Miller Redwood Co.

MILLER REDWOOD CO. Miller Redwood Company and United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case 20-CA-3728. May 5,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On August 25, 1966, Trial Examiner Wallace E. Royster issued his Decision in the above- entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondent also filed an answering brief to the General Counsel's brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions and modifications set forth below. The Trial Examiner found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by interrogations, threats, promises, grants of benefits, and creating the impression of surveillance of employees' organizational activities. However, the Trial Examiner found that the Respondent did not violate the Act by discharging two of its employees on July 15 and 16, 1966. The General Counsel excepts to the Trial Examiner's finding that the discharges were not violative of the Act. We find merit in this exception as it relates to the discharge of employee Jerry Davis. The Trial Examiner concluded that the General Counsel had not established by a preponderance of ' We agree with the Trial Examiner that Womack's knowledge of Davis' union sympathies was imputable to Respondent as of the date it hired Womack as a supervisor We think it significant that immediately thereafter Superintendent Eichar and General Manager Schroeder directed their efforts to altering such sympathies 2 Montgomery Ward & Co v N.L.R B , 107 F.2d 555, 569 164 NLRB No. 52 389 the evidence that Respondent's discharge of employee Jerry Davis was motivated by antiunion considerations. We do not agree, for we are satisfied that the Trial Examiner's findings of fact and conclusions respecting Respondent's 8(a)(1) conduct directed against employees generally and against Davis specifically, the timing of such conduct, particularly as directed against Davis, and Respondent's failure to come forth with credible evidence in support of the reasons it advanced for discharging Davis, dictate a contrary conclusion. The General Counsel adduced evidence demonstrating (1) that Respondent, in response to the Union's organizational campaign, engaged in interrogations, threats, promises, grants of benefits, and solicitations of employees to inform management of the union activities of fellow employees; (2) that the two top plant officials of Respondent, immediately upon becoming aware of Davis' support for the Union when it hired Supervisor John Womack,' engaged in a sustained effort, which lasted almost until the end of June and included threats, promises, and grants of benefits to discourage Davis' adherence and support of the Union; and (3) that Respondent held Davis in high regard as a workman, up to the date of discharge. On the strength of the foregoing evidence and the Trial Examiner's factual findings based thereon which are adequately set forth in the Trial Examiner's Decision, we find that the General Counsel has established a strong prima facie case that Davis' discharge was motivated by his prounion sentiments and his resistance to the threats and blandishment designed to bring him over to Respondent's side. In these circumstances, it was incumbent upon Respondent, if it would rebut the General Counsel's prima facie case, to come forward with evidence explaining the discharge on other grounds, for the "real reason lay exclusively within its knowledge."'' The sole reason advanced by Respondent for Davis' discharge was rejected by the Trial Examiner who found the testimony of Respondent's witnesses as to claimed derelictions in Davis' work performance incredible. Thus, the discharge of Davis is left unexplained unless it is found rooted in discriminatory considerations, the only apparent explanation that is fairly inferable from the evidence adverted to above.3 The foregoing inference is fortified both by the fact that Respondent continued to give Davis consideration for better work assignments and by the unlikelihood that Respondent discharged him for no reason at all. It is true that the record does not (C A. 7), citing N L R B. v Remington Rand, Inc., 94 F 2d 826, 871-872 (C A 2), Virginia Metalcrafters, Incorporated, 158 NLRB 958 2 Shattuck Dean Mining Corporation v N.L.R B., 362 F 2d 466 (C A 9), Maphis Chapman Corporation v N L.R B., 368 F 2d 268 (C.A 4) 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affirmatively reveal that on the date of Davis' discharge Respondent believed him to be as active in the Union as at the time it began its intensive campaign of discouragement, but this in our opinion does not materially detract from the great weight of the evidence adduced by the General Counsel pointing to discriminatory considerations as the moving force for discharge. Accordingly, for the foregoing reasons we conclude, contrary to the Trial Examiner, that Respondent discharged Davis to discourage him from supporting the Union, and thereby violated Section 8(a)(3) and (1) of the Act. As for Leroy Roberts, the record shows that he was discharged by Foreman Smith on July 15. Smith testified that late in June the green chain operation was not being handled satisfactorily. He spoke to Roberts two or three times about the mispulling and the damage. Roberts conceded in his testimony that such complaints had been made to him. The Trial Examiner was convinced that Respondent believed that another leadman could do better. On these circumstances