Smith Wood Products, Inc.

In the Matter of SMITH WOOD PRODUCTS, INC. and LUMBER AND SAW- bMILL WORKERS, LOCAL No. 117, INTERNATIONAL WOODWORKERS OF AMERICA In the Matter Of SMITH WOOD PRODUCTS, INC. and MEL F. DUNCAN, J. B. COCHRAN, ERNEST EMBREE, E. M. BRINER, AND GARY ALLEN ELLISON Cases Nos. C,-405 and 0-875, respectvvely .Decided October 27, 1939 Wood Working Industry-Interference, Restraint, and Coercion: suggestions to form unaffiliated organization and warnings against "outsiders" and "agitators" by officials in plant during working hours-Discriynination: allegations of, dismissed as to 3 discharged employees, not sustained by evidence; allegations of, dismissed as to 85 employees denied reinstatement after strike, offer to return not uncon- ditional ; found as to 2 employees, discharged for union activity-Unit Appro- priate for Collective Bargaining: employees of Sawmill excepting supervisory offi- cials, foremen, salesmen, clerical and office employees-Representatives: proof of choice: testimony and stipulation authorizing intervening union as bargaining representative ; stipulation controlling in absence of interference and coercion- Collective Bargaining: charges of failure to bargain collectively with complain- ing union, dismissed-Reinstatement: ordered as to two discharged employees- Back Pay: awarded, none accrued during period plant closed because of strike. Mr. G. L. Patterson and Mr. Patrick H. Walker, for the Board. Carey, Hart, Spencer d McCulloch, by Mr. Phillip Chipman, of Portland, Oreg., and Mr. J. B. Beding field, of Marshfield, Oreg., and Mr. J. Arthur Berg, of Coquille, Oreg., for the respondent. Mr. Tom Boeke, of Coquille, Oreg., and Mr. L. Presley Gill, of Seattle, Wash., for Local 2770. Mr. Ben Anderson, of Portland, Oreg., for Local 117. Mr.'William F: Gaffey, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by Lumber and Sawmill Workers, Local No. 117, International Woodworkers of America, herein called Local 117, the National Labor Relations Board, herein called the Board, by the Regional Director for the Nineteenth Region (Seattle, Washing- ton), issued its complaint, dated January 17,1938, against Smith Wood 16 N. L. R. B., No. 65. 613 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Products, Inc., Coquille, Oregon, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.' Copies of the complaint and accompanying notice of hearing were duly served upon the respondent, Local 117, and Lumber and Sawmill Workers, Local No. 2770, United Brotherhood of Carpenters and Joiners of America, herein called Local 2770. As to the unfair labor practices the complaint as amended at the hearing alleged, in substance, (1) that the respondent's employees engaged in the operation of its sawmill for the production and manu- facture of fir lumber, cedar lumber, battery separators, and venetian- blind material, at Coquille, Oregon, herein called the Sawmill, with the exception of supervisory officials, foremen, salesmen, clerical and office employees, constitute a unit appropriate for the purpose of col- lective bargaining; (2) that the respondent refused to bargain collec- tively with Local 117 at a time when it represented a majority of the respondent's employees in said appropriate unit and, instead, executed a contract with Local 2770 which required, as a -condition of employ- ment, that the the employees in the respondent's Sawmill become mem- bers of Local 2770; (3) that as a direct result of the respondent's un- fair labor practices in its Plywood plant,2 87 named employees of the Sawmill ceased work on or about September 21, 1937, and that subse- quent to that date the respondent refused and has continued to refuse to reinstate said employees for the reason that they joined and as- sisted Local 117 and were not members of Local 2770; and (4) by such acts and other acts including threats to cease operation of its Sawmill, the respondent interfered with, restrained, and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act. Thereafter the respondent filed its answer admitting the allegations of the complaint with respect to interstate commerce and the appro- priate bargaining unit and denying that it had engaged in any unfair labor practices. By way of affirmative defense, the answer averred that at all times mentioned in the complaint Local 2770 maintained an organization in which, according to the respondent's best infor- mation, a majority of its sawmill employees were members; that on August 30, 1937, and prior thereto a majority of the respondent's sawmill employees were members of or otherwise affiliated with, Local 2770; and that neither on August 30, 1937, nor' at any time prior thereto did Local 117 represent a majority of the respondent's employees in the appropriate unit. 1 Case No. C-405 Is predicated upon this complaint. 2 The respondent operates a plywood plant which is located adjacent to the Sawmill. SMITH WOOD PRODUCTS, INCORPORATED 615 Pursuant to notice duly served upon the respondent, Local 117, and Local 2770, a hearing was held at Coquille, Oregon, on February 4 and 5,1938 3 before Mapes Davidson, the Trial Examiner duly desig- nated by the Board. At the beginning of the hearing Local 2770 filed a motion to intervene, which was granted by the Trial Ex- aminer 4 The Board, the respondent, and Local • 2770, were repre- sented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. During the course,-of the hearing counsel for the Board, without objection, moved to amend paragraph 12 of the complaint by adding the names of four addi- tional employees whose work ceased on or about September 21, 1937, and who at all times subsequent to that date, have been refused em- ployment. The respondent moved to dismiss the complaint as to Fred McNair and W. S. Newton for the reason that they had been rein- stated. Counsel for the Board concurred in this motion. The re- spondent also moved to amend the answer for the purpose of clarifying the use of the term "rivermen." All of the above motions were granted. These rulings of the Trial Examiner are hereby af- firmed. At. the. close of. the Board's case,, counsel for. the: Board moved to amend the complaint to conform to the proof and to consolidate the record in this case and the record made in a previous proceeding involving alleged unfair labor practices in the respondent's Plywood plant 5 in so far as the evidence in one is applicable to the issues in the other. The Trial Examiner reserved ruling on this motion. The motion to conform the pleadings to the proof is hereby granted. The motion to consolidate the records is hereby denied .6' During the course of the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are ,hereby; affirmed. Pursuant to Article II, Section 37, of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board issued its Order dated February 15, 1938, transferring to and con- tinning before it this proceeding for action pursuant to Article II, Section 38, of said Rules and Regulations. 3 Pursuant to the respondent's motion the Regional Director postponed the hearing from January 26 to February 7. Notice of postponement was duly served upon the respondent. The hearing date was advanced to February 4 by consent of all the parties. 4 Although the Trial Examiner granted the request of counsel for Local 2770 to file an answer at' a.later date, such answer does not '•appear in the-record. 