The Cotton Lumber Co.

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Cotton Lumber Company and Teamsters Union, Local 413, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 9-CA-5458 August 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND JENKINS On May 19, 1970, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief of Respondent, and the entire record in the case, and hereby adopts the findings,' conclusions,' and recom- mendations of the Trial Examiner, as modified below. ' The Trial Examiner 's findings and conclusions are based , in part, upon credibility determinations , to which the Respondent has excepted Respondent also contends that the Trial Examiner was biased and preju- diced After careful review of the record, we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly , we find no basis for disturbing these findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 262 (C A 3) We also find no support in the record for the charge of bias and prejudice Respondent has also excepted to the Trial Examiner's finding of lack of credible proof of a seasonal business decline at Cotton Lumber Even assuming that a decline existed, we would still find a violation of Sec 8(a)(3) in the circumstances of this case ' In agreeing with the Trial Examiner that Frederick Boss and Charles Boss were discriminatorily discharged on November 7, 1969, we do not find it necessary to decide whether Roy Dials, Sr , was a supervisor within the meaning of the Act, and do not adopt the Trial Examiner's findings in this regard We would find a violation of Sec 8 (a)(3) in any event since we are satisfied that given the totality of circumstances in this case, knowledge of the Boss brothers ' union activities can reasonably be imputed to Respondent However, we do not adopt the Trial Examiner 's conclusion that the Respondent violated Sec 8(a)(1) of the Act by advising an employee that his name was on the eligibility list and urging him to vote against the Union in the forthcoming election, or by expressing the view that the Union would never win an election ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and orders that Respondent, The Cotton Lumber Company, Columbus, Ohio, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraphs 1(c) and (d) of the Trial Examiner's Recommended Order and renumber the remaining paragraphs consecutively. 2. Delete the fifth indented paragraph of the Appen- dix to the Trial Examiner's Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner: A charge was filed by Teamsters Union Local 413, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, on December 19, 1969, and was served on The Cotton Lumber Company, the Respondent herein, by registered mail on December 22, 1969 A complaint and notice of hearing was issued on January 30, 1970, in which it was alleged that the Respond- ent had violated Section 8(a)(1) of the Act through its supervisor, Fred Blaine, by telling a newly hired employee not to have anything to do with the Union and not to talk to any other employees about the Union, by telling an employee that the Union would never be voted in at the Respondent's location, and by telling an employee that his name was on the eligibility list and that he should vote against the Union in the forthcoming election. In the complaint it was further alleged that the Respondent violated Section 8(a)(3) of the Act by discnminatonly dis- charging employees Charles P Boss and Frederick G. Boss on November 7, 1969 The Respondent filed timely answer denying that it had engaged in or was engaging in any of the unfair labor practices alleged and specifically pled that "the Respondent :harges the truth to be that the Regional Director of Region 9 is assisting the Union in harassing the management of The Cotton Lumber Company in an effort to carry out a threat made during a prior case."' The case came on for hearing on April 1 and 2, 1969, at Columbus, Ohio. Each party was afforded a full opportu- nity to be heard , call, examine and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered by the Trial Examiner. ` The Respondent produced no credible proof in support of this alleged defense 185 NLRB No. 51 THE COTTON LUMBER COMPANY Upon the whole record and upon his observation of the witnesses the Trial Examiner makes the following FINDINGS OF FACT, CONCLUSIONS AND REASONS THEREFOR I THE BUSINESS OF THE RESPONDENT The Respondent is and has been at all times material herein an Ohio corporation engaged in the retail and whole- sale of lumber and lumber related products at its location in Columbus, Ohio. During the past 12 months, a representa- tive period, the Respondent purchased and caused to be shipped to its Columbus, Ohio, location goods valued in excess of $50,000 directly from places located outside the State of Ohio During the same 12-month period Respondent had total sales of products to customers in excess of $500,000. At all times material herein the Respondent is and has been an employer as defined in Section 2(2) of the Act engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act, respectively. iI THE LABOR ORGANIZATION INVOLVED Teamsters Union, Local 413, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as the Union, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES THE FACTS At all times mentioned herein the Union was engaged in an organizational campaign which culminated in an election on November 25, 1969. Several weeks before the election, on November 7, 1969, General Foreman Frederick E. Blaine laid off Charles P Boss and Frederick G Boss, twin brothers The General Counsel claims that these layoffs