Clevenger Logging, Inc.

768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clevenger Logging, Inc. and International Woodwork- ers of America, Local Union No. 3-90, AFL-CIO. Cases 19-CA-7427 and 19-CA-7551 September 26, 1975 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On June 20, 1975, Administrative Law Judge Earl- dean V. S. Robbins issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, the General Counsel filed limited cross-exceptions to the Administrative Law Judge's Decision and an answer to Respondent's exceptions, and the Charging Party filed a motion to strike Respondent's exceptions and brief and an answering brief in support of the Ad- ministrative Law Judge's Decision. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, findings,' and conclusions 3 of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Clevenger Logging, Inc., The Charging Party has filed a motion to strike Respondent's exceptions and supporting brief as not having been filed in accordance with Sec. 102.46(b) of the Board's Rules and Regulations, Series 8, as amended, re- quiring that they specifically set forth the questions of procedure, fact, law, or policy upon which they are taking exception, and designate by precise citation the portion of the record relied on. While the exceptions and brief are not in precise conformance with our requirements , they are in substan- tial compliance, and, in the circumstances, we deny the motion to strike. See The Royal Himmel Distilling Company and Gerald Goldman, 195 NLRB 39 (1972). 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 3In adopting the Administrative Law Judge's conclusion that the Re- spondent violated Sec. 8(a)(5) by subcontracting its log-hauling operations and laying off all its log truckdnvers, we find it unnecessary to reach the question of economic justification for the subcontracting as the record sup- ports the conclusion that Respondent unilaterally subcontracted the log- hauling operations and laid off its drivers without affording the Union ade- quate opportunity to bargain. Port Angeles, Washington, its officers, agents, suc- cessors, and assigns, shall take the action set forth in said recommended Order. DECISION STATEMENT OF THE CASE EARLDEAN V.S. ROBBINS, Administrative Law Judge: This case was tried before me in Port Angeles, Washington, on April 22 through 24, 1975. The charge in Case 19-CA-7427 was filed by International Woodworkers of America, Local Union No. 3-90, AFL-CIO, herein called the Union, on November 19, 1974, and was served on Respondent on November 20, 1974. The complaint in Case 19-CA-7427, which issued on January 3, 1975, alleges that Respondent has violated Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. The charge in Case 19-CA-7551 was filed by the Union on February 7, 1975, and was served on Respondent on February 12, 1975. The order consolidating Cases 19-CA-7427 and 19-CA-7551 and the consolidated complaint, which issued on February 28, 1975, alleges in the complaint that Respondent has vio- lated Section 8(a)(1), (3), and (5) of the Act. Posttrial briefs were filed by the parties. The issues herein are: 1. Whether Respondent violated Section 8(a)(1) and (5) of the Act by: (a) on October 19, 1974,' dealing directly with its employees rather than with the Union concerning wages; (b) on October 19, announcing and implementing a change in its wage system from an hourly rate to a trip rate basis without prior notification and bargaining with the Union; (c) on November 15, refusing to meet with the Union to bargain concerning said wage change; and 2. Whether Respondent violated Section 8(a)(5) and Section 8(d) of the Act on January 1, 1975, by modifying its collective-bargaining agreement with the Union by clos- ing down its log truck operations, laying off all its log truck drivers and subcontracting out all its log hauling work without complying with the requirements of paragraphs 1, 2, 3, and 4 of the proviso to Section 8(d) of the Act, and without obtaining the agreement of the Union before im- plementing said modification. 3. Whether Respondent violated Section 8(a)(1) and (3) of the Act by: (a) discharging employees Thomas Haasl and William Brown; and (b) laying off all its log truck drivers and subcontracting out the work previously done by them; and 4. Whether Respondent engaged in the following inde- pendent violations of Section 8(a)(1) of the Act: (a) prom- ising an employee that he would receive higher wages if Respondent were nonunion; (b) threatening employees that it would close down its log truck operation and lay off all its drivers if they sought union assistance concerning Respondent's unilateral wage change and/or if the Union fought said change; and (c) threatening an employee with discharge if he supported dischargee Thomas Haasl or at- tended a union meeting. All dates hereinafter will be 1974 unless otherwise stated. 220 NLRB No. 115 CLEVENGER LOGGING, INC. 769 Upon the entire record,2 including my observation of the witnesses, and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Washington corporation with its office and place of business located in Port Angeles , Washington, is engaged in the business of logging, log hauling and log- ging road construction. Respondent, in the course and con- duct of its business operations during the 12 months pre- ceding the issuance of the consolidated complaint herein sold products and services valued in excess of $50,000 to Washington firms which in turn sold and shipped products valued in excess of $50,000 directly to points located out- side the State of Washington. The complaint alleges, Respondent admits, and I find, that Respondent is, and at all times material has been, an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. BACKGROUND Respondent is engaged in logging, log hauling and build- ing logging roads both for its own logging operations and for others. It is owned by two brothers: James Clevenger,3 president and general manager , and William Clevenger,4 secretary-treasurer. J. Clevenger spends much of his time managing the logging operation and is frequently away from the office. W. Clevenger normally spends the entire day in the office and is responsible for administrative de- tails. Since he is in the office, he is more directly involved with the truck operation than with the logging operation. All of Respondent's logging is done under a contractual arrangement with companies who own the timber, to their specification and as required by them. Respondent's prin- cipal customers are I.T.T. Rayonier and I.T.T. Peninsula Plywood. Its log hauling is also done under a contractual arrangement whereby the timber is transported from the woods to a location designated by the customer. Since, at least the early 1960's, Respondent has used some contract labor in its logging crew, principally faller and buckers,5 and has also subcontracted its overflow hauling work. Its principal supplier of fallers and buckers is Birdwell Broth- Z The motion of the General Counsel to correct the official transcript of the proceedings herein is granted and the errors have been noted and cor- rected. 3 Referred to herein variously as Jim, Jim Clevenger and J . Clevenger Referred to herein variously as Bill, Bill Clevenger and W . Clevenger. s A faller cuts down a standing tree . A bucker then cuts the tree up into prescribed lengths. ers Busheling. It uses various trucking -subcontractors, but the principal one is apparently Hughes Trucking. The number of employees on Respondent's payroll vari- es during the year. During the busiest season there are around 35 employees. Although the Union represents all of Respondent's employees, the ones we are principally con- cerned with herein are the rigging crew, because one of the alleged discriminatees, William Brown, worked in that crew, and the log-haul drivers who are involved in the other allegations of the consolidated complaint. The rig- ging crew consists of a chokerman, a rigging Slinger, and a hook tender.6 The hook tender and the rigging clinger are the key classifications in the rigging crew. On the landing, the key classifications are the shovel operator and the yard engineer. The chaser 7 also works on the landing. Accord- ing to the undenied testimony of W. Clevenger, which I credit, a skilled logging crew is difficult to obtain. General- ly, a logging company has to resort to training its crew, and once they are trained, it is difficult to retain the rigging crew particularly because they jump from job to job for more money. For that reason many of the logging crew are paid above union scale. The rate- for log hauling is set by the State.8 This amount is what Respondent is paid by its customers and that same amount is also what Respondent pays to its subcontrac- tors? Prior to January 1975, Respondent was utilizing six highway logging trucks driven by its own employees. It maintains a shop for truck maintenance in Port Angeles in the same building where its office is located. Also, its log- haul drivers live in the Port Angeles area. According to J. Clevenger, Respondent's financial diffi- culties with its log-hauling operation began when I.T.T. Peninsula Plywood, its principal customer, and I.T.T. Ray- onier set up a sorting yard at Forks, Washington, and di- verted most of their log deliveries to Forks, which is about 55 to 59 miles from Port Angeles. Consequently, Respondent's trucks were no longer hauling loads to Port Angeles and they had to run empty trucks to Forks in the morning and empty trucks to Port Angeles in the evening which entailed, on the average, approximately 2-1/2 hours a day per driver at overtime rates. Near the beginning of 1973 Respondent tried to cut its expenses by utilizing off- highway rigs stationed at Forks.10 Either slightly before or 6 A rigging slinger grades the logs in the brush, selects the logs which meet the size specifications and rejects those that are rotten or have too many limbs or knots. He is normally assigned two or three chokermen . The chok- erman secures a length of cable, called a choker, around a log which goes on a butt rigging running to the tower. This is the method of bringing in the lops. The chaser unhooks the chokers as the logs come in, saws off the limbs with a chain saw and brands the ends of the logs for identification purposes. 8 The rate is set by the Washington State Utilities and Transportation Commission. Someone from the Commission runs the road and determines what is known as the State rate 9 Under Respondent's contract with its customers, it is paid separately for log hauling and also for falling and bucking . This amount is passed on to its subcontractors without profit or loss to Respondent. The only exception was for a period of approximately 2 weeks in 1975 when it incurred a small loss on finishing a year-old contract on an off-highway haul, for which there is no State rate. Hughes demanded State rate and Respondent paid it al- though it was slightly more than Respondent was being paid. 10 The off-highway trucks were used only until the spring of 1973, at which time it had become apparent that the vehicles had rear-end problems Continued 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about the same time, Respondent began implementing the practice of parking its highway trucks in Forks and having the trucks brought into Port Angeles only for servicing. About the same time the off-highway trucks were put into use, Respondent began using a crew bus. The crew bus departed from Respondent's Port Angeles shop in the morning and picked up men either at their homes, along the road, or at Callum Bay. According to J. Clevenger the bus was not successful because gradually, the drivers began to find more and more servicing reasons for bringing the trucks into town so that finally they were returning to Port Angeles almost every night. Then in the winter or spring of 1974, the crew bus had an accident and Respondent com- pletely abandoned that experiment.I I Until 1972 when Respondent signed a contract with Rayonier, its employees were not represented by a union. However, Rayonier had a collective-bargaining agreement with the Union which requires all its contractors to main- tain union standards, and shortly after Respondent entered into its contractual arrangement with Rayonier, the Union notified Respondent that it represented a majority of Respondent's employees and demanded recognition. On August 18, 1972, William Clevenger discussed with the Union, the Union's contract proposal. It is not clear from the record whether an agreement was reached on contract terms at this meeting or later. 