we are not prepared to say that the Respondent's belief that Roberts' performance was unsatisfactory is unsupported or to reject the reason proffered by Respondent for his discharge. Consequently, we conclude that the General Counsel has not met the burden of proving that Roberts' discharge was motivated by antiunion considerations. AMENDED AND ADDITIONAL CONCLUSIONS OF LAW 5. By the discharge of Jerry Davis, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act, further affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The evidence does not establish by its preponderance that Leroy Roberts was discharged in violation of Section 8(a)(3) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, we shall order the Respondent to cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the purposes of the Act. Having found that Respondent discriminated against Jerry Davis by discharging him, we shall order Respondent to offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges formerly enjoyed by him, and to make him whole for any loss of pay suffered as a result of such discrimination against " NLRB v Entwistle Mfg Co , 120 F 2d 532 (C A 4), enfg as modified 23 NLRB 1058 him from the date of his discharge to the date when reinstatement is offered. Computation of backpay shall be computed in accordance with the formula adopted in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum as provided by the formula adopted in Isis Plumbing & Heating Co., 138 NLRB 716. Because the discharge here goes to the heart of the Act,4 and considering also the other unfair labor practices in which Respondent engaged, we shall issue a broad cease-and-desist order which in the circumstances we deem necessary and appropriate to protect employee rights and to make effective the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that Respondent Company, Miller Redwood, Crescent City, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any of its employees in United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or in any other labor organization of its employees, by discharging or in any other manner discriminating against any 'individual in regard to hire, tenure of employment, or any terms or conditions of employment because of membership in, activities for, or sympathies with, any such labor organization. (b) Interrogating, threatening, promising, or granting benefits to employees, or suggesting that union meetings are under surveillance, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, 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. 2. Take the following affirmative action which we find is necessary to effectuate the policies of the Act. (a) Offer to Jerry Davis immediate and full reinstatement to his former or substantially equivalent position of employment, without prejudice to his seniority or other rights and privileges previously enjoyed by him, and notify said employee if at present serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (b) Make whole Jerry Davis for any loss of earnings suffered by him as a result of the discrimination against him, in the manner set forth MILLER REDWOOD CO. in the section of the Decision herein 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, timecards, personnel records and reports, and all other records necessary or useful to determine the amount of backpay due under the terms of this Order. (d) Post at its place of business at Crescent City, California, copies of the attached notice marked "Appendix."5 Copies of said notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by an authorized representative of Respondent, be posted by it 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 5 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 "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership of any of our employees in United Brotherhood of Carpenters & Joiners of America , AFL-CIO, or in any other labor organization of our employees , by discharging , or in any other manner discriminating against, any employee in regard to hire, tenure of employment, or any term or condition of employment because of membership in, activities for, or sympathies with , any such labor organization. WE WILL NOT interrogate , threaten , promise, or grant benefits to employees , or suggest that union meetings are under surveillance , or in any other manner interfere with , restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations, 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. WE WILL offer Jerry Davis immediate and full reinstatement to his former or substantially equivalent position of employment , without 391 prejudice to his seniority or other rights and privileges previously enjoyed by him, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. MILLER REDWOOD COMPANY (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employee, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WALLACE E. ROYSTER, Trial Examiner: This matter was tried before me in Crescent City, California, on February 8 and 9, 1966.1 At issue is whether Miller Redwood Company, herein the Respondent, by means of threats, inquiries , grants, and promises of benefits, interfered with, restrained, and coerced employees in the exercise of lights guaranteed in Section 7 of the National Labor Relations Act, as amended, thus violating Section 8(a)(1) of the Act and whether the discharges of Leroy Roberts and Jerry Davis resulted from discrimination violative