Bob Britt Lumber Co., Inc.

BOB BRITF LUMBER CO., INC. 249 Bob Britt Lumber Co., Inc. and Peter J. C. Veenhuy- zen Bob Britt Lumber Co., Inc. and Alan Woodriff. Cases 20-CA-8095 and 20-CA-8 101 November 13, 1973 the alleged unfair labor practices. All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. Briefs were filed by both Respondent and the General Counsel. Upon the entire record in the case and from my observation of the witnesses and their demeanor, I make the following: DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On July 23, 1973, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 authority in this proceeding to a three -member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, I and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Bob Britt Lumber Co., Inc., Eureka, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge: It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 185 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his- findings. DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge: This case was tried before me in Eureka, California, on April 26 and 27, 1973. The consolidated complaint, which was amended at the trial, issued on April 2, 1973, pursuant to a charge filed in Case 20-CA-8095 on February 21, 1973, and a charge filed in Case 20-CA-8101 on February 23, 1973, and alleges violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Respondent's answer, as amended at the trial, admits certain facts concerning the employer's operations, but denies the Board has jurisdiction over its operations and the commission of FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a California corporation with its office and plant operations located in Eureka, California, is engaged in the processing and distribution of lumber and related wood products. During the past year Respondent sold goods and materials valued in excess of $50,000 to businesses located within the State of California, each of which businesses shipped goods valued in excess of $50,000 directly from their respective operations in California to points outside the State of California. Accordingly, I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Siemons Mailing Service, 122 NLRB 81. IL THE LABOR ORGANIZATION INVOLVED Lumber and Sawmill -Workers Local 2808 is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel alleges the following as violations of Section 8(a)(1) of the Act: That on unknown dates in October and November 1972, Respondent threatened an employee that Respondent would go out of business if the employees selected the Union as their collective-bargaining representative; that on an unknown date in November 1972, and on January 15, 1973, Respondent interrogated employees concerning their union activities and those of fellow employees; that on an unknown date in November 1972, and on or about January 3, 1973, Respondent threatened to terminate employees who engaged in union activities. The following are alleged as violations of Section 8(a)(3): The January 3, 1973, termination of employee Peter J. C. Veenhuyzen; and the January 8, 1973, layoff of employees Alan Woodriff, Roy Eisle, Robert Clemenson, Gary Coonrod, and Denzil Barrett. Background The employer's operations consist of a sawmill and a remanufacturing plant which produces, principally, agri- cultural stakes. Some of the rough lumber used in the remanufacturing plant is' produced in the sawmill and some is purchased from other companies. There was testimony to the effect that there was a shortage of raw materials during the months of December 1972, and the first 2 months of 1973. The Respondent contends the January 8, 1973, layoffs were prompted by the shortage in materials and that the employees selected were, for one reason or another, the least valuable to the employer's 207 NLRB No. 35 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operation. Respondent further points to the fact that a law suit is pending which seeks to enjoin its operations at its present location. Respondent denies the 8(a)(l) allegations and contends Veenhuyzen was terminated for cause. The case is reduced to credibility resolutions between witnesses for the General Counsel and Respondent. A. Preorganization Interference and Coercion Roy Eisle was employed by Respondent from May 1972, to January 8, 1973, and worked in the remanufacturing plant as a stacker and. feeder on the trimsaw. He testified that some time in October 1972, while having a beer with Russ Britt, herein called Russ, and a couple of other individuals after work, "I asked Russ what he would say if everybody wanted to go union," and that Russ responded "he wouldn't go union because he'd be losing too much money on it and that he would close the mill down before he went union." While Russ Britt denied generally discussing union problems or activities with any of the employees other than Gary Coonrod, he specifically limited the denial to discussions "during working hours." The statement attributed to him by Eisle, which occurred after work, remained undenied. Clearly, Russ, as the Respondent's vice president and agent, who coordinated "all the affairs that happened during the course of the day. The purchasing of the lumber; the selling of the lumber; control of the employees, control of production; all the daily business," had "the power to control the occurrence of the untoward events which are the subject of his communications," and that such statements "might proper- ly be interpreted, both in