to bargain collectively with Lumber & Sawmill Workers Union, Local No. 2767 of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, notwithstanding the Union having been at that time the duly designated exclusive collective-bargaining representative of all its employees at its Randle operation, excluding supervisors, office clerical employees, and guards as defined in the Act. Respondent denied the commission of any conduct violative of the Act and affirma- tively averred that the Union offered no evidence that any of its employees had desig- nated the Union as their representative for collective bargaining and that it does not believe that a majority of Respondent's employees has ever so designated the Union. Pursuant to notice, a hearing was held before Stephen S. Bean, the duly designated Trial Examiner, at Chehalis, Washington, on August 24 and 25, 1961. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce evidence, to present oral argument, and to file briefs. They waived oral argument but Respondent filed a brief received on October 9, 1961. At the con- clusion of the General Counsel's case, Respondent moved for dismissal for lack of evidence. This motion was denied with leave reserved for its renewal at the close of the hearing Respondent renewed the motion in its brief. It is disposed of in accordance with the findings of fact and rulings of law herein appearing. At the conclusion of the hearing, the General Counsel " suggested" the amendment of the complaint to add an allegation based upon an asserted threat by Respondent to close its plant or ship logs to the Orient Treating the suggestion as a motion , I denied same mainly for the reason that the evidence supporting the assertion was, or could have been, available to the General Counsel at some stage prior to the close of the hearing more than 3 months subsequent to the filing of the charge.i Four stipulated minor corrections in the official report of proceedings are accepted . On my own motion, the transcript, page 21, lines 3 and 4, is corrected from "or perhaps does apply" to "perhaps does not apply " Upon consideration of the entire record, as well as the brief, and upon by obser- vation of the witnesses, I make the following; FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Washington State corporation engaged in the manufacturing and wholesaling of green veneer at a plant in Randle, Washington. During the 12-month period preceding May 22, 1961, it manufactured and sold veneer in excess of $500,000, 1 Note for example the second paragraph of "Exhibit A" attached to Respondent's Exhibit No. 1 (1-C). COWLITZ VENEER COMPANY 301 of which in excess of $50,000, was sold to companies each of which annually pro- duces and ships goods valued at more than $50,000 directly out of the State wherein said enterprise is located. I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNION AND THE APPROPRIATE UNIT The Union is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. I find that all employees employed by Respondent at its Randle, Washington, operation, excluding supervisors , office clerical employees , and guards as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9,(b) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory considerations 2 Respondent, located in Randle, a town of 200 to 400 population, employed about 29 workers including supervisors, office clerical employees, and possibly 1 or more guards immediately prior to 17 days before the time a charge from which this pro- ceeding emanates was filed on May 22, 1961. John R. Moore has been its manager since April 1956. Cowlitz Stud Company (later referred to), a plant now 2 years old, is located out in the country about 13/4 miles east of Respondent's place of business. Moore is president and manager of Cowlitz Stud Company. Packwood Lumber Company (also later referred to as Packwood), located in the Gifford Pinchot National Forest some 15 or miles further east (by north) along the National Park Highway leading from Randle, was leased by Respondent down to May 1, 1961. In an election in February or March 1961 the employees at Cowlitz Stud Com- pany, where Moore had a lesser interest than in the Respondent Company, selected the Union as their collective-bargaining representative. Thereafter, Martin Balke, International representative for the Union, who had conducted the organization of employees at Cowlitz Stud Company, proceeded to give his attention to lining up Respondent's employees. This was not the first time Balke had made the attempt. In June 1959 he had gone to Respondent's leased plant at Packwood with the Union's local business agent. There they met Moore who told them he did not propose to have Respondent's employees unionized and would fight it; be did not want them on the property; to get off the place; leave the employees alone while they were working; and that union representatives were just a bunch of racketeers out to collect dues. This organizing attempt was not successful . In August 1959 before an election request, which the Local's business agent was planning to file, had been petitioned for, Moore, who some months eariler had, in the presence of the whole crew, informed Donald Werner, a grader and tally man that he did not want a union, and would close the plant down before he got one, announced at a meeting of employees that he was going to take a vote. Slips of paper were laid on the table: Moore walked out of the room; employees marked the slips; and Moore returned while the count was being taken. Balke was temporarily