12 However, they did execute and no parts were readily available. Highway trucks are designed to carry 75,000 pounds gross weight on the highways and a maximum of 80 to 85 thousand pounds, under overload conditions , whereas the off-highway trucks were capable of hauling 180 to 200 thousand pounds gross weight. ' I This is from the testimony of J. Clevenger, whom I credit in this regard. There was a substantial amount of testimony concerning whether Respon- dent instructed the drivers to use the crew bus, whether they were instructed to bring the trucks in for servicing once or twice a week, whether the crew bus idea was deliberately sabotaged by the drivers , or whether the plan was basically unsound because of the staggered work schedule of the drivers. Resolution of these questions is, in the main , unnecessary and I have reached conclusions thereon only to the extent necessary to resolve the basic issues herein. I do credit the testimony of J. Clevenger that Respondent attempted to implement a plan whereby the highway logging trucks were to be parked at Forks except when servicing was required and, without at- tempting to allocate blame, I further conclude that the plan was unsuccess- ful. I think Clevenger's testimony in this limited regard is more inherently consistent than that of the employee witnesses . All driver witnesses were not questioned as to the use of the crew buses. Spooner does not deny that drivers used the crew buses . He testified, without explanation and without contending the same was true of all highway log truck drivers , that a crew bus was not available to him. I found Haasl to be an evasive witness with regard to this aspect of his testimony . Furthermore, it is apparent from his testimony that the drivers used the crew bus and that the trucks were parked in Forks at some time. 12 There was extensive testimony as to the nature of these negotiations. In general, the Clevengers contend that when they signed a Rayonier contract, they were told they had to go union. Consequently, they considered the Union contract to be much the same as all of the contracts a relatively small logging company deals with in the logging industry, i.e., you negotiate mon- ey items and time limits but you have no choice as to contractual language. In essence, you are dealing with standard form contracts . The Clevengers' undenied testimony is that the Union gave them a Rayonier wage scale and told them to select the applicable classifications . Don Young, union busi- ness agent, testified that they went over the Union's proposed contract item by item. J. Clevenger does not recall this approach and neither he nor Young recall very much as to the details of this session. They agree that they arranged that the Union wage scale would not become effective until Janu- ary of 1973. J. Clevenger is sure that the subcontracting clause was not discussed because if it had been, there would have been extensive discussion due to Respondent's reliance on the use of subcontractors. Resolution of this question is unnecessary since regardless of Respondent's reason for a collective-bargaining agreement effective October 30, 1972, which provides, inter alia, for hourly rates of pay and prohibits the subcontracting of any work which is normally done by, or expected to be done by, the employees covered by the agreement. I credit J. Clevenger's testimony that they did not negotiate that the marshalling point 13 would be Port Angeles . Such an agreement is not memoralized in the contract and the contract is worded to anticipate future negotiations on a marshalling point. 14 Moreover, it would appear logical that a marshalling point is something that might change during the course of a 3 -year contract in accordance with changes in the location of the woods site or the customers sorting yard. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Pre-October 19 Threats Ken Dawley, employed in Respondent's rigging crew, testified that in early fall 1974, another crew member asked McHaffie 15 for a raise . McHaffie replied, "If we were out of the Union, we'd have a better chance of getting a raise." He said the money they had to pay to the Union 16 could go toward a raise . McHaffie further said, "If you don't like the way we are running things, we'll shut everything down." McHaffie denies that he ever promised the logging crew that they would get more money if they were out of the Union. He does not deny that he threatened to shut ev- erything down nor does he specifically deny the statement regarding a raise ascribed to him by Dawley . I credit Daw- ley, who impressed me as an honest and reliable witness. McHaffie's testimony, on the other hand, was somewhat confused and differed in several respects from his prehear- ing affidavit. I find both statements to be coercive and therefore violative of Section 8(axl) of the Act. Although the latter statement is not specifically alleged in the com- plaint, it was fully litigated at the hearing. In August, Respondent laid off drivers Joel Spooner and Frank Robinson for 2 days and utilized a subcontractor's trucks in their place. When Young questioned J. Clevenger in regard to this, Clevenger told him that this was done only because the subcontractor had to have a certain amount of work in order to obtain a Common Carrier Cer- tificate of Convenience from the Washington State Utilities signing the contract, or its assumption as to the extent it was negotiable, it did sign the contract and it is obligated thereby . To the extent that it may affect credibility resolutions regarding other issues herein , I conclude simply that J. Clevenger's account of this meeting is the more creditable. Consistent with his testimony, the contract appears to be a standard form with certain blanks to be filled in. Young, himself, testified that there were just some blank spaces that were filled in. 13 Marshalling point is the location from which trucks are dispatched each dal. ° The contract provides: ARTICLE-TRANSPORTATION The Employer agrees to furnish all employees with free transportation to and from their work each day from a station to be agreed upon by the Employer and the Local Union. Is The parties stipulated that McHaffie is a supervisor within the meaning of the Act. 16 Presumably, he was referring to health and welfare and pension bene- fits. CLEVENGER LOGGING, INC. and Transportation Commission. Thereafter, during the first part of September at a union meeting, the employees discussed Respondent 's use of sub- contractors in preference to employees 17 and elected a grievance committee consisting of Pete Johnson, Tom Haasl, and Bill Brown . Haasl and Brown were also elected to the safety committee. Joel Spooner testified that during the week preceding this meeting, J. Clevenger told him, "I don't know who called this union meeting. If any heavy shit comes down from it, I'll shut this whole sonofabitch down and you'll all be looking for a job." Clevenger admits that he had conver- sation with Spooner regarding the calling of a grievance meeting. He does not specifically deny Spooner's account of the conversation. I credit Spooner and find that Respon- dent thereby violated Section 8(axl) of the Act as alleged in paragraph 12 of the consolidated complaint. In early October, the grievance committee met with Jim and Bill Clevenger. Haasl requested permission to tape the meeting and was refused . Haasl brought up the subject of the layoff of Spooner and Robinson while subcontractors were working. According to Haasl, the Clevengers re- sponded, with shouting and profanity, that this was no concern of the committee and they would not tolerate any interference, that the drivers were making too much mon- ey, were robbing them and if the employees persisted in bringing the Union into the matter, they would shut the trucks down, fire all the drivers, reorganize the Company and hire new drivers. In substantial agreement Brown testi- fied that J. Clevenger said they were tired of the employees complaining and if the Union was brought into any more matters, they'd shut the whole outfit down. Both Brown and Haasl testified that they informed the Clevengers that a safety committee had been formed, that Brown raised the issue of some problems with the whistles, and the Cleven- gers explained the difficulties and said they would attempt to correct the problem. Jim Clevenger denies that he was extremely upset 18 or profane and that he ever said he would shut down the log truck operation if the drivers sought union assistance. Ac- cording to him, as soon as the drivers complained, and prior to the meeting, he had taken care of the situation by telling Carrell to make sure that everyone received a fair amount of time. However, he makes no attempt to relate 17 Apparently their complaints were not related solely to the Spooner- Robinson layoffs but also involved the rotation of subcontractor trucks with Respondent's trucks. Respondent's normal practice had been to load one of Respondent's trucks, then one subcontractor truck in rotation and the trucks usually hauled two loads a day. However, Respondent had recently initiated the practice of first loading all subcontractor trucks that could get three loads-usually one to three trucks-and then beginning the rotation. There is conflict as to whether Respondent's trucks were not assigned a third load because the drivers considered three loads plus 2 -1/2 hours' trav- el time made for an excessive workday and didn't want to do so or because the Clevengers did not want to subject their equipment to that kind of wear and tear. The truth is probably a combination of these reasons. J. Clevenger stated that three named drivers, including Carrell, told him they did not want three loads . Although two drivers not named by Clevenger testified on rebuttal that they had never refused a third load, Carrell, who had testified as General Counsel witness was not called to testify on this point. Not did the drivers who testified on rebuttal deny that they had simply not returned, as Clevenger testified McHaffie reported to him. 18 He admits that he probably did get excited. 771 the details of that meeting. He does state that he thought they were meeting with the safety committee and did not realize that the meeting was a grievance meeting. I credit him in this regard since safety matters were also discussed. Apparently, there was no written grievance, 19 ahd, as set forth below, a month later Bill Clevenger asked Young the identity of the persons on the grievance committee. How- ever, I do credit the testimony of Brown and Haasl that he said he would shut down its log truck operation if the driv- ers sought union assistance.-Their testimony is mutually corroborative, and it is apparent from the record that for several months the Clevengers had been making statements to the effect that something had to be done regarding the losses being incurred in the log-haul operation, that going to the Union would not solve the situation and unless they were allowed some flexibility, they would close the trucks down. It is also apparent that they perceived fine distinc- tions between what they admittedly said and the testimony of employee witnesses that they handed down ultimatums of the sort to which Brown and Haasl testified. It was fur- ther apparent from their demeanor on the witness stand that the Clevengers, particularly Bill, possess rather volatile temperaments and tend to react adversely to accusations. B. The October 19 Meeting Haasl testified that one of the Clevengers said something to the effect that "times were real tough" and they were having trouble. He does not recall specifically what was said in this regard. Then: Jim Clevenger informed us that we would go onto a trip rate, that we were no longer on an hourly rate. We would be allowed so much time for each load, depend- ing on its destination. We would be paid that rate whether it was four hours, five hours, six hours, what- ever they determined it would take us to make that run, that's the allowable pay that we would receive regardless of how long it took. We were informed by him that that was the way it was going to be. We had a choice, we could either take it, quit or get fired... . I believe I made mention that some of their times were not too far out if everything went as smoothly as it should be, but otherwise there was no possible way it could work out, and I think there were other com- ments from other drivers that it didn't look like it could work out. Haasl further testified that the meeting lasted about an hour or an hour and a half, the Clevengers were quite excit- ed and profane and that Jim Clevenger said: ... if we cause any stir on this on the union, they were absolutely going to button everything up and they would just shut the trucks down and we'd be out, that they were going to quit hauling with their own trucks if we caused any stir about this at all. Jim Clevenger also stated that Carrell was truck boss, any complaints or problems should be taken to him and he would either immediately solve it or bring it to the atten- 19 The written grievances in the record, including one on the August lay- offs, were filed after October 19. