The Red River Lumber Company, a Corporation

In the Matter of THE RED RIVER LUMBER COMPANY, A CORPORATION and LUMBER AND SAWMILL WORKERS LOCAL UNION No. 53, INTER- NATIONAL WOODWORKERS OF AMERICA In the Matter of THE RED RIVER LUMBER COMPANY, A CORPORATION and LUMBER & SAWMILL WORKERS LOCAL 2836, UNITED BROTHER- HOOD OF CARPENTERS & JOINERS, A. F. OF L. In the Matter of THE RED RIVER LUMBER COMPANY, A CORPORATION and OFFICE EMPLOYEES UNION 21697, A. F. OF L. Cases Nos. 0-1023, R-1104, and R-1105, respectively Lumber Industry-Discrtmination: submitted on stipulated testimony ; deiuo- tions and discharges because of union membership and activity ; charges of, not sustained ; refusal to reinstate because of union membership and activity ; non-reinstatement following strike-Rentstatercnt: ordered, of employee re- fused reinstatement; denied, of striker subsequently convicted of law infrac- tion-Back Pay: awarded ; demoted employee, stipulation as to ; employee refused reinstatement; striker, from date denied reinstatement following strike to date denied reinstatement because of law infraction. SUPPLEMENTAL DECISION AND ORDER April 4, 1939 STATEMENT OF THE CASE On December 13, 1938, the National Labor Relations Board, herein called the Board, issued a Decision, Order, Direction of Election, and Certification 1 in the above-entitled proceeding. In its Decision the Board made no findings regarding the cases of J. Franklin Valice, Valentin Cabana, and Angelo Favero, individuals named in the com- plaint who are not provided for in the stipulation of October 21, 1938, proposing a partial settlement of the consolidated proceeding. The Board stated in its Decision that the three cases would be made the subject of a supplemental decision and order. 1 10 N. L. R. B. 594. 12 N. L. R. B., No. 10. 79 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With regard to Vance, Cabana, and Favero, the complaint, as amended, alleges that because of their failure or refusal to join Local 1, District 14, of Industrial Employees Union, Inc., herein called the I. E. U., or because of their membership in, activity on behalf of, or sympathy toward Lumber and Sawmill Workers Local Union No. 53, International Woodworkers of America, herein called the I. W. A., affiliated with the Committee for Industrial Organization, herein called the C. I. 0., (1) The Red River Lumber Company, Westwood, California, herein called the respondent, demoted Vance on or about September 22, 1937, and refused to reinstate him to his former posi- tion until on or about November 22, 1937, again demoted him on or about February 16, 1938, discharged him on or about May 6, 1938, and thereafter refused to reinstate him; (2) the respondent dis- charged Cabana on or about October 3, 1937, and thereafter refused to reinstate him; and (3) on or about July 29, 1938, after the strike called on or about July 7, 1938, the respondent refused to reinstate Favero. In its answer, filed October 10, 1938, the respondent denies that it committed the alleged unfair labor practices with respect to the three employees. Written stipulations concerning the three cases, dated November 14, November 30, and December 2, 1938, and signed by counsel for the Board and counsel for the respondent, were made a part of the record. Such stipulations set forth the testimony which witnesses for the respondent and witnesses for the Board would have given had such witnesses been called to testify at the hearing. By an Order dated February 4, 1939, the Board directed that no Intermediate Report be issued, directed that Proposed Supplemental Findings of Fact, Proposed Supplemental Conclusions of Law, and Proposed Supplemental Order be issued, and granted the parties the right to file exceptions thereto, to request oral argument before the Board, and to request permission to file a brief with the Board. On the same day, pursuant to the Order the Board issued Proposed Sup- plemental Findings of Fact, Proposed Supplemental Conclusions of Law, and Proposed Supplemental Order. On February 16, 1939, the respondent filed objections and exceptions to the Board's Proposed Supplemental Findings of Fact, Proposed Supplemental Conclusions of Law, and Proposed Supplemental Order and thereafter filed a brief in support of its objections and exceptions. The Board has considered the objections and exceptions and the brief, and save as consistent with the findings of fact, conclusions of law, and order below finds the objections and exceptions to be without merit. Upon the entire record in the case, including the stipulations, the Board makes the following : THE RED RTVER LUMBER COMPANY 81 FINDINGS OF FACT 1. THE DEMOTIONS, DISCIIAI{GES, AND REFUSALS OF REINSTATEMENT J. Franklin Vance was hired by the respondent as ,,t common laborer on July 15, 1933. On January 1, 1935, he was made it number three grader in the veneer plant, learning to grade panels. In March 1935 he was made a number one grader, and in June 1935 he began to work as a grader on the night shift. According to the testimony of the respondent's witnesses, Vance was a "trouble-maker" on the night shift and was the source of con- siderable disturbance among his fellow employees. He often left his work and annoyed others with pranks and practical jokes. Moreover, Vance sometimes failed to do satisfactory grading, which was skilled or semi-skilled work. Despite the admonitions of his foreman, Eric Bork, Vance failed to improve his behavior and his work. Accordingly, Bork reported his case to H. A. Smith, superin- tendent of the veneer plant. Smith thought that Vance's poor be- havior might have been