purpose and effect, as likely to instill fear in employees that dire steps of retaliation would result from an authorization of the Union as their bargaining representative,," Accordingly, I find that his statement to Eisle constituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. See, for example, N.L.R.B. v. Yokell, d7b/a Crescent Art Linen Co., 387 F.2d 751, 756 (C.A. 2, 1967). B. Organizational Efforts and Termination of Veenhuyzen Peter J. C. Veenhuyzen commenced working for Respon- dent in June 1972 in the sawmill, and later in the remanufacturing plant. His starting wage was $2.75 per hour. On August 11, he received a 25-cents-per-hour raise, and on September 22, 1972, received an additional 25-cent raise to $3.25 per hour. The last raise was given after a couple of loads of inferior grade material had been shipped and Veenhuyzen was given the additional duty of checking the lumber grade to be sure it was good. At the time of his termination on January 3, 1973, Veenhuyzen was the highest paid employee in the remanufacturing plant.' In early November, 1972, in the lunchroom during a lunch hour, Respondent's employees discussed the pros and cons of union representation. Gary Coonrod was the principal union proponent and Dan Cornut spoke against 1 Respondent's policy with respect to pay raises for new employees was to grant raises after 3 and 6'months. 2 As Veenhuyzen's testimony regarding the interrogation, the threat to fire the individual "pushing unions," and the threat to close the mill were union representation. Veenhuyzen was present during the discussion and spoke in favor of unionization. Veenhuyzen testified that later that day, Russ called him into the office and asked if he was "high on unions"; than Russ stated he had "heard somebody on the crew was pushing unions"; that "he wanted to know who it was and he would fire him"; that he thought Coonrod was "stirring everybody up"; and that "if I can establish that . . . III fire him." Veenhuyzen testified further that ". . . Russ did mention that if the union came in, they would be able to pay the union wage for, perhaps, the first three or four months, then, they would have to close down their mill because they couldn't afford to pay the Union's wage." Veenhuyz- en told Russ "that it was just idle talk" and declined to reveal any names. The following day Veenhuyzen ap- proached Russ and told him that the union talk he had heard the previous day was only a personal argument between Coonrod and Cornut. Russ' response was to the effect that he was relieved since he had lost some sleep worrying about the Union.2 Later in November 1972, Russ became aware of the fact that marijuana was being smoked on the plant premises. Veenhuyzen testified that Russ called him to the office one day and advised Veenhuyzen that he had smelled marijua- na in the lunchroom and asked who had brought it, to which Veenhuyzen replied, "We all did." He acknowledged that Russ asked him not to use it, and that he didn't think it was safe to use marijuana around machinery such as that found in Respondent's plant, but that he didn't remember whether the safety factor had been discussed. Russ' version was that he had heard a rumor that marijuana was being smoked in the lunchroom and that he went there and observed Veenhuyzen smoking a marijuana cigarette; that he asked who was "smoking strong ones," and walked out. He testified that after the lunch hour, Veenhuyzen came to him "and said that he was sorry, it was his fault, it wouldn't happen again," and that he told Veenhuyzen that he didn't want it to happen anymore. Russ further testified that employees later informed him that Veenhuyzen was smoking in his truck, and, since Russ knew Veenhuyzen didn't smoke regular cigarettes, he observed Veenhuyzen in his truck from behind lumber piles for a week and then went-up to the truck and satisfied himself that Veenhuyzen was in fact smoking marijuana again. He testified that he didn't do anything about it at the time and "I was reluctant to tell Bob3 after that incident and after the next one that went by. I was reluctant to tell Bob because I wasn't sure what he would do about the situation." I credit Veenhuyzen's testimony regarding the marijuana incident over that of Russ for the following reason. Veenhuyzen was not reluctant in admitting his part in the lunchroom incident, and both he and Russ testified that Russ asked him not to use marijuana again, Russ stating further ". . . I told him that I would have to think about (it) . . . before I made a decision." Had Russ been so concerned that he was going to reserve his "decision," I am convinced that he would have terminated Veenhuyzen not specifically denied by Russ, I credit Veenhuyzen and find such statements constituted interference and coercion in violation of Sec . 