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of one of the Clevengers. One of the Clevengers said the drivers were no longer required to have clock cards and tachographs. They said time slips would be used and the drivers should describe on the slips their loads, the pickup and destination points, and the allowable hours. Sooner testified that J. Clevenger opened the meeting by saying the Company was economically in trouble and this would necessitate a cut in wages . He said, "You can quit, be fired, or leave, and he didn't give a damn which we did. He didn't care what the union thought about it, and this is the way it was going to be, and we could take it or leave it .... " He outlined a trip rate pay system with the rate to be determined by the Company and said if the drivers didn't go along they would shut down. Jim Clevenger testified that he started the meeting by saying: I said, "Fellows, we have got a severe economic prob- lem. We are losing an extreme amount of money on the log truck portion of our operation and we are going to have to do something to correct, this if we are to continue operations." I said, "Bill and I have dis- cussed this. We would like to try to continue but we cannot continue losing money as we are now" and I said, "We have discussed this, we have three proposals to present to you as solutions to the problem or that we feel and we are open to any suggestions that you might have. . . ." I told them that the [wage] percent- age was between 50 and 60 percent of our gross... . That it was a much higher percentage than we could afford for the amount of money we were bringing in. That with our operation at only 25 to 30 percent 20 we could not subsidize the truck operations and . . . that led up to the telling of what we had come up with or felt could be solutions to the problem. I told them that we had discussed the possibilities, we had three solu- tions, one, starting all operations, and bringing no trucks to town, at the Forks sorting yard which would alleviate two and one-half hours approximately, of overtime a day. The second was that they take or make a reduction in the amount of time to compen- sate approximately this time, so that we would elimi- nate some of the financial burden and let them contin- ue coming to town since they lived here. That way we would have a kind of a give and take situation. They would not have to move to Forks or drive their cars to Forks and we would be able to maintain our mainte- nance operation in Port Angeles . It was definitely ben- eficial to both parties. According to Clevenger, the drivers made negative re- sponses to the idea of parking the trucks at Forks so, as- suming that they didn't want the operation shut down, he proceeded to a more specific discussion of a trip rate pro- posal, talking in terms of a specific number of hours for a specific run. As to one run, Carrell said he thought he could make the trip in less time. Haasl said he thought the times were fair. Clevenger asked if there was any objec- tions to these times . They all indicated assent. Clevenger said, "I am not after a hassle. I am not after a big fight. I'm 20 Rayonier and Peninsula Plywood had severely cut back Respondent's operation. trying to solve a critical problem we have run into until economic conditions return to normal ." He further said they wanted to try to maintain the operation both for the drivers and for themselves , if at all possible and if there were any problems, if the drivers foresaw any problems they were to tell Carrell, he would pass them on to the Clevengers and they would try to resolve them and hope- fully this would not last longer than the spring of 1975. He denies cautioning the drivers not to consult the Union or that if they went to the Union, he would shut down the trucks and fire them. J. Clevenger does not remember tell- ing the drivers that it would do them no good to go to the Union. He states that they did say that financially they could not continue in the same manner, that having a has- sle with the Union would not solve the financial problem. W. Clevenger testified that he came in as Jim was going over the details of the new wage schedule. According to him, he made the statement that if it was not economically feasible for the drivers to live with this, they would have no alternatives but to park the trucks. He said it was not that they were trying to fire the drivers and hire new ones, it was just not economically feasible to run the trucks. Carrell said something to the effect that he understood. There were several responses but he doesn't recall any particular state- ment. He further testified that he said, "You can go to the union if you want, but it won't do you any good because the union can't change our financial position." Although Jim Clevenger's account is more detailed and there are differences in emphasis, I find no significant con- flict in these versions except as to the alleged threat to shut down if union assistance was sought. Probably the meeting was not as democratic as Clevenger would have it and not as one-sided as Haasl and Spooner describe. However, es- sentially it is undisputed, and I find, that the Clevengers ruled out a continuation of the pay scale required by the contract. Jim Clevenger admits that once the question of parking the trucks at Forks was rejected, the sole option left to the drivers was to accept a pay plan which reduced their pay by roughly 2-1/2 hours overtime daily or lose their jobs because Respondent would cease using its own trucks to haul logs and all of the log-haul drivers would be laid off. Further, Bill Clevenger admits that he told the drivers it would do no good to go to the Union, and Respondent's entire course of action, including the similar threats made previously to Spooner and the grievance com- mittee, indicate that Respondent was determined to brook no union interference designed to cause Respondent to pay its log-haul drivers the pay rate required by the collective- bargaining agreement . In the circumstances, I find that the statements made by the Clevengers were intended to, and did, impress upon employees that their jobs would be in jeopardy if they sought union assistance. Further, I credit Haasl and find that Jim Clevenger specifically stated that if there was any interference from the Union, Respondent would shut the trucks down. Such a statement clearly coerces employees in the exercise of their rights guaranteed by Section 7. Accordingly, I find that Respondent thereby violated Section 8(a)(1) of the Act. On October 21, the new wage system went into effect without notification to, or discussion with, the Union. As a result, the drivers sometimes put in more hours than they CLEVENGER LOGGING, INC. were paid for. Sometime in December Respondent made at least one change in the hours allowed for a run using the 5800 road. Again, there was no notification to, or discus- sion with, the Union. I also find that by implementing a new wage system without notification to the Union Respondent violated Section 8(a)(5) and (1) of the Act. The Act requires that an employer bargain with the majority representative of its employees with regard to wages, hours , and working condi- tions. Unilateral action is violative of the Act regardless of good faith or economic defense. Century Electric Motor Company., 180 NLRB 1051 (1970). I further find that Respondent violated Section 8(a)(5) and (1) by presenting its proposed change in pay directly to its employees rather than to their collective-bargaining rep- resentative; and by threatening employees with termina- tion if they refused to accept the proposed changes. The effect of such threat was to coerce the employees to accede to Respondent's terms and to induce them to abandon their support of the Union. Dust-Tex Service, Inc., 214 NLRB No. 60 (1974). C. The November Refusal To Bargain Young testified that on or about October 20 or 21, Rob- inson informed him of the October 19 meeting. After wait- ing to ascertain that the pay change was indeed reflected in the November 10 paycheck, Young telephoned Bill Cleven- ger on November 15 and told him he wanted to set up a meeting to discuss the trip rate change. According to Young, Clevenger replied, "No way are we. going to meet, that we met with the son-of-the-bitches once, and they can either take it or leave it." Young further testified that Cle- venger inquired who wanted to meet him and when Young replied the grievance committee, he asked who was on the grievance committee and Young replied , Haasl and Brown?t Clevenger inquired as to the identity of the third member and Young said he couldn't tell him because they had just had elections. On cross-examination Young admitted that Clevenger brought up the subject of the crew bus as an attempt to solve Respondent's financial problem and that it hadn't met with any success or cooperation from the men. He denies that at this particular time, Bill Clevenger offered to furnish figures in support of his position. Bill Clevenger does not deny this conversation . He testi- fied on cross-examination that he may have received a tele- phone call from Young on November 15. He does recall a telephone conversation in which Young requested a meet- ing regarding the new pay system. As to this conversation Clevenger testified: Q. Did you then plainly tell Don Young that the company would not be represented at the meeting and if the drivers couldn't or wouldn't work under the ex- isting conditions that the company would stop using company-owned trucks? 21 Young testified that he could not recall at the moment whether Pete Johnson or Frank Robinson was on the grievance committee so he only mentioned the two names. A. That is correct. 773 However, he made no attempt to relate the entire conversa- tion. Jim Clevenger testified that he was present when Bill Clevenger received a telephone call from Young regarding a grievance meeting with the committee over the trip rate schedule. According to him, Bill said he did not want to meet at the union hall and have a big fight with the drivers, that he didn't think that it would do any good to have a meeting because it would not change the financial condi- tion of the Company and that he had gone over it with the drivers. He also said that they would be more than happy to show them the financial figures of the Company and to have a premeeting at Respondent's office to disclose the problem and discuss it with him prior to any meetings that might develop, because it was a complicated problem. He does not recall Bill asking during that particular phone can who was on the grievance committee and he denies hearing Bill repeat the names of the union committee men. At some point Bill did tell him Young had said Haasl and Brown were on the committee. He is confused as to the time but thinks it was after November 15. In fact he thinks, but is not certain, that the request for the meeting was later than November 15. On cross-examination, Bill Clevenger testified that fol- lowing this conversation he talked to Carrell and basically told him to talk to the drivers and take a vote as to whether they wanted to work under the trip rate system, and inform them that if they didn't want to work under that system, the trucks would be parked starting November 18. He fur- ther told Carrell they would not be hiring other drivers, it was just that economically they could not continue the op- eration. They had made other offers and that was it. On November 17, Carrell called and said he had talked to the other drivers as instructed and that they wanted to contin- ue work. He is certain about the November 17 date be- cause it was the Sunday before Monday, November 18, when the trucks would have been parked. He is uncertain about the November 15 date. In view of Bill Clevenger's admission, the fact that Jim Clevenger was vague as to dates and may have been con- fusing two separate conversations and obviously could not testify as to the context of the statements he overheard, and the fact that Bill Clevenger immedately responded by again bypassing the Union and approaching the employees directly, I find that Bill Clevenger did refuse Young's re- quest to bargain concerning Respondent' s unilateral change in the wage system. Accordingly, I find that Re- spondent thereby violated Section 8(a)(5) and (1) of the Act. I further find that Respondent violated Section 8(a)(5) and (1) of the Act by Clevenger's threat to shut down the trucks on November 18 if the drivers were not willing to accept the trip rate pay system. D. Haasl's Discharge Haasl began work for Respondent in September 1972 as a chuck tender drilling a pit. When that job was finished he drove a gravel truck, then left Respondent's employ for about 6 weeks until August 1973 when he was reemployed 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a log truck driver. Since then he has complained several times to the Clevengers regarding safety matters . In Janu- ary 1974 he appeared as the sole witness for a discharged employee and his testimony was instrumental in having the employee reinstated. In March, Haasl contacted the De- partment of Labor and requested a safety inspection. The inspection was made but there is no evidence that the Cle- vengers knew that he had complained. Also in March, Haasl telephoned Jim Clevenger, told him one of the driv- ers had not returned home and he was quite concerned about his safety. Clevenger replied that he shouldn't be calling him, that Carrell would take care of it. According to Haasl, they had a rather heated discussion over this and Clevenger "slammed up the phone." 