Weyerhaeuser Timber Co.

In the Matter Of WEYERHAEUSER TIMBER COMPANY and INTERNA- TIONAL WOODWORKERS OF AMERICA, LOCAL No. 101, EVERETT, WASHINGTON , AFFILIATED ORGANIZATIONS WITH THE CONGRESS OF INDUSTRIAL Case No. C-1451.-Decided May 31, 1940 Lumber Industry-Interference, Restraint, and Coercion : remarks of super- visory employee evincing disapproval of employee's union activities-Discrimi- nation: alleged discriminatory demotion , discharge , and refusal to reinstate active union member to former position as saw filer; charges of, not sustained as to demotion and discharge , sustained as to subsequent refusal to reinstate; motive found in transfer of affiliation of Union; ( Leiserson , dissenting) evi- dence tending to show discrimination in refusal to reemploy Moore no more substantial than evidence as to alleged prior acts of discrimination ; would uphold Trial Examiner and dismiss complaint--Reinstatement Ordered-Back Pay: awarded from date of discrimination to date of filing of Intermediate Report and from date of order to date of offer of reinstatement. Mr. Thomas P. Graham, for the Board. Mr. W. E. Heidinger, of Tacoma, Wash., for the respondent. Miss Grace McEldowney, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges 1 duly filed by Local No. 101, Everett, Washington, International Woodworkers of America,2 herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Nineteenth Region (Seattle, Washington) issued a complaint, dated October 14, 1939, alleging that Weyer- haeuser Timber Company, Everett, Washington, herein called the respondent, had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1) and (3) 'At the hearing an amended charge dated October 27, 1939, was without objection re- ceived in evidence as a part of the pleadings z The original charge, dated June 13 , 1938, was signed by International Woodworkers of America, Local No. 94, Everett, Washington, which on May 5, 1938, had been amalgamated with other local unions into Local No. 101. On motion of counsel for the Board at the hearing, the pleadings were amended to change the name of the Union wherever it appeared. 24 N. L. If. B., No. 14. 267 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accom- panied by a notice of hearing were duly served upon the respondent and the Union. The complaint, as amended at the hearing, alleged in substance (1) that the respondent on or about November 4, 1937, demoted Paul Moore from the position of filer to a job at common labor on the bull gang, and on or about May 3, 1938, discharged him from its employ, and ever since said dates had refused and was still refus- ing to reinstate him to the position of filer, for the reason that he had joined and assisted International Woodworkers of America, Local No. 94, and that by so doing it had discriminated in regard to his hire and tenure of employment, thereby discouraging member- ship in Local No. 94; and (2) that by such discharge and refusal to reinstate Moore, and by various other acts and statements, the respondent had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On October 24, 1939, the respondent filed its answer, which, as amended at the hearing, denied that it had engaged in the unfair labor prac- tices alleged, and alleged affirmatively that on or about November 4, 1937, Moore was transferred from the filing room to a position at common labor for the reason that the crew in the filing room was curtailed ; that on May 3 or 5, 1938, Moore was laid off the bull gang for the reason that he had been found either unable or unwilling to per- form the work offered at that time; that he was on different occasions thereafter offered employment which he declined to accept, and that the respondent had not been and was not then willing to reemploy him as a filer for the reason that it had found him to be incompetent as a filer and not a satisfactory workman in the filing room. Pursuant to notice, a hearing was held on October 30 and 31, 1939, at Everett, Washington, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues of the case was afforded all parties. At the close of the hearing counsel for the Board moved that the complaint be amended to conform to the proof. The motion was later granted to apply to all pleadings. The Trial Examiner also ruled on a number of 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 made. The rulings are hereby affirmed. The case was submitted without oral argument, but counsel for the respondent filed a brief which was considered by the Trial Examiner. WEYERHAEUSER TIMBER COMPANY 269 On December 16, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had not engaged in unfair labor prac- tices within the meaning of Section 8 (1) and (3) of the Act, and recommended that the complaint be dismissed. On December 22, 1939, acting pursuant to Article II, Section 32, of National Labor Relations Board Rules and Regulations-Series 2, the Board ordered the proceeding transferred to and continued before it. The Union duly filed exceptions to the Intermediate Report, and the respondent filed a brief, both of which have been considered by the Board. In so. far as the exceptions of the Union are consistent with the find- ings, conclusions, and order set forth below, the Board finds them to have merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Weyerhaeuser Timber Company, a Washington corporation having its principal place of business at Tacoma, Washington, is engaged in the manufacture, sale, and