transferred to a different location in August 1959 and no election petition was filed. On May 18, 1961, the date when it is alleged Respondent refused to bargain in good faith with the Union, Moore told Balke that he was going to ask every one of his employees whether or not they belonged to the Union and that before the plant went union he would shut it down and sell the logs to the Japanese .3 B. The layoff and nonreinstatement of Zelia Hessler Hessler was employed by Respondent from December, 18, 1957, to May 5, 1961, when she was laid off as a grader and stacker on the night shift. During this time she never received any complaints about her work. She signed an application for membership in the Union on April 29, 1961. • Her foreman, Charles De Walt, stated the,-layoff had nothing to do with her work and that,he did not know why. Moore selected those that he did. Moore stated he picked (for retention ) the ones needing work the most and that Hessler's work had nothing to do with it. He said 4 None of the surrounding events, let alone the circumstances related under this caption, are here considered as of themselves actionable unfair labor practices. s Moore's version of the latter part of this statement was that he made the statement of fact that the Japanese export log market would allow -Respondent to sell logs at a sub- ^stantial profit, this would be an easy way out and result in shutting down the plant. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of two of three women mentioned as retained , that one needed the work and the other's husband had broken his leg. When it was pointed out to him that Hessler's entire family (see subsection 111, D, infra) had been terminated, Moore replied he figured that sooner or later they would find jobs someplace else and that he could not answer Hessler's question about reemployment because of the log situation and the price of veneer. Later upon being told by Hessler she knew her family was laid off "over" the Union, that she had done a lot of talking about the Union but had not done much "signing up" before May 5 but had "gone to town" since that date, Moore replied he was aware of it and that is why Hessler was an undesirable employee. Apart, from talking in its behalf, Hessler engaged in no marked activities in sup- port of the Union before May 5, 1961. After that date she did visit the homes of employees Roberta Dessell, John Dodrell, Jennings Music, and Vera Bowen along with Balke and Dorothy Callahan (see subsection III, C, immediately infra) and played a part in procuring the signatures of the first three to membership applica- tions. One of the same was signed on May 10 and the two others on May 17. Bowen places the date of Hessler's visit to her home at some time after the had told Hessler if she,, Bowen, wanted to see the unionman she would hunt him up. Hessler has not been reinstated. C. The layoff and nonreinstatement of Dorothy Callahan Callahan was employed by Respondent for about 3V years. She was first hired on December 17, 1957, and worked continuously except during infrequent periods when there were shortages of logs or lack of orders. She first worked on the day shift and was transferred to the night shift after about 11/2 years. Her main job was that of a grader and a stacker. Occasionally she also did the work of a clipper. A few nights before May 5, 1961, she was visited by Balke and signed a union application card.4 On May 6, 1961, she learned that Hessler had been let go the previous night and upon inquiry made to Foreman De Walt learned that she too had been laid off. Upon her reference to seniority rights , De Walt said it was Moore's idea. She then appealed to the latter who told her there was absolutely nothing wrong with her work . When asked why Buelah C . Goble rather than Callahan, who had greater seniority, was retained , Moore replied it could go either way. Callahan's activities in behalf of the Union before May 5, 1961, consisted of talking in uis favor. The night before being laid off she complained in De Walt's presence about working overtime without pay and said if the plant went union people would not have to put up with it. She told Bowen it would be a good idea if her son joined the Union at Cowlitz Stud Company; that the Union provided good insurance. She also talked to Globe, whose union application card bears the date April 26, as well as to employees Jennings and Edward D. Music, whose application cards are dated May 17, and 18, 1961, respectively. Allusion to Callahan's activities in visiting other employees with Balke and Hessler has been made in subsection III, B, supra. On May 18 Moore said to Balke that Callahan was a good worker, her husband was making a lot of money, and that anyway she was helping Balke with the Union and he did not want her back on the day shift under any circumstances and that he did not have any night shift. Callahan has not been reinstated. D. The layoff and nonreinstatement of Lowell Hessler and Byron Barker Lowell Hessler is Zelia Hessler's son. Barker is her husband. Both had pre- viously worked for Respondent. They were again hired in April '1961. They worked at Respondent's Randle plant a few days, then at Packwood a short while until they were returned to Randle on the night shift until .their layoff on May 5, 1961. Both, it is admitted, were enthusiastic boosters for the Union. Lowell Hessler signed a union authorization card on April 20, 1961. While still at Pack- wood he and his father "talked up" the Union to the employees working