Webster Wood Industries, Inc.

WEBSTER WOOD INDUSTRIES Webster Wood Industries, Inc. and/or West Virginia Woods, Incorporated and International Union of District 50, United Mine Workers of America. Case 6-CA-3815 January 9, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 31, 1967, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that Respondent West Virginia Woods, Incorporated, hereinafter called Respond- ent Woods, was a successor employer to Re- spondent Webster Wood Industries, Inc., hereinafter called Respondent Webster, and that Respondent Woods had engaged in and was engag- ing in certain unfair labor practices within the mean- ing of the National Labor Relations Act, as amended. The Trial Examiner recommended ac- cordingly that Respondent Woods cease and desist from the unfair labor practices found and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. He further recom- mended' that the complaint be dismissed insofar as it alleged violations of the Act other than those found in his Decision. Thereafter, . Respondent Woods filed exceptions to the Trial Examiner's Decision, and a supporting brief, and the General Counsel filed cross-exceptions to the Trial Ex- aminer's Decision, and a supporting brief. The General Counsel also filed an answering brief to the exceptions of Respondent Woods. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross- exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recgmirtendations t of the Trial Examiner, as modified'', herein. 1 The Trial Examiner's Decision refers, in part, to isolated statements proscribed by Sec. 8(a)(1) of the Act, made by supervisory personnel em- ployed by the Respondent Webster. Apparently because the General Counsel had acquiesced in the dismissal of the 8(a)(3) and (5) allegations of the complaint directed to Respondent Webster, the Trial Examiner made no recommendation for issuance of any order against that Respond- ent and thus implicitly dismissed the complaint against Webster in toto The General Counsel excepts to this dismissal in view of the 8(a)(1) con- duct found In the particular circumstances of this case, and because we are 169 NLRB No. 14 ORDER 67 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, West Virginia Woods, Incorporated, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against any employee or threatening any employee with reprisals because of membership in, or activities on behalf of, Interna- tional Union of District 50, United Mine Workers of America, or any other labor organization. (b) Threatening employees with a closing of the plant because of their union activities. (c) Threatening employees that union adherents on layoff status would not be rehired or recalled because of their union activities. (d) Refusing to recognize and bargain collective- ly with International Union of District 50, United Mine Workers of America, as the exclusive representative of the employees in the appropriate unit. (e) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their rights to self-organization, to form labor organizations, to join or assist International Union of District 50, United Mine Workers of America, 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 or protec- tion, or to refrain from any and 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 amended. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer James Woods, Richard Short, Emmett McElwain, Richard Anderson, Jerrill Davis, Elbert Hosey, Harley Goff, Larry Utt, and Gene Cox im- mediate employment to the same positions at which they would have been employed had said Respond- ent Woods not discriminated against them, or to other substantially equivalent positions, without prejudice to any seniority or other rights and privileges they might have acquired, dismissing if necessary any employees hired on or since satisfied that our remedial order against Respondent Woods will adequately meet the objectives of the statute to prevent the commission of unlawful conduct affecting the subject employees, we shall not distrub the Trial Examiner's dismissal as to Respondent Webster. In accord with the General Counsel's request, we have, however, amended the remedial order framed by the Trial Examiner to reflect more specifically the particular violations committed by the Respondent Woods, and, in view of the nature of the violations found, to require that Respondent refrain from violating the Act "in any other manner." 350-212 0-70-6 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December 5, 1966, and make them whole for loss of pay they may have suffered, all in the manner set forth in the section of the Trial Examiner's Deci- sion entitled "The Recommended Remedy." (b) Notify any of the aforementioned persons if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment recortis, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Upon request, bargain collectively with the above-named Union as the exclusive representative of the employees in the appropriate bargaining unit with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment and, if an understanding is reached, embody the same in a signed statement. (e) Post at its Webster Springs, West Virginia, plant, copies of the attached notice marked "Ap- pendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent Woods' representative, shall 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 customar- ily posted. Reasonable steps shall be taken by Re- spondent Woods to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 6, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this Decision. 