were in fact discriminatory discharges and in violation of Section 8(a)(3) of the Act At the time the Respondent employed around 30 employees. Charles P Boss and Frederick G. Boss were hired by General Foreman Blaine in August and September 1969, respectively. Charles responded by telephone to a newspaper advertise- ment which appeared in the Columbus Dispatch, a newspa- per of general circulation in Columbus, Ohio, on August 19, 1969. The advertisement also appeared on August 20, 21, 22, 23, 24, and 25, 1969 The advertisement read: "TRUCK DRIVERS WANTED Retail Lumber Yard. Good pay Call 237-6395 " Later in the day Charles appeared at the Respondent's premises and was interviewed by Gener- al Foreman Blaine. He was hired for a full-time job' as ' General Foreman Blaine testified that he told the Boss brothers that "we had plenty of work at the time " 603 a truckdriver at $2 50 an hour. Charles was an experienced truckdriver and possessed a chauffeur's license During the interview Blaine asked Charles whether he was at that time affiliated with a union. Charles answered in the negative although he held a withdrawal from Local 25, affiliated with the Bricklayers. Blaine further said, among other things, "They are talking about a union in here. Tell them you don't want anything to do with it and just be on your way."' Charles commenced work the next day. During Charles' tenure with the Respondent he engaged in union activities and frequently talked to employees regard- ing the Union while loading trucks During the period he attended three or four union meetings His brother also attended union meetings. On one occasion Charles was asked by Supervisor Robert Johnson whether he knew Bob Sayre, a union partisan. Charles denied that he knew Sayre although he had attended the same school as Sayre. Sayre was a former employee of The Cotton Lumber Compa- ny who was working for the Blaine Lumber Company. He had mentioned the Bosses ' names at a union meeting and had commented that they were favorable to the Union Some time in September Blaine informed Charles that he was on the eligibility list. He told Charles "to vote no for the union and not to have anything to do with it." An election was pending at the time but it was later postponed In the latter part of September Charles appeared at the dispatch office to drop off lumber delivery slips In the presence of employee Jerry Taylor, Blaine pointed at Charles and said, "Don't you ever think that you will ever see a union in Cotton Lumber. It'll be a cold day in hell before you see a union in Cotton Lumber. Now, just get out of here."4 Prior to this incident Charles had expressed his opinion at a union meeting that the Union was "a very good thing" and that he would vote for it. Approximately 12 employees attended the meeting. On November 7, 1969, Charles' brother told him that they were being laid off for lack of work. Charles inquired of Supervisor Robert Johnson whether it was true that they were being laid off. Johnson answered affirmatively and said, "We are laying you and your brother off due to lack of work. Keep in touch and when things pick up we will hire you back." Thereafter Charles contacted General Foreman Blaine for reemployment several times Blaine informed Charles that the Respondent was "not doing any hiring at the time." Charles was told to "keep in touch." The last telephone call was placed sometime in the latter part of January (after the charge herein had been filed) at which time Blaine reported the Respondent was "not hiring." On the day of the election (Charles voted under challenge) Charles was standing in the voting line along with employee ' Blaine denied that he had made these remarks or had ever said anything to Charles about the Union For the reasons hereinafter noted his denials are not credited. ' Taylor testified that he heard Blaine say to Charles, "It'll be a cold day in hell before there will be a union in Cotton Lumber Company " Blaine denied making this statement His denial is not credited. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bud Fletcher General Foreman Blaine was standing about 10 feet away and called "Bud, Bud." Charles turned toward Blaine and observed Blaine shaking his head "no " When Frederick G Boss was hired as a truckdriver in September 1969 he was told by Blaine that "it was permanent work here " Frederick possessed a chauffeur's license, a requirement for operating a truck. During his job tenure Frederick discussed the Union with other employ- ees, truckdrivers, loaders, and boxcar men. Frederick also talked with Supervisor Ray Dials.' Frederick told Dials that everyone would benefit with the Union, that he and his brother had been in the Union before, and that he was strong for it. On the day after the union meeting in which Bob Sayre had mentioned the Boss twins' union affection Dials said to Frederick, "Is it true you guys like a union? Do you and your brother feel strong on a union?" Frederick replied, "As far as I am concerned you can't beat it." Frederick had attended several union meetings before he was laid off. On November 7, 1969, Frederick was in the yard loading his truck. He had been assigned to go out the next morning, Saturday At quitting time he went into the dispatch office to receive his paycheck. Blaine handed Frederick his check and his brother's check and said, "Here, Ted [sic], here is your check and your brother's. Emerson' wants me to cut down on drivers since things are slow and there is a lack of work here. He' wants me to cut down to 10 drivers and he wants me to let you and your brother go since you were the last