there in the presence of Foreman Ira Smith, who himself expressed his belief in unioniza- tion. Both before and after May 5, 1961, he accompanied Balke to some seven homes where he introduced the latter to employees and assisted in procuring sig- natures to union application cards. Balke frequently visited the Hessler (Barker) home leaving his car parked outside . Lowell Hessler conferred with Balke two or three times in the town restaurant located about 60 feet across the street from Respondent's plant. Moore was in the restaurant on two occasions, the last on The card is dated May 2, 1961. COWLITZ VENEER COMPANY 303' May 4, when he saw the two together . Moore also saw Balke and Lowell Hessler outside the restaurant with employee Gerald Globe in the latter's car Barker has been a member of a local or locals of the parent union for 23 years and signed an application for membership in Local 2767 on April 20, 1961. During the 2 or 3 years of his previous intermittent employment by Respondent, he had engaged in attempting to get other of Respondent 's employees to become union members. Between April 20 and May 5, 1961 , he told employees at Respondent's plant that they would not have to put up with working overtime without pay and that if they joined the Union, they would be paid for it; talked about insurance benefits the Union would provide; said that anybody that did not belong to it was a damn fool. He assisted Balke in locating employees and himself talked to them in the restaurant, where he was at least once seen in Balke's presence by Moore and De Walt, at Packwood, and while traveling around the countryside on frolics of his own. On May 18, 1961 , Moore said to Balke that Barker was ignorant, his entire family was no good, they had helped Balke with the Union, and he did not want any of them back to work. Neither Hessler nor Barker has been reinstated. E. The contentions of the parties and my conclusions respecting the four layoffs and nonreinstatements Respondent's main positions are that the allegedly discriminatory layoffs were due to lack of logs to process , it was under no obligation to follow any principles, of seniority in effecting the separations , and it had no knowledge of union activity on the part of those laid off until 2 weeks after it took place. The General Counel, for whatever reason one can only guess, gives no hint of his, theory respecting this aspect of the case . Should he have it that the May S layoffs were other than for economic reasons, I would disagree.5 This brings the question down to whether or not the selection for the discharge of, and the failure to reinstate , the parties involved was discriminatorily motivated. Subsection III, A, supra, discloses Moore's opposition to unionization, his ex- pression of intent to interrogate all employees, and of possibly selling out and shutting down the plant; subsections III, B through D, supra, describe the union activities of the four alleeed discriminatees . and reveal Moore's awareness of Hessler's part therein rendering her undesirable, his knowledge that she, Callahan, Lowell Hessler, and Barker had helped Balke and its bearing on their not being reinstated. As to whether such selection was discriminatory , I am satisfied that on the basis of the facts found and outlined above (which it will be attempted to refrain from overreiterating), the General Counsel has made out a prima facie case. Hence it becomes incumbent upon me to weigh the defenses and contentions concentrated on by Respondent. The first two components of Respondent's asserted formula of "time in service, competence and need," claimed to have been utilized, fail to apply to the selection for the layoff of Callahan who had the longest time in service of all female em- ployees but one and whose competence was attested to by Moore and Respondent's foreman With respect to Callahan's need for employment it appears her husband 6 The log supply for Respondent conies largely from higher elevations where it is short during the winter and spring months. Employees were all laid off late in November 1960. and worked only 3 days in December Operation was resumed on January 5. 1961. Shortly before the Packwood lease was to expire on May 1, Respondent assembled an additional crew to finish processing the logs which remained on hand there Before the log supply at Packwood was exhausted a core market for hemlock logs developed There were some of this type logs stored at Randle , and the Packwood crew was brought back there to work nights cutting up the hemlock After most of the hemlock had been processed, the clew returned to Packwood for r shortt time where it worked days It then returned to Randle the first week In May and finished the hemlock order By the end of the night shift on May 5, Respondent was practically out of logs of all varieties During the lunch period on the night shift on May 5. Smith advised some of the crew that the log supply was diminishing and that the second shift would have to be termi- nated It appears that Respondent was practically out of logs by the end of the May 5 night shift About 28,000 board feet of logs are processed during an average single shift On May 5. 