2 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 En- forcing 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 threaten employees to discon- tinue our business or close our plant because of union activities. WE WILL NOT discourage membership in the International Union of District 50. United Mine Workers of America, or any other union, by refusing to employ union officers, commit- teemen, or union button wearers, or by threatening so to do, or otherwise discriminat- ing against any of our employees because of their union membership or activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights to self-organization, to form labor organizations, to join or assist Interna- tional Union of District 50, United Mine Work- ers of America, or any other labor organiza- tion, to bargain collectively through represent- atives of their own choosing, or to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protec- tion, or to refrain from engaging in any or all such activities. WE WILL offer James Woods, Richard Short, Emmett McElwain, Richard Anderson, Jerrill Davis, Elbert Hosey, Harley Goff, Larry Utt, and Gene Cox immediate employment to the same positions at which they would have been employed but for the discrimination against them, as found by the Board, or to other sub- stantially equivalent positions, without preju- dice to any seniority or other rights or privileges they might have acquired, dismissing if necessary any employees hired on or since December 5, 1966, and make them whole for any loss of pay they may have suffered because we failed to employ them. WE WILL, upon request, bargain collectively in good faith with International Union of Dis- trict 50, United Mine Workers of America, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, hours of employment, and other conditions of employment and, if an understanding is reached, we will embody such understanding in a contract. The bargaining unit is: All production and maintenance em- ployees at the Webster Springs, West Vir- ginia, plant, including leadmen and yard- men; excluding all other employees, office clerical employees, watchmen and guards, professional employees, and supervisors as defined in the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of said International Union of Dis- trict 50, United Mine Workers of America, or any other labor organization. Dated By WEST VIRGINIA WOODS, INCORPORATED (Employer) (Representative) (Title) WEBSTER WOOD INDUSTRIES Note : We will notify the above-named em- ployees if presently serving in the Armed Forces of the United States of their 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 consecu- tive 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, 1536 Federal Building, 1000 Liberty Avenue , Pittsburgh, Pennsylvania 15222, Telephone 644-2977. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner: On charges filed by International Union of District 50, United Mine Workers of America (herein called the Union), the Gen- eral Counsel of the National Labor Relations Board (herein called the Board), on behalf of the Board by the Regional Director of Region 6, on April 19, 1967, issued a complaint and notice of hearing in which Webster Wood Industries, Inc. and/or West Virginia Woods, in- corporated (hereinafter sometimes referred to respec- tively as Respondent Webster and Respondent Woods), were named as Respondents. It was alleged that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended, herein called the Act. The Re- spondent filed timely answers denying that they had en- gaged in or were engaging in the unfair labor practices alleged. The case was heard on June 14, 15, and 16, 1967, at Webster Springs, West Virginia. Each party was afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses, to argue orally on the record, to sub- mit proposed findings of fact and conclusions of law, and to file briefs. All briefs I have been reviewed and con- sidered by the Trial Examiner. The principal issues presented were: 1. Whether Respondent Woods, as a successor to Respondent Webster, was bound to recognize and bar- gain with the Union in conformity with a certification is- sued by the Regional Director on October 4, 1966. 2. Whether Respondent Woods violated Section 8(a)(3) by its refusal to recall and/or employ James Woods, Richard Short, Emmett McElwain, Richard An- derson, Jerrill Davis, Elbert Hosey, Harley Goff, Larry Utt, and Gene Cox because of their membership in, and activities on behalf of, the Union. Upon the whole record and upon his observation of the witnesses the Trial Examiner makes the following: ' The Trial Examiner has received no brief either from the Respondents or the Charging Party I Webster Business Development Corporation owned the plant facib- ties, equipment, and real estate The sawmill was leased to Respondent Webster by its owners, Joseph Myles and Dr. George Ednuston. FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT 69 Respondent Webster is a West Virginia corporation with its principal place of business located in Webster Springs, West Virginia. Until December 5, 1966, it en- gaged in the manufacture and sale of dimension stock, parts for furniture, table tops, and chairs. Respondent Webster did not own the plant it operated but occupied such premises under a lease-purchase agreement dated November 22, 1961, from the Webster Business Development Corporation,2 a nonprofit community or- ganization whose purpose was "to create jobs for the unemployed" in Webster County.3 Joseph H, Myles was the manager of Webster and continued as such until June 1, 1966, at which time he was relieved of his managerial responsibilities and replaced by James Swisher. Thereafter Myles continued in employment "buying and purchasing lumber, and running the sawmill, and taking care of the woods." Swisher replaced Myles as the representative of the Hardwood Corporation of America, also known as Har- co, which on May 3, 1966, had entered into a contract whereby Harco assumed the responsibility for the sale of all of Respondent Webster's products as well as for the direction of Webster's personnel and the management of Webster's operations. While Plant Manager Swisher was a former employee of Harco, all employees, including Swisher, were on the payroll of Respondent Webster. In September 1966, Harco canceled its sales management agreement and Respondent Webster resumed complete control over its operations. Myles again assumed the position of manager. In 1966, the officers of Respondent Webster consisted of Charles Dodd, president, Dr. George Edmiston, vice president, and Joseph Myles, secretary and treasurer. The board of directors included Chairman Dodd and members Dr. Edmiston, Myles, and Earnest Morton. The major stockholders among a total of some 80 were Dr. Edmiston, Dodd, Myles, Harry Harkins, a Dr. Cofer, and the Pandee-Curtin Lumber Company. Upon the departure of Harco, according to Myles, Respondent Webster was left without business and was "broke." Thus commencing with the payroll period ending on October 29, Respondent Webster initiated a series of weekly layoffs. These layoffs were made on the basis of seniority alone.4 The layoffs resulted from a loss of orders following the cancellation by Harco of its