of Section 8(a)(3) of the Act. Upon the entire record in the case,2 from my observation of the witnesses , and upon consideration of the briefs filed, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Miller Redwood Company is a California corporation engaged at Crescent City, California, in the operation of a lumber mill. During the year preceding the issuance of the complaint, the Respondent made wholesale sales of ' Charge filed August 5, 1965 Complaint issued November 16, following Except as noted all dates are in 1965 2 Subsequent to the hearing, counsel for the Respondent moved to correct the transcript. The motion is granted except as to page 245, line 15. The witness at this point may have misspoken, but I believe the transcript to be accurate The motion is hereby included in the exhibit file 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lumber valued at more than $50 ,000 to customers located outside the State of California . I find that the Respondent is an employer engaged in commerce and in an operation affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion Darrell Schroeder, Respondent's general manager at the mill operation, testified that in the afternoon of May 28, he received a letter from the Union asserting majority status and requesting recognition. Schroeder telephoned Roy Glassow, a representative of Timber Operators Council, an organization which represents and advises timber operators in labor matters, and told Glassow of this development. Glassow, he testified, cautioned Schroeder that he should not mention the Union to the employees and advised him to give such instruction to his supervisors. Accordingly, Schroeder testified, he instructed Mill Superintendent Dale Eichar and Mill Foreman Darold Connor not to make threats about the Union but that usual discipline should be maintained. On June 14, Glassow met with the supervisors in the mill and told them what they could and could not lawfully do in the presence of union organizing. On -June 11, Schroeder recalled, he spoke with Leroy Roberts, then a leadman on the green chain operation, and inquired of him why the men were dissatisfied. Roberts answered that he did not know. Pursuing the subject, Schroeder asked if there was complaint about a health and welfare program. Roberts replied that he did not know; that he, Roberts, was content. Schroeder said that a new insurance plan, equal to any then in effect in the locality and to any offered by any union, along with a retirement program would soon be explained to the men.3 Respondent's vacation policy is not precisely described in the record. It appears, however, that the employees in the mill believed that they earned no vacation credits unless their period of employment extended from June 1 of one year through the following May 31, and that in that 12 months they worked at least 1,400 hours. In the week of June 21, according to Schroeder, he decided that he would grant vacation credits on a pro rata basis to the 11 employees who seemed to be permanent even though they lacked the requisite hours. Schroeder explained in his testimony that no employee had asked him to amend the vacation policy; he just decided to do so because a similar arrangement had sometime earlier been reached at another of Respondent's operations. Schroeder had each of the affected employees brought separately to his office where each was told of the vacation credit granted to him. Jerry Davis, whose discharge on July 16 is alleged to have been unlawfully motivated, began his employment with the Respondent as a laborer in October 1964. Thereafter he progressed quickly. In November he was 9 This is a summation of Schroeder's testimony " This is the only portion of the conversation which Schroeder denied I do not think that Davis invented this suggestion of assigned as jump roll operator at the same hourly rate ($2.41) as that at time of hire. In late February he was moved to the pony edger and given an increase of 15 cents an hour. In approximately a week he became the operator of the gang trim saw which entailed a further increase in his hourly rate of 20 cents. In mid-May his wage was raised to $2.91. A month later (and this appears to have been as a result of a blanket wage rise) his rate became $2.97. Davis described himself in his testimony as one very active in behalf of the Union; passing out union designation cards to other employees and attending union meetings. On June 5, according to Davis, while visiting at the home of John Womack, Davis expressed his desire to have a union at the mill. Womack commented that unions were of value only to the lazy; that young men would find advancement difficult to attain were a union to come in. Womack was not then in Respondent's employ and, he testified, had not at that time been offered employment. He became foreman on the night shift when it was established on June 14. I find that whatever Womack said on this occasion he was not speaking with the voice of management. Of course he learned that Davis was a union supporter and carried this knowledge with him when he became foreman. In mid-June, still according to Davis, Superintendent Eichar asked him if the men were signing union cards. Davis replied, rather obliquely, that a union could arrange a better health and welfare program for the employees. As the conversation continued, Eichar said that a union would interfere with promotions and would lessen Davis' chance to become