1961, when the night shift finished work the log inventory amounted to 5,060 board feet, only enough to operate the plant for 11/2 hours Hessler testified that the log itu,ttion did not look very good , L Hessler admitted that on the night of May 5 the log supply was practically gone 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was working for a logging company on May 5. But Brookie Sinclair whose husband also works for Respondent itself returned to work on May 19. The husband of Buelah Goble was out of work on account of injury and receiving workmen's com- pensation benefits but both she and her son were retained . Vera Bowen who did not sign a union application card was also retained. It is argued that the retention of Goble tends to negative a discriminatory attitude. It is maintained that Goble was one of the most enthusiasic union supporters and most diligent union organizers . In so doing, Respondent relies on Bowen 's testi- mony she recalled Callahan and Goble talking to her on the subject of unions. It is to be noted that it was not Goble and Callahan that visited Bowen's home, but Callahan and Hessler . Appreciation of the frailty of the reliance upon this evidence warrants a marginal references On. all the pertinent portions of the record it is clear that whatever interest Goble displayed in the Union was far less conspicuous than was either Callahan's or Hessler's and that the third criterion of the layoff "formula," that of "need" was at least equally if not more applicable to the laid off Callahan than to Gable, her junior in time of service. As to the Hessler family , the "formula" was scarcely, if any more applicable. Here we see the layoff of all the wage earners in an entire family. Moore admitted that the criteria perhaps does not apply to the two men.7 Hessler, the longest in time of service of any women employees after Callahan, as we have seen, was told by both Moore and De Walt her layoff had nothing to do with her work. Moore's testimony, parroted by Foreman Smith that she was "marginal," unsupported by any definite specifications is unimpressive . Smith ad- mitted he knew of no other employees he could not similarly characterize. Since the layoff, Jennings Music and Audrey Meade, in addition to Mrs. St. Clair, referred to previously, whose husband also works for Respondent, have been re- stored to work. Here again it is pointed out that Hessler's and Callahan's time in- service is greater than that of either of the two women. The record is bare of evidence of union activities on the part of these reinstated employees, unless the fact of Music alone among the three having signed a union membership form, and that not until May 17 (or possibly 19), 1961, should be so regarded. We come now to the contention that Respondent had no knowledge of union activity until after it took place. The events surrounding that with which we are concerned took place in a small plant employing scarcely more than a score of rank-and-file workers and in a small town variously estimated to have 200 to 400 inhabitants. The fact that there was general talk about the Union among the employees at the Packwood and Randle plants during a period of weeks before May 5, 1961, while the "familiar figure" of Balke who had just succeeded in organizing the employees at the nearby Cowlitz Stud plant and had earlier attempted to organize Respondent 's employees, was in town, is not to be gainsaid. Moore and Foreman De Walt had seen Balke talking with employees, particularly Lowell Hessler and Barker in the town's one restau- rant and on its main street. Balke's car was often parked at employees' homes. Callahan, in De Walt's hearing, advocated unionization the night before she was dismissed. Hessler and Barker supported the Union in talks at Packwood with em- ployees and Foreman Smith. They told Smith that Hessler (mother and wife) was doing all she possibly could to organize the employees at Randle. Barker had tried 6 Bowen testified that Callahan said that if she did not see things their way maybe something would happen to some members of her family or maybe her house would burn, that they did not have to do it themselves , they usually hired some stranger to come in and do it for them ; that Callahan or Hessler or both said if the plant went union Bowen would be the first laid off and that they would hire two or three to complain against her; and that Balke told her that if she did not want to be around in case anything came up she should go to a doctor, because she must have a strained muscle and insist that she be put in traction and no doctor would allow her being questioned or force her to leave. From my appraisement of this forlorn, recently bereaved , and sickly lady as she ap- proached , and during her stay on, the witness stand and as she left the hearing room in the near state of collapse , it became increasingly apparent that her quite fantastic testi- mony was based on the bewildered fantasy of a mind distraught with delusions of disaster. I cannot give it credence. It is not the substantial , reliable testimony required by the Act or the Administrative Procedure Act or, for that matter, of any factfinder whether of judicial or other status. Callahan 's, Hessler' s, and Balke's denials of this strange story are unhesitatingly accepted. 