22 Shortly thereafter, on March 20, Jim Clevenger delivered a letter to Haasl, told him to read it and said it was a warning, the first step in the grievance procedure . The let- ter signed by William Clevenger reads: This letter is to inform you that we have received com- plaints from some of our crew about your recent criti- cism of the management of Clevenger Logging, Inc. Jim Clevenger and I have each received untimely tele- phone calls from you, which have subjected both of us to listening to these primarily unfounded complaints. We are notifying you at this time that any further complaints from the crew regarding this problem or continuance of these unnecessary criticisms to Jim or myself will result in your discharge from the employ of Clevenger Logging, Inc. We do wish to be informed of any pertainent[sic] problems regarding operation of this company, but will accept only constructive suggestions which are made during the reasonable working day either ver- bally or in written form. These suggestions shall be directed to Jim Clevenger or myself only, not to fellow employees. During the week following the October 19 meeting, Haasl filled out the new time slips with the information required by Respondent, but he also included the actual hours he worked. On or about October 24 or 25, Bill Cle- venger gave Carrell Haasl's October 23 and 24 time slips and told him to instruct Haasl to rewrite the time slip and leave off the extra time . Carrell informed Haasl and Haasl changed the slips. On November 13, at or around 5 p.m., as he was return- ing to Port Angeles after delivering his last load, Haasl ran out of fuel.23 He immediately radioed Respondent's office and requested that fuel be sent out to him. Robinson had heard the call over his radio so he informed Haasl that Spooner had passed him shortly before and should be close to Haasl's position and suggested that he siphon some fuel from Spooner's truck. Haasl said Spooner was probably in 22 Immediately pnor to calling Clevenger, according to Haasl, he had reported this to Carrell and Carrell said he (Carrell) would have to call Clevenger to find out what to do. 23 According to Haasl, his normal routine had been broken the previous evening due to a shovel breakdown which resulted in him leaving his truck in the woods . Since he is accustomed to refueling in Port Angeles he forgot that he needed fuel on his return . His gas gauge was inoperative. the same position since his truck had also been left in the woods the day before and Haasl was almost certain that Spooner had also forgotten to refuel. Shortly thereafter Spooner passed Haasl and ran out of fuel about 100 feet in front of him. Haasl remarked to Robinson that it was kind of humorous that they ran out of fuel in in the same spot, laughed and said you will probably never see it again?? At this point Bill Clevenger came on the air. According to Haasl, Clevenger said, "The next one of you sons-of-bitch- es that runs out of gas will be canned . There is nothing funny in this at all. I don't find it a damn bit funny sitting down here at the desk and hearing you sons-of-bitches run off the mouth like that, laughing over something like this. The next one of you dirty, rotten, son-of-a-bitches that runs out of fuel is canned . Do you understand?" Haasl said, "Yes, sir." Bill Clevenger testified that the levity with which Haasl and Robinson viewed the situation really made him angry so he picked up the radio and said, "The next son-of-a- bitch that thinks it's funny running out of fuel will leave his truck where it runs out of fuel and will walk to town." There was a pause , then Clevenger said, "Is that clear?" and one of them answered, "Yes, sir." According to Cle- venger, he was still extremely angry so he told the office clerk that he was leaving the office because if he didn't, when Spooner and Haasl arrived, he would probably fire both of them. Later that day, according to Bill Clevenger's undenied testimony, he discussed the matter with Carrell. At that time Carrell told him that he had warned Haasl in 1973 when he had run out of fuel 25 that Respondent would not tolerate this.26 On the morning of November 15 after Jim Clevenger returned from out of town, Bill related to him the incidents of November 13 and said it was his intention to fire Haasl but he wanted to talk to him (J. Clevenger) first. Jim's reply was, "He's already been warned. I don't see where there is any problem." According to Haasl, that evening when he returned to the shop, Bill Clevenger told him, "I'm sorry to tell you this, Tom, but we've decided to get rid of you." Haasl asked, "Well, what's the reason for this?" Clevenger re- plied, "You ran out of fuel the other night and we have just decided we're going to get rid of you ." Haasl said he felt his work record was very good, in 2 years he had only been late once, he had been very easy on the equipment and the maintenance record on his truck was very, very good. Bill Clevenger said that did not make any difference, that he had run out of fuel and they were going to get rid of him. Jim Clevenger said, "A lot of it's your attitude too." Haasl inquired if Spooner was being discharged and Bill Cleven- ger said, "No, we're not going to fire Joel. He hasn't been warned." At some point during the conversation Jim Cle- 24 According to Haasl, this normally would not happen because no two drivers have the same foot on the throttle and he and Spooner had driven 2 days carrying more or less the same load , covering the same distance and then ran out of fuel close together. 25 According to Haasl, this incident, which occurred during the energy crisis, was not his fault. He had refueled, but during the night someone had siphoned fuel from his truck while it was parked in the Rayonier yard. 26 Haasl denies that he was warned about this, and states that the only warning he ever received was the March 20 letter . Carrell did not testify in this regard CLEVENGER LOGGING, INC. 775 venger said his father had discharged people for running out of fuel. Bill Clevenger testified he told Haasl that they were going to have to let him go, that it was for running out of fuel Wednesday night and for his attitude as well as run- ning out of fuel. He explained that they only had one per- son in the shop due to reduced operations2 and it took a lot of time for him to gather up the fuel and the fuel filter and that he had run out of fuel before. In response to a leading question he further testified that by "attitude," he was referring to his levity over the radio. Jim Clevenger testified that when Haasl returned to the shop, he told Haasl that they just could not tolerate the continual running out of fuel, not following orders.2 8 Bill Clevenger said, "Tom, we'll have to let you go because you run out of fuel." Haasl said, "Doesn't my previous work record mean anything?" Jim Clevenger said, "Well, you have been warned previously by Carrell about running out of fuel." Haasl said he had a good record, he had done a good job. Jim Clevenger replied, "Tom, there has been sev- eral things 29 that maybe you should have been canned on. I haven't anything personal but you've got to follow our directions. We have requirements or regulations. They have to be followed." Later that evening, Haasl told Young he had been dis- charged for running out of fuel. Whereupon Young told him that he had telephoned Bill Clevenger around 3 o'clock that afternoon, had asked them to meet with the grievance committee and had told Clevenger that Haasl and Brown were on the committee. I find that Respondent seized upon Haasl's running out of fuel as an opportunity to rid itself of Haasl. Both Cle- vengers admit that running out of fuel was not the sole reason for discharging him. As to the other reasons, Bill Clevenger said it was his attitude of levity concerning the incident. While the mild humor displayed by Haasl at the irony of the situation might arguably cause a hot-tempered person to fire him on the spot, upon sober reflection it just does not add up to a major offense. Furthermore, Jim Clevenger describes this intolerable at- titude as something entirely different-telephoning them with complaints when it appeared he had been drinking. I completely discount the drinking contention. If that had been a factor it would have been mentioned in the March 20 letter. Instead, the March 20 letter mentions only his criticism of management to fellow employees and his "un- 27 Normally there are three persons in the shop. 28 Jim Clevenger testified that Respondent has standing instructions that fuel, water, oil, tires, and general mechanical condition of the trucks be checked prior to starting out in the morning. This is for safety as well as maintenance reasons. There was testimony from Haasl that he had never received such instruction but he concedes that all drivers know these things have to be checked . Usually, however, according to Haasl, Respondent's drivers made these checks at the end of the day. Fuel is available both at the shoj and in the woods, and sometimes at the Forks sorting yard. 2 According to Clevenger, what he meant by several reasons that Haasl might have been fired was that they had had a few problems. Haasl called him up when Clevenger felt he had been drinking. He had also called Bill Clevenger when it appeared he had been drinking. They had both told Haasl if he had a reasonable complaint, talk to them during regular business hours. If there was an emergency , he could call them but not to call when he had been drinking. Clevenger denies that he was referring to union member- ship or activities. founded" complaints to the Clevengers. There is no evi- dence from the Clevengers as to just what these complaints were and they do not deny Haasl's testimony that he com- plained about safety matters. Also, the letter forbids Haasl to engage in the protected activity of discussing working conditions with his fellow employees. In these circum- stances, I do not credit J. Clevenger's contention that the warning he referred to was the warning about running out of fuel. Rather, I conclude that he was referring to the March 20 letter. In all of the circumstances, including the timing within a few hours after learning that Haasl was a member of a grievance committee whose expressed intent was to inter- fere in Respondent's plans to maintain reduced wage costs, the contemporaneous discharge of the other known mem- ber of the committee, the hostility evinced by Respondent toward such union interference, the attempts to bypass and undermine the Union and Respondent's animus directed toward Haasl for his prior complaints regarding working conditions, I find that Respondent's discharge of Haasl was illegally motivated by his union and other protected activities. Accordingly, I find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Haasl. E. Brown's Discharge Brown was hired by Respondent in March 1973 as a choker setter at $5 an hour. Shortly thereafter he was pro- moted to rigging Slinger at $5.75 per hour. He was dis- charged in April 1974 for failing to report for work 30 Lat- er, another employee told him that McHaffie said he could return to work, which he did on May 16. He became job steward in March 1974 but admittedly never really com- plained about anything. His primary function, according to him, was to sign up new employees for the Union. On No- vember 13,31 he forgot his caulk boots which he is required to wear as a rigging slinger.32 Since he couldn't work as rigging slinger he was assigned to work on the landing as a chaser. After 8-hours' work, he went to the crew bus. The other members of the crew worked for 9 hours. Brown states that Noone had told him to work overtime, it was raining, another chaser was working, and there were only two chokers to unhook, so there really wasn't anything for him to do. Therefore, he went over to the crew bus to warm it up, thinking the crew would be coming in from the brush shortly. Another reason he went to the crew bus was that when McHaffie left early, he took the shovel operator with him so the yard engineer was bringing in the logs and put- ting them in a big stack, making it a dangerous worksite for 30 Brown testified that he had gotten permission from McHaffie to go to the doctor on a Monday. He attended a rock concert on Sunday night and went to the doctor on Monday, but McHaffie evidently thought he took off from work because of the concert. McHaffie testified that Brown and sever- al others wanted time off to go to a rock festival in Seattle. Since they were shorthanded, and Brown was a key man, McHaffie told him he could have the day off only if he got someone to replace him. That Monday Brown didn't show and didn't send a replacement. 