sales agree- ment. Between the end of October and the last week of November, all but 32 employees were notified orally of their being laid off. At the time of the layoff notices, many of the employees were informed that it was temporary in nature and that they would be contacted when to return to work. On December 6, 1966, Respondent Webster ran out of payroll money. Myles called the remaining employees together on that date and said that the Respondent Webster had a "prospective buyer" and that they would be "on the payroll of another company." Respondent Webster ceased to operate. The decision to close down ' It was stipulated that Webster County has a population of some 13,000 people. The town of Webster Springs, also known as Addison, has a population of 1,113 4 Myles testified " we went according to seniority at that time. " 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was necessitated by its substantial indebtedness to the Small Business Administration and the West Virginia In- dustrial Development Authority. General Manager Myles had attempted to interest potential investors in tak- ing over the operation of the plant, among whom was a Charles Woods of Dothan, Alabama. In the first week of December, Woods met with offi- cials of the Small Business Administration for the pur- pose of persuading such agency to reduce the outstanding liens on the property and equipment. Although unsuc- cessful in this effort, Woods applied on December 6, 1966, for a corporation charter in West Virginia under the name of Respondent Woods. The charter was issued on December 15. At this time, Respondent Woods entered into a verbal lease agreement with the Webster Business Development Corporation. Subsequently, on February 4, 1967, Respondent Woods and the Webster Business Development Corporation reduced their agreement to writing. Under the terms of the lease, Respondent Woods agreed to a 6-month lease until June 30, 1967, with an op- tion to purchase the property and equipment. The incorporators of Respondent Woods were Charles' Woods and his wife and J. H. McMullen and his wife. Mr. Woods and Mr. McMullen each own 49 percent of the stock, while the two wives each were issued 1 percent of the stock. Charles Woods holds the office of president and treasurer and J. H. McMullen is vice president and secretary. None of Respondent Woods' officers and stockholders had any interest in, or connection with, Respondent Webster. Respondent Woods did not purchase any of Respondent Webster's accounts receiva- ble, nor did it assume any of Respondent Webster's lia- bilities or accounts payable. Operations continued on December 6, 1966, with Myles as manager. Of the 32 employees on the payroll of Respondent Webster for its last weekly payroll ending on December 3, 1966, 29 remained during the next payroll period ending December 10, 1966. In addition seven former Webster employees on layoff status returned to work during the first week after Webster ceased opera- tions. By January 7, 1967, there were 61 employees who, at one time or another, had been on the payroll of Respondent Woods, and 47 of whom had been former employees of Respondent Webster. The former Webster employees, for the most part, continued in the same job classifications, performing essentially their former duties. The record further reveals that Respondent Woods em- ployed the same supervisors who had directed Respond- ent Webster's employees. Joseph Myles remained as general manager in complete control of the labor relations policy and operations of the plant.6 He decided what job applicants to hire for Respondent Woods. Dana Travis was retained as plant superintendent, while Harold Louther and Everett Robinson continued as foremen. Additionally, Respondent Woods kept the same office clerical employees and watchmen as Respondent Webster. The wage rates of the employees of the two companies were the same except for changes required under the minimum wage law. Respondent Woods' employees worked the same hours as those of Respondent Webster, 5 The corporate charter for the Respondent Woods was issued on December 15, 1966. The record does not disclose the status of the person or persons who operated the business between December 6, 1966, and December 15, 1966; nor does the record disclose in what capacity such person or persons functioned. and there has been no change in fringe benefits under the new employer. There was no break in operations between the time Respondent Webster shut down and Respondent Woods commenced its business . In the course and conduct of its business , Respondent Woods utilized the same equip- ment, machinery, and truck used by its predecessor and the land and buildings formerly occupied by Respondent Webster. With the exception of a different gluing opera- tion , the production processes7 remained the same. There also has been no change in departments under the new lessee. In addition , Woods purchased its materials from the same suppliers used by Respondent Webster and ob- tained trees for the reduction to lumber from the same area, within a radius of about 50 miles from Webster Springs. Upon the basis of the foregoing facts the Trial Ex- aminer finds that Respondent Woods is a successor to Respondent Webster. N.L.R.B. v. Arthur J. Colten and Abe J. Colman, d/bla Kiddie Kover Manufacturing Com- pany, 105 F.2d 179 (C.A. 6); Randolph Rubber Com- pany, Incorporated, 152 NLRB 496; Maintenance, In- corporated, 148 NLRB 1299 ; Firchau Logging Com- pany, Inc., 126 NLRB 1215, 1219, 1220; Glenn Gould- ing, d/b/a Fed-Mart, 165 NLRB 202; Valleydale Packers, Inc., ofBristol, 162 NLRB 1486. The parties stipulated that Respondent Webster and Respondent Woods were engaged in interstate commerce at all times material herein and that Respondent Webster ceased to be engaged in interstate commerce on or about December 5, 1966 , the approximate date upon which it ceased operations. The Trial Examiner finds that the Respondents have been at all times material herein employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is now and has been at all times material herein a labor organization within the meaning of Section 2(6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Alleged 8(a)(5) Violation The Union commenced organizational activities among Respondent Webster's employees in the latter part of July 1966. Three union meetings were held at the Webster Springs Hotel in August 1966, at which employees signed authorization cards and some received union buttons to wear. On August 30, 1966, the Union filed a petition with the Board in Case 6-RC-4227 seeking to have the Union certified as the exclusive collective-bargaining represent- ative;of a production and maintenance unit of Respond- ent Webster's employees. On September 7, 1966, the aforesaid petition was amended and the parties entered into a stipulation for certification upon consent election. 