a foreman; that Davis would have a better future without a union. Eichar then asked Davis if he would like to have a talk with General Manager Schroeder. Davis said that he was agreeable. About a week later, Davis testified, he was called to Schroeder's office. Davis told Schroeder that some of the men felt that they had no job security. Schroeder commented that Davis' job was secure. Davis said that when some men on the green chain operation asked for a small pay increase they were fired. Schroeder answered that the men had not phased their request in an acceptable manner; that they had "asked for a nickle raise or else." Schroeder observed "There are two sides to every story." Davis then asked about vacations saying that he had worked less than a year and had put in 1,355 hours. Schroeder said Davis and some other would be given a vacation allowance. When Davis asked about a health and welfare plan, Schroeder said that he would have a man come to the mill to explain it to the men. Davis remarked that some of the men resented the fact that he, Davis, had been promoted so rapidly. Schroeder said that Davis had been promoted because he was most eligible of those available. Finally Schroeder said that he knew about 13 of the men had been attending union meetings and that he had the license numbers of their cars.4 The conversation ended at this point. A few days later, still according to Davis, Eichar asked him, "How did your talk go with Mr. Schroeder?" Davis said that it went all right. Eichar then inquired if Davis had decided how he would vote. Davis said that he had not. Eichar advised that he not vote for the Union. _ In early July the mill closed for a week. Some cleanup operations were performed in this period and many employees asked to be included in the cleanup crew so surveillance and I credit his testimony concerning what Schroeder said MILLER REDWOOD CO. that they might thus augment their earnings. Davis asked to be given such work and Superintendent Eichar accommodated him. Eichar explained that he gave the vacation work to the "key men." Leroy Roberts, the second of the two men whose discharges are at issue in this proceeding, was hired as a green chain puller in September 1964. The following March he was promoted to leadman and received a wage increase from $2.41 to $2.70 an hour. In a very short time his wage was increased by 10 cents in consideration of the fact that the size of the green chain crew was cut by one. Roberts earlier became interested in the Union and obtained designation card signatures from a number of employees. About June 11, according to Roberts, Schroeder commented that he did not understand why the men were interested in a union, said that the Respondent was paying the highest wages in the city, and asked Roberts why he wanted the Union. Fred McDonald, who is no longer in Respondent's employ, testified that almost immediately after receiving the Union's "demand" letter on May 28, Schroeder said in the presence of four or five of the employees that if he found out who was starting the Union "they would be out." Schroeder denied that he said that to any employee on May 28 or on any succeeding day in that month. Whether counsel for the Respondent in his examination of Schroeder had a purpose in limiting the denial of making this threat to such a happening in the last few days in May presents a puzzling problem. James A. Lynch testified that in early June Connor asked him if he knew anything about the Union coming in. Lynch answered that he did not and that he didn't care. Connor said that he was concerned because he probably would lose his job. Connor then asked Lynch if the latter knew of anyone trying to get the Union in the mill. Lynch answered that he did not. That the Respondent opposed the Union is amply clear from the record and is not denied. I think that the evidence recited compels a conclusion that in an attempt to make its opposition effective the Respondent strayed beyond the permissible bounds of comment and inquiry and engaged in violations of the Act. The advice given by Glassow to refrain from questioning employees about their desires in connection with a union and to avoid threats or promises of benefit if not wholly unheeded, was often not followed. Schroeder's conversation with Roberts on June 11 constituted an inquiry about what motivated the green chain crew in attempting to get representation and a promise to Roberts that the Respondent was willing to institute or increase benefits. In this setting Schroeder was trying to discourage Roberts and the men in Roberts' crew from supporting the Union by demonstrating that they could have their wants satisfied without one. Schroeder's talk with Davis later in the month was in the same vein with significant additions. Again the subject of a health and welfare plan was raised with Schroeder saying that someone would come to the mill to explain it. Davis then learned that he was to be given vacation credit. In making this announcement to Davis and to the other employees who benefited from it, I am convinced the Respondent was motivated by a desire to dilute interest in the Union. The timing of the granting of the vacations and the fact that it was not a matter which had been raised by the employees strongly suggests that in casting about for something to blunt the force of the Union's campaign and to lessen the loyalty of the employees to the Union the vacation plan was devised. 