31 Brown places the incident as sometime in October but admits it could have been the week preceding his discharge. Since Brown also admits that shovel operator Jack Hutto and McHaffie left early that day and Respondent's time record shows that Hutto left early on November 13, 1 credit McHaffie's testimony that this incident occurred on November 13. 32 Caulk boots are boots with big spikes used for walking on logs. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a person without caulk boots. On November 14 McHaffie told Brown that he could fire him for sitting in the crew bus while the rest of the crew was working. Brown said yes, you're right. To which Mc- Haffie replied, but I'm not going to fire you for this.33 On rebuttal Brown testified that he explained that the 8 hours were up, he figured the crew was coming in and the other chaser seemed to be able to handle things pretty well. Mc- Haffie said he wasn't going to pay Brown for that time. McHaffie denies that he said that and the time records indicate that Brown was paid for the time he sat in the crew bus. Also on November 13 or 14, Respondent's operations were given an on-site check by Wright Vanderwagen, Rayonier's superintendent of contract logging . This visit was prompted by the November semiannual utilization survey prepared by the forestry department which indi- cated that there was a higher than normal residue of mer- chantable material left on the Clevenger clearcuts.34 Re- spondent was notified of this problem and the visit followed. Vanderwagen visited the clearcut covered by the survey and also visited the existing operation . His resulting evaluation was that Respondent's logging was within ac- ceptable standards and the utilization survey was incorrect. Vanderwagen reviewed the utilization report with Mc- Haffie and indicated that he was reasonably satisfied with the job. During his check of the existing operation Vander- wagen had observed Brown's performance. His evaluation was that he thought the logging was satisfactory but he commented to McHaffie that they were logging too clean 35 and that Rayonier would provide a man to help Brown determine what should be taken and what should be left.36 McHaffie told Vanderwagen that after he had seen the utilization survey he told Brown to take it down and make things cleaner . Since Brown had been selecting properly,37 these instructions caused him to log too clean. According to Jim Clevenger, on the evening of Novem- ber 14, McHaffie telephoned him at home, told him about Vanderwagen's visit and comments and related the crew bus incident to him. Clevenger asked if Brown had been doing an adequate job and if he had learned to make the proper selection of logs. McHaffie said the problem at this time is he is logging "too clean." McHaffie said he liked Brown, he was a good worker, but he could not learn to make the proper selection of logs. Clevenger said he would discuss the matter with his brother and would talk to Van- derwagen regarding the utilization report . McHaffie specif- ically told Clevenger that Vanderwagen had noticed that Brown was logging nonmerchantable material and would 33 This is from the testimony of Brown with whom McHaffie is in sub- stantial agreement. 34 A clearcut is a stand of timber that has been cut and is waiting to be transported to the yard 33 Selecting logs smaller than the size specification 36 Rayonier has performed this service for other logging contractors but never for Respondent. However, after the June utilization report, Clevenger had requested assistance It is costly to a logging company to log material which Rayomer cannot use and will not pay for. However, Rayonier would rather that logging was too clean than not clean enough because the residue can never be retrieved 37 Vanderwagen testified that the existing operation was being logged too clean, not the previous one like to send someone in to work with him. The next day, J. Clevenger telephoned Vanderwagen. According to him, he told Vanderwagen he understood that Respondent had developed a problem on utilization, that Vanderwagen had looked it over and Clevenger want- ed to discuss it with him. Vanderwagen said, "You have done a tum-around. Now you're logging too clean. Your rigging slinger is costing you a lot of money and you had better do something about it because while we were on your landing he sent a considerable amount of non-mer- chantable material to the landing." Vanderwagen further said that he recommended and would like to put a man in the woods to train Brown. Clevenger replied, "I don't think you are going to have to because when a man demands approximately one dollar more an hour over union rates because he is a professional and does a good job, knows how to do the job and in fact, cannot do the job, then he is not going to continue working for me." " Vanderwagen said, "As far as a union problem, listen, I don't want any union problems." Clevenger said there should not be any union problems-they had worked with Brown since the first uti- lization report, 18 he had taken time off without permission or notification, he is not doing a proper job and Clevenger did not see that there would be a union problem. Vander- wagen said, "Actually, at this time, as far as utilization goes, you have corrected your utilization problem as far as I am concerned." He further said he did not want to get involved in any union hassles. Clevenger said he felt there would be no union hassle involved because of the record of what Respondent had done from the June utilization re- port to the present. Vanderwagen testified that Clevenger said he was going to fire Brown and wanted to use the utilization survey as the reason. Vanderwagen replied, absolutely not, for one thing his company did not want to be involved in any labor dispute with contractors and he did not consider the utili- zation survey a basis for firing Brown. Although Vanderwagen's account is not as detailed as Clevenger's, their versions do not actually conflict and I find that a composite of their testimony more accurately reflects what was said. Specifically, I find that in addition to details of the conversation described by Clevenger, Vanderwagen specifically stated that he did not think the utilization re- port was a basis for discharging Brown. This statement is in conformity with what Vanderwagen had earlier told Mc- Haffie, which was essentially that Brown was doing an av- erage job prior to McHaffie telling him to log cleaner. Van- derwagen testified that it appeared that Brown had not received adequate instructions as to what to log in. He further stated that he does not recall any instances where it came to his attention that Respondent was sending in logs that were too small. Also, on November 15, Jim discussed Brown with his brother. He related the crew bus incident, that there were continuous problems with him concerning utilization which they had worked on for some time and that a month 38 Jim Clevenger testified that the June utilization report indicated that Brown was not doing his job properly . Immediately after he received the report, in the first or second week of July, he contacted McHaffie and instructed him to call their immediate contract supervisor for Rayomer to get assistance on the problem. CLEVENGER LOGGING, INC. 777 earlier he had warned McHaffie that if Brown continued to fail to show up for work and continued his sloppy work, he was going to discharge him. They reached a decision to terminate Brown. Clevenger told McHaffie to tell Brown he was terminated, that it was Clevenger's decision and if he wanted a full explanation , to tell him to come to the office and Clevenger would completely explain the reasons for his discharge. According to J. Clevenger , the earlier warning to Mc- Haffie was prompted by Brown's visit to the office about a month or a month and a half prior to his termination. It was on a payday and Brown came into the office to pick up his check. J. Clevenger testified: I said "What's the matter, you are not working?" and he said "I'm sick. I've got the croup" and he goes "cough, cough," kind of like that and I said nothing else .... the minute he walked out I told Bill, I said "He didn't seem sick to me. I am going to try calling John. If he didn't call John and notify him that he was sick and was going to be off, as far as I am concerned he's done . . . ." Bill told me that Brown had, on two or three other occasions that he had noted , had been off in the approximate area of a payday and that he thought that he was maybe developing some kind of a habit. I said I would check it out with John, "We will find out whether Brown actually asked to get off to see a doctor or just took off on his own or what." Clevenger radioed McHaffie to telephone him, which he did that evening. McHaffie said Brown had just- failed to show up that morning. Clevenger told him the next time Brown committed a dischargeable offense 39 he would be fired, that they could not , have an irresponsible ri gging slinger. He further said, "If you have any reason, I want to know about it. I plan to terminate him" and "if he comes into the office and does that again you won't have to tell me because he will be automatically terminated." On November 16, according to Brown , he happened to meet McHaffie in a restaurant . McHaffie took him to one side and said he was going to have to lay him off. Brown asked why. McHaffie said it was because he wasn't logging right. Brown said that was "a bunch of bull" and demand- ed to know the real reason , stating that McHaffie had been out there on the job with him and had seen exactly what he sent in. McHaffie replied that Brown was right, that wasn't the real reason he was being laid off, and as far as he knew, it was something that happened between Brown and the Clevengers the last time Brown was in the office. McHaffie further said that Brown could probably take this to the Union and he would be crazy if he didn't. Brown said he would take it to the Union. McHaffie said if it was up to him, he wouldn't let Brown go, because he liked him and the job he was doing. McHaffie further said that one of the Clevengers had instructed him to discharge Brown. As to this discharge interview, McHaffie testified on di- rect examination, "I told him that me and Jim had talked it 39 McHaffie's undenied testimony is that the logging crew was plagued with absenteeism so sometime between July 4 and September, he had laid down a rule that anyone who failed to report to work without notifying him of having a doctor'1 wntten appointment would be discharged, over and we decided to terminate him and that he was considered done at that time." When asked what Brown said, McHaffie testified, "O=K. There was very few words said," On cross-examination, he admitted telling Brown that if he had any questions, the best thing for him to do would be to go to the Union and that he doesn't recall whether he told Brown that he was being discharged be- cause of the utilization reports. He also admitted that he told Brown he was not being discharged for just one partic- ular thing, that there were a