8 President Woods resides in Alabama and only occasionally consults by telephone with Myles. 7 Trees obtained from the woods were delivered to the sawmill for saw- ing into rough lumber. Such lumber was kiln-dried and then sawed into dimensional lumber. WEBSTER WOOD INDUSTRIES After an election conducted on September 26, 1966, the Regional Director for Region 6 certified the Union on October 4, 1966, as the exclusive bargaining agent of Respondent Webster's employees in a unit as follows: All production and maintenance employees at the Webster Springs, West Virginia, plant in- eluding leadmen and yardmen, excluding all other employees , office clerical employees, watchmen and guards, professional employees, and supervisors , as defined in the Act.8 In agreement with the Regional Director and the stipu- lation of the parties the Trial Examiner finds such unit to be the appropriate unit within the meaning of Section 9(b) of the Act. On October 12, the Union held a meeting of employees for the purpose of electing a slate of temporary local of- ficers and a negotiating committee. At this meeting, the following employees were elected : Troxel Cunningham, president ; Emmett McElwain , vice president ; Kenneth Drennan, recording secretary; Richard Anderson , finan- cial secretary-treasurer; Richard McCourt, sergeant at arms; Jerrill Davis and Roland Couger, trustees; and Lowell Compton, Enoch Lee, James Woods, and Richard Short, negotiating committee. Shortly thereafter, the first of three bargaining sessions was held. These meetings were held in the plant offices. Joseph Sobieray represented the Union together with the local president and vice president and members of the negotiating committee. Inasmuch as Lee and Compton had quit their employment at Respondent Webster prior to the start of negotiations , the Union replaced them on the negotiating committee with employees Harley Goff and James Utt. Those present for Respondent Webster included Attorney Morton, Myles, Dr. Edmiston, Travis, and Charles Dodd. At the first meeting, Sobieray introduced the local union committee to management. While agreement was reached by the parties on numerous subjects, an impasse was reached on wages and the question of a union-securi- ty clause. Accordingly, following the third bargaining ses- sion , the parties submitted the disagreements to the Federal Mediation and Conciliation Service. Thereafter, on November 25, 1966, Sobieray died. No further bar- gaining meetings were held. On December 2, the Union's regional director, Paul Phillips, requested Myles by letter to resume negotiations. On January 3, 1967, Union Representatives Robert M. Rogers and Samuel McCauley appeared at the plant and conferred with Myles. During the conversation which fol- lowed Myles told the union representatives that Webster no longer existed and was in the process of liquidation. In response to their request to resume negotiations Myles commented, "The new company ... did not have to negotiate or have any dealings.... " with the Union. Ac- cording to Myles , he also said, "I was not in sympathy with their cause whatsoever, that the trouble we had had previously had caused us to lose our customers, con- sequently going out of business as Webster Wood Indus- tries." 9 According to Rogers , Myles also commented "that he was not interested, that he was never in favor of 8 The parties stipulated that the appropriate unit for the employees of Respondent Woods is , the appropriate unit which was described in the complaint The unit described in the complaint is identical to the certified unit 9 The representation election was conducted in September , the same month in which Harco severed its relationship with Webster Union Representative Rogers testified that Myles said that "it was due to the or- 71 the union , that he was not in favor of the union now, and that if we kept messing around the plant the company that was going to buy this plant would not be around, either." Myles maintained that the certification did not apply to the present employer. During the meeting, Rogers inquired as to any changes made in operations by Respondent Woods. Myles admitted that there were little if any changes instituted by the new company. In addi- tion , Rogers read to Myles the names of all the local union temporary officers from a list compiled by Sobieray . Rogers asked if they were presently employed, and Myles replied that of the employees named, Lowell Compton and Richard McCourt were the only two former Webster employees working for Respondent Woods. When Rogers asked the reason for the failure to employ the other officers , Myles answered that the others had quit or had declined his offers of recall. While discussing the individuals on the list of officers , Myles ob- served that the Union had elected the town 's drunk as local president. At the conclusion of the meeting, Myles denied the Union's request to speak with employees Compton and McCourt at the plant and ordered Rogers and McCauley to stay off the company property. Myles admitted at the hearing that his present position was that Respondent Woods had no obligation to bargain with the Union. On January 4, 1967, the Union 's representative, Paul Phillips, sent a letter to General Manager Myles renewing its request to commence contract negotiations. In that Myles, as a representative of the Respondent Woods, on January 3, 1967 , upon request10 refused and at all times thereafter has refused to recognize and bar- gain with the Union as the certified bargaining represent- ative of its employees in the appropriate unit described above, the Respondent Woods is guilty of the violation of Section 8(a)(5) of the Act. It is well settled that, where there is a substantial continuity in the identity of the em- ploying enterprise , as here, the successor employer is bound to recognize and bargain with the incumbent union. Randolph Rubber Co., supra; Valleydale