provoked by his association with the assist- ant night foreman, Merrill Stoddard, who was thereafter discharged for neglect of duties, lack of cooperation, and violation of the re- spondent's rules. Therefore, instead of discharging Vance, Smith transferred him to the day shift on probation in order to give him another chance to improve. Vance does not deny having engaged in the conduct ascribed to him, but testifies that he had never been warned by the respondent that he would be discharged or disciplined if he ever got in trouble, and further testifies that to his knowledge he had never been put on probation because of his conduct. In the light of all the evidence, including that which relates to the circum- stances surrounding Vance's discharge, set forth below, we credit the testimony of the respondent's witnesses regarding Vance's miscon- duct and find that lie was reprimanded for such behavior and warned against future breaches of discipline. Vance testifies that in the spring and summer of 1937 Smith promised him desirable promotions. This Smith denies, testifying that neither Vance's skill nor seniority qualified him for such pro- motions. We credit Smith's denial in this respect, since the claimed promises of promotion are not consistent with Smith's dissatisfaction with Vance's conduct. In September and October 1937 the respondent had to reduce the number of its highly paid employees due to lack of orders. The re- spondent at that time had an agreement with the I. E. U. which pro- vided that members of the I. E. U. should "have preference in em- 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ploylnent, promotion, and retention on the job." Since Vance was not a nioinber of the I. E. U., his position was given to an I. E. U. member, and from September 22 to November 22 Vance was demoted to the position of a common laborer.- On the latter date he was re- instated to his former position as a number one grader. Counsel for the Board and the respondent entered into a separate stipulation with regard to Vance's demotion of September 22, 1937. The stipulation is hereby approved. It provides as follows: It is stipulated and agreed that the National Labor Relations Board may forthwith enter an order providing that J. Franklin Vance be made whole for any loss of pay which he may have suffered by reason of his demotion for the period of September 22, 1937, to November 22, 1937, by payment to him of a sum of money equal to that which he would nominally 3 have earned as wages from September 22, 1937, to November 22, 1937, less the amount he earned during that period. It is further stipu- lated and agreed that after the entry of such order by the Na- tional Labor Relations Board there may be entered in the United States Circuit Court of Appeals for the Ninth Circuit a decree by said Court enforcing in full the said order of the National Labor Relations Board, and Respondent hereby consents to the entry of such decree and hereby waives prior notice thereof. This stipulation and agreement shall not be construed to in any way limit the power of the National Labor Relations Board to make any further or different order or orders as it shall see fit, with respect to matters herein or otherwise presented to said Board other than said demotion. At about the time of Vance's reinstatement, Smith found him away from his job, laughing and talking with a fellow-employee when he should have been working. Smith warned Vance at that time that he was "on the spot" and that if he "kept his mouth shut" he would get along better. Vance asserts that he had been continually talking of the merits of the I. W. A. as contrasted with the I. E. U., and contends that Smith's warning was intended to silence such praises of the I. W. A. Smith testifies, on the other hand, that his admonition was occasioned by his finding Vance away from his work, and explains that it was in the nature of a reminder to Vance that his conduct was under observation since his removal to the day shift. We adopt Smith's explanation of his warning since this explanation is con- sonant with the above findings regarding Vance's misconduct. 2 During the period of his demotion Vance was peumtted to take and took a vacation of 4 weeks s Obviously a typographical error for the word "noi wally." TAE REP RIVER LUMBER COMPANY 83 In February 1938 the repondent's business became very slack, ne- cessitating the lay-off of several employees. On February 4' Vance was laid off from his job as number one grader and told to report to the employment office for information regarding work. Ile did so and on February 7 was given work in the veneer plant as a common laborer. Vance testified that others who were demoted at the same time were not required to apply for work at the employment office but were transferred directly to their new jobs. It appears, however, that the employees who received such preferential treatment had greater seniority or skill and experience than Vance. The respondent's agreement with the I. E. U., effective January 17, 1938, provides that in the matter of promotions, demotions, and lay- offs, seniority rules will be followed, and that controlling seniority shall be departmental seniority, determined upon the basis of length of service in the department, rather than plant seniority, determined upon the basis of total length of service with the respondent. The agreement also provides for "bumping." This provision states that any skilled or semi-skilled employee who is laid off pursuant to the seniority rules shall be entitled to "bump," or take the job of, any other skilled or semi-skilled