8(a)(1) of the Act. 3 Bob Britt is Respondent's president. BOB BRITT LUMBER CO., INC. 251 immediately had he in fact again caught him smoking marijuana in his truck during the noon hour. In making my credibility assessment, I have further noted that Respon- dent failed to call-a witness to corroborate Russ' testimony regarding the purported further use of marijuana. Veenhuyzen was on vacation the week between Christ- mas 1972 and January 3, 1973. Approximately a week prior to going on vacation, he asked Russ for a 25-cents-per- hour wage increase. In an affidavit given a Board agent on March 8, 1973, Veenhuyzen had stated "He suggested that the remanufacturing department should be turning out 20 units a day of stakes. On the average, the day was about 15 units," but that Russ thought it was a "very reasonable request" and was going to talk it over with his brother Bob. Veenhuyzen did not receive the raise. Sometime during the week following Christmas, Denzil Barrett contacted the Union's office regarding backpay due from a prior employer, and informed the business agent that the Respondent's employees were interested in unionizing. Barrett was told to contact the employees during breaks and arrange a meeting between the business agent and the employees. On January 3, upon returning to work after the New Year's holiday, Barrett contacted several employees regarding the Union. During the lunch break he talked to Veenhuyzen and asked his help in getting the men together to discuss the possibility of getting the Union in. Veenhuyzen testified that during the course of the conversation, Barrett informed him "That a price list had been uncovered telling the average amount that the Britt brothers were getting for their wood"; that the price was "approximately two thirds more for the wood than I was told all the way along since I've been working for them. I was outraged." Barrett and Veenhuyzen walked back into the remanufacturing plant and commenced talking to Dennis Walters about wages and the lack of a family health insurance plan. Veenhuyzen testified that after about 5 minutes Barrett went back outside to work and Veenhuyzen ' and Walters continued talking about the Union while they worked. Veenhuyzen testified on direct examination that after about 10 minutes Russ burst out of the office and that the following conversation ensued:4 Russ: If you don't like working here, why don't you leave? vEENHUYzEN: Why did you lie to me about the price list? Russ: What is it to you? vEENHUYzJN: I didn't think it was fair. Russ: Why are you trying to stir up Dennis? Dennis is happy here. Aren't you, Dennis? [Dennis nodded]. Russ: See, Dennis is happy. Why don't you just leave? VEENHUYZEN: Are you firing me? Russ: No. Go back to work. At approximately 3 p.m., Veenhuyzen was called into the office. Both Bob and Russ were present. Veenhuyzen 4 The remanufacturing operation is located in a warehouse. The office projects out into the warehouse and has a door and sliding glass window opening into the warehouse. Veenhuyzen testified that he was working on the tying rack with his back approximately 2 feet from the door to the office and that Walters was facing him a foot or two away. The evidence established that the two pointer-saws located in the area were not running at the time. Veenhuyzen testified that the edger at the far end of the interior of testified that Bob stated he had heard that Veenhuyzen wasn't satisfied working there; that they had heard him talking through the door trying to stir Walters up, and inquired why he was dissatisfied. Veenhuyzen responded that the wages were too low and there was no family health plan. Bob responded that he had built the Company from scratch and created 20 jobs for the community, at which time Russ asked Veenhuyzen how many jobs he had created for the community. Veenhuyzen's response was to the effect that "there is a difference between 20 jobs and 20 decent jobs." Bob then responded, "Fine, I see you're not happy working here. We are going to fire you for poor working performance ... ever since you have been here, things have been all balled up. Things ran real smooth while you were on vacation and since you've been back everything is all messed up. Please leave, I'm giving you your check and get off my property and never step foot on it, again." Veenhuyzen protested he was being terminated for union activity, which Bob denied. Apparently within a few minutes Denzil Barrett was shifted to fill in the vacancy created by Veenhuyzen's termination. He testified that later that afternoon, while he and Walters were tying bundles, Russ came out of the office and stated, "I hate to let Peter go, but, I couldn't have him any more with all that talk going around. He was a good worker . . . if nobody's happy with their jobs, they should find another job. " Russ testified that on January 3, he,and Bob were in the office and could hear a lot of `jabbering" going on; that they noticed the pointer wasn't operating and felt it should be; and that he opened the door of the office and said "Quit talking and get to work." His testimony did not cover the conversation in the office when Veenhuyzen was advised of his termination. He denied the statement attributed to him by Barrett. Bob Britt testified that Veenhuyzen was hired in June of 1972 to work in the sawmill, but that he couldn't do the work and was moved to the remanufacturing plant where he became a very good employee and advanced to the top of the pay scale in 4 months.5 He testified that in November it became apparent that production was not what it should have been in remanufacturing, so a system of keeping track of production was instituted. He testified that he and his brother had noticed that Veenhuyzen was more irritable in the afternoons and that production fell off; that Veenhuyzen was' continually running into the office and asking unnecessary questions; that he had been after Russ for a couple of months to terminate Veenhuyz- en, but that Russ had expressed the opinion that Veen- huyzen would straighten out; that Russ had reported the marijuana smoking incidents and the fact that Veenhuyzen had taken the blame and responsibility for the lunchroom incident; and that they felt that smoking marijuana during the lunch hour was part of the reason Veenhuyzen was not performing in the afternoons. He testified that "everything the building was running and that he and Walters were talking "a little loud. Normal to loud." He further testified that it would be "hard" but not "impossible" for someone inside the office to hear anything outside the office, and that the noise level in the ' remanufacturing plant was such that he sometimes wore ear plugs. 