two drivers."6 After his layoff Frederick contacted Blaine seeking reem- ployment. He said that he "did sort of beg " Blaine told him things were slow and there was nothing for him. Frederick's last call was in the latter part of December at which time he advised Frederick, "There is nothing here" and then "rudely hung up the phone." After the Bosses were laid off, Fred Beavers, Tom Miller, and George Young were hired as truckdrivers in December 1969, February 1970, and March 1970, respectively Millard Shamblin, a soldier on leave, also worked as a truckdriver 2 or 3 weeks in December 1969. The parties stipulated that the Trial Examiner could take judicial notice of the transcript in Cotton Lumber Company , Arlington Lumber Co, and Blaine Lumber Co , Case 9-CA-5296 ( 182 NLRB No 43) and draw such conclusions therefrom as might be material to this proceed- ing Accordingly the Trial Examiner finds that Ray Dials was employed 10 years by the Respondent and filled Supervisor Johnson's position when Supervisor Johnson was acting for General Foreman Blaine and during the remainder of the time he worked as a loader and rank- and-file employee Dials was engaged in Johnson's work about one- third of the hours he was employed In agreement with my brother Foley, who wrote the decision in Case 9-CA-5296, it is found that Dials is a supervisor within the meeting of the Act In Case 9-CA-5296 ( 182 NLRB No 43) Emerson is referred to as William E Blaine, Sr All the stock in the Respondent is owned by William E Blaine, Sr, and William E Blaine , Jr, his son Blaine testified that he conferred with no one with regard to the layoff of the Boss brothers , it was his sole decision He further testified that his decision to lay off the Boss brothers was reached possibly the day before Credited evidence indicates that the Bosses were not the "last two drivers " After Charles was hired Doug Baisden was hired as a boxcar man and was later transferred to truck driving after Frederick was hired as a truckdriver Baisden was not seen at union meetings Blaine admitted that the Boss brothers "as a rule did a pretty good fob " Blaine also admitted that he had received approximately four telephone calls from the Boss brothers in which they asked for work and, although at least one call was received from the Boss brothers in December, he hired truckdriver Fred Beavers and during the same month returned Millard Shamblin to truck driving work. The Boss brothers were told the "work had not picked up at that time." As to why the Boss brothers were laid off Blaine testified, "In the wintertime it gets pretty bad and our season slacks off. They were the last two that we hired, so that's the reason I let them go " Blaine said that "it slacked down"; however, he was indefinite and evasive in credibly explaining the source of his information that the Respondent's business was slacking down 9 Blaine admitted that truckdrivers Tom Miller and George Young were also hired, respectively, in February 1970 and March 1970. Blaine explained that he did not recall the Boss brothers in that he "assumed they had gone to work or something, not hearing from them for three months." He further explained, "I didn't have any telephone numbers or anything. At the time they went to work I was out of application blanks and the only thing I had was W-2 forms on the two boys. If they would have given me their telephone numbers and addresses or anything at all and our work picked up, I would be glad to call them But I had no way-I didn't have the time to go chasing around the country looking for the boys "10 Blaine offered these answers to the following questions Q Now, how was it brought to your attention that there was a great enough falloff in business between September , when you hired the last Boss and November 7th when you discharged them both') How was it brought to your attention that there was so much of a falloff of business that it was necessary for you to lay off the two employees9 A Well, every load of lumber that goes out of the yard comes through my desk to me We have about six men that are writing tickets constantly from telephone calls or from contracts The contractor calls and says , "I want this building, this house," or whatever it is That also goes through me And when I have piles of tickets to be delivered, I am busy But when they trickle down to where I have three or four at a time, it's a job to keep the men busy And I got to let somebody go If that is the trend , I mean weatherwise, and everything concerned Q Yes You laid two men off, you predicted that you wouldn't need them? A That's correct Q What did you base that prediction on A I can see I didn't have the merchandise to send out but I have also had work there for the different men on these jobs, building apartment buildings mostly , and they have finished one phase, maybe They don't have the other phase in a spot where they can demand labor So I notice there is going to be several weeks or maybe a month before that project will go, if they have the weather Q How do you find these things out9 Do the salesmen tell you? A They are talking to them all the time on the phone Q How do you get that information) A I am right there Q You hear the salesmen talking? A Well, they tell me ° Charles Boss credibly testified that when he was employed Blaine gave him a card to fill out on which he entered his name, telephone number, address, and who to contact in case of emergency , and since (cont'd) THE COTTON LUMBER COMPANY Blaine also explained, "I hadn't heard from the Boss boys in 3 months and of course, then I learned that they had made some