Packers, Inc., of Bristol, supra; N.L .R.B. v. Auto Ventshade, Inc., 276 F.2d 303 (C.A. 5). B. The Alleged 8(a) (1) Violations As related above Myles told the union representatives that he was "not in sympathy with their cause what- soever" and placed the blame upon the Union for the loss of Webster's customers and its discontinuance of opera- tions He made clear that he did not favor the Union and that if it "kept messing around the plant the company that was going to buy this plant would not be around, either." In the early part of November 1966, Joseph Myles, while acting as general manager for Respondent Webster, engaged employee Odic McCourt in conversation at the lumberyard. McCourt testified, without contradiction, that Myles told him that if the Union "took over" the plant, the general manager would move the sawmill operations of the plant to another location owned by Dr. Edmiston. Myles added that the Union could go on strike if it so desired. ganizing campaign . that caused the company to be in the position it is in now." 10 The Respondent Woods admitted in its answer , "Since on or about January 3 , 1967, the Union has requested Respondent Woods to bargain collectively. This request was denied as Respondent Webster and Respondent Woods have no connection whatsoever " 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Early in December Carl Griffith talked with Myles in his office. Myles said that the employees would continue working "as long as the union was not brought into it again, because if it was, this new company would pull out and they would be in the same shape they were in the first place." Myles also said that he "had a list of names and that the ones that were on that list would not be called back to work."1 t Around December 10, 1966, employee Harley Goff appeared at Myles' office and asked him when he was going to call the employees back. Myles responded, "Frankly, I am not going to call you back. You are on the committee." Myles added, "I don't want no union men around me." He added that he thought the employees "had did him awful dirty." During the forepart of December Richard McCourt visited Myles at the plant to find out if he would hire him back. Myles told McCourt that "Charles Woods had said that he could not afford to pay any higher wages and that if the union went on strike for higher wages, if it was any kind of labor dispute in that respects, that they would close the plant down because they could not afford to pay anything higher." On the Sunday after Thanksgiving 1966 Larry Utt en- gaged in a telephone conversation with Myles in which Myles said, "... you guys didn't treat me right over the union.... we don't need you no longer." During the fol- lowing week on Friday Utt talked with Myles at the plant. Myles said "... if you guys had treated me right over that union ... you probably would still be here." Between Christmas 1966 and New Year's Day Elbert Hosey talked to Myles in his office. During the conversa- tion Myles said that "if he put [Hosey] back to work, that [he] would probably try to organize them again." Under all the circumstances herein and upon an ex- amination of the record as a whole, the Trial Examiner considers and finds that Myles' remarks to Griffith, Goff, McCourt, Utt, and Hosey, as above detailed, interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and were in violation of Section 8(a)(1) of the Act. In these remarks also is strong evidence of Respondent Woods' union animus. C. The Alleged 8(a)(3) Violations First. The pertinent employment history and union ac- tivities of the alleged discriminatees are as follows: James Woods: This employee was hired on February 28, 1965. Woods was under the supervision of Everett Robinson and was one of four ripsaw operators for Respondent Webster. He had a starting salary of $1.25 per hour and received two wage increases of a nickel each, the last on August 20, 1966. During his term of em- ployment for the original company, Woods remained on the ripsaw, except for occasional assignments on the sander and planer. Woods was laid off on November 11, 1966. Following his layoff, Woods visited Myles' office on three occasions, November 23, December 7, and December 21. On each date, Woods applied for employ- ment with Myles, but was informed that there was no work available. During the three conversations, Myles never gave any reason for his failure to hire Woods. Woods was a member of the negotiating committee and 11 Where there is a discrepancy between Myles' testimony and that of other witnesses, other witnesses have been credited Such resolution is participated in the meetings between the Union and Respondent Webster. In addition to attending all the union meetings in August, Woods wore a union badge in the plant during this period. Richard Short: Short was hired by Respondent Webster on November 8, 1965, and was an operator of the double cutoff saws and ripsaws located in the shipping department. He remained in this classification until his layoff on November 11, 1966. There were two double cutoff saws in operation when Short began his employ- ment with Respondent Webster. The other operator in this department was Carl Griffith, who had a seniority date of December 12, 1964. One of the double cutoff saws was removed from the plant about 7 or 8 months after Short commenced working. Short was kept on his job working on the remaining saw until his layoff. When there was no need to operate the double cutoff saw, Short and Griffith were assigned to smaller hand-oper- ated ripsaws which required two employees to operate. Additionally, Short was frequently transferred to other departments in the plant to perform various tasks. Myles regarded Short as a good "average worker." Short was elected to the negotiating committee and par- ticipated in the three bargaining sessions. Moreover, Short attended all the union meetings held prior to the election and was a union card signer. On November 11, Short was informed of his layoff by Frank Looman. Looman, at the time of the layoff notice, stated to as- sembled employees that everyone with less seniority than Carl Griffith would be laid off. Shortly before Christmas, Short accompanied Richard Anderson and visited the plant for the purpose of requesting Myles to employ them. On this occasion, Short did not personally speak with Myles. However, Short did observe on that date another individual, unknown