5 Russ, on the other hand, limited the time Veenhuyzen was a good employee to 60 days. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was running a lot smoother" the week Veenhuyzen was gone following Christmas, so that it was decided that they would see what production was like after Veenhuyzen's return, and if production did not increase they would lay him off. According to Bob, Veenhuyzen spent most of his time running around talking the morning of January 3, so he made out Veenhuyzen's check at lunchtime and decided to give it to him at breaktime. At 3 p.m. he called Veenhuyzen into the office. Bob testified, "I told him he was being laid off, he wanted to know why and I told him he was not doing the work. He brought up the fact that he thought he was being laid off because of union activities and, then, he began, to tell me what a lousy place it was to work anyway and that we lied to him about the price of materials we sold which was none of his business, anyway, and he was wrong to boot. He wasn't in a position to know. Finally I got tired of listening to him and I told him if it was such a lousy place to work in, why didn't he quit and he continued to berate my company; so, I told him, `would you please leave and ... I escorted him off the property.' " Dennis Walters was called as a witness by Respondent. Walters impressed me as a reluctant and evasive witness. At one point he testified he did not remember whether Barrett had discussed the fact that he had contacted the Union. Later, reluctantly, he admitted he remembered Barrett had said he had contacted the Union "but I don't remember him talking to me . . . about it." He also testified that he had forgotten what he and Veenhuyzen were talking about on January 3, but that he remembered Russ coming out of the office and saying, "You quit talking and go to work." He likewise didn't recall the statements attributed to Russ by Barrett to the effect that Russ hated to let Veenhuyzen go. In view of his evasiveness and purported lack of memory, I find that Walters was an unreliable witness and do not credit his protestations of not recalling conversations. Therefore, I reject his testimony when it conflicts with that of either Veenhuyzen or Barrett, both of whom testified forthrightly and impressed me as reliable witnesses. Analysis and Conclusions Regarding Veenhuyzen's Termination The General Counsel contends that Veenhuyzen was terminated because of his interest in unionization and that the reasons assigned by Respondent for terminating him are pretextual. Respondent contends Veenhuyzen was terminated because of his use of marijuana which created danger to both himself and the other employees, and because of his lack of production. I am persuaded, in the light of all the evidence, that the reasons advanced for Veenhuyzen's termination are in fact pretextual and that he was terminated because of his interest in the Union. I have previously found that in October 1972, Russ exhibited hostility towards the Union during a conversa- tion with Eisle; and in November he unlawfully interrogat- ed Veenhuyzen regarding his union interest, exhibited hostility toward employees in favor of unions by threaten- ing to fire the individual "pushing unions," indicating he thought it was Coonrod, and threatened to close the mill if the Union came in. It is clear from the nature of the questions he asked Veenhuyzen, that Russ had a source of information from within the employee complement. The General Counsel has established that Barrett contacted the Union shortly before January 3, and that on that date, during the noon hour, so notified Veenhuyzen. Barrett and Veenhuyzen then talked to Walters about the Union, and, when the lunch hour ended and Barrett returned to his work station, Veenhuyzen and Walters continued discussing the Union. While Respondent's defense would place its dissatisfaction with Veenhuyzen long before this time, I am convinced by the credible evidence that it was not until after the lunch break on January 3, when Russ and Bob overheard Veenhuyzen and Walters discussing a union, that Respondent decided to terminate Veenhuyzen.6 Russ and Bob testified that they could hear "jabbering" from within the office, and the evidence established that the pointer saws, which are located close to the office, were not operating. While the edger located at the far end of the warehouse may have been running, Veenhuyzen and Walters were talking "normal to loud," and were standing within a foot or two of the office door. Accordingly, I find that immediately after the lunch hour on January 3, Russ overheard Veenhuyzen talking in favor of unionization and that he therefore came out of the office and admonished Veen- huyzen for trying to "stir up Walters." I am not persuaded by Respondent's defenses for the following reasons. The only reason given Veenhuyzen for his termination was poor production. Had the use of marijuana, which Respondent characterized as dangerous