lot of reasons that he was not completely aware of or did not completely understand. I conclude that, like Haasl, Brown was discharged as a result of Respondent learning that he was on the Union grievance committee that was requesting a meeting to dis= cuss Respondent's unilateral change to the trip rate wage system. McHaffie considered Brown a good, hardworking employee, Vanderwagen's check of Respondent's clearcuts indicated that the utilization reports were erroneous and that Brown was making satisfactory selections. In reaction to the erroneous June and November utilization reports, Respondent had instructed Brown to log cleaner. There- fore, obviously, it was following these instructions that caused Brown to log too clean. Clearly, McHaffie immedi- ately understood this as manifested by his response to Vanderwagen's observation that Brown was currently log- ging too clean. I am convinced that a logger as experienced as Jim Clevenger would also immediately, recognize this. Furthermore, Bill Clevenger testified that it was extreme- ly difficult to get and retain rigging slingers so that usually Respondent had to train its own. Certainly in July Respon- dent had requested some assistance from Rayonier in com- batting its utilization problem. There is nothing in the rec- ord to indicate what assistance was contemplated other than training Brown . Brown was given his last two raises after receipt of the June utilization report so at that -time Respondent wasn't overly concerned about the alleged dis- parity between his pay and his ability. I cannot credit that Clevenger would accept Brown's work performance at a time when it really appeared to be below standard and then suddenly find it unacceptable when it became clear that his work performance was indeed at an acceptable level. As to his alleged absenteeism, from McHaffie's testi- mony, it appears that such was common among the entire crew. I therefore find unconvincing Jim Clevenger's con- tention as to his concern a month earlier that Brown was not really ill when he took off from work. It was at about this time that the grievance committee, including Brown and Haasl, met with Respondent and the Clevengers launchedinto a diatribe against high wages, union interfer- ence and the drivers in general, and threatened to close down its log trucks if the drivers sought union assistance. In all of the circumstances, including the timing, the contemporaneous discharge of Haasl, Respondent's ex- pressed hostility toward union interference in its unilateral wage cost reductions, its efforts to bypass the Union and undermine its attempts to negotiate as to the change in the log truck drivers wage- system and the use of subcontrac- tors, I find that Brown's discharge was discriminatorily motivated in violation of Section 8(a)(1) and (3) of the Act. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. The Alleged Threat by Carrel According to Spooner's undenied testimony, which I credit, the Union scheduled a meeting for December 12. Thereafter, on December 7 Carrell told him if he supported Tom Haasl or went to the Union meeting that next week, he would be automatically fired. Carrel said he had been told by Bill Clevenger to give that message to all of the drivers. This statement is violative of Section 8(a)(1) if it can be imputed to Respondent. Respondent denies Carrell's supervisory status. General Counsel contends that even if Carrell is not a supervisor within the meaning of the Act, Respondent has clothed him with sufficient apparent authority to make Respon- dent responsible for his threat. Carrell drives a truck the same as other drivers . He receives 25 cents an hour more than the other drivers. This is to compensate him for dis- patching trucks . This dispatching is a routine function which does not require the exercise of independent judg- ment. McHaffie determines when the trucks are to start, how far apart they are to be scheduled and how many trucks will be used . He transmits this information to Car- rell on a daily basis. Carrell then tells each driver what time he is to start the next day. The order of trucks is de- termined on a rotation basis. He has no authority to hire or fire nor does it appear that he has the authority to effectively recommend such. Carrell testified that he had recommended drivers once or twice and that his recommendation had been followed only once. In that instance, the driver telephoned Carrell and said he would be interested if Respondent ever had an opening. Carrell told Bill Clevenger that he knew a good dependable driver. Clevenger said "if he's good and dependable, we'll hire him." There is nothing on the record to indicate that Clevenger relied solely on Carrell 's assessment of this pros- pective employee and that he gave Carrell 's recommenda- tion any more weight than he would give that of any trust- ed, experienced driver . Nor do I consider it any more significant that Clevenger sometimes asked Carrell if he knew a particular driver and what he thought about him. Based on the foregoing, I find that Carrell does not pos- sess any indicia of supervisory authority. Electric Wiring, Inc., 193 NLRB 1059, 1062 (1971). However, I also find that Respondent regularly used him as a conduit to relay orders and information to the drivers and to receive com- plaints from them. In the circumstances , including the fact that Bill Clevenger did not deny that he told Carrell to transmit this information to the drivers , I find that Carrell's statement can be imputed to Respondent, see Broyhill Company, 210 NLRB 288 (1974), and that Respondent thereby violated Section 8(a)(l) of the Act. G. The Unilateral Subcontracting of Respondent's Entire Log-Hauling Operation and the Layoff of its Log Haul Drivers phoned Young and told him he had the figures to show the loss Respondent was incurring in the log -haul operation.40 According to Young, he also informed him that Respon- dent was shutting down the trucks as of January 1, 1975. Clevenger agrees that he said the trucks would be shut down but contends that he made it conditional. According to him, he said he did not want any more problems, that if Young wished, they would negotiate but if they didn't reach some solution, the trucks would be shut down as of January 1. Two or three days later Robinson and Young met with Bill and Jim Clevenger. Jim Clevenger gave them some handwritten figures showing log-haul income and expenses for the fiscal year ending June 30. According to Young, Bill went over the figures with them with some explanation. Robinson said he had heard that Respondent was going to cut a half hour off the trip rate when they started using a new road. Jim Clevenger said that was correct. Young also testified that Jim Clevenger said that if the Union dropped the charges with the Board, he would negotiate on the trucks . Young said they wouldn't drop the charges, that he had requested assistance from the Union 's regional office and had turned the matter over to them . However, on cross-examination, Young admitted that the account of this conversation contained in his prehearing affidavit makes no mention of dropping charges and that Bill Cle- venger said if the Union could come up with any way to show them how to make money, fine. Jim Clevenger denies that he said that the NLRB charges must be withdrawn prior to entering into any nego- tiations. His testimony, which I credit, is that they asked Young if he would consider dropping the charges, that they felt the charges were erroneous , that they were willing to work this out, even to keep the trucks working, it was not Respondent's intention to go against the Union or the driv- ers, they were just trying to work themselves out of an extremely difficult financial position . They suggested that the Union try to come up with some alternatives, and fur- ther stated that the Union could inspect their books or have an accountant do so. Young said the Union was not trying to force Respondent to run an operation that was losing money. Young said he was not an accountant, that he was going to get financial advice from the Union's re- gional office. Bill Clevenger testified in substantial agreement. Addi- tionally, according to him, he told Young that the figures for the last 6 months could not be prepared until the end of the year, that this information would be furnished as soon as it was available. Young said they would be having a meeting with the drivers to see how they felt about it. Several days thereafter, according to Bill Clevenger, he heard that a union meeting had been held at which some doubt was expressed as to the accuracy of the figures fur- nished by Respondent because they included the cost of the off-highway trucks. So, he had Respondent's book- In December Rayonier notified Respondent that its Christmas shutdown would begin on December 20 and in- stead of the normal 2 weeks' shutdown, operations would be suspended until January 13. During the last week of December, Bill Clevenger tele- A0 There is some dispute as to whether Clevenger, as early as November 29, told Young that he would prepare these figures and would like to get the entire situation straightened out. In my opinion, it is immaterial whether he did or not, the fact is the figures were not produced until the last week in December. CLEVENGER LOGGING, INC. keeper extract from the fiscal 1974 statement of expense the payments on the off-highway rig, and instructed that this cost was not to be included in the statement of income and expenses prepared for the first half of fiscal 1975. As of January 1, 1975, Respondent shut down all of its trucks, laid off all of its drivers and subcontracted its log hauling to Hughes Trucking.41 The arrangement with Hughes is oral, terminable at will. At the time of the hear- ing herein, Respondent still owned all of its trucks though they are not in use.42 Shortly after January 1, 1975, Bill Clevenger telephoned Young, read him the revised fiscal 1974 figures and the fiscal 1975 figures and told Young the figures were avail- able when he wanted them. Young said he didn't need the figures, that someone from the Union's regional office was coming up to look at the figures and he would notify Cle- venger of the date. Young then said, let's face it, he can't force anyone to operate something that's losing money. Young admits that Clevenger called and told him he had more figures. He further admits that he never went to Respondent's office to look at these figures. On January 28, 1975, Bert Rahberger, a vice president of the Union's regional council, Young, and Robinson met with Bill Clevenger. According to Rahberger, the stated issues were grievances which had been filed by the drivers on the change to the trip rate schedule and the shutdown of Respondent's trucks and subcontracting of all of Respondent's log hauling. Rahberger testified that he told Clevenger this was in violation of the contract and Cleven- ger said, I admit and recognize that these are part of the contract. He said something about an economic situation. Rahberger said it was not proper to take unilateral action and make the changes without notifying the Union. Cle- venger said they did meet with the drivers and made them a proposal which Respondent thought was acceptable, that when they found out it wasn't, they laid the trucks off. According to Rahberger, Clevenger said they would do what was best for Respondent, to which he responded that unilateral changes are not proper, that the procedure is to return to the conditions in effect prior to the change and -give the Union the opportunity to bargain. Clevenger stat- ed that he didn't know anything about unilateral action or about the contract, that Respondent's proposal was turned down, the drivers were laid off and Respondent was going to sell the trucks. Rahberger further testified that Clevenger picked up a folder, waved it in the air and said, "Here's some figures that we took from our books" and laid it back down. Rah- berger did not see the figures at this point. According to Rahberger, the Union committee caucused, returned and Rahberger told Young they were not interested in the fig- ures at that time, that Clevenger had made his position quite clear and there was no need to continue the meeting because of an apparent lack of communication. On cross- examination Rahberger admitted that Clevenger said, here 41 Other subcontractors are used when Hughes cannot handle the work required for a particular day. Bill Clevenger testified that due to economic conditions , the truck mar- ket is very poor but Respondent plans to sell the logging trucks as soon as the market picks up. 779 are some