employee in his own department who has less departmental seniority than he, "unless the man he proposes to bump is of more value to . . . [the respondent] as an employee by reason of skill and/or experience," and further states that any em- ployee, skilled or unskilled, laid off pursuant to the seniority rules, shall be entitled to "bump" any common laborer who has less plant seniority than he, with the same proviso. At the time of his lay-off Vance asked to be allowed to "bump" Leonard Beavers, the production clerk, and Leonard Smith, the as- sistant shipping clerk in the warehouse, but his requests were refused. Vance testifies that he had greater departmental and plant seniority than both of these men, but Superintendent Smith testifies that Vance did not have sufficient seniority or skill and experience to "bump" either of them. Vance claims, moreover, that Ile held both jobs at some time in the past, but this somewhat vague claim is not borne out by Superintendent Smith's specific account of Vance's employment history.6 We find that Vance did not have any experience in either I The date of this occurrence is disputed . February 16 is the approximate date set forth in the complaint and in Vance's testimony . Smith testifies, however, that the date was February 4, and since the respondent 's records are available to hun, we accept the latter date as the correct one. ' Smith testifies that at this time Vance was employed at common labor . Vance testifies that lie was a number one grader when laid off , and we accept the latter 's testimony. As set forth above, on November 22, 1937 , Vance was reinstated to his grading job and there is no evidence that he was deprived of that job betweeen November 22, 1937, and February 4, 1938. 'Vance testifies that lie held Beavers ' job "two years before." It appears , however, that 2 years prior to February 1938, Vance was employed as a number one panel grader on the night shift. 169134-39-vol. 12-7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the said jobs and, therefore, that the respondent's refusal to permit hun to "bu ►np" either the production clerk or the assistant shipping clerk was not discriminatory. Furthermore, on February 9 Vance was offered the opportunity of "bumping" either of two number one graders but refused to "bump" either of them. At his request, he was then permitted to "bump" into the job of spot sander, which job he held until his discharge on May 6. On about May 1 a vacancy occurred for a number one panel grader to work with Paul Bossetti,7 Vance's former grading partner, and Vance asked Smith for the job. He testifies that Smith told him that he was going to "break in a new man on the job," a man who had more plant seniority but less departmental seniority than Vance. Smith testifies, however, that the job was given to William Scoville, a man who had greater seniority and skill than Vance and states that he informed Vance of this fact. Vance was discharged on May 6 for misconduct. The circumstances leading up to the discharge are as follows : On May 5 Vance again asked Smith why he was not reinstated to his grading job. It appears that Smith replied that the existing vacancy was being awarded to Scoville, that Vance's grading work had been unsatisfactory, and further, that Bossetti did not care to work with him because of his "devilish pranks and continual conversation." When Smith left Vance, the latter walked over to Bossetti, cursed him, and threatened to give him a beating. Bossetti reported the occurrence to Superintendent Smith, and shortly thereafter Vance called Bossetti several more opprobrious names. Several of the men in the department were summoned to the veneer-plant office, ap- parently for questioning concerning the occurrence, and Vance later followed them, leaving his work without permission. On the way to the office, he met Earl K. Yorton, shipping foreman, and Arthur Carter, assistant superintendent of the veneer plant. The latter asked Vance where he was going and then told him he had better "watch his step." It is against the respondent's rules for an em- ployee to leave his work without permission. Yorton testifies that after Vance left, Carter stated that he and Smith had "talked it over ... [and] they figured it would be a good chance to get rid of trouble because Vance belonged to the C. I. O. [the I. W. A.]." Carter denies that he made this statement. In the plant office Vance found Smith and S. W. Macdonald. manager of the respondent's industrial-relations department, and told them that he thought it was about time he was questioned con- cerning what had happened. Smith directed ltim to return to work, 7 Also designated Bosetti. THE RED RIVER LUMBER COAIL'ANY 85 and later told him that he and Carter were in charge of the veneer plant. Near the close of the working day, Macdonald talked with Vance but said nothing about discharging him. He informed Vance, that threatening men was a criminal offense, to which Vance replied that "that worked both ways and that Bossetti had been the one. that threatened . . . Vance." On the following clay Smith told Vance that he was released by direction of T. S. Walker, the respondent's vice president and man- ager of the lumber division. Before leaving the plant Vance visited Smith's office, asked him whether he recalled the names which Vance had called Bossetti the day before, and told him that he was "pre- cisely the same thing." Vance has not, since been employed by the respondent. Both the I. W. A. and the Board have negotiated with the respondent concerning his reinstatement on several occasions but without