around machinery, in fact been a basis for his termination, Veenhuyzen would have been so advised and terminated long before January 3-if not immediately after the lunchroom incident, which he did not deny and for which he was admonished, but certainly when Russ found out he was continuing to smoke it during the noon hour in his truck. Instead, however, Russ seems to have placed so little significance on the matter that he didn't even discuss it with Bob. His asserted reason for not telling Bob-that he wasn't sure what Bob would do about the situation-is so preposterous it doesn't warrant further comment. Bob testified that Veenhuyzen wasn't terminated earlier be- cause Russ thought he "would straighten out." Surely, if the second and third marijuana incidents had occurred, Russ would have known that Veenhuyzen wasn't going to "straighten out," and he would have been terminated on the spot. I find Russ' testimony regarding the purported second and third marijuana incidents as incredible and, hence, not worthy of belief. Having so concluded, I find that Veenhuyzen's use of marijuana was not a motivating factor in his January 3 termination. Respondent's contention that Veenhuyzen was terminat- ed for lack of production also lacks merit. Respondent's wage policy was to grant increases after the third and sixth months of employment. Veenhuyzen, who commenced working in June 1972, was granted his first raise within 2 6 Having observed both Veenhuyzen and Walters as witnesses, I have no all, if not all, of the talking on behalf of the Union, which accounts for the hesitancy finding that Veenhuyzen was the individual doing substantially fact that only Veenhuyzen was -terminated, BOB BRITT LUMBER CO., INC. 253 months, and another raise the following month. Thus, he had obtained within 3 months the wage increases accorded the average employee in 6 months and had been given the additional responsibility in the remanufacturing plant of making sure that the lumber grade was good. Respondent's evidence regarding the check made on production was, in my view, inconclusive. Bob testified that Respondent made so many items and jumped back and forth during a day such that it was hard to make a production comparison. While he stated a certain size of grapestakes averaged 17.3 units per day in November and December 1972, and 19.5 the week Veenhuyzen was on vacation following Christmas, he testified that on Decem- ber 21, the last full day Veenhuyzen worked prior to his Christmas vacation, there were 28 units produced, and there had been an earlier day when production had reached 24 units. Further doubt is cast not only upon Respondent's production figures but also upon Bob's credibility, by reason of the fact that Bob testified that on January 3, the date Veenhuyzen was terminated, 40 units, or 16,000 pieces of a particular item, were produced, wi-ile on January 4, 60 units, or 24,000 pieces, were produced with a new inexperienced man who replaced Veenhuyzen. Not only does the record disclose that Veenhuyzen and Walters were tying bundles, as opposed to "producing items," on January 3, but the new man referred to by Bob was Denzil Barrett, whom Respondent laid off on January 8 because, according to Bob's testimony, "there wasn't any place that we could put Denzil that he could do the job." There was no evidence that Respondent checked the amount of production on January 3 prior to deciding to terminate Veenhuyzen, and I am satisfied and find that it did not. I further find that Respondent's reasons for discharging Veenhuyzen are pretextual and that he was terminated, for the reason he had engaged in union activities, in violation of Section 8(a)(3) and (1) of the Act. C. The January 8 Layoffs 1. Alan Woodriff Woodriff was employed by Respondent from June 1972 to January 8, 1973. At the time of his layoff he worked on the edger. He had been present in the lunchroom in November 1972 when unionization was discussed, and had expressed his feelings that it was a good idea. His "union activities" consisted of commenting to other employees at various times during November 1972 and January 1973 that he favored unionization. On January 3, Veenhuyzen informed him that he had contacted the Union. He was laid off by Russ on January 8 along with Eisle, Clemenson, Coonrod, and Barrett. He testified that at the time of the layoff Russ said it was because of "lack of orders or were short in here" or something, and that Russ had responded "don't plan on anything" in response to a question by one of the men as to whether,they might be called back. On cross-examination he denied having told anyone, prior to 7 1 have previously found that statements made to Eisle by Russ in October 1972, constituted interference and coercion in violation of the Act. 8 Carroll was not alleged as a dlscrimmatee. Apparently reemployed at the time of the trial, he testified at Respondent's request to statements made by Woodriff regarding the possibility of his quitting employment if he his layoff, that he intended to quit his employment. Ted Tremaine and Mike Carroll testified that he had told them that if he didn't get time off to attenda trial involving his family, that he would either have to quit or probably have to quit. Upon being recalled as a witness, Woodriff admitted to such statements, and that on the morning of his layoff, he broached the subject of time off to Russ. He never discussed unions with the Britts nor did he reapply for work with Respondent. 