5 Matter of Smith Wood Products, Inc. and Plywood and Veneer Workers Local No. 2691, International Woodworkers of America , 7 N. L. It. B. 950. 6 The testimony of George A. Ulett taken at the hearing involving the Plywood plant was made a part of this record by stipulation of counsel for the Board , the respondent, and Local 2770. See Reap. Exb. No. 8, Case No. C-405. 247383-40-vol .. 16--4 0 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon charges, amended charges, and supplemental charges duly filed by Mel F. Duncan, J. B. Cochran, Ernest Embree, E. M. Briner, and Gary Allen Ellison, the Board, by the Acting Regional Director for the Nineteenth Region (Seattle, Washington), issued and duly served its complaint dated April 13, 1938, against the respondent, alleging that the respondent had engaged in, and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act.' As to the unfair labor prac- tices the complaint as amended at the hearing alleged, in substance, (1) that on or about July 27, 1936, the respondent discharged Mel F. Duncan, J. B. Cochran, Ernest Embree, E. M. Briner, and Gary Allen Ellison, and has since refused to reinstate said employees for the reason that they joined and assisted Local 2770; and (2) by the dis- charge of said employees and its refusal to reinstate them and by other acts and statements the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thereafter, the respondent filed its answer admitting the allegations of the complaint as to interstate commerce and denying the commission of the alleged unfair labor practices. By way of an affirmative defense the answer averred that Cochran, Briner, and Duncan voluntarily left the respondent's employ on July 27, 1936, and that Embree and Ellison were discharged on that date for the reason that their work was unsatisfactory. On April 13, 1938, the Board, pursuant to its Rules and Regula- tions, issued its Order consolidating for the purpose of hearing Cases Nos. C-405 and C-875.$ Pursuant to notice duly served upon the respondent, Mel F. Dun- can, J. B. Cochran, Ernest Embree, E. M. Briner, and Gary Allen Ellison, a hearing was held at Coquille, Oregon, from April 25 to April 27, 1938,° inclusive, before J. M. Brown, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, participated in the hearing, and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner granted the Board's motion to conform the pleadings to the proof made at the close of the Board's case and renewed at the close of the hearing. The Trial Examiner denied the respondent's motion to dismiss the complaint made at the close of the hearing. Those rulings are hereby affirmed. During the course of the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings ' Case No. C-875 is predicated upon this complaint. 8 This Order refers to Case No. C-875 as Case No. XIX-C-144. 6 The Acting Regional Director granted the respondent 's motion to extend the answer day but denied its motion to postpone the hearing. SMITH WOOD PRODUCTS, INCORPORATED 617 ,of the Trial Examiner and finds that no prejudicial errors were com- ..mitted. The rulings are hereby affirmed. On September 13, 1938, the Board issued its Order which pro- vided, in substance, that in accordance with National Labor Relations 13oard Rules and Regulations-Series 1, as amended, Case No. C-875 (XIX-C-144) be transferred to and continued before the Board for action pursuant to Article II, Section 38, of said Rules and Regula- tions; that no Intermediate Report should be issued by the Trial Examiner in Cases Nos. C-405 and C-875; that pursuant to Article II, Section 38 (d), of said Rules and Regulations, Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order should be issued in Cases Nos. C-405 and C-875; and that the parties herein should have the right within 10 days from the, receipt of said Pro- posed Findings of Fact, Proposed Conclusions of Law, and Proposed Order to file exceptions, to request oral argument before the Board, and to request permission to file a brief with the Board. On August 4, 1939, the Board, pursuant to Article II, Section 37 (c), of National Labor Relations Board Rules and Regulations- Series 2, issued Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, copies of which were duly served upon the parties. Exceptions thereto were filed by the respondent, Local 2770,9a and E. M. Briner eb The respondent and Local 2770 filed briefs in support of their exceptions,°O and Local 117 filed a brief in support of the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. Pursuant to notice duly served on the respondent, Local 2770, and Local 117, a hearing for the purpose of oral argument was had on October 10, 1939, before the Board, in Washington, D. C. The respondent appeared by counsel and par- ticipated in the hearing. The Board has considered the exceptions of the respondent,9d Local 2770, and E. M. Briner. It has also considered the briefs in support of the exceptions of the respondent and Local 2770, and the brief filed by Local 117 in support of the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. The Board hereby sustains those exceptions of the respondent and Local 2770 to the proposed finding that the 85 employees involved in Case No. C-405 were discriminatorily re- fused reinstatement. In all- other respects the Board finds said ex- Local 2770 filed three affidavits in support of its exceptions . It also filed an alterna- tive motion to reopen the record and affidavits in support thereof. In view of the findings and conclusions set forth below , it is unnecessary to pass upon the motion. Bb The respondent filed an answer to Briner 's exceptions and Briner, in turn, filed a reply to the respondent's answer. Bc The respondent 's brief contained an alternative request to reopen the record, supported by affidavits attached to the brief . In view of the findings and conclusions set forth below it is unnecessary to pass upon this request. Bd Including its additional exception filed at the oral argument. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceptions to be without merit save as they are consistent with the findings of fact, conclusions of law, and order hereinafter set forth. The Board likewise finds Briner's exceptions to be without merit. Upon the entire record in the case, the Board makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Smith Wood Products, Inc. is a Missouri corporation having its principal office at Kansas City, Missouri. It operates at Coquille, Oregon, a plywood plant and a sawmill, the latter consisting of a cedar mill and fir mill. The only plant of the respondent involved in this proceeding is the Sawmill. The respondent owns approximately 300,000,000 feet of standing timber in Coos County, Oregon. During 1937 the respondent proc- essed approximately 16,000,000 feet of cedar, 37,000,000 feet of Douglas fir, and 30,000,000 feet of plywood. The respondent pur- chased a portion of this timber in the open market and obtained the balance from its own supply in Coos County. Between 80 and 90 per- cent of its finished products were sold to customers located outside the State of Oregon. In 1937 the respondent shipped prod- ucts to purchasers in 43 States and 20 foreign countries.lo II. THE ORGANIZATIONS INVOLVED Lumber and Sawmill Workers, Local No. 117, International Wood- workers of America, is a labor organization affiliated with the Com- mittee for Industrial Organization. Although it admits to member- ship employees of employers other than the respondent, its mem- bership among the respondent's employees is limited to those of the Sawmill. Lumber and Sawmill Workers, Local No. 2770, United Brother- hood of Carpenters and Joiners of America, is a labor organiza- tion affiliated with the American Federation of Labor. It likewise admits to membership employees of employers other than the re- spondent, and its membership among the respondent's employees is likewise limited to those of the Sawmill. 