success. Vance is a very active member of the I. W. A. and is its present, vice president. In the past he has served as its publicity agent and as a member of its executive board and negotiating committees. He was an active participant in the strike conducted by the I. W. A. against the respondent from July 8 to 13, 1938, and served as a picket. In its answer the respondent denies that it engaged in the alleged unfair labor practices with respect to Vance. In view of the sep- arate stipulation which we have approved with regard to Vance's demotion on September 22, 1937, we will make no finding regarding such demotion but will enter our order in accordance with the terms of the stipulation. With regard to the alleged discriminatory demotion in February 1938, it is clear that the respondent's slack business made it necessary to lay off some employees. Testimony given in the respondent's be- half indicates that the respondent dealt with Vance in accordance with the seniority rules then in effect under its contract with the I. E. U., and that shortly after his lay-off Vance was offered the op- portunity and allowed to "bump" into a position more desirable than that of a common laborer. Since we shall not in this decision make any finding regarding the validity of the said contract, we do not find that the application of the seniority rules embodied therein constitutes an unfair labor practice within the meaning of the Act. We do not feel, moreover, that the evidence and contradictory tes- timony presented warrant a finding of discrimination against Vance in this instance. Accordingly, we do not find that by laying off J. Franklin Vance on February 4 and thereafter giving him a position other than that of a number one panel grader, the respondent dis- criminated in regard to any term or condition of his employment to discourage membership in the I. W. A. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of Vance's prior misconduct and resulting probationary employment status and of the circumstances surrounding his alterca- tion with Bossetti, we do not find that by discharging J. Franklin Vance the respondent discriminated in regard to his hire and tenure of employment, within the meaning of the Act. Valentin Cabana was employed by the respondent front 1925 to 1933 as solicitor for its general store in Westwood, California. In 1933 lie was discharged allegedly for having engaged in "bootlegging," s and T. S. Walker, the respondent's vice president and lumber division manager, wrote on his employment card the words, "Do not rehire without OK by T. S. W." On August 17, 1936,° Cabana was reem- ployed by the respondent in the box factory as a common laborer, on probation. We have noted that in September and October 1937 the respondent experienced a period of slack business during which it demoted and laid off, pursuant to the provisions of the preference clause in its agreement with the I. E. U., a number of employees who were not members of the I. E. U. Cabana was laid off in this manner on October 3. On November 22 the respondent reinstated most of the employees who had been laid off but failed to recall Cabana. He immediately went to the employment office to ask the reason for his exclusion. Macdonald, manager of industrial relations, informed him that he could not have a job because he was "making too much trouble." Cabana was one of the first employees who joined United Wood- workers Local Industrial Union No. 38, affiliated with the C. I. 0., herein called Local 38, which was organized in May 1937 and was chartered as the I. W. A. in August 1937. He wore his union button to work and refused to join the I. E. U. He allowed Local 38 to hold organizational meetings in houses owned by him in "Old Town," a community in or near Westwood. Cabana signed up more mem- bers for Local 38 than any other single member. His home in West- wood is a common meeting place for I. W. A. committees. In its answer the respondent denies that it engaged in the alleged unfair labor practices with respect to Cabana. Since we are not in this decision determining the validity of the agreement between the respondent and the I. E. U., we do not find that by laying off Valentin Cabana pursuant to the terms of the said agreement, the respondent discriminated in regard to his hire and tenure of employment, within the meaning of the Act. With regard to Cabana's denial of reinstatement Macdonald testi- fies that "Cabana has been . . . a source of considerable trouble and ° Cabana claims that he was innocent of the offense charged. ° Cabana testifies that he was reemployed in February or March 1936 , but we accept the date given by Macdonald , to whom the respondent's employment records are available. THE RED RIVER LUMBER COMPANY 87 disturbance to the community, wholly apart from any union activi- ties . . ." Macdonald further testifies that although Cabana occupies a company-owned house under a restrictive, non-commercial lease, he has for several years used the house as his headquarters for selling groceries. Furthermore, according to Macdonald's testimony, many of Cabana's friends have frequented the house for the purpose of drinking alcoholic beverages, and many of the activities conducted on the premises have been of "questionable character." Although, according to Macdonald's testimony, Cabana's alleged disturbing conduct had continued for several years, such conduct did not preclude the respondent from reemploying Cabana in 1936 before the formation of Local 38, or from retaining him until Local 38's successor, the I. W. A., had become active in the plant. It appears that no improper