2. Roy Eisle 7 As detailed earlier, Eisle worked from May 1972 to January 8, 1973, in the remanufacturing plant as a stacker and feeder on the trim saw. He testified to general discussions among the employees about unionization, in November 1972. On what appears to have been January 3, 1973, Coonrod told Eisle that Barrett had contacted the Union. On January 8 he was in the trim saw room walking toward his car when Russ walked up and gave him his check; however, he didn't recall that Russ stated a reason for the layoff. He testified that Mike Carroll, with whom he shared duties in the trim saw operation, was also laid off .8 He later heard "through the grapevine" that it was because of lack of work. He never reapplied for work with Respondent. 3. Robert Clemenson Clemenson was hired in October 1972. He testified that he participated in discussions about unionization among the employees in November and December. When he was laid off on January 8, Russ told him that there was a shortage of work and that he would be called back if there was more work. Since Russ never contacted him to return, Clemenson checked back three or four times to see if work was available. During these visits he observed that new employees had been hired. On January 22 he was rehired. He testified that when he was rehired Russ brought up the subject of the Union and asked him if he knew who started it; that he told Russ that he thought Denzil Barrett had; that Russ stated he thought it was Barrett; that Russ asked him "if I was with them or if I wasn't," and that he responded in the negative .9 4. Gary Coonrod Coonrod had been sick the week before the layoff. On Monday, January 8, Russ told him "you might just as well take a couple of more days. We're going to have to shut down for awhile anyway." He was rehired on January '10 and was working for Respondent at the time of the trial. He had been the principal union proponent in the discussion in the lunchroom in November 1972. I have previously credited Veenhuyzen's testimony that Russ interrogated him regarding the lunchroom discussion and had stated he thought it was Coonrod who was "stirring everybody up" and "if I can establish that . . . I'll fire couldn't get time off for a trial involving his family. 9 In response to my question as to whether the interrogation occurred before or after he was rehired, he stated "before." His answer was "after" in response to the same question put by Mr. Arnot. Russ did not deny the conversation. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him." Coonrod was called as a witness by Respondent. He admitted he had discussions with Russ regarding the Union, but stated he couldn't remember the substance of the talks other than on one occasion, when he asked Russ "if the Union was okay," and Russ "said that he could tell me what he could do for.us and what he couldn't. What he could do against us." There was no testimony regarding the circumstances surrounding his rehire. 5. Denzil Barrett Barrett was laid off on January 8 after working for Respondent approximately 3 months. He was told by Russ that the reason was lack of production. He commenced working for another employer on January 9, and did not reapply for work with Respondent. He had originally been hired to drive the forklift, but was transferred after a week because Bob didn't think he was a good driver. Thereafter he worked on the trimmer, the pointer, and the chain and replaced Veenhuyzen when the latter was terminated. He had contacted the Union between Christmas and January 3 and discussed unionization with a number of employees in Respondent's plant. Analysis and Conclusions Regarding the January 8 Layoffs The General Counsel contends Woodriff, Eisle, Barrett, Coonrod, and Clemenson were terminated because Res- pondent was fearful their continued presence at the mill might lead to union representation of Respondent's employees, and that the defenses' offered by Respondent are self-contradictory, pretextual and suspiciously shifting in nature. Respondent, pointing out that lumber was in short supply around the first of the year, contends it sought to consolidate the crew and to layoff those employees it felt the least desirable and to keep the best workers; and that the five were selected because of their lack of ability or absenteeism. Woodriff, according to Respondent, was selected for layoff because he had indicated that he was going to quit if he' couldn't get time off to attend a lawsuit involving his family. Respondent contended Eisle was selected because of excessive absenteeism and the fact he wouldn't work on Saturdays . Clemenson was laid off because "there were not too many jobs he could do. He couldn't do any specific thing." Bob testified that he was rehired "because he came back on the day that we needed him and he 'was trained " (Emphasis supplied.) No specific reason was advanced for Coonrod's layoff. Barrett was laid off because Respondent couldn't find a job he could do. Respondent's reasons for the layoffs are not convincing. While the price of lumber may have been high, and lumber may have been difficult to procure, it is clear from the record that within a week Respondent had more employees than at the time of the January 8 layoff. On Friday, January 5, Respondent had 14 employees . On January 8, five were laid off. By the end of the week Respondent had 17 in its employ-three more than at the commencement of the week. On one hand Respondent laid off employees on January 8, on the ground it couldn't get