to Short, assisting_ Carl Griffith in the shipping department. Subsequently, in the first week of January Short telephoned Myles and sought employ- ment. Myles replied that the Company was short on lum- ber and orders and that he had no positions available. Myles agreed to advise Short when he was needed. Al- though Griffith quit his employment with Respondent Woods on January 21, 1967, Myles has made no effort to contact Short to return to work. Emmett McElwain: Hired on July 18, 1966, Emmett McElwain was classified as a general helper. His duties included the stacking of lumber from the bench and glue- saw operations, and operating various saws. McElwain was elected vice president of the Local. In this capacity he attended two bargaining sessions. Supervisor Robin- son concedes that he observed McElwain wearing a union button in the plant. On November 3, 1966, James Swisher advised McElwain that he had to be laid off due to lack of work. McElwain inquired as to how long the layoff would last and was informed that he could possibly be back to work in 1 or 2 weeks. McElwain was assured that he would be called when he was needed once more. Despite this assurance, McElwain was never contacted by Respondent Woods. Richard Anderson: The parties stipulated that Richard Anderson is presently serving in the armed services. An- derson was hired on August 2, 1965, and worked as a planer. He was elected financial secretary-treasurer of the Local Union and wore a union button at the plant. On the day following his election to the union post, Frank based upon Myles' antipathy toward the Union, undemed statements at- tributed to him, and demeanor. WEBSTER WOOD INDUSTRIES Looman approached Anderson at work in the presence of fellow employee Richard Short. According to Short's un- denied testimony, Looman remarked to Anderson that he had heard that Anderson was elected treasurer of the Union. Anderson was laid off by Respondent Webster November 19, 1966. Myles testified that Anderson, together with his father, visited his office in December 1966, after Respondent Woods began operations. Ander- son sought employment with Respondent Woods during this discussion, but was advised that there were no job openings. Myles further denied Anderson's request that he sign a document stating that Anderson was vital to the plant operations so as to enable him to get a draft defer- ment. Jerrill Davis: Jerrill Davis' first period of employment with Respondent Webster began in 1964 and continued until he voluntarily quit in September 1965. He returned to work on August 8, 1966. Before his employment in August, Davis demonstrated, to the satisfaction of General Manager Swisher, his proficiency on the ripsaw. During his employment with Respondent Webster, Davis for the most part operated the ripsaw. Myles categorized Davis as "not a bad worker." With respect to his union activities, the record shows that Davis signed a union authorization card, attended the three union meetings held before the election, and was elected as a trustee of the Union. He also wore a union button at the plant for several days. While wearing the badge, he discussed work problems with Supervisor Robinson. Following his layoff on November 11, 1966, Davis moved to Ohio. In March 1967, his cousin, Kenneth Drennan, spoke to Myles by telephone and asked the general manager if there was work available for himself and Davis. Although Drennan was hired, Myles informed Drennan that he did not need Davis. Elbert Mosey: Elbert Hosey was hired on December 14, 1965, and laid off on November 11, 1966. He worked as a glue machine tailer. His duties included the inspec- tion of panels after they were processed through the glue machine and the stacking of such panels. Hosey signed a union authorization card and attended three union meetings. He, wore on his cap at work a union badge which Supervisor Robinson admits he noticed. Hosey reapplied for work between Christmas and New Year's Day. Myles refused to employ him, claiming that the glue machine had broken down and that the Company would not call anyone back until after the first of the year. As noted above Myles remarked that, if he placed Hosey back to work, the latter would probably just try to or- ganize the plant again. Hosey had had no further contact with Respondent Woods since that date. Harley Goff: Goff first started to work for the predecessor employer on July 25, 1966, and continued in its employ until his layoff on October 29, 1966. Goff was classified a general helper, the job category of Respond- ent Webster's operations which had the most em- ployees. There were 11 general helpers and 5 individuals classified as utility workers who, according to Myles, per- formed tasks similar to those of the general helpers. Goff worked as a fireman and took stock off the planer. While Goff, a union card signer, was not initially elected to the negotiating committee, he served on such committee as a replacement for Enoch Lee. When Goff applied for employment with Respondent Woods on December 10, he was informed by Myles that 73 since Goff was on the committee he would not be called back to work. Myles made no mention of Goff's past work performance during this conversation. Larry Utt: Utt, whose starting date is December 8, 1965, worked in the main plant for his 6 months of em- ployment as a cutoff saw operator and an edger. He was then transferred to the sawmill operations where he was classified as a green chain operator. Utt received two nickel raises while in the employ of Respondent Webster. Utt, a card signer, attended union meetings prior to the election. He also wore a union button for 2 days. His brother, James Utt, attended the bargaining sessions as a union committeeman. On the Wednesday before Thanks- giving 1966, the sawmill crew was sent home because of an equipment failure. The following Sunday, Utt telephoned Myles to find out if he was to report for work the next day. Myles replied that the Company was going under new management with all new employees. Myles then stated that the employees had not treated the Com- pany right concerning the Union, and that Utt was no longer needed. The employee answered that he was just trying to make it easier on some of the employees, in- asmuch as Myles was being too rough on them. Myles responded by stating that there is no such thing as work- ing too hard. The following Friday, Utt had occasion