personal activities of Cabana were referred to by the respondent during the course of his employment between August 17, 1936, and October 1937, at the time of his discharge in October 1937, or in May 1938 when Earl S. Neal, a Field Examiner of the Board, sought to secure his reinstatement. It is, therefore, hardly conceivable that any such activities constituted the primary reason for the respondent's refusal to reinstate Cabana. Moreover, the re- spondent's other alleged reasons for its conduct are not supported by the evidence. The respondent agrees that Cabana's alleged "boot- legging" offense in 1933 "should not be considered against him in view of the fact that he had [subsequently] been reemployed." Neal's examination of Cabana's employment record revealed that there was no merit in the respondent's contention that Cabana had done poor work. Furthermore, Cabana is not, as contended by the respondent, too "light" for the work.10 Finally, we are of the opinion that when Macdonald, on November 22, told Cabana that he could not have a job because he was "making too much trouble," Macdonald was refer- ring to Cabana's union activities rather than to any improper per- sonal activities. In view of all the evidence, we find that the respondent refused to reinstate Cabana not for the reasons assigned by it but because of Cabana's membership in and activity on behalf of the I. W. A. We find that by refusing to reinstate Valentin Cabana on Novem- ber 22, 1937, and thereafter, the respondent has discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the I. W. A., and has thereby engaged in an unfair labor practice within the meaning of Section 8 (3) of the Act. We also find that by such action the respondent has interfered with, 10 Women no stronger nor heavier than Cabana do similar work in the respondent's box factory. 88 DECISIONS OF NATLONAL LABOR RELATIONS BOARD restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Angelo Favero was employed by the respondent in 1934. He joined the I. W. A. in November 1937. Favero participated in the strike conducted by the I. W. A. against the respondent from July 8 to 13, 1938, and served as a picket. When the picket line was dispersed on July 13, he was driven from Westwood along with many other I. W. A. members. He returned to Westwood on July 21 and on July 22 applied for work with the respondent. Although the respondent had posted notices prior to this date stating that all employees could go back to work without discrimination, Mac- donald made reference to Favero's activities on the picket line and told him that there was no job open to him. Favero testifies without, contradiction that at that time and thereafter, other workers were given employment, many of whom had less seniority than he. In its answer the respondent denies that it refused to reinstate Favero because of his activities in behalf of the I. W. A., as alleged in the complaint. In view, however, of Macdonald's statement to Favero on July 22, we do not credit the respondent's denial. Ac- cordingly, we find that by refusing to reinstate Angelo Favero on July 22, 1938, the respondent has discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the I. W. A., and has thereby engaged in an unfair labor practice within the meaning of Section 8 (3) of the Act. We also find that by such action the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Sec- tion I above, occurring in connection with the operations of the respondent,11 have a close, intimate, and substantial relation to trade,' traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. III. THE REMEDY We have found that the respondent discriminated in regard to the hire and tenure of employment of Valentin Cabana and Angelo Favero by refusing to reinstate them. The respondent contends, "The operations of the respondent are described in Section I of the Decision, Order, Direction of Election , and Certification , 10 N L R B 594 , issued by the Board in this proceeding on December 13, 1935. THE, RED RIVER LUMBER COMPANY 89 however, that we should not order the reinstatement of these em- ployees for the reason that both Cabana and Favero were subse- quently punished for infractions of the law. On January 3, 1938, subsequent to his denial of reinstatement, Cabana pleaded guilty to the charge of illegal possession of wine and was fined therefor. The respondent further contends that it has a "strict rule against the employment of men who get into difficulties with the law, and especially when that violation relates to the use or sale or possession of intoxicating liquors . . ." This alleged rule was not uniformly applied by the respondent, however, for although Cabana was discharged in 1933 allegedly for having engaged in "bootlegging," the said rule did not prevent his reem- ployment in August 1936. In addition to our finding that the re- spondent discriminatorily refused to reinstate Cabana on November 22, 1937, we find that the respondent continued to refuse Cabana reinstatement on and subsequent to January 3, 1938, because of his union membership and activity, and we therefore see no reason to depart from our usual practice in ordering Cabana reinstated to restore the staters quo existing prior to the commission of the unfair labor practices. Accordingly, we shall order the respondent to offer Cabana immediate reinstatement to his former or substan- tially equivalent position without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay which he has suffered by reason of the discrimination against him by payment to him of a sum equal to the amount which he would normally have earned as