10 The findings of fact relative to the respondent 's business are based upon the testimony of George A. Ulett in Matter of Smith Wood Products, Inc. and Plywood and Veneer Work- ers Local No. 2691, International Woodworkers of America, 7 N. L. R. B. 950, which was made a part of the record in Case No. C-405 by stipulation of counsel for all the parties. See foot note 6, supra. SMITH WOOD PRODUCTS, INCORPORATED 619 III. TIIE UNFAIR LABOR PRACTICES A. The chronology of events Prior to the winter of 1935 there had been no labor organization among the respondent's employees . In the latter part of that year George A. Ulett, the respondent's vice president, called the employees .of the Sawmill together, read parts of the Act to them, and suggested that "with the whole country becoming unionized , it might be well for them (the respondent's employees ) to get together and form some kind of a bargaining agency , so that we (the respondent ) would be able to meet with them in accordance with the laws that were being enacted." Within a short period of time an employees' representa- tion plan was established. It does not appear from the record just how this plan was organized or how it functioned . Thereafter, United Brotherhood of Carpenters and Joiners of America, herein called Carpenters and Joiners, granted a charter - dated- March 1936, to Local 2770 which organization absorbed the membership of the employees' representation plan and immediately embarked upon a membership campaign. During the first 4 or 5 months of its existence , Local 2770 made numerous unsuccessful attempts to bargain with the respondent. During this period Ulett made several speeches to the employees dur- ing working hours, advising them that they "should not allow out- -siders to come in and make up our minds for us" and that they should form their own independent organization . On one occasion in the spring of 1936, R. A. Jeub, the respondent's assistant manager, advised the employees "to be very careful about allowing outside organizers, -or agitators to come in among us." On the morning of July 27 , 1936, the bargaining committee of Local 2770 conferred with Ulett, Jeub, and F. S. Emery, the re- pondent's plant superintendent , seeking recognition of Local 2770. shortly after the conference began, Ulett stated, "I'll never recognize any union," and the conference adjourned . without . further negoti- ations. In the afternoon of the same day the respondent posted a notice in its Sawmill announcing that one shift was being temporarily discontinued and that only those employees named in the notice should return to work the following day. The 40 or 50 employees laid off pursuant to this notice included 3 officers of Local 2770. At the same time 10 other employees , including the 5 who filed charges with the Board, were discharged. Local 2770 immediately called a strike and set up a picket line around the respondent's plant. The respondent's Sawmill was com- pletely shut down until August 17, 1936. During the period of the 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike, the respondent negotiated with a committee of Local 2770 and. likewise with a committee representing employees who were not. members of Local 2770. An agreement settling the controversy was. finally signed by the respondent. Although Local 2770 did not sign the agreement, it voted acceptance of it at a regular meeting. The. respondent posted throughout its Sawmill, printed copies of the agree-, ment which was dated August 12, 1936, and was, by its terms, effective: for a period of 1 year. When the Sawmill reopened on August 17,, some of the employees laid off on July 27 were reinstated. By De- cember 1936 all of those laid off on July 27 had been reinstated. . During the negotiations which culminated in the August 12 agree- ment, the respondent refused to reinstate any of the 10 employees, who were discharged on July 27. The respondent, however, finally agreed to submit the controversy involving these employees to an arbitration committee of three members, one of whom was to be- chosen by Local 2770, the second to be chosen by the respondent, and.. the third to be chosen by the first two. On September 2, 1936, Local 2770 selected one Fester, a local newspaper publisher, to act a.s its. representative. When the respondent objected to having "outsiders"' on the arbitration committee, Local 2770 appointed George Loveland,, who was one of its members. The respondent appointed R. A. Jeub,: its assistant manager, to represent it on the arbitration committee.. Jeub and Loveland never selected a third member of the arbitration committee and all attempts at arbitration were finally abandoned. These 10 discharged employees were never reinstated and on July 10,. 1937, 5 of them filed charges with the Board.11 On June 23, 1937, Local 2770 notified the respondent that it was- desirous of beginning negotiations for a new agreement in accordance with the terms of the August 12 agreement, which provided that negotiations looking toward a new agreement might be started 2 months prior to the expiration of the August 12 agreement. About the same time Local 2770 submitted a proposed contract to the re- spondent. On August 1, 1937, at a regular meeting of Local 2770, its members, voted to terminate its affiliation with the Carpenters and Joiners and to return their charter to the national office of that organization.. The meeting. adjourned and reconvened as a meeting of a local union of International Woodworkers of America,12 herein called I. W. A.. On August 3 the Carpenters and Joiners' charter was returned to the national office at Indianapolis, Indiana, and on August 8 the charter of Local 117 was installed. n These charges resulted in the proceeding in Case No . C-875. The discharges are dis- cussed in subsection C. infra. 