kind of charges against Cotton Lumber " Although Blaine asserted he did not have the Boss brothers' addresses he made no attempt to get their addresses when he laid them off, nor did he attempt to reach the Boss brothers when he hired additional truckdrivers. Generally the Respondent during slack periods laid off boxcar employees rather than truckdrivers. As explained by Supervisor Dials to Charles C. Boss "they usually put the truckdrivers in the boxcars to unload the boxcars so at least you will make a 40-hour week " CONCLUSIONS AND REASONS THEREFOR First: Credibility is a strong factor in ascertaining whether the Respondent is guilty as charged Frederick E. Blaine's credibility thus must be examined as well as that of other witnesses While sometimes it is difficult to find where the truth lies, here it appears self-evident. Blaine's attitude, demeanor, and comportment betrayed a less than skillful attempt to accommodate the position advanced by his employer." Blaine's instincts were to tell the truth and no doubt he was an ingenuous man unaccustomed to dissem- ble However, the fact that this was his character rendered more obvious his shading of the truth, for he was a poor dissembler Not given to lying, a lie appeared to stick in his throat On the other hand the Boss brothers were forthright and honest in their answers. Thus where Blaine's testimony conflicts with other wit- nesses it is discredited. Second: The General Counsel has alleged On or about the dates indicated below, Respondent interfered with, restrained, and coerced employees at its Columbus, Ohio, location in the exercise of the rights guaranteed in Section 7 of the Act by the conduct of the said Fred Blame- (a) On or about August 19, 1969, in telling a newly hired employee not to have anything to do with the Union and not to talk to any other employees about it. such time he had received by mail his W-2 forms and that of his brother in envelopes bearing the words "Cotton Lumber Company," addressed to 122 Johnstown Road, the address on the card referred to above A telephone number, 471-0356 is listed for the same address in the telephone book " Blaine testified Q Do you sometimes call back employees who you laid off? A Yes, sure Why wouldn't I, if they had been good employees? Q. What about the two Boss brothers, did they appear to be good employees? A. They drove trucks Q What about their work record while they were with you, good or bad? MR THOMPSON Give him a clue MR RECTOR- That's his problem Do you know? Tell us THE WITNESS I am just holding still on this one for just a moment Excuse me, sir Q. (By Trial Examiner) You may take whatever time you need to frame your answers, Mr Blaine as all witnesses may A I have had some complaints on their work , but as a rule they did a pretty good job It would seem from the foregoing responses of Blaine that he was weighing what answer would best suit his employer Finding no clue, he did what was his natural inclination , he told the truth 605 (b) Sometime in early October 1969, the exact date being unknown to the Regional Director, in telling an employee that the Union would never be voted in at the respondent's location (c) Sometime in mid-October 1969, the exact date being unknown to the Regional Director, in telling an employee that his name was on the election eligibility list and that he should vote against the Union in the forthcoming election The Trial Examiner finds that these allegations are well taken and that they are supported by a preponderance of the testimony and the record as a whole Third.- The General Counsel contends that the layoffs of the Boss brothers were in fact discriminatory discharges. Not so claims the Respondent and fixes the reason for the layoffs as low seniority and lack of work.12 "Management can discharge for good cause or bad cause, or nq cause at all. It has, as the master of its own business affairs, complete freedom with but one specific definite qualification. It may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids " Portable Electric Tools, Inc. v N.L.R.B., 309 F 2d 423, 426 (C.A 7). See also N.L.R.B. v Little Rock Downtowner, Inc., 341 F.2d 1020, 1021 (C.A 8). However the "mere existence of valid ground for a discharge is no defense to a charge' that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity " N.L.R.B. v Symons Manufac- turing Co., 328 F.2d 835, 837 (C.A 7) "A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." N L R B v. Solo Cup Co., 237 F.2d 521, 525 (C.A 8) "the `real motive' of the employer in an alleged 8(a)(3) violation is decisive " N.L R.B. v Brown Food Store, 380 US. 278, 287. "It is the `true purpose' or `real motive' in hiring or firing that constitutes the test." Local 357, International Brotherhood of Teamsters [Los Angeles-Seattle Motor Express] v N L R.B, 365 U.S. 667, 675. "Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. . . . It has long been established that a finding of violation under this section will normally turn on the employer's motivation." American Ship Building C o v N..L.R.B, 380 U S 300,311 The question is " `not whether there existed a valid ground for discharge, but whether the stated ground was the real one' J P Stevens and Co v N.L R B , 38 F 2d 292, 300 (2d Cir. 1967)", N L R B v. Ulbrich Stainless Steels, Inc , 393 F.2d 871, 872 (C A 2). Moreover it is taught that "[t]he Board is not compelled to accept the employer's statement when there is reasonable cause for believing that the ground put forward by the employer was not the true one, and that the real reason was the employer's dissatisfaction with the employee's union