financial records, you can look at them if you want. He further admits that the Union group did not dis- cuss with Clevenger the financial points he raised. This was because the Union has more or less a form type of state- ment on unilateral action-that it wants restoration of the status quo and the employees made whole for any loss they may have suffered. William Clevenger's account is not in substantial conflict with that of Rahberger. It does, however, underscore the nature of the conversation which Rahberger, in essence, described as a total lack of communication. It is apparent that Clevenger expected to discuss his financial problems and Rahberger was determined to follow his standard form type response. Thus, Clevenger testified that Rahberger said, do you realize that you have a contract with the I.W.A., local I.W.A. here? Clevenger said, "I understand that we have a contract with the I.W.A., yes, I do." Ac- cording to Clevenger, it was very hard for him to under- stand what Rahberger was saying. He talked with his head down, did not talk directly to Clevenger and did not talk in what seemed to Clevenger to be complete sentences as he thumbed through what Clevenger assumed was the con- tract. Rahberger said something about unilateral agree- ment. Clevenger replied, "I understand that we have an agreement. I don't know much about contracts or unilater- ality or whatever, but I do know we have a problem that we need to get settled and that is a problem of our econom- ic conditions and the problem that we're having with the men because we are not able to operate efficiently when we're having problems with the men, union problems of any nature upset the whole crew or any problems with the men can upset the whole crew." Rahberger said, you don't seem to understand, you have a unilateral agreement here. Again Clevenger replied, "I don't know about that, but I do know about the economic figures of Clevenger Logging, Inc. I have these figures. If you would like to look at them and if you would like me to explain them to you, I would be happy to do so." Rahberger said, "That won't be neces- sary." Then he said they would have to caucus. They left for a few minutes. When they returned Rahberger said, well, it's evident as to your position in this case, we won't need to discuss this any further. Clevenger picked up the folder containing Respondent's statement of income and expenses and said, "Don't you want to look at these? Aren't you even interested in the figures?" Rahberger said, "No" and the Union group left. The complaint alleges that Respondent violated Section 8(a)(1), (3), and (5) and Section 8(d) by laying off all of its log truck drivers and subcontracting out all of its log-haul- ing work. It is General Counsel's and Charging Party's po- sition that the subcontracting amounts to a modification of the contract, specifically the provision that provides: ARTICLE-CONTRACTING-SUBCONTRACTING The Employer agrees for the life of this agreement he will not contract or subcontract any work which is normally done by, or expected to be done by, the em- ployees covered by this agreement. This modification was never agreed to by the Union and Respondent never gave the notices required by Section 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(d) of the Act. Further, contends the General Counsel, its notification to the Union less than a week before its an- nounced date for implementing its decision was insuffi- cient to meet Respondent's obligation to afford the Union an opportunity to bargain and thus violated Section 8(a)(5) of the Act. As to the 8(a)(3) allegation, General Counsel contends that Respondent's action was in implementation of its unlawful threats, motivated by the Union's refusal to acquiesce in Respondent's unilateral changes. Respondent argues that its action is legal because the Union's acquiescence in Respondent's practice of subcon- tracting log-hauling work constituted a waiver of its con- tractual rights and that Respondent was motivated solely by economic considerations. I find both arguments lacking in validity. It is well-settled that a waiver is not lightly inferred and must be clear and unmistakeable. Murphy Diesel Company v. N.L.R.B., 454 F.2d 303 (C.A. 7, 1971); Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410 (1964); Century Electric Motor Co., 180 NLRB 1051 (1970). Contrary to Respondent, I do not think the Board depart- ed from this principle in Bancroft-Whitney Co., Inc., 214 NLRB No. 12 (1974). Rather, it applied the principle to the facts of that particular case . The facts here simply do not make out a waiver notwithstanding the fact that it is also well-established that a past practice in which the union has acquiesced does not constitute a unilateral modification where the practice has become a condition of employment. Westinghouse Electric Corporation, (Mansfield Plant), 150 NLRB 1574 (1965). Here, Respondent's practice has always been to subcon- tract only its overflow work that required in excess of what unit employees could do. This was the practice at the time the collective-bargaining agreement was entered into and the agreement does not prohibit it. Rather , the contract provides that Respondent will not subcontract any work which is normally done by, or expected to be done by, unit employees. Such work is necessarily limited by the number of trucks owned by Respondent. Clearly then, work nor- mally done, or expected to be done, by unit employees is that which can be performed with six logging trucks. The record reveals that the Union immediately protested any- thing that could possibly be construed as an attempt to change this practice, i.e., the subcontractor's position in the rotation and the 2-day layoff of Spooner and Robinson. I therefore conclude that no waiver can be inferred. It is obvious, and I find, that the subcontracting had a significant and detrimental impact on unit employees. In these circumstances, Respondent was obligated not to change its subcontracting practices unilaterally without first consulting and bargaining with the Union. Fiberboard Paper Products Corp. v. N.LR.B., 379 U.S. 203 (1964). I further find that the less than I-week's notice did not af- ford the Union an adequate opportunity to bargain. Ac- cordingly, I find that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally subcontracting log-haul- ing work normally performed by unit employees, com- mencing January 1, 1975, and continuing thereafter, with- out first affording the Union an adequate opportunity to bargain. In so doing I have given full consideration to Respondent's economic defense. However, I conclude that Respondent's economic position does not relieve it of its obligation to bargain. Town & Country Manufacturing Com- pany, Inc., and Town & Country Sales Company, Inc., 136 NLRB 1022 (1962). I further find this subcontracting was in implementation of its unlawful threats to shut down its own trucks if the Union persisted in fighting Respondent's unilateral change in its pay system, which I have heretofore found was de- signed to undermine the Union's representative status. Respondent's entire course of conduct made clear that it would brook no interference from the Union and if the Union persisted in making an issue of Respondent's change in its wage system it would shut its trucks down. On January 1, 1975, it did just that. Respondent argues that it was motivated by economic reasons. Counsel for General Counsel contends that Re- spondent has not proven that it was experiencing any eco- nomic difficulty and urges that an adverse inference be drawn from Respondent's failure to introduce the business records from which its statement of log-hauling income and expenses were taken . Respondent entered into the rec- ord the statement of income and expenses it prepared for the Union. Respondent's bookkeeper testified that she had prepared the statements from Respondent's books and that they accurately reflect what they purport to. She also ex- plained how indirect expenses were allocated . Finally, she testified that Respondent from time to time instructs her to prepare this type of income and expense breakdrown for each of its three operations and that the statements in the record herein were prepared in the same manner. Addi- tionally, and most importantly, the record establishes that Respondent offered to open its books to the Union in sup- port of the accuracy of these statements . In these circum- stances, I conclude that no adverse inference should be drawn from Respondent's failure to introduce certain busi- ness records. I also find that Respondent was in fact incur- ring a loss in its log-hauling operation. I note, however, that Jim Clevenger admits that the log-hauling operation had operated at a loss even before the Union contract was entered into. I further find that Respondent's decision to shut down the trucks as of January 1, 1975, was suspiciously precipi- tous. The record reveals no compelling reason for the selec- tion of this date . Operations were suspended until January 13, 1975, and an extra 13 days clearly would have afforded the Union a much better opportunity to grapple with the issue . Respondent had no reason to think that the Union would not be sympathetic to its financial plight. On two occasions Respondent successfully negotiated with the Union for some financial relief-once , during contract ne- gotiations, when it obtained a delay in the effective date of the wage scale and again, in midcontract term, when it successfully negotiated concerning the travel-time rate for drivers of off-highway trucks. Indeed, Young had already indicated that the Union would not be unreasonable. Furthermore, once before Respondent had used the set- ting of a specific shutdown date as a hammer to beat its drivers into submission, when it instructed Carrell on No- vember 15 to take a vote of the drivers, whether they want- ed to continue with the trip rate wage system or have the trucks shut down on November 18. This occasion was clearly in response to the Union's request for negotiations CLEVENGER LOGGING, INC. on the issue. That incident, along with the threats, the un- lawful discharge of the known members of the grievance committee, the bypassing of the Union, and the unilateral change in wage rate afford a background against which to assess Respondent's motivation. in all of the circum- stances, I find that the Respondent, in laying off its log- haul drivers and subcontracting out the work previously performed by them, was motivated by an intent to dispar- age and undermine the Union, and was therefore violative of Section 8(a)(3) of the Act. Pay'n Save Corporation, 210 NLRB 311 (1974). The complaint also alleges a failure to comply with Sec- tion 8(d) of the Act. The proviso to Section 8(d) provides inter alia: That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modifica- tion sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the exis- tence of a dispute, and simultaneously therewith noti- fies any State or Territorial agency established to me- diate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and (4) continues in full force and effect, without resort- ing to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: Respondent stipulated that it never complied with these notice requirements but argues that Respondent's obliga- tion not to take unilateral action has been met because throughout October, November, and December, Respon- dent sought, albeit perhaps improperly, discussions with the Union on solving its economic problems. I find this argument specious . Respondent never sought to bargain in good faith with the Union. Rather, during this period it embarked upon a course of conduct which I have found hereinbefore was designed to disparage and undermine the Union's representative status . Since its collective-bargain- ing agreement with the Union provides that its employees be paid on an hourly basis and that Respondent will not subcontract any work normally performed by, or expected to be performed by, unit employees, the October 21 change to a trip rate wage plan and the January 1, 1975, subcon- tracting of all of the log hauling previously done by unit employees constituted a modification of the specific terms 781 of the contract within the meaning of Section 8(d) of the Act. As these modifications took effect during the term of the contract, and without compliance with the notice pro- visions of Section 8(d) of the Act, Respondent thereby vio- lated Section 8(d) and Section 8(a)(5) and (1) of the Act. John W. Bolton & Sons, Inc., 91 NLRB 989 (1950); Kinard Trucking Company, Inc., 152 NLRB 449 (1965). Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(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. All employees of the Employer, including temporary and part-time employees, excluding office and clerical em- ployees, guards, professional, and supervisory employees as defined in the Act, as amended, constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been the representative for purposes of collective bargaining of a majority of employees in the unit described above in para- graph 3, and by virtue of Section 9(a) of the Act, has been the exclusive representative of all employees in said unit for purposes of collective bargaining with respect to wages, hours, and working conditions. 5. At all times material herein the Union and Respon- dent have been parties to a collective-bargaining agree- ment covering employees in the above-described unit, which collective-bargaining agreement provides for an hourly wage rate for log truck drivers and further provides that: "The Employer agrees for the life of this agreement he will not contract or subcontract any work which is nor- mally done by, or expected to be done by, the employees covered by this agreement." 6. By bypassing the Union and dealing directly with its log truck drivers with regard to wages, hours, and other conditions of employment by threatening its log truck driv- ers with termination in the absence of their acceptance of its unilateral changes in their wages, hours, and working conditions, or if they sought the Union's assistance in op- posing said changes; and by its November 15, 1974, refusal to bargain in good faith with the Union as the exclusive bargaining representative of the employees in the appropri- ate bargaining unit; Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. 7. By changing the wages of its log truck drivers on Oc- tober 21, 1974 without notification to, or bargaining with, the Union and by subcontracting all of the log-hauling work previously done by bargaining unit employees and laying off all of said drivers on January 1, 1975, without affording the Union adequate opportunity to bargain, all in modification of existing contract provisions without meeting the notice requirements of Section 8(d) of the Act, Respondent has engaged in unfair labor practices in viola- tion of Section 8(a)(1) and (5) of the Act. 8. By reducing the wages of its log truck drivers; by discharging its employees Thomas Haasl and William 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown; by subcontracting bargaining unit work; laying off bargaining unit employees for the purpose of discouraging its employees from supporting the Union and to under- mine the Union's representative status, Respondent en- gaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 9. By suggesting that employees would receive higher wages if Respondent were nonunion; by threatening to close down its log truck operation and lay off its log truck- drivers if the Union fought Respondent's subcontracting of log-hauling work previously performed by unit employees or if its employees sought the Union's assistance regarding Respondent's unilateral change in the wage system; and by threatening an employee with discharge if he supported discriminatee Thomas Haasl or attended a union meeting, Respondent has interfered with , restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices , I shall recommend that Respon- dent cease and desist therefrom and take certain affirma- tive action in order to effectuate the policies of the Act. Having found the Respondent violated Section 8(a)(3) and (5) by its unilateral change in wage and subcontracting practices, I shall recommend that Respondent return to its former method of operation,43 and shall recommend that Respondent offer reinstatement and backpay to all log truck drivers in its employ on January 1, 1975 who were denied continued employment because of Respondent's unlawful conduct and make them whole for any loss of earnings suffered as a result of their layoff. I shall also recommend that Respondent revoke the wage reductions and revert to the contractual pay plan in effect prior to October 21, 1974, and make whole the employees who suf- fered losses by reason of Respondent 's change to the trip rate wage system. Nothing herein should be construed as precluding Respondent from bargaining with the Union as to any proposal to subcontract log-haul work previously performed by unit employees or change its wage system for nondiscriminatory reasons, and consistent with its obliga- tions under Section 8(a)(5) and Section 8(d) of the Act. Having found that Respondent unlawfully discharged Thomas Haasl and William Brown, I recommend that the Respondent offer them immediate reinstatement to the same positions they would have enjoyed if they had not been discriminated against and make them whole for any loss of earnings suffered as a result of the discrimination against them. All of the backpay ordered herein shall be computed on a quarterly basis as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall in- clude interest at the rate of 6 percent per annum as provid- ed for in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 43 Respondent's contract with Hughes is oral , terminable at will, and Re- spondent still owns its log trucks. As the unfair labor practices committed by the Respon- dent are of a character which go to the very heart of the Act, I shall recommend an order requiring the Respondent to cease and desist therefrom and to cease and desist from infringing in any other manner upon the rights of employ- ees guaranteed by Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER44 Respondent, Clevenger Logging, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Bargaining directly with the employees in the unit found to be appropriate herein; or unilaterally reducing their wages by changing its wage system ; or subcontracting work previously performed by employees in said bargain- ing unit and laying off said employees; or making any other changes affecting the terms and conditions of em- ployment of such employees without affording their statu- tory representative an adequate opportunity to bargain; or otherwise refusing to bargain collectively with the Union as the statutory representative of such employees. (b) Discharging and laying off employees, subcontract- ing work, changing wage rates, or otherwise discriminating against employees in order to discourage employees from supporting the Union and to undermine the Union as the bargaining representative of the employees in the unit found appropriate herein. (c) Telling employees they would receive higher wages if they were not represented by a union; threatening to close down its log-truck operation and lay off its log truck driv- ers if the Union fought Respondent's subcontracting of log-hauling work previously performed by unit employees or if employees sought union assistance regarding Respondent's unilateral change in the wage system; and threatening to discharge employees if they support a dis- charged fellow employee or attend union meetings. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Return to its former mode of log-hauling operation existing in the appropriate bargaining unit described herein prior to the unilateral subcontracting of work, commencing January 1, 1975, previously done by log truck drivers. (b) Offer all log truck drivers in its employ on January 1, 1975, who were denied continued employment by reason 44 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, 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. CLEVENGER LOGGING, INC. of its unlawful subcontracting, immediate reemployment to the positions they held prior to the discrimination against them and make them whole for any loss of earnings suf- fered by reason of its unlawful refusal to continue them in its employ, in the manner set forth in the section herein entitled "Remedy." (c) Revoke the trip rate wage system and revert to the method and manner of paying log truck drivers as provid- ed by the contract in force and effect prior to the institu- tion of the trip rate wage plan and make said employees whole for any loss of earnings suffered by reason of its unlawful institution of the trip rate wage plan in the man- ner set forth herein in the section entitled "Remedy." (d) Bargain collectively in accordance with the provi- sions of Section 8(d) of the Act with respect to any change in the method and manner of paying log truckdrivers or with respect to any subcontracting of work previously per- formed by log truck drivers in the appropriate bargaining unit herein. (e) Offer to Thomas Haasl and William Brown immedi- ate employment at the same positions at which they would have been employed had they not been discriminated against or, if these positions no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of its unlawful re- fusal to continue them in its employ, in the manner set forth in the section herein entitled "Remedy." (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (g) Post at its headquarters in Port Angeles, Washingg- ton, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by the Respondent's representative, shall be posted by Respon- dent immediately upon receipt thereof , and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees em- ployed in the bargaining unit are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order , what steps the Respondent has taken to comply herewith. 45 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX 783 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act 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 of those activities. WE WILL NOT do anything to interfere with these rights. More specifically: WE WILL NOT refuse to meet or bargain collectively in good faith with International Woodworkers of America, Local Union No. 3-90, AFL-CIO, as the exclusive bargaining representative of our employees. WE WILL NOT refuse to bargain collectively with the above-named Union by unilaterally changing the wage rate of our log truck drivers or by unilaterally subcontracting work normally performed by said log truck drivers or, by otherwise changing the wages, hours, and other terms and conditions of employment of these employees without complying with our obli- gations under Section 8(a)(5) and Section 8(d) of the National Labor Relations Act. WE WILL NOT lay off employees, subcontract work, change our wage rates or otherwise discriminate against employees to discourage our log truck drivers from supporting the above-named Union or to under- mine the Union as their bargaining representative. WE WILL NOT threaten employees that we will close our log truck operation or otherwise threaten employ- ees with loss of jobs because they have supported the above-named Union or sought its assistance or to dis- courage them from supporting the Union or seeking its assistance. WE WILL NOT threaten to discharge employees if they support a discharged fellow employee or attend union meetings. WE WILL NOT tell our employees that they would re- ceive higher wages if they were not represented by the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a)(3) of the Act. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request, meet and bargain in good faith with the above-named Union with respect to any changes in the wage rate of our log truck drivers or with respect to any subcontracting of work previously performed by the log truck drivers in the appropriate bargaining unit. WE WILL place back into operation our log trucks, offer reinstatement to all log truck drivers laid off be- cause we shut down said truck operations and subcon- tracted all our log-hauling work, without prejudice to seniority or other rights and privileges, and WE WILL make them whole for any loss of earnings suffered by reason of our unlawful refusal to continue them in our employ. WE WILL revoke the trip rate method of paying our log truck drivers and revert to the method and manner of paying log truck drivers as provided by the contract in force and effect prior to the institution of the trip rate wage plan and make said employees whole for any loss of earnings suffered by reason of our unilater- al institution of the trip rate wage system. WE WILL offer to Thomas Haasl and William Brown immediate employment at the same positions at which they would have been employed had they not been discriminated against or, if those positions no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights and privileges, and WE WILL make them whole for any loss of earnings suffered by reason of our unlawful refusal to continue them in our employ. CLEVENGER LOGGING, INC.