393 Despite Schroeder's denial , I credit the testimony of Fred McDonald that shortly after receipt of the Union's letter Schroeder said in effect that he would discharge whoever was responsible for the appearance of the Union if he could learn who they were. I also credit the testimony of Davis that in early June Eichar told him that if he voted the "wrong way" his chances for advancement would be lessened . "Wrong way" meant of course, for the Union . I credit James Lynch in his testimony that Connor questioned him about the Union "coming in"; said that such a development might cost Connor his job; and that Connor asked if Lynch knew who was trying to get the Union in the mill. These findings reflect the almost routine response of some employers to knowledge that a union is attempting to gain status as bargaining representative. Interrogations, threats, promises , granting of benefits , and suggestions of surveillance, all are present here . I find that by the conduct described the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. B. The Discharges The employment history of Davis with the Respondent has been outlined. His position as the operator of the gang trimmer saws is at the head of the remanufacturing process in the mill. Rough lumber comes to the gang trimmer ideally in a continuous flow and, ideally, is trimmed to lengths ranging from 2 feet to 24 feet. The short lengths have no value as lumber and, leaving the trim saw, drop to a moving belt from which something may be salvaged for chipping. The rest is waste. As I understand the function of the trim saw operator, he must make a judgment as the boards move along the table approaching the saws, which of them are suitable for lumber, and then to trim such boards to optimum lengths. If a board coming to the saws is obviously unsuitable, because of rot or other serious defects, for manufacture into finished lumber then all 13 of the saws are dropped and the unsuitable board, in 2-foot lengths, drops to a lower belt and does not proceed to the next finishing operation. Davis was given the gang trimmerman job on March 1 and was paid $2.76 an hour. Two months later his rate was increased to $2.91. Davis testified that Superintendent Eichar watched him at work on a number of occasions and once commented that Davis was undertrimming but was doing it "about" right. Foreman Connor, still according to Davis, said that Davis was doing very well. Neither Eichar nor Connor expressly denied the appraisals attributed to them. Connor testified that Davis' work was "fair"; Eichar, that Davis generally did a good job. Both said that Davis had a hasty temper. I am convinced that the Respondent found Davis to be a satisfactory operator in the gang trimmer. I regard the testimony of Eichar and Connor to constitute a somewhat grudging concession that this was so and the 15-cent wage raise is not otherwise explicable. When mechanical trouble arises in any aspect of the mill operations the person whose work is affected sounds the mill whistle to signal the millwright or the electrician for aid. Charles Hartwig, a millwright, testified that in March Davis often signaled for help when it was unnecessary for him to have done so. Hartwig testified he complained to Eichar about this practice and it ended. However, according to Hartwig, in late June and early July, more and more often he was summoned to the gang 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trimmer saw to put lugs back into line. A day or two before July 16, according to Hartwig, he stationed himself on a catwalk over the gang trimmer and watched Davis deliberately "kick" the lugs out of line. Hartwig then told Foreman Connor that Davis would have to straighten his own lugs and that Davis was "slashing" lumber. The latter reference is to an operation of the gang trimmer saws cutting all boards into 2-foot, unusable, lengths. Hartwig testified that he watched Davis ruin 5,000 board feet of lumber in that fashion. Foreman Connor testified that on July 16 he too observed Davis at work from a position on the catwalk. Davis seemed to be slashing lumber at random, Connor testified, and Connor watched the destruction of about 1,000 feet of lumber on this occasion. At the end of the shift, Connor discharged Davis. When the latter asked for a reason, Connor told him that he had been a "big problem." Eichar was on vacation when Davis was fired and did not participate in the decision to let him go. Schroeder testified that Connor said that he must fire Davis because Davis was overtrimming, undertrimming, and slashing. Schroeder inquired if Connor had tried to get Davis to correct his faults. Connor said that he had but that his efforts bore no fruit. Schroeder then agreed that Connor must make the discharge. Davis testified that he slashed only such boards as were clearly worthless for manufacture into lumber. He also denied that he had any inordinate trouble with the lugs which were concerned with moving the boards into the saws. According to Davis, when he asked Connor for a reason for his discharge, the latter answered cryptically that he could not "commit" himself; that Davis talked too much on the job. It is not credible that Hartwig would watch Davis slash 5,000 board feet and Connor an additional 1,000 feet without Davis being told that his sabotage had been detected. The destruction of lumber which Hartwig and Connor say they witnessed represented a loss to the Respondent