12 This local later became known as Local 117. SMITH WOOD PRODUCTS, INCORPORATED 621 On August 11 a committee of Local 117 informed Ulett of their new affiliations and requested the respondent to negotiate a contract.. Ulett expressed doubt as to whether or not Local 117 represented'a majority of the respondent's employees in its Sawmill, and stated. that he would like to see their application cards. On August 16,. Local 117 submitted to Ulett the application cards signed by em- ployees in the Sawmill together with a proposed contract. Meanwhile, about August 8, Perry Ashcraft and three or four other employees had started a movement to reorganize Local 2770. Upon their request one Moody, a representative of Carpenters and Joiners,, came to Coquille to assist them. Moody and Ashcraft drafted a petition which was circulated about the Sawmill by several em- ployees. Those employees who signed the petition signified thereby' their desire to reorganize Local 2770 and thereby designated Local 2770 as their collective bargaining representative. On August 16 the' employees seeking to reorganize Local 2770 held their first organiza- tional meeting at the Tribune Building in Coquille. The meeting was- called by Ashcraft and presided over by Moody, who appointed a tem- porary bargaining committee which was instructed to begin negotia- .tions with the respondent. On August 26 this group held its second meeting in the Circuit Court room at which time they elected officers. and ratified the selection of the bargaining committee which had been appointed at the August 16 meeting. On August 30, 1937; Ulett. signed a "union shop" contract with Local 2770.13 B. Conclusions with respect to interference, restraint, and coercion; ' Ulett admits that in the latter part of 1935 he called the employees, together, read parts of the Act to them, and discussed the formation of an employees' association. He also testified that Jeub secured a copy of the bylaws of an employees' association which had been. organized in a nearby plant and gave it to the respondent's em- ployees to assist them in setting up their organization. During the- organization of Local 2770, Ulett, on several occasions, called the- employees together and warned them against "outsiders" and "agi- tators." On at least one occasion Jeub sounded a similar warning- against "outside" organizations. The conclusion is inescapable that. such activity on the part of the two highest ranking officials of the respondent was calculated to encourage the formation of an organi- zation subservient to the respondent and to defeat the desire of the respondent's employees for an effective organization of their own is The events surrounding the negotiations of this contract are discussed in subsection D, infra. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD choosing. The fact that the respondent failed to accomplish its purpose does not make such activity any the less violative of the Act. We find that the respondent, by the acts above set forth, has in- terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discharges All of the five employees discussed below were discharged on July 27, 1936. The respondent claims that they were in no way, affected by the lay-off of the 40 or 50 employees of the Sawmill, which took place on the same day. The respondent's answer sets up separate affirmative defenses to the allegations that these five em- ployees were discriminatorily discharged. They must, therefore, be considered individually. J. B. Cochran, who had worked for the respondent about 4 months, was engaged in construction work on a fir mill at the respondent's, Sawmill. In its answer the respondent claims that Cochran volun- tarily left his employment on July 27 and was not reinstated on August 17, 1936, when the Sawmill resumed operation, because the work in which Cochran had been engaged was discontinued. Cochran testified, however, that on July 27 when he was about to leave the plant, he discovered that his time card was not in the rack and that when he stepped outside the office, Ralph Taylor, his foreman, handed him his pay check and stated that he was sorry but orders to discharge Cochran had "come from headquarters." This statement was not denied by Taylor who admitted that he gave Cochran his check although he could not recall the exact date. We find that Cochran did not voluntarily leave his employment and that his employment ceased as a result of his discharge on July 27. At the hearing the respondent did not press its claim that Cochran- had voluntarily left his employment but, instead, took the position that Cochran was discharged because the construction.work in which he had been engaged was completed. The testimony of Ulett and Taylor to this effect is weakened, however, by Taylor's admission that construction work on the respondent's Plywood plant continued until November 1937 and that some of the construction employees were eventually placed in the production departments of the plant. There is no claim that Cochran's work was unsatisfactory. Indeed, just 3 days before his discharge, Cochran was promoted to a position of strawboss over four other employees and was given a wage in- crease of 60 cents per day. Had the respondent considered it neces- sary to discharge Cochran because his work was completed, it is riot likely that it would have promoted him and given him a wage increase just 3 days before the discharge. In view of this promotion SMITH WOOD PRODUCTS, INCORPORATED 623 and the, admissions of Taylor outlined above, the respondent's ex- planation of Cochran's discharge is not convincing. . When Cochran: applied for^reinstatement on August 17; Ulett told him that he was a new man and that there was no work for him. During the latter part of August 1936, in a letter addressed to Joseph Campbell, then president of Local 2770, Ulett stated his rea- sons for refusing to reinstate the 10 nien who were discharged on July 27. This letter is not in evidence, but Campbell testified as to its contents. Campbell's testimony with respect to the contents of the letter was not denied and we find it to be true. The letter stated that Cochran was discharged because he was a new man, that his work was completed,. and that he was "an. agitator or a troublemaker." Cochran joined Local 2770 shortly after his employment with the respondent commenced. He was a member of the committee which conferred with representatives of the respondent on July 27 seeking recognition of Local 2770 and he became the voluntary spokesman for that committee when A. J. Nussell, its chairman, manifested a reluctance to speak. Such activity by Cochran on the very day o£ his discharge makes particularly significant Ulett's statement in his letter to Local 2770 that Cochran was discharged because he was "an agitator or troublemaker." We find that the respondent by discharging Cochran and refusing to reinstate him because of his membership in and activity on behalf of Local 2770, has discriminated in regard to his hire 'and tenure of employment thereby discouraging. membership in a -labor <organiza- tion and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of his discharge Cochran was earning $5 per day. .From the date of his discharge to the date of the hearing, he had earned approximately $1,250 at various types of part-time employ- ment. Mel Duncan worked for the respondent approximately 17 months grading and tying venetian-blind stock in the respondent's lumber yard. The respondent's answer avers that Duncan voluntarily left his employment on July 27, 1936, and was refused reinstatement for the reason that his work was unsatisfactory. At the hearing the respondent attempted to show that Duncan was discharged because he advocated sabotage and was, therefore, dangerous to have about the plant. The inconsistency of these two defenses is readily apparent. The claim that Duncan voluntarily left his employment finds no support in the record. Duncan and Kennett Lawrence, Duncan's foreman, who appeared as a witness for the respondent, both testified 624 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD that Duncan was discharged and given his pay check on July 27. Concerning his discharge, Duncan testified as follows : Mr. Lawrence, the yard foreman, came