7 The official report of proceedings meaninglessly reports Moore 's testimony as follows. "The other criteria chat we mentioned before or perhaps does apply at this time." Note record correction second last sentence under "Statement of the Case." COWLITZ VENEER COMPANY 305 to get employees to join the Union for 2 or 3 years and he and his son discussed union matters at coffee breaks with the employees at Packwood and Randle. Fore- man De Walt had observed a lot of union activity up the road at Cowlitz Stud Company in April and May 1961, where Balke, whom he knew, was present every day for quite sometime and was present when Balke and another union representa- tive came into Respondent's office in April. At least nine of Respondent's employees had signed union cards before May 5. Although Callanan and the Hessler family were no longer in a position to make friends and influence fellow workers at the shop after their layoff, it is apparent that they continued their efforts to bring about the unionization of the plant. Moore in ascribing the Hessler family's and Callahan's undesirability and his intent not to reinstate them, to their known union activities, did not limit himself only to those in which they engaged after May 5. Moore had talked with De Walt about the layoff before May 6 and at 10 a.m. that day discussed with him the reorganizations of employees into one crew. I do not believe that during these discussions, consideration was not given to the matter of union organization. Even were I to credit the testimony that the two supervisors had not relayed their observations to Moore, I am convinced that the latter was not so unalert as to know nothing about what was going on and to have attached no importance to what he himself had observed. Although in labor law, agents' knowl- edge of union activities may not be imputable to their principal in the manner that their coercive statements are ascribable, I am satisfied under the facts of this case and all the relevant circumstances disclosed by the record, that Respondent on or before May 5, 1961, had knowledge of the union activities of the four employees alleged to have been discriminatorily treated, and so find. Cases cited by Respondent as apposite, contain or lack facts rendering them dis- tinguishable from the instant case. Thus, briefly, in Borg-Warner Controls, Borg- Warner Corporation, 128 NLRB 1035, the General Counsel failed to show the failure to reemploy was due to union activity, whereas here, he established the fact that Respondent told one laid-off employee she was undesirable because of her union activity and otherwise stated that he would not rehire her or any of the three laid- off members' family because they assisted the Union; in Falls City Creamery Com- pany, 101 NLRB 692, it was held that standing alone, the inference of activities in a small plant in a small town could not be supported in the face of positive testimony that those who knew of activity and could have reported it, did not do so and the positive testimony of others that they did not know about it, whereas here it was shown that at least one of the two supervisors knew about the activity, and talked about the layoffs with the general manager, who himself had seen employees in- volved in associations with union organizers; in Hadley Manufacturing Corporation, 108 NLRB 1641, involving a small plant (not one in a small town), the General Counsel admitted that knowledge must be inferred from the smallness of the plant alone, whereas here there is supporting evidence that the union activities were car- ried on in such a manner that Respondent must have noticed, and indeed, did notice them; and, in Trenton Manufacturing and Distributing Company, 129 NLRB 797, where the record was barren of knowledge, whereas here it is fertile. In final analysis, I conclude and find on the record as a whole that by selecting Zelia Hessler, Dorothy Callahan, Lowell Hessler, and Byron Barker for layoff on May 5, 1961, and thereafter failing to reinstate them, Respondent in violation of Section 8(a)(3) of the Act, engaged in discrimination against Local 2767 of United Brotherhood of Carpenters and Joiners of America. F. The alleged refusal to bargain By May 18, 1961, according to a stipulation by the parties, Respondent had 17 employees in an appropriate collective-bargaining unit of whom the Union held 9 authorization cards.8 On that date Balke encountered Moore near the entrance of the Cowlitz Stud Company plant an dannounced "good news" for Moore in that Balke had succeeded in organizing Respondent's employees and asked him whether he would recognize and start to bargain with the Union or wanted a Board-conducted election. Moore's 8 It appears from General Counsel's Exhibits Nos. 2-A through 2-V that 22 en, ds had been signed by May 18. It may be that the discrepancy is explained in part by Respond- ent's unwillingness to agree that the 4 employees alleged to have been discriminatorily laid off on May 5, together with some of the 10 or 11 other application signers the same night, should he included. In any event it is clear that by May 15 a majority of Respond- ent's eligible employees had selected the Union as their collective-bargaining representative. 034449-62-vol. 135--21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retort to this taunt and inquiry was to call anybody who works for a union sneaking, lowdown, and contemptible .9 Balke with rising gorge demanded that Moore descend from his conveyance and fight it out on the spot. Moore declined to avail himself of the opportunity. Later the same day Balke wrote Respondent recalling to mind the request for recognition and reviewing the afternoon's affray. No response thereto was ever made. The charge was then filed 4 days later. G. The contentions of the parties and my conclusions respecting the alleged refusal to bargain Respondent's main positions with respect to this allegation are that the circum- stances relied on to support it are of unparalleled bizarreness in few if any of the cases, no bona fide request for bargaining was made, Moore was incredulous of Balke's