wages from November 22, 1937, the date of his refusal of reinstatement, to the date of the offer of reinstatement, less his net earnings 12 during said period. In August 1938, after his application for reinstatement had been denied, Favero was arrested for beating his wife when he was under the influence of intoxicating liquor. He was found guilty of battery and served a 60-day sentence in jail. On September 25, 1938, the day of his release from jail, he made a second application to the respondent for work and on this occasion was informed by Macdonald that it was useless for him to seek further employment in view of his "jail record." The respondent contends that "it has been the consistent policy of 12 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, irhich would not hare been incurred but for his unlawful retusal of reinstatement and the consequent necessity of his seeking employ- ment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Caipenters and Joiners of America, Lumber and Sawmill lVoikers Union, Local 2590, 8 N. L. R. B. 440 . Monies received for woik pertoimed upon Federal , State , county, municipal , or other work relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State , county, municipal , or other government or governments which supplied the funds for said work- relief projects. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the company [the respondent] to discharge employees who are con- victed of wife beating, assault, or resisting an officer." On the basis of the evidence, we find that the respondent refused to reinstate Angelo Favero on September 25, 1938, for the reason alleged and therefore we shall not order the respondent to reinstate him. We shall, how- ever, order the respondent to make him whole for any loss of pay he has suffered by reason of the discrimination against him on July 22, 1938, by payment to him of a sum equal to the amount which he would normally have earned as wages from July 22, 1938, to September 25, 1938,13 less his net earnings 14 during said period. In its exceptions and brief the respondent urges that since it has heretofore posted in its plant the Order in the Board's Decision, Order, Direction of Election, and Certification,15 issued on December 13, 1938, it should not be required to post notices of the cease and desist portion of this supplemental order. Since the previous Order has been posted, we shall not require another posting. Upon the basis of the foregoing findings of fact and the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. By discriminating in regard to the hire and tenure of employ- ment of Valentin Cabana and Angelo Favero, thereby discouraging membership in the I. W. A., the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not discriminated in regard to the hire or tenure of employment of J. Franklin Vance, within the meaning of Section 8 (3) of the Act. 5. By laying off J. Franklin Vance on February 4, 1938, and there- after demoting him, the respondent did not discriminate in regard to any term or condition of his employment, within the meaning of Section 8 (3) of the Act. "We shall not require the respondent to pay Favero for the period of tine during which he served his sentence. 14 See footnote 12. 1810NLRB594. THE RED RIVER LUMBER COMPANY ORDER 91 Upon the basis of the above findings of fact and conclusions of law, upon the basis of the stipulation regarding J. Franklin Vance, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Red River Lumber Company, Westwood, California, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from discouraging membership in Lumber and Sawmill Workers Local Union No. 53, International Woodworkers of America, or any other labor organization, by laying off, discharging, demoting, refusing to reinstate, or otherwise discriminating against its employees in regard to hire or tenure of employment, or any term or condition of employment. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Make J. Franklin Vance whole for any loss of pay which he may have suffered by reason of his demotion between September 22, 1937, and November 22, 1937, by payment to him of a sum of money equal to that which he would normally have earned as wages from September 22 to November 22, 1937, less the amount lie earned during said period; (b) Offer to Valentin Cabana immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges; (c) Make whole Valentin Cabana for any loss of pay he has suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of his refusal of reinstatement to the date of said offer of reinstatement, less his net earnings during said period, deducting, however, from the amount otherwise due to said employee, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Make whole Angelo Favero for any loss of pay he has suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to that which he would normally have earned as wages from July 22, 1938, to September 25, 1938, less his net earnings during said period, deducting, however, from the amount otherwise due to said employee, monies received by said employee during said period for 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (e) Notify the Regional Director for the Twentieth Region in writing within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment of J. Franklin Vance, and in so far as it alleges that the respondent on February 16, 1938, discriminated in regard to the terms and conditions of his employment, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Valentin Cabana on October 3, 1937, within the mean- ing of Section 8 (3) of the Act, be, and it hereby is, dismissed.