running into the hundreds of dollars. But all that Connor, according to his own testimony, could offer to Davis as a reason for discharge was that Davis had been a "big problem." Davis was not a highly popular man among some of the employees. He thought, perhaps correctly, that there was some resentment because of his rather rapid series of promotions. Certainly, he was disliked by Hartwig who thought that Davis was took quick to call for the millwright when he might well take care of the lugs himself. It is evident that the Respondent rather quickly after his hire came to believe that Davis was a potentially valuable employee. He was promoted to more remunerative jobs within a short space of time and no more than a week before his discharge was told that he could go to the gang edger. Davis testified that this last offer was attractive in that the work there was less physically demanding. The record leaves in doubt whether he actually spent any considerable time on the gang edger. Clearly he was working on the gang trimmer saw on the day of his discharge. The explanation of the discharge advanced by Connor is unconvincing. The reason stated is good enough; in fact if Connor actually saw Davis deliberately destroying good lumber the wonder is that the discharge was not made instanter and that Davis was not on that occasion told with no measure of uncertainty why he was no longer a desirable employee. The failure of the Respondent through Connor to act in what seems to me would have been a rational manner in consideration of the alleged provocation existing leads me to conclude that the sabotage that Connor says that he witnessed either did not take place or is greatly overdrawn. I do not credit Connor's testimony to the effect that he saw Davis deliberately destroy about 1,000 board feet of lumber on July 16. No more do I credit the testimony of Hartwig that within a day or two he saw Davis ruin five times that much lumber. But to find that Davis was not discharged for the reason given by Connor is not to determine that the discharge was discriminatory. In early June the Respondent knew that Davis was a supporter of the Union. Eichar sought to discourage this allegiance by telling Davis that his route to promotion might be hindered if a union were to come in. Schroeder assured Davis that his job was secure and told him of the prospect for a health and welfare plan. Davis was favored by being permitted to work during the plant shutdown. After the vacation period he was offered what he considered to be a more desirable job on the gang edger. So even though the Respondent was aware of his interest in the Union no pattern of discrimination against him had developed before July 16. Davis worked only 2 days during the mill shutdown and, although he was expected to work the full week, it seems unlikely that the Respondent was handicapped by his failure to do so. This opportunity was desired by other laid- off employees and it is likely that he could easily have been replaced. In any event when Davis returned to work after vacation on July 12 he seemed not to have been held in disfavor. Connor then said that he could have the gang edger job and Davis wanted it. Something must have happened during that week to bring Connor to a decision to discharge Davis. The record does not suggest that Davis did anything within the last few days of his employment to promote the Union. Presumably a representation election was somewhere in the offering but the record is indefinite about that and Schroeder may have thought, as he says that he did, that Davis was no longer the union supporter that he had been. Some witnesses for the Respondent testified that on July 16 Davis was operating the gang trimmer so that little lumber was coming through except as waste or that the lumber was coming through untrimmed thus swamping the hula saw. Another witness, quite as credible, testified that lumber was coming through the gang trimmer in a normal way on that date. I have given little weight to this testimony for it seems unlikely that a witness with little reason to take particular note of day-4o-day operations in July would remember just what did occur on July 16 when testifying the following February. The testimony of Connor and Hartwig has been set forth. Although I do not credit their accounts of the destruction of lumber, I do not doubt that Hartwig was convinced that Davis blew the millwright's whistle often and unnecessarily and that Hartwig and Connor thought that Davis was at least careless about getting lugs out of line. Hence the instruction to Davis that he rather than the millwright must thenceforth make the realignment. When lugs became out of line and when Davis then stopped the saw, lumber piled up behind the gang trimmer. When the lugs were again aligned this accumulated lumber had to be cleared away. It was in such a circumstance, according to Hartwig, that Davis would slash through the accumulation without regard to the quality of the lumber thus being wasted. Hartwig conceded that during periods of normal operation Davis performed his work acceptably. Although it seems unlikely that Davis would deliberately do anything to make the lugs jump out of alignment, I am MILLER REDWOOD CO. convinced that Connor though he was guilty of doing so. On July 16 Connor told Davis that from then on he must realign the lugs without the assistance of the millwright. Davis had told Hartwig, the latter testified, that