assertion of majority, and the case is a blatant attempt of entrappment on the part of a Government agency. The General Counsel's failure to either argue orally or submit briefs lends less perplexity to this feature of the case than did his similar omission with respect to its alleged discriminatory aspect. The facts virtually speak for themselves. The sub- ject requires no extensive elaboration I find that Moore had no good-faith doubt of the Union's majority. His testimony that 3 of some 18 eligible employees had informed him they had been approached by the Union and he told them he was not in favor of a union shop, establishes no con- vincing basis for a genuine belief that more than half of the employees, or for that matter even 1 or more of the 3 with whom Moore talked, had not designated the Union Should one choose to disagree with my findings in these premises, it really matters not. Respondent has not recognized or bargained with the Union. Should it be ordered to do so in the future, Respondent, in view of its present acknowledge- ment of the Union's at least nine to eight majority representative standing, may not be heard to complain. Emphasis is placed by Respondent on the fact that Balke did not mention the word "bargain" in the letter he wrote immediately after the passage-at-arms on the afternoon of May 18 There is no magic in that word. Moore, in behalf of Cowlitz Stud Company, had just completed bargaining with the Union and agreed to a con- tract Balke wanted one with Respondent and Moore could not help knowing it. Balke was the Union's organizer and Darrell Sloan, the Union's negotiator, and Moore knew it. Is one to believe, for example, that if a union organizer in writing to an employer should merely say he wanted to "do business" with him or "deal" with him, it must be found that no request to bargain had been made? Must con- versations between management and labor representatives unless shrouded in words of art in the legalistic manner of treaties between sovereign powers be held meaning- less' If one is to become technical he might bear in mind the dictionary definition of the word "recognize," which Balke did write; viz, "acknowledge by admittance to a privileged status" or of "recognition," viz, "acceptance or entitlement to considera- tion or attention," and then go on from there to ponder on what manner of admit- tance, privilege, status, consideration, or attention Respondent accorded the Union. I have already found that Moore asked Balke whether he would recognize the Union and start to "bargain " Even though it should be thought that the omission of the quoted word in the followup letter casts doubt on whether it was actually uttered, I would still find that under all the circumstances of the encounter on May 18, 1961, Balke made a plain and clearly understood request for bargaining. Cases cited by Respondent as apposite contain or lack facts rendering them distinguishible from the instant case. Thus briefly in The Burke Machine Tool Company, 36 NLRB 1329, the reaction was that of an employer to a man he had never seen before who failed to propose a conference or produce evidence of majority, whereas here Respondent knew the organizer well and vituperatively shut him off without opportunity to prove majority; and in Graff Motor Supply Com- pany, 107 NLRB 175, the union representative merely outlined the alternative courses of procedure for determining majority, whereas here the representative unequivocally asserted such majority and asked for recognition and bargaining In view of all the above and upon the entire record in the case, I conclude and find that on May 18, 1961, Lumber & Sawmill Workers Union. Local 2767 of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, was the represen- tative of a majority of Respondent's employees in an appropriate unit and that Respondent refused to bargain with it in violation of section 8(a) (5) of the Act. e Dtoore testified he called Balke "a sob." without adjectives _ COWLITZ VENEER COMPANY 307 W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain with the Union in viola- tion of Section 8(a)(5) and (1) of the Act, I will recommend that Respondent be ordered to bargain with the Union, upon request, as the exclusive representative of all its employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. Having found that Respondent discriminated in regard to the hire and tenure of employment of Zelia M. Hessler, Dorothy Callahan, Lowell Joe Hessler, and Byron Barker, I will recommend that the Respondent offer to them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the Respondent's discrimination against them by payment to them of a sum of money equal to that which they normally would have earned as wages from the date of their discharge to the date of the Respondent's offer of reinstatement, less their net earnings during said periods, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. In view of the nature and extent of the unfair labor practices herein found, I am convinced that the commission of similar and other unfair labor practices by Respondent reasonably may be anticipated. I will therefore further recommend that Respondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed to employees by Section 7 of the Act. 