by and called me over to him. He took me off to one side, apparently out of earshot of the other men, and handed me a pay check. He said "Dun- can, I don't know anything about this. They gave it to me in the office for you." He said, "I don't know what it means, I am just as surprised as you are. I don't know a thing about it," and that is all that was said at that time. Duncan's testimony is uncontradicted, except that Lawrence testified that when he gave Duncan his check, he said, "Here is your check, and I have got no further use for you." Duncan further testified that when Lawrence discharged him, he went to the office, and Jeub assured him that his work was satisfac- tory and that he was merely laid off. Jeub, however, gave Duncan no answer when Duncan inquired why he was laid off rather than some of the employees with less seniority. Although Jeub could not recall Duncan's coming to the office, he did not deny having made these statements to Duncan. We find that Duncan's testimony with respect to the statements and conduct of Lawrence and Jeub at the time of his discharge is true. There is some conflict in the evidence concerning the quality of Duncan's work. He obtained employment when he came to Coquille in February 1935 to join the local baseball team. At that time Lawrence made it clear to Duncan that his work was entirely separate from his ball playing and that he was obliged to keep his job solely on his ability as a workman. When Duncan was replaced on the ball team in June 1935, Lawrence assured him that his work was satisfactory and that he could continue working as long as Lawrence had anything to do with it. Lawrence testified that 4 or 5 months before his discharge, Duncan began leaving his work to talk to other employees and that he cautioned Duncan on two occasions, the last time being on July 11, when he told Duncan that it was his last warning. Duncan denied that his work was ever criticized except in September 1935 when Lawrence severely reprimanded him for an error in grading venetian-blind stock. Duncan claimed that this error was chargeable to new men who were helping out in the vene- tian-blind department during a rush period. A few minutes after Lawrence reprimanded Duncan on this occasion, Jeub, who had heard Lawrence's remark, returned and told Duncan "not to take Mr. Lawrence too seriously." Duncan's testimony was not denied .and we find it to be true. That Duncan's work was unsatisfactory is belied by the fact that about 2 months prior to his discharge, when the respondent was SMITH WOOD PRODUCTS, INCORPORATED 625 leaving some trouble with discrepancies in size and grade of certain lumber, Ulett, Jeub, Emery, and Lawrence selected Duncan to point .out the discrepancies and to help discover the cause of the trouble. Such respect for Duncan's opinion is inconsistent with a belief that .his work was unsatisfactory. There remains the further defense that Duncan was discharged -because he advocated sabotage. This accusation arose out of a state- anent made by Duncan about 2 weeks prior to his discharge when _he and several other employees were discussing union affairs during lunch hour. When one of the employees asked Duncan what the Union could do if all the employees did not join, Duncan replied that "they could throw a monkey wrench into the machinery." On July 2 7 one of the employees present when Duncan made this statement reported it to Lawrence, who checked the report with three other employees. Lawrence, however, did not discuss it with Duncan. Lawrence reported the matter to Ulett and Jeub and stated that he was going to "pay him off." Ulett and Jeub gave their consent and Duncan was discharged. Although Lawrence testified that he con- -sidered Duncan a dangerous man, he admitted on cross-examination that he knew the statement made by Duncan was often merely an -idiomatic expression. The record contains no other evidence that Duncan was a dangerous individual, and Duncan denies that he ever -advocated sabotage as a means of forcing the respondent to recognize the Union. We cannot accept the respondent's assertion that Dun- can was discharged because he was considered a dangerous person. to have about the plant. While this incident may have provided the .occasion for the discharge, it was not the cause. Moreover, we are convinced that unsatisfactory work was not the real cause for the discharge. The cause of Duncan's discharge may be found, we think, in his union activity together with certain events immediately preceding his discharge. Duncan. joined Local 2770 about May 3, 1936. Shortly thereafter he became the shop steward for the lumber yard .and was otherwise active in union affairs. In June 1936 when there was loud talking in the lumber yard, Lawrence carne through and said: "Is Duncan giving you boys a union speech?" Shortly there- after Duncan was showing a new man how to grade lumber when Lawrence passed by and said : "Well, are you talking a partner into the union?" It is clear from the record that the respondent knew that Duncan was one of the most active union members and that during its membership drive, Duncan had endeavored to persuade the respondent's employees to join Local 2770. Ulett's statement in his letter to Local 2770 in August 1936 that Duncan was discharged because he "talked too much" becomes significant when considered in the light of Duncan's union activity, the remarks directed to him 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in June by Lawrence, and the statement made by Duncan that the Union-"could-throw a, monkey wrench into the machinery." We are 'convinced that Duncan's membership' in Local 2770 and his open support thereof was the cause of his discharge. We find that the respondent by discharging Duncan and refusing to reinstate him because of his membership in and his activity on behalf of Local 2770, has discriminated in regard to his hire and tenure of employment thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of his discharge Duncan was earning approximately $26.40 per week. From the date of his discharge to the date of the hearing he earned approximately $600 while working as a lather with his father and brother. E. H. Briner was engaged as a truck driver and common laborer in construction work from the date of his first employment with the- respondent in October 1935 to December 22, 1935, when he was laid off until February 17, 1936. When he returned to work he was again engaged in construction for a period of about 6 weeks. About April 1, 1936, the respondent engaged George Zinserling to manu- facture brick required in the respondent's construction work. Zins- erling furnished the clay used in the bricks, and the respondent furnished all other materials, paid Zinserling a salary and bonus, and paid all workmen employed in the brickyard. At the time his ,:world. ceased .Brines was operating the truck used in conveying these bricks from the brickyard to the respondent's plant. Briner's employment ceased on July 28, 1936, when he refused to pass the picket line which had been established about the respond- ent's plant by Local 2770. The respondent claims that Briner was refused employment when he applied on August 17 for the reason that his work was unsatisfactory. It appears from the record that when Ulett complained about the high cost of the brick, Zinserling attributed