to visit the plant to obtain a layoff slip and check on a discre- pancy in his pay. When Myles entered the office, Utt inquired as to whether he could receive a layoff notice. Myles refused the request and noted that if Utt had treated Myles properly with respect to the Union, he most likely would still be employed. The last contact Utt had with Respondent Woods was on March 1, 1967, when he telephoned Myles and sought employment once again. Myles stated that he doubted that Utt had any chance' of obtaining employment. Gene Cox: Gene Cox was originally hired in June 1966 as a stacker in the lumberyard. After 3 weeks, he was as- signed to work in the plant on the ripsaw. He quit the latter part of June. He returned to work on August 22, 1966. In his second turn of employment, he worked as a warehouse utility man in the dry storage area. Later Cox was transferred to operating the single surfacer. He stayed on this job until his layoff on November 5, 1966. Cox attended two union meetings and signed a union authorization card. At the union meeting on October 12, Cox saw Supervisor Everett Robinson speaking to a group of employees prior to the start of the meeting. Robinson was in front of the Webster Springs Motel where the meeting was to be held. It is not denied that Cox engaged Robinson in informal conversation before the employee entered the hotel. Cox also was one of the employees who wore a union badge on his shirt for 2 to 3 days while performing his duties in the gluing department. Supervisor Robinson assisted Cox for almost a half hour when Cox was displaying the button. The layoff of Cox occurred on November 5, 1966. Thereafter, Cox per- sonally applied for employment with Myles in December, January, and March without success. Myles on each oc- casion advised Cox that there were no openings. Had Myles followed the seniority roster of Webster in hiring employees for Respondent Woods as was done when employees were laid off by Webster, jobs which the discriminatees would have been capable of performing would have been available to them. Second. The remaining issue is whether Respondent 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woods refused to consider the alleged discriminatees for employment because of their union activities.12 Each of the alleged discriminatees had been either a union button wearer, an official, or a committeeman of the Union. Though the union activities of the alleged discriminatees occurred prior to the successorship, they were well known to the Respondent Woods through the knowledge of General Manager Myles13 and Supervisor Robinson,14 Shawnee Industries, Inc., supra, 1453 Moreover, alleged discriminatees Woods, McElwain, Anderson, Davis, Hosey, Utt, and Cox wore buttons openly while at work. See Florida Sugar Corporation, 142 NLRB 460, 464. In addition, knowledge of the discriminatees' union partisan- ship may be inferred because of the relatively small com- plement of employees and the fact that the plant is located in a small community.15 Furthermore such knowledge may also be inferred from the fact that Respondent Woods did not recall to employment a single union button wearer16 and with the exception of three employees17 Woods recalled no union officers or committemen. It is unlikely that the Respondent Woods could have been so nicely selective had it not known the identity of these dis- criminatees as union partisans. Moreover, the Respond- ent Woods' discriminatory motivation is apparent from its failure to recall any union button wearer and all but three of the Union's officers and committeemen. is- Nachman Corporation, 144 NLRB 473, 474, 475. As was said in Ventre Packing Co., 163 NLRB 546, "While it is theoretically possible that the Respondent could have fortuitously selected for termination only those em- ployees active in the Union, common sense and the laws of mathematical probability indicate that this was unlike- ly.,, Respondent Woods' discriminatory motivation is also revealed in its employment of Sergeant at Arms McCourt after he had admitted his mistake and in Myles' declara- tions that the Respondent Woods would not recall a union committeeman and didn't want any "union men" around. Additionally Respondent Woods manifested a strong union animus.19 Thus, on the basis of the entire record, the Trial Ex- aminer is convinced that Respondent Woods' failure to recall and/or employ the alleged discriminatees was due to Respondent Woods' antipathy toward the Union and its desire to avoid returning to employment any individual known to have shown active union sympathies. The "real motive"20 of Respondent Woods for failing to consider the alleged discriminatees for employment on and after it assumed operations of the Webster Springs plant was to discourage membership in the Union and to interfere with employees' "right to self-organization" and "to form, or assist labor organization." Since Respondent Woods' mo- tive was clearly unlawful, its asserted reasons" for its refusal to recall and/or employ the alleged discriminatees (which, if credited, the Trial Examiner nevertheless deems pretextuous) become immaterial for the mere ex- istence of an alternate ground for an action taken is no defense where, as here, the employer's actual motivation is based upon unlawful discrimination. Cf. Film Inspec- tion Service, Inc., 144 NLRB 1040, 1042; N.L.R.B. v. Lexington Chair Co., 361 F.2d 283, 295 (C.A. 4). In view of the foregoing the Trial Examiner concludes that Respondent Woods did not consider the alleged dis- criminatees for employment or employ them because of their past participation in union affairs and activities. Ac- cordingly, the Trial Examiner finds that the Respondent in violation of Section 8(a)(3) and (1) of the Act dis- criminated in regard to the hire of James Woods, Richard Short, Emmett McElwain, Richard Anderson, Jerrill Davis, Elbert Hosey, Harley Goff, Larry Utt, and Gene Cox. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V. THE RECOMMENDED REMEDY It having been found that the Respondent West Vir- ginia Woods, Incorporated, has engaged in certain unfair labor practices, it is recommended that it cease and desist 12 "... the Act is violated when an employer fails to consider an appli- cation for employment for reasons proscribed by the Act ." Shawnee Industries, Inc., 140 NLRB 1451, 1453 See also Phelps Dodge Corp v N L.R.B.,313 U S 177,185 13 Myles had attended negotiation meetings in which alleged dis- cnmmatees Woods, Short, McElwain, and Goof participated On January 3, 1967, Union Representative Rogers read a list of union officers and committeemen to Myles which included alleged discriminatees Davis, McElwain, Anderson, Woods, and Short. Myles' awareness of Hosey's connection with the Union was implicit in his remark to Hosey that if he put him back to work he would "probably try to organize them again " Myles' awareness of Utt's connection with the Union is implicit in his re- marks to Utt, ". if you guys had treated me right over that union, . you probably would still be here " 14 Robinson testified that he observed buttons on alleged dis- criminatees, Hosey and McElwain Discriminatee Cox spoke to Robinson prior to Cox's entering a union meeting on October 12, 1966 is Cf PermacoldIndustries, Inc, 147 NLRB 885, 886; Wiese Plow Welding Co, Inc, 123 NLRB 616, 618. 11 Union button wearer Arnold Cox, an older seniority employee, who had not been laid off by Webster pnor to December 5, 1966, continued to work without break in employment for Respondent Woods. He quit December 16, 1966. 17 The three employees were. Richard McCourt, sergeant at arms, hired by Woods on December 12, 1966, after he had admitted to Myles he had made a mistake, Lowell Compton, committeeman, who had quit Webster before negotiations commenced, hiredJanuary 1, 1967; Kenneth Drennan , secretary, hired on March 6, 1966, sometime after his name ap- peared in the initial charge filed on February 8, 1967 18 The recall of McCourt is easily explained since he told Myles he had made a mistake; Compton had not participated in negotiations, and Drennan was recalled at a time when his recall carried with it an implica- tion that it was an attempt to conceal the Respondent Woods' true dis- criminatory motive Moreover, ". it is established that a discriminatory motive, otherwise established, is not disproved by an employer's proof that it did not weed out all union adherents" Nachman Corp v N L R B,337F 2d,421,424(C A 7). 19 "[E]very equivocal act that was done may be properly viewed in the light of respondent's animus toward the effort to organize its men " N L.R B v Huston and North Texas Motor Freight Lines, Inc , 193 F 2d 394,398 (C.A 5), cert. denied 343 U S 934 20 "[T]he `real motive' of the employer in an alleged § 8(a)(3) violation is decisive ." N L R.B. v. Brown Food, 380 U S 278,287 21 Myles testified that the criterion he employed for selecting the em- ployees was the "basis of their job, the amount of work produced and the type of employee and the seniority " He added , "If two men were equal in ability then we took the seniority " The record contains no credible evidence that Myles applied this criterion in refusing to select the alleged discnmmatees for employment. WEBSTER WOOD INDUSTRIES 75 herefrom and take certain affirmative action designed to ffectuate the policies of the Act. It having been found that said Respondent Woods has mlawfully refused to recall or offer employment to James Woods, Richard Short, Emmett McElwain, Richard An- lerson, Jerrill Davis, Elbert Hosey, Harley Goff, Larry Jtt, and Gene Cox and thereby violated Section 8(a)(3) ind (1) of the Act, it is recommended that said Respond- ;nt Woods remedy such unlawful conduct. It is recom- mended in accordance with Board policy22 that said Repondent offer discriminatees James Woods, Richard ;hort, Emmett McElwain, Richard Anderson, Jerrill )avis, Elbert Hosey, Harley Goff, Larry Utt, and Gene ox immediate employment to the same positions at vhich they would have been employed had said Respond- -nt Woods called them for employment in accordance vith the seniority roster of Webster Wood Industries, nc., its predecessor (or to other substantially equivalent )ositions), without prejudice to any seniority or other ights and privileges they might have acquired, dismissing f necessary any employees hired on or since December 1966, who hold less seniority than that of said dis- .riminatees as such seniority appears on the seniority oster of Respondent Webster, and make each of them vhole for any loss of earnings he may have suffered as a esult of the discrimination against him by payment of a ,um of money equal to the amount he would have earned rom the date he would have been employed by said tespondent Woods had he been called for employment, It accordance with the seniority roster of Respondent Webster to the date of an offer of employment, less net :arnings during said period, to be computed on a quar- erly basis in the manner established by the Board in F. V. Woolworth Company, 90 NLRB 289, and shall in- Jude interest at the rate of 6 percent per annum to be :omputed in the manner set forth in Isis Plumbing & Ieating Co., 138 NLRB 716. CONCLUSIONS OF LAW 2. The Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. Respondent West Virginia Woods, Incorporated, is the successor to Respondent Webster Wood Industries, Inc. 4. All production and maintenance employees at the (West Virginia Woods, Incorporated), Webster Springs, West Virginia, plant, including leadmen and yardmen; ex- cluding all other employees, office clerical employees, watchmen and guards, professional employees, and su- pervisors, as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. By refusing on and since January 3, 1967, to bar- gain with the Union as the exclusive bargaining agent of employees in the appropriate unit, the Respondent, West Virginia Woods, Incorporated, has engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(1) and (5) of the Act. 6. By unlawfully refusing to offer employment to James Woods, Richard Short, Emmett McElwain, Richard Anderson, Jerrill Davis, Elbert Hosey, Harley Goff, Larry Utt, and Gene Cox on or after December 6, 1966, in accordance with the seniority roster of West Vir- ginia Woods Industries, Inc., Respondent West Virginia Woods, Incorporated, has engaged in unfair labor prac- tices within the meaning of Section 8(a)(3) and (1) of the Act. 7. By interfering with, restraining, and coercing its em- ployees in the exercise of their rights guaranteed them by Section 7 of the Act, the Respondent, West Virginia Woods, Incorporated, has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 1. The Union is a labor organization within the mean- ng of the Act. [Recommended Order omitted from publication.] 22 See The Rushton Company, 158 NLRB 1730.