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. Lumber & Sawmill Workers Union, Local No. 2767 of 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. By discriminating in regard to the hire and tenure of employment of em- ployees, thereby discouraging membership in the abovenamed labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. All employees at Respondent's Randle, Washington, plant, excluding super- visors, office clerical employees, and guards as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all material times herein, the above-named Union has been, and now is, the exclusive representative of all the employees in the aforestated unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By engaging in conduct constituting a refusal to bargain with the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing and by the conduct described in subsections III, B through G, supra, considered in the light of the circumstances related in subsection III, A, supra, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and derivatively has en- gaged (li) n andthis engaging in unfair labor practices within the meaning of Section 8 (a) of 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. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent , Cowlitz Veneer Company, its officers, agents, successors, and assigns, shall: 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discouraging membership in Lumber & Sawmill Workers Union, Local No. 2767 of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization of its employees , by discharging or refusing to rein- state any of its employees , or in any other manner discriminating in regard to their hire or tenure of employment , or any term or condition of employment. (b) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, with Lumber & Saw- mill Workers Union, Local No. 2767 of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of all of its em- ployees in the following appropriate unit : All employees at Respondent's Randle, Washington , plant, excluding supervisors, office clerical employees, and guards as defined in the Act. (c) In any other manner interfering with, restraining, or coercing 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 other concerted 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, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with Lumber & Sawmill Workers Union, Local No. 2767 of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Offer to Zelia M. Hessler, Dorothy Callahan, Lowell Joe Hessler, and Byron Barker immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the Respondent's discrimination against them in the manner set forth in that section of the Intermediate Report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records necessary to analyze the amounts of backpay due under the terms of this report. (d) Post in its plant at Randle, Washington, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being signed by Respondent's repre- sentative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) I further recommend that unless Respondent notifies the Regional Director for the Nineteenth Region, in writing, within 20 days from the date of this Intermediate Report and Recommended Order that it will comply herewith, the Board should issue an order requiring such compliance. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT discourage membership in Lumber & Sawmill Workers Union, Local No . 2767 of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, by discharging or refusing to rein- state any of our employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist the above-named or any other labor organization, WEBB FUEL COMPANY 309 to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to. refrain from any and all such activities except to the extent that such right may be affected by an agreement authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, upon request, bargain collectively with Lumber & Sawmill Workers Union, Local No. 2767 of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of all employees in the appropriate bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and em- body in a signed agreement any understanding reached. The bargaining unit is: All employees at our Randle, Washington, plant, excluding supervisors, office clerical employees, and guards as defined in the Act. WE WILL offer to Zelia M. Hessler, Dorothy Callahan, Lowell Joe Hessler, and Byron Barker immediate and full reinstatement to their former or substan- tially equivalent position, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or refrain from becoming members of the above Union, or any other labor organization, except to the extent that said right may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. COWLITZ VENEER COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office (327 Logan Building, 500 Union Street, Seattle 4, Washington; Telephone Number, Mutual 2-3300, Extension 553) if they have any question concerning this notice or compliance with its provisions. Webb Fuel Company and Chauffeurs, Teamsters and Helpers Union, Local No. 364. Case No. 13-CA-3974. January 16, 1960 DECISION AND ORDER On August 7,1961, Trial Examiner John H. Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent had not engaged in and was not engaging in unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter the General Counsel, the Union, and Respondent filed ex- ceptions to the Intermediate Report and supporting briefs. 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 McCulloch and Members Leedom and Rodgers]. 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 entire record in this case, including the Intermediate Report, the exceptions, and the briefs, and finds merit in the exceptions of the Union and the 135 NLRB No. 30.