the cost to the fact that Briner was loafing and thereby increasing the cost of transportation from the brickyard to the respondent's plant. Zinserling testified that Briner slowed up the work of other employees in the brickyard and made them dissatisfied by telling them that they worked too hard. Zinserling's testimony is corroborated by Ulett and Jeub. Zinserling further testified that about a week before the strike was called, he saw Briner's truck parked along the road, and Briner lying in the grass. There is abundant evidence tending to show that the respondent considered Briner's work unsatisfactory. There is no evidence that Briner was more active in union affairs than were many other of the respond- SMITH WOOD PRODUCTS, INCORPORATED 627 ,ent's employees. We think the evidence does not support-the allega- tion that Briner was discriminatorily discharged. Gary Allen Ellison, who had worked for the respondent about 2 .years, was tying venetian-blind stock at the time of his discharge. The respondent claims that Ellison was discharged for inefficiency and failure properly to perform his duties. Although Ellison was a good workman he. frequently left his bench to talk to other employees as well as to assist them in their work. F. S. Emery, the plant superintendent, testified that he twice warned Ellison about leaving his job, but because of the high quality of Ellison's work, he gave him unusual opportunity to eliminate this cause of complaint. Ellison admitted that Emery complained about his assisting other employees in their work but he .claimed. that he left his work to help other employees on orders from Don McCune, his foreman. It is not within our province, however, to determine whether the respondent was justified in discharging Ellison for such conduct. Our only concern is whether or not Ellison's union activity precipitated his discharge. Although Ellison took part in the membership drive of Local 2770 and, at a union meeting about 2 months prior to his discharge, advocated a strike., if -necessary, to force the respondent to recognize the Union, he was no more active on behalf of the Union than were many other employees. We think the evidence..is..:insu.8icient;,to support the allegation that Ellison was discriminatorily discharged. Ernest Embree, who had been continuously employed by the re- spondent for about 17 months, was, at the time of his discharge, grading venetian-blind stock. The respondent claims that Embree was discharged because he was incompetent and inefficient. During the period of his employment, Embree was frequently transferred to different jobs in an attempt to find some work which he could satisfactorily perform. Embree was not an officer of, Local' 2770, nor a member of any of its major committees, nor does it appear that he was otherwise active in union affairs. The evidence does not support the allegations of the complaint that Embree was dis- criminatorily discharged. We find that the respondent, by discharging and refusing to rein- state Ernest Embree, Gary Allen Ellison, and E. M. Briner has not discriminated in regard to hire and tenure of employment, within the meaning of the Act. D. The alleged refusal to bargain During the month of August 1937 both Local 2770 and Local 117 were. conducting membership drives among the respondent's em- 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees.14 Likewise, both organizations were seeking to negotiate a. contract with the respondent. By August 16 approximately 287 of the then 487 employees had signed application cards for membership in Local 117. Ashcraft testified that by August 16, 212 employees had signed a petition to reorganize Local 2770. It is clear, there- fore, that there was some overlapping of membership. On August 16, 1937, the bargaining committee of Local 117, sub- mitted to Ulett a proposed contract together with membership cards which the committee stated had been signed by a majority of the employees in the Sawmill. On August 24 the respondent decided to recognize Local 2770 on the basis of its own investigation as to which organization had a majority. On August 30 the respondent con- cluded a contract with Local 2770. The respondent claims that it was in doubt as to which union represented a majority of its employees. Perry Ashcraft, a witness, for the respondent, and George Loveland and C. C. Southard, wit- nesses for Local 2770, testified in substance that they authorized the. bargaining committee of Local 2770 to bargain for them and that they still desire to continue to work under the contract which that committee negotiated and executed on August 30, 1937. At the hear- ing, counsel for the Board, the respondent, and Local 2770 stipu- lated that 282 additional employees named in the stipulation, if called, would testify as did Ashcraft, Loveland, and Southard." A similar stipulation provided that 23 named employees, if called,, would testify that they were members of a craft union affiliated with the American Federation of Labor, other than Local 2770, and that, prior to August 26, 1937, each of them authorized Local 2770 to, negotiate a contract with the respondent and that their authorization has not been withdrawn or revoked and that each of them desires to continue working under the contract executed on August 30, 1937.16 Thus, a clear majority of the respondent's employees in the Sawmill testified, in effect, that they authorized Local 2770 to bargain for them and at the time of the hearing still desired to be bound by the. contract dated August 30, 1937. In the absence of evidence of inter- ference and coercion on the part of the respondent, the stipulations are controlling.17 Thus it is apparent that in the absence of any unfair labor practice by the respondent by which it showed hostility to Local 117 or- "The appropriate unit embraced the employees of the Sawmill excepting supervisory- officials, foremen , salesmen , clerical and office employees. 11 Respondent's Exhibit No. 10, Case No. C-405. 16 Respondent's Exhibit No. 7, Case No. C-405. 17 Cf. Matter of "West Kentucky Coal Company and United Mine Workers of America,. District No. 53, 10 N. L. R. B. 88; Matter of Erskine Baking Company and Confection-. cry Workers International Union, Local No . 25, 12 N . L. R. B. 1107. SMITH WOOD PRODUCTS, INCORPORATED 629' favoritism to Local 2770, we cannot find that the respondent engaged, in an unfair labor practice by refusing to bargain collectively with Local 117. The change of affiliation out of which Local 117 grew . and the reorganization of Local 2770 on or about August 8, when considered in connection with the overlapping membership in the two unions would obviously raise an honest doubt as to the majority representation of Local 117. The respondent was not compelled to sign a contract at the time it was submitted. It was entitled to a reasonable period of time in which to consider the proposed contract and to make a counterproposal. We cannot conclude, therefore, that the failure to recognize Local 117 on August 16 or prior thereto- constituted an unfair labor practice. To sustain the allegations of the complaint with respect to the respondent's refusal to bargain, it was necessary to show the follow- ing: (1) that Local 117, rather than Local 2770, actually represented a majority of the respondent's employees in the Sawmill on August 