activity." The Great Atlantic and Pacific Tea Co v. N L R.B., 354 F 2d 707, 709 (C.A 5). " The Respondent asserts that the layoffs were the result of the seasonal nature of the respondent's business if the seasonal nature were assumed, such fact would hold sparse probative value since it was not credibly shown that the alleged seasonal nature of the Respondent's business was considered at all in effecting the layoffs of the Boss brothers 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner does not believe that the ground put forward by Respondent Cotton Lumber Company for the Boss brothers' layoffs was the true one. First, Blaine was not a credible witness; second, the reason given for the layoffs was false for neither were the Boss brothers the last two truckdrivers hired" nor was there credible proof that the alleged slacking off of business was a control- ling factor; and third, whereas Blaine claimed sole responsi- bility for the layoffs, credited testimony establishes that the layoffs were directed by William Emerson Blaine, Sr Support for a finding of unlawful motivation "is augmented [when] the explanation of the discharge offered by the Respondent [does] not stand up under scrutiny" N.L R B. v. Bird Machine Company, 161 F.2d 589, 592 (CA. 1). It is further observed, "If one can show that every other alternative except the fact sought to be proven is not true, you indirectly prove the fact is true By excluding every other reasonable hypothesis that fact is left standing above as proved." N.L.R.B. v. Melrose Processing Co., 351 F 2d 693, 698 (C.A. 8). The Trial Examiner is of the opinion that Blaine was concealing the real reason for the Boss brothers' layoffs. The Trial Examiner is convinced that "the moving cause" or "real motive" of the Respondent in laying off the Boss brothers was to discourage membership in a labor organiza- tion and to interfere with employees' "right to self-organiza- tion and to form, join or assist labor organizations " Control- ling factors among others in this regard are: (1) The union animus of the employer as disclosed in Blaine's commission of unfair labor practices '° (2) The employer's knowledge of the Boss brothers' union affection 15 (3) Blaine's failure to call back the Boss brothers although he admitted that "as a rule . . . they did a pretty good job" and that he had in the past called back "good employees "16 (4) Blaine's weak and unconvincing explanation as to his source of knowledge of the employer's loss of business anticipated at the time he laid off the Boss brothers. (5) Blaine's weak and unconvincing explanation as to what occurred between September when he hired the last Boss brother and November when he laid off both brothers which caused him to make such decision. (6) The Respondent's failure to return the Boss brothers to work although Supervisor Johnson had said "when things pick up we will hire you back." (7) Frederick G. Boss' abrupt layoff on Friday, although he had been assigned to operate his truck on Saturday and on Friday had been loading his truck for " When it was called to Blaine's attention that the Boss brothers were not the last two truckdrivers hired ( Baisden had been hired after Charles) Blaine explained, "Kind of funny, when you can't tell two boys apart, it gets a little bit confusing at times " " See also Cotton Lumber Co, 182 NLRB No 43 " The credited record discloses Supervisor Dials' knowledge of the Boss brothers' union sympathy Additionally the Trial Examiner finds that by reason of the employer' s small complement of employees the employer's knowledge of the Boss brothers' union affection may be inferred Weise Plow Welding Co., Inc, 123 NLRB 616, Quest-Shon Mark Brassiere Co, Inc, 80 NLRB 1149, 1150, enfd 185 F2d 285 (CA 2), Angwe/l Curtain Company, Inc v NLR.B, 192 F 2d 899, 903 (C A 7), NLR B v Joseph Antell, Inc, 385 F 2d 880 (C A 1) 6 On this subject Blaine testified. Q. Do you sometimes call back employees who you laid off? A Yes, some Why wouldn't I, if they had been good employees that purpose. (8) The employer's employment of a new truckdriver in December while at the time Blaine was telling the Bosses that "work had not picked up at that time."" (9) Blaine's failure to try to locate the Boss brothers when he hired new truckdrivers. (10) Blaine's failure to follow the usual practice of transferrring truckdrivers to boxcar work during slack periods. (11) Blaine's incredible assertion that had the Boss brothers given him "their tele- phone numbers and addresses or anything at all and our work picked up [he] would [have been] glad to call them" when such information was available to him. (12) The employer's layoffs of union partisans, the Boss brothers, and the retention of employee Baisden who was not seen at union meetings and was junior in length of service to Charles suggest disparate treatment between union and nonunion employees." The Respondent's actions as reflected by the record were unreasonable and unnatural. Accordingly, the Trial Examin- er concludes and finds that by the layoffs of the Boss brothers on November 7, 1969, Respondent discriminated against them in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act 2. The Respondent is 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. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4 By unlawfully separating Charles C Boss and Frederick G. Boss from employment on November 7, 1969, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. IV. THE RECOMMENDED REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 17 When, as in this case, an employer fails to recall employees laid off during a union organizational campaign, but hires new employees telling the laid off employees that "work had not picked up," the employer reveals a pretextual reason for the layoffs The Lion Knitting Mills Company, 160 NLRB 801, 811, Welcome-American Fertilizer Co, 169 NLRB No 55 '" In Russell-Newman Manufacturing Co, Inc. v NLR.B, 407 F 2d 247 (C A 5), decided February 3, 1969, the court said, "When there is unjustified disparate treatment between represented and unrepresented employees designed to induce the former to abandon their union Section 8(a)(3) has been violated " THE COTTON LUMBER COMPANY It having been found that the Respondent unlawfully terminated the employment of Charles C. Boss and Freder- ick G Boss, it is recommended that the Respondent, in accordance with the Board policy," offer them immediate and full reinstatement to their former or substantially equiva- lent positions and without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment to them of a sum of money equal to the amount they would have earned from the date of their discriminatory separation from employment to the date of an offer of reinstatement, less net earnings during said period to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.20 RECOMMENDED ORDER21 Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that the Respondent, The Cotton Lumber Company, its officers, agents, successors , and assigns, shall- 1. Cease and desist from (a) Discouraging membership in the Teamsters Union, Local 413, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discriminatori- ly discharging any of its employees or discriminating in any other manner, in respect to their hire or tenure of employment or any term or condition of employment (b) Telling newly hired employees not to have anything to do with the Union and not to talk to any other employees about it. (c) Telling employees that the Union would never be voted in at the Respondent's plant (d) Telling employees that their names were on the eligibility list and that they should vote against the Union in a forthcoming election. (e) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Teamsters Union, local 413, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization, to bargain collectively through representatives See TheRushton Company, 158 NLRB 1730, fn 2 ° The Respondent has moved to reopen the record and admit in evidence Respondent's Exhibit 6 which is composed of letters addressed to the Boss brothers of like content, to wit "You are hereby offered reinstatement to your former position at the Cotton Lumber Co Please report immediately " In that the admission of the exhibit would not alter the decision herein and in that the exhibit may be reoffered in the compliance stage of this proceeding, the motion is denied " In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations , and Recommended Order herein shall as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes 607 of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities 2. Take the following affirmative action which will effectu- ate the policies of the Act: (a) Offer Charles C. Boss and Frederick G Boss immedi- ate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay that they may have suffered by reason of the Respondent's discrimination against them, in accordance with the recommendations set forth in the section of this Decision entitled "The Recommended Remedy " (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Notify any of the aforementioned persons 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. (d) Post at its Columbus, Ohio, plant copies of the attached notice marked "Appendix."22 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's 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 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 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.27 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act, other than those found in this Decision. " In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " 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 EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government A Trial Examiner for the National Labor Relations Board has found that we laid off Charles C. Boss and Frederick 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G Boss because they were for the Union and that this violated the law. The Act gives all employees these rights- To organize themselves To form, join, or help unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things We were also ordered to assure our employees that. WE WILL give these employees back their jobs, seniority, and backpay which they lost because we laid them off. WE WILL NOT lay off any employees for the same reason for which the Trial Examiner found that we laid off the above-named employees. WE WILL NOT lay off, fire, or punish you or treat you differently in any way because you joined a union or favor a union WE WILL NOT tell our newly hired employees not to have anything to do with the Union and not to talk to any other employees about it WE WILL NOT tell our employees that the Union will never be voted in at the plant or inform employees that their names are on an eligibility list and they should vote against the union WE WILL notify the above-named employees if pres- ently 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 amend- ed, after discharge from the Armed Forces. All of you are free to become or remain or refrain from becoming or remaining members of any labor organiza- tion Dated By THE COTTON LUMBER COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686