distribution of lumber and lumber products. At Everett, Washington, it operates a group of sawmills which during 1938 produced and shipped more than 230,000,000 feet of lumber, valued at nearly $5,000,000. Over 82 per cent of the shipments went to points outside the State. The supplies used in the Everett plant were practically all obtained within the State. II. THE ORGANIZATIONS INVOLVED International Woodworkers of America, Local No. 101, Everett, Washington, is a labor organization affiliated with the Congress of Industrial Organizations, herein called the C. I. O. It admits to membership employees of the lumber industry in the Everett area, and was formed by the amalgamation of several local unions, includ- ing Local No. 94, which admitted to membership only employees of the respondent. HI. THE UNFAIR LABOR PRACTICES A. Background: Moore's experience and union activities Before entering the respondent's employ, Paul Moore had had nine years' experience as a saw filer with the McCormick Lumber Com- pany at Port Ludlow, Washington. In April 1936 he was hired by Glen Proctor, the head filer in Mill B, one of the respondent's two mills at Everett, and was put to work on the night shift on 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same day that Robert LaVelle, a beginner, was put to work as a filer on the day shift. Although there is some conflict of testimony as to Moore's rate of pay, it appears that he started at 55 cents an hour, was given a raise within a few days, and .from the time of a general increase in 1937 until his transfer to Mill C in August, was receiving 721/2 cents an hour. . In August 1937, on Moore's assurance that he had had some experi- ence in welding, Jonathan Titcomb, the assistant manager, trans- ferred him to a position in Mill C at the rate of 921/2 cents an hour.' It was understood the place was temporary, but Moore was to retain his seniority rights in Mill B and return to his position there when the one at Mill C came to an end. Except for welding, the work in Mill C was similar to what he had been doing in Mill B. On October 4, 1937, the shift at Mill C was discontinued, and Moore went back to Mill B in accordance with his understanding with Titcomb. He remained there for about six weeks, continuing to receive 921/2 cents an hour. He was then transferred to work as a common laborer on the bull gang, and on May 4, 1938, was laid off, as will appear more fully hereafter. At the time Moore entered the respondent's employ in April 1936, Local No. 2653, Sawmill and Timber Workers, Carpenters and Join- ers, affiliated with the American Federation of Labor, was established at the Everett plant and had a contract for its members with the respondent.4 In September 1936, after transferring his membership from Local No. 1495, Sawmill and Timber Workers, Port Ludlow, Washington, to Local No. 2653, Moore became a member of the Griev- ance, Negotiating, and Resolutions Committees of the latter local. On these committees he met with the management concerning a number of grievances, including wage adjustments in the Mill B filing room and changes in the existing agreement between the respondent and the Union.-' He testified that during these negotia- tions he was given a raise of 21/2 cents an hour in an attempt by the respondent to settle in that way a grievance of the men in the Mill B filing room, who claimed that the men in Mill C were getting a higher rate of pay for the same class of work. The arrangement was not satisfactory to the men, and the respondent finally agreed to a general increase in the Mill B filing room. 8 Moore testified that he received 971/2 cents an hour. It appears, however, that by mis- take he was paid at that rate for the first 10 days of his employment at Mill C, but the rate was reduced to 921/2 cents as soon as the error was discovered. 4 The first union in the plant was a Federal Union, chartered in 1934 by the American Federation of Labor. This was followed by Carpenters and Joiners Local No. 2513, and later, in 1935, by Local No. 2653, both affiliated with the American Federation of Labor. 6 At the time of the hearing, L. N. Reichman, the respondent's resident manager, testi- fied that the agreement with Local 2653 had expired, and that since then the respondent had had no agreement with a labor organization. WEYERHAEUSER TIMBER COMPANY 271 In September 1937, Local No. 2653 disaffiliated from the A. F. of L. and became Local No. 94 of the International Woodworkers of America, affiliated with the C. I. 0.e At that time Moore became president of Local No. 94 and continued in that capacity until June or July 1938. During this time, he also served as chairman and spokesman of the Grievance Committee and spokesman of the Negotiating Committee. From February through April 1938, Moore met with the manage- rnent on several occasions in an effort to negotiate an agreement on behalf of the Union and in connection with other matters. At one such meeting Assistant Manager Titcomb asked the Committee, headed by Moore, why the Union had gone over to the C. I. 0. and how they knew they represented a majority of the employees. In reply to Moore's suggestion that they have a Labor Board election, he asked why Moore should "stick his neck out." 7 At the same time he assured Moore that if the Union would delay negotiations for 2 months, the respondent would agree to an election and would not in the meantime negotiate with any other union. It is clear from the