30, when Ulett signed the contract with Local 2770; and (2) that. the circulation of the petition to reorganize Local 2770 was caused by the respondent to be done in a manner which would indicate to the employees the respondent's preference for that organization; or (3) that Ulett's investigation was carried on in such a manner as to indicate to the employees the respondent's preference for Local 2770_ The circulation of the petition was not encouraged by the re- spondent, nor did any of the respondent's supervisory employees participate in its circulation. While there is some evidence that the' petition was circulated during working hours, it does not appear that the respondent condoned such activity or even knew that it was being done. Except for the testimony of Larkin J. Shoultz, there is no evidence that the respondent's foremen or other supervisory employees during August 1937 expressed favor for Carpenters & Joiners, or opposition to the I. W. A. Shoultz testified that some time during August, Lawrence, the foreman in the lumber yard,, stated to Shoultz, Warner Plaep, and Lewis Wilson, two other em- ployees : "If I were you, I would tell them J. W. A.) to go to Hell." Shoultz, however, could not fix the exact date of the statement, al- though after specific questioning he stated that it was made between August 8 and 30. Lawrence vigorously denied that he had made the,. statement, and neither Plaep nor Wilson was called to corroborate the testimony of Shoultz. Shoultz also testified that his foreman,. E. D. McCune, when asked if he "didn't think that the C. I. 0. were Communists," replied: "Yes, they should be sent back to Russia." Shoultz did not know when McCune made the statement; McCune denied having made it. Shoultz's testimony stands uncorroborated, although two other employees were present at the time when Shoultz 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claims the statement to have been made. Under the circumstances, Shoultz's testimony is insufficient to support a finding that the re- spondent influenced its employees to sign the petition or otherwise designate their affiliation with Local 2770. The evidence is likewise insufficient to support a finding that Ulett's investigation influenced the employees to support the reorganized Local 2770. Concerning his investigation, Ulett testified as follows: Mr. Examiner, I knew that there were several small groups in the plant that definitely belonged to A. F. of L. unions; and I also knew through talks with the superintendents that there were certain definite groups in the plant who favored going along with the A. F. of L. arrangement that we had. I tried to figure out by figuring tip these different groups and determining in my own mind how many did belong to these organizations, or how many of the different superintendents or formen told me belonged to them, and also I depended on the words of the com-. mittee that I was negotiating with that they had the majority; and when I had weighed all the evidence that I could get, I decided in my own mind that the A. F. of L. had the bargaining agency, and I concluded a contract with them. Ulett further testified that in weighing the evidence he also took into account the fact that he had been informed by some of his, friends in the plant that many of the employees were carrying membership cards in both organizations. Ulett further testified : And I, therefore, in making my figures, I figured out ones I thought were definitely A. F. of L., and doubtful ones, and used the figures as near as I could get them to determine that I thought the A. F. of L. had more than the required number to bargain. The evidence does not show that Ulett's conduct during the period of his investigation was calculated to or actually had the effect of in- fluencing the employees to choose between the two organizations. We do not find that the respondent assisted Local '2770 in reorganiz= ing or obtaining membership among the respondent's employees. It is clear from the stipulations referred to above that on August 30, 1937, Local 2770 was in fact the collective bargaining represen- tative of a majority of the employees in the respondent's Sawmill. We therefore conclude on the basis of the stipulations and in the absence of evidence showing interference by the respondent with the exercise of its employees' right to select representatives of their own choosing that the respondent did not refuse to bargain collectively with the representative of its employees in the appropriate unit. SMITH WOOD PRODUCTS, INCORPORATED 631 E. The alleged refusal to reinstate On September 20, 1937, the respondent's employees in its Plywood plant went on strike because of alleged unfair labor practices in that plant. The following day a substantial number of employees of the Sawmill failed to resume work because of the strike. At the time of the hearing the respondent, had continuously refused to reinstate 85'8 of such employees for the reason that they were not members of Local 2770. The complaint alleges that the refusal of the respondent to rein- state to their former employment after September 21, 1937, persons who were members of Local 117 and who failed to maintain mem- bership in Local 2770 constituted an unfair labor practice within the meaning of Section 8 (1) and (3) of the Act. The respondent denies that the refusal to reinstate constituted an unfair labor prac- tice and wvers that its contract with Local 2770 is valid and binding upon it and that it has always been willing to reinstate the 85 em- ployees in question subject to the terms of the contract, which provides, inter alia, that all eligible employees "shall become mem- bers of the union [Local 2770] within thirty days of their employment." We have found, supra, Section III, D, that Local 2770 on August, 30, 1937, represented a majority of the respondent's em- ployees in an appropriate unit and that its majority representation was not induced by any unlawful conduct of the respondent. The contract, therefore, is valid, within the terms of the proviso of Section 8 (3) of the Act.10 The employees in question, at a conference held on or about Sep- tember 23, offered, through counsel for Local 117, to return to their jobs, "A. F. of L. and C. I. O. employees both, as they were, pending the decision of the labor board." The respondent rejected this offer. In our ' Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, we found that the respondent's refusal to rein- state the 85 employees was discriminatory. The respondent excepts to that finding and argues that the offer to return was based upon a condition which the respondent was not bound to accept. We think there is merit in this contention. 18 The complaint was dismissed with respect to two employees who were reinstated. See page 615. supra. 