material. On the other hand it attempts to justify the hiring of a number of new employees in the same week on the ground it had acquired a supply of materials . While contending the laid off employees were not good employees, Respondent also contends it would have reemployed them had they reapplied, and infers the failure to reapply was the only reason they were not rehired. I reject Respondent's contentions and find that the facts surrounding the layoffs and the individuals involved supports a finding that the real motive for the layoffs on January 8 was the desire to discourage union activity within the remanufacturing plant. I reject the testimony of Russ and Bob that they did not have knowledge of the employees' concerted activities, and find that on January 8 they laid off those individuals whom they either knew or suspected of being in favor of unionization . My finding in this regard is based upon the following considerations. In October 1972, Eisle had brought up the subject of unions before Russ by asking him what he would say if Respondent's employees wanted to go union , and Russ had responded he would close the mill down first. The following month a number of employees in the remanufac- turing plant met in the lunchroom and discussed the possibility of unionization . I have credited Veenhuyzen's testimony that on the very same afternoon Russ questioned him regarding his own feelings on unionization, threatened to terminate the individual "pushing unions," stating he thought it was Coonrod, and threatened to close the mill. Coonrod was the principal union spokesman and Cornut was against unionization. Coonrod was laid off and Cornut was not. On the first day after the New Year's holiday, Barrett informed his fellow employees that he had been to the Union, and attempted to arrange a meeting between the employees and the union representative . Veenhuyzen was abruptly terminated for talking to another employee regarding union benefits. Within a week, five employees in the remanufacturing department were laid off because of a purported shortage of materials . Within 4 days of the layoff, Respondent had increased its employee comple- ment by eight-three more than were laid off. Eisle was never warned regarding absences , nor was there a showing that they were not authorized. There was no evidence he had been admonished in any way regarding the fact he didn't like to work on Saturdays . Clemenson was laid off because he couldn't do too many jobs ; yet he was rehired on January 22, after Respondent was sure he was no longer for the Union, because "we needed him and he was trained." No specific reason was given for Coonrod's layoff; however, he had been identified to Russ as having been the spokesman for the unionization in November. Respondent's contention that Barrett was laid off because Respondent couldn't find a job he could do was not convincing and is specifically rejected in the light of Russ' statement to Clemenson on January 22 that he thought Barrett had been behind the Union. Nor do I find Respondent's reason for the January 8 layoff of Woodriff convincing. Woodriff's work performance was apparently good. If there was a real shortage of lumber requiring the layoff of a number of employees , it seems likely that Respondent would have been willing later on to grant Woodriff the time off to attend a lawsuit involving his BOB BRITT LUMBER CO., INC. 255 family instead of terminating him, unless there was an underlying reason for declining to do so. The record does not disclose direct knowledge that Respondent knew that Woodriff was in favor of unionization; however, it may be implied from all the circumstances. The remanufacturing plant employees comprised the group interested in union organizing. Woodriff worked in the remanufacturing plant and had indicated his favor of the Union at the November lunchroom meeting. Russ had learned of the meeting almost immediately and questioned Veenhuyzen about it. Thus, we have a situation where the protected, concerted activities took place at a time and place which not only created an opportunity for the employer to observe them, but where the employer made statements and asked questions which indicated he had gained knowledge of the protected activity. Accordingly, I shall infer from all the circumstances that Russ was aware of Woodriff's prounion sympathies. See, for example, Sequoyah Mills, Inc., 168 NLRB 32 at 37. I therefore conclude under all the circumstances that Respondent's alleged reasons for the January 8 layoffs were mere pretexts and that the General Counsel has established by a preponderance of the evidence that the real reason and moving cause was the union activities of said employees, and said layoffs constituted discrimination to discourage membership in the Union and a violation of the provisions of Section 8(a)(3) and (1) of the Act. - IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with the operation of Respondent described in section I, above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices, I shall recom- mend that Respondent cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Peter J. C. Veenhuyzen on January 3, and Alan Woodriff, Roy Eisle, Robert Clemenson, Gary Coonrod, and Denzil Barrett on January 8, I shall recommend that Respondent offer Peter J. C. Veenhuyzen, Alan Woodriff, Roy Eisle, and Denzil Barrett immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to seniority or any other tights or privileges previously enjoyed by each, dismissing, if necessary, any employee hired since the date of layoff of each, having less seniority. It is further recommended that Respondent -make Veenhuyzen, Woodriff, Eisle, Clemen- son, Coonrod, and Barrett whole for any loss of pay each may have Suffered by reason of the discrimination against them. Said loss of pay shall be based on the earnings each would normally have earned from the date of discharge or layoff until he is or was offered reinstatement, less the net earnings of each during such period. Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., Inc., 138 NLRB 716. It is also recommended that Respondent be ordered to make available to the Board, upon request, all payroll and other records to facilitate checking the amount of earnings due. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. CONCLUSIONS OF LAW On the basis of the foregoing findings of fact, and the entire record in this proceeding, I make the following conclusions of law: 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union activities and the union activities of fellow employees, by threatening to terminate employees who engaged in union activities, and by threatening to go out of business if Respondent's employees selected a union as their collec- tive-bargaining representative, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Peter J. C. Veenhuyzen on January 3, and by laying off Alan Woodriff, Roy Eisle, Robert Clemenson, Gary Coonrod, and Denzil Barrett on January 8, 1973, because of their support and activities on behalf of the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within _ the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and the'entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER io It is recommended that Bob Britt Lumber Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, laying off or otherwise discriminating against employees for engaging in union or concerted, protected activities. (b) Interrogating employees concerning their union activities and the union activities of fellow employees, to In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and recommended Order herein shall, as provided by Section 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. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatening to terminate employees who engage in union activities, and threatening to go out of business if Respondent's employees select a union as their collective- bargaining representative. (c) In any other manner interfering with, restraining or coercing employees in the right to self-organization; to form labor organizations, to join or assist any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purposes of collective bargain- ing or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action: (a) Offer to Peter J. C. Veenhuyzen, Alan Woodriff, Roy Eisle, and Denzil Barrett, immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make said employees, Robert Clemenson and Gary Coonrod whole as set forth in the Remedy section above, for any loss of earnings suffered as a result of the discrimination against them. (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, personnel records and reports, and all other records necessary to analyze and determine the amount of backpay due these employees under the terms of this recommended Order. (c) Post at its office in Eureka, California, copies of the notice attached hereto marked "Appendix."" Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of receipt of this Order, what steps Respondent has taken to comply herewith. I I In the event that the Board's Order is enforced by a Judgment of the 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." certain unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, and this notice is posted pursuant to that decision. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. In recognition of these rights, we hereby notify our employees that: WE WILL NOT unlawfully interrogate employees concerning their or other employees' union sympathies and activities. WE WILL NOT threaten to discharge employees because of their support of any labor organization. WE WILL NOT threaten to close any part of our operations or go out of business if our employees select a union as their collective-bargaining representative. WE WILL NOT discharge, layoff, or in any other way discriminate against any of our employees because of their activities in behalf of Lumber and Sawmill Workers Local 2808, or any other labor organization, or because of other concerted activities protected by the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of any right guaranteed them by the Act. WE WILL offer to Peter J. C. Veenhuyzen, Alan Woodriff, Roy Eisle, and Denzil Barrett, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other privileges. WE WILL make whole Peter J. C. Veenhuyzen, Alan Woodriff, Roy Eisle, Denzil Barrett, Robert Clemenson and Gary Coonrod, for any loss of earnings and other benefits suffered because of the discrimination against them. Dated By APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF TEIE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The trial held in Eureka, California, on April 26 and 27, 1973, in which we participated and had a chance to give evidence, resulted in a- decision that we had committed BOB BRITr LUMBER Co., INC. (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 13018 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, Califor- nia 94102, Telephone 415-556-0335.