he would not perform this difficult and dangerous task. Lacking conviction that the Respondent determined to discharge Davis because of his support of the Union and being unsure that at the time of discharge the Respondent held a belief that Davis had more than a passive interest in the Union, I find the allegation that his discharge was motivated by antiunion consideration not to be established by a preponderance of the evidence. I am unable to conclude from this record just what moved Connor to take the discharge action. To reiterate, it is not established that he did so because of Davis' identification with the Union's attempt to organize the mill. I will recommend that the allegation of unlawful discharge as to Davis be dismissed.5 Leroy Roberts, a strong supporter of the Union whose interest in bringing about the organization of the mill seems not to have flagged, was discharged by Foreman John Smith on July 15. Smith testified that when he came to work for the Respondent as yard foreman in late June the green chain operation was not being handled satisfactorily; that lumber was being mispulled and much of it was being damaged by going over the end of the chain. According to Smith, he spoke to Roberts 2 or 3 times about the mispulling and the damage. Roberts conceded in his testimony that such complaints had been made to him and explained that the green chain crew was shorthanded; there was too much work for the men available to him. Roberts was an honest and conscientious witness. I do not doubt that he thought he was doing the best he could with the manpower made available to him. I am also convinced that Smith believed that another leadman could do better and that Robert's discharge resulted. I find that the discharge of Roberts has not been established to be in violation of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Although I have not found that the Respondent has discharged any employee in violation of the Act, it has threatened to do so and thus the nature of the unfair labor practices s Robert Payne, no longer an employee and whose interest in the outcome of this proceeding is not discernible, testified that on July 19 his foreman, John Womack, commented in reference to Davis that the Respondent had fired a "damned good tnmmerman " I credit Payne in this connection and disbelieve Womack's denial that he made the remark However, this indicates no more than that Womack thought well of Davis as a workman There is no showing that Womack was consulted in the discharge 395 committed is such as to justify the imposition of a broad cease-and-desist order. 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. Miller Redwood Company, Crescent City, California, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Brotherhood of Carpenters & Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogations, threats, promises, granting of benefits, and suggestions of surveillance, the Respondent has interferred with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby violated Section 8(a)(1) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The evidence does not establish by its preponderance that Jerry Davis or Leroy Roberts were discharged in violation of Section 8(a)(3) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Miller Redwood Company, Crecent City, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from interrogating, threatening, promising, or granting benefits to employees and suggesting that union meetings are under surveillance or in any other manner interfering with, restraining, of coercing employees in the exercise of their right to self- organization, to form labor organizations , to join or assist United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid of protection, or to refrain from engaging in 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 in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its mill in Crescent City, California, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 20, San Francisco, California, shall be posted by the Respondent, after being duly signed by its representative, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to In the event that this Recommended Order is adopted by the Board, the words " a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words " a Decision and Order " 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees are customarily posted. Reasonable steps shall be taken the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.7 ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES purpose, or say that we know who has attended union meetings in order to coerce employees to avoid them, or in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them in Section 7 of the National Labor Relations Act. Our employees are free to join or assist United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other labor organization, without fear that they will take any action adversely affecting their employment or any term or condition of employment. MILLER REDWOOD COMPANY (Employer) Dated By (Representative) (Title) Pursuant to the RecomMended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten to discharge employees who are responsible for aiding a union in organizing the mill, or promise to institute a better health and welfare program in order to interfere with union organizing, or grant vacation credits for the same This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3197.