18 The proviso of Section 8 (3) of the Act reads as follows : "Provided, That nothing in this Act, * * * shall preclude an employer from mak- ing an agreement with a labor organization (not established, maintained , or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein, if such organization is the representative of the employees as provided in section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made." 24T383-40-vol. 16--41 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The offer to return was not unqualified. It was contingent upon the employees' right to maintain membership in Local 117 at least until the Board issued its decision in this case. , The necessary infer- ence to be drawn from this offer is that the respondent was to suspend its contract with Local 2770 "pending the decision of the labor board." This it was not required to do. In a previous case 20 where the striking employees' offer to return to work was conditioned upon the employer's recognition of and collective bargaining with the union, we said: So long as the employees were unwilling to return to work under the conditions existing at the time the strike was called, however just the grounds on which their position was based, it cannot be said that the respondent was refusing to reinstate them. We take the same view in this case. In the absence of an uncondi- tional offer to return to work under circumstances and. conditions. as they existed prior to the strike, it cannot be said that the respondent's rejection of the conditional offer to return to work was a refusal to reinstate. We find that the respondent did not discriminatorily refuse to rein- state the 85 employees named in the complaint in Case No. C-405. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, B and C, above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening, and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall order the respondent to cease and desist from such interference, restraint, and coercion. We have also found that the respondent has discriminated iil regard to the hire and tenure of employment of J. B. Cochran and Mel Duncan by discharging and refusing to reinstate them. We shall, therefore, order the respondent to reinstate Duncan to his former position without prejudice to his seniority or other rights and privileges. At the time of his discharge Cochran was engaged 2'9 Matter o f Fanstecl Metallurgical Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local 66, 5 N. L. R. B. 930. SMITH WOOD PRODUCTS, INCORPORATED 633 in construction work at the respondent's plant. Since we cannot determine from the record whether any similar work is now in prog- ress at the respondent's plant, we shall, following previous decisions 21 in such cases, order the respondent to reinstate Cochran to a substan- tially equivalent position without prejudice to his seniority or other rights and privileges. We shall also order the respondent to make whole said employees for any loss of pay they may have suffered by reason of such discrimination by payment to each of them of a sum equal to the amounts which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstate- ment, less his net earnings 22 during said period. Since the respond- ent's plant was completely shut down from July 27, 1936, to August 17, 1936, as the result of a strike, no back pay accrued during that period. Having found that the respondent has not discriminated in regard to the hire and tenure of employment of E. M. Briner, Gary Allen Ellison, and Ernest Embree, we shall dismiss the complaint as to "Bi`iner, Ellison, and Embree. Since the complaint in Case No. C-405 is not supported by the evidence, we shall dismiss the complaint in that case. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Lumber and Sawmill Workers, Local No. 117, International Woodworkers of America, and Lumber and Sawmill Workers, Local No. 2770, United Brotherhood of Carpenters and Joiners of America, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of J. B. Cochran and Mel Duncan, thereby discouraging mem- bership "in a labor organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 21 Matter of The TVarfleld Company , a corporation formerly known as The Thompson Taylor Company and International Union of Operating Engineers, Local No . 399, and Inter- national Brotherhood of Firemen and Oilers , Local No. 7, G N. L. R. B. 58. 22 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 else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Mon:es received for work performed 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. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not discriminated in regard to the hire and tenure of employment of E. M. Briner, Gary Allen Ellison, and Ernest, Embree and has not thereby discouraged membership in a labor. organization, within the meaning of Section 8 (3) of the Act. 6. The respondent has not refused to bargain collectively with the representative of its employees in the appropriate unit, within the meaning of Section 8 (5) of the Act. 7. The respondent has not discriminated in regard to the hire and tenure of employment of the 85.employees named in the complaint in Case No. C-405, and has not thereby discouraged membership 'in a labor organization, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Smith Wood Products, Inc., Coquille, Oregon, and ifs officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Lumber and Sawmill Workers, Local No. 2770, United Brotherhood of Carpenters and Joiners of America, or any other labor organization of its employees, by. dis- couraging or refusing to reinstate any of its employees or in any',o>;lrer manner discriminating in regard to their hire and tenure of employ- ment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the. right to -self -organization, to form, join, or assist labor organizations, to bargain collectively, through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining, or other mutual aid or protection. , 2. Take the, following affirmative -action which the Board finds Will t effectuate the policies of the Act : (a), Offer to Mel Duncan immediate and full reinstatement to his former position, without prejudice to his seniority or other rights and privileges; SMITH WOOD PRODUCTS, INCORPORATED 635 (b) Offer.to J. B. Cochran immediate and full reinstatement to a position substantially equivalent to his former position, without prejudice to his seniority or other rights and privileges; (c) Make whole J. B. Cochran and Mel Duncan for any loss of earnings they may have suffered by reason of their discharge by payment to each of them of a sum equal to that which he normally would have earned during the period from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period, provided, however, that the respondent. shall deduct from the amount otherwise due them any monies received by said em- ployees during said period for work performed on Federal, State, county, municipal or other work-relief projects, and pay over the amount so deducted to the proper fiscal agency of the Federal; State, county, municipal, or other government or governments which sup- plied the funds for said work-relief projects; (d) Immediately post and keep posted for a period of at least sixty (60) consecutive days notices. in conspicuous places throughout. its plant, stating that the respondent will cease and desist in the manner set forth in 1 (a) and (b) and that it will take the affirma- tive action set forth in 2 (a), (b), and (c) of this Order; (e) Notify the Regional Director for the Nineteenth Region in writing within ten (10) days of the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint in Case No. C-875, in so far as it relates to E. M. Briner, Gary Allen Ellison, and Ernest Embree be, and it hereby is, dismissed. AND IT IS FURTHER ORDERED that the complaint in Case No. C-405, be, and it hereby is, dismissed.