evidence that the respondent, during these negotiations, was embar- rassed by the change in affiliation of the Union to the C. I. 0., and feared the institution of a boycott of its products by the A. F. of L. For this reason the respondent did not, in early 1938, wish to have any extensive dealings with the Union. It appears from the foregoing that Moore was active in union affairs at all times during his employment with the respondent, and that the respondent knew of his outstanding union activity. Moore also testified that in April 1937 Glen Proctor, one of the head filers, told him that "word had been passed around" that he [Moore] was a radical or agitator, and if he did not "keep his mouth shut" he would not be in the respondent's organization long. Proctor denied making this statement or saying anything to Moore about the Union, but admitted telling the Field Examiner for the Board that he had spoken to Moore about Moore's being on a "blacklist" at Ludlow. In spite of his denial, we believe and find that Proctor warned Moore to "keep his mouth shut." Although any inference of hostility on the respondent's part to Moore's union activities which may be drawn from the above incident must be qualified in the light of the fact that Moore was a few months later transferred to a better position at a 6 Moore and Clarence Jolgen were apparently the only employees of the filing room on April 1, 1936, who became members of Local No. 94. Jolgen became inactive in September 1938, and at the time of the hearing there were no members of the Union in the filing room. 7 Titcomb testified this question "was merely a figure of speech, said jokingly, not apply- ing to him [Moore ] at all, but rather to the union committee in the requests they were making." 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substantial increase in pay, the remark clearly indicates the respond- ent's watchful attitude toward union matters. B. Discrimination with regard to hire and tenure of employment The complaint alleges that the respondent discriminated against Moore (1) by demoting him from the filing room at Mill B to a job at common labor on the bull gang on November 24, 1937, (2) by dis- charging him from its employ on about May 3, 1938, and (3) by refusing to reinstate him to the position of filer. We shall consider these three allegations separately. Testimony that the work at the mill was curtailed in the latter part of November 1937, and that both Moore and LaVelle were dropped from the filing room was not contradicted. Moore's own testimony was that his transfer to the bull gang was made because the night shift on which he was working was discontinued. A reduc- tion in his pay to 621/2 cents an hour resulted from the change, but there is no evidence that the demotion was in any way connected with Moore's union activities, nor do we think that such an inference can fairly be drawn. In March 1938, when an extra shift started work in Mill B, Moore applied to Mr. Covert, superintendent of that mill, for reinstate- ment in the filing room. He was not taken back, but LaVelle was. LaVelle did not belong to the Union. Testimony introduced on behalf of the respondent indicated that LaVelle, who had had much less experience than Moore, was preferred because he was more will- ing and ambitious," and was the son of an old and trusted employee. The respondent also claimed that LaVelle had seniority, based on his having originally started work earlier in the day on which both he and Moore were hired, and having previously put in 2 weeks without pay learning the work under his father's supervision. Al- though in view of the circumstances discussed below, there is some basis for the contention that the respondent gave preference to LaVelle over Moore because of the latter's union activity, the weight of the evidence is to the contrary. We do not find that the respond- ent's motives in reinstating Lavelle rather than Moore were other than those stated by the respondent. On May 4, 1938, further curtailment of work at the mill made it necessary to drop some of the men on the bull gang, and Moore was laid off.° Both John Gischel, the maintenance superintendent, and Thomas Bennett, the strawboss, testified that although Moore had at first seemed a good man on the bull gang, he apparently lost interest sApparently the choice between the two was left to Proctor . He testified that be had put Lavelle back in preference to Moore because he "figured that Lavelle was the better man of the two," and that "he was always willing to help, and was always a hustler, and paid more attention to his work in all ways." 9 At the time he was told there might be some extra work for him on Saturdays. WEYERHAEUSER TIMBER COMPANY 273 about March 1938, and that when it was decided to drop the men who "produced least," he was included among them. As Bennett claimed to have been a member of the Union 10 and to have served on the Grievance Committee with Moore, it is doubtful that he would have made the recommendation to lay off Moore because of the latter's union activities. Under all the circumstances, we are of the opinion that the respondent, in laying off Moore in May 1938, was not moti- vated by his union activity. There remains for consideration the question whether, subsequent to his non-discriminatory lay-off from the bull gang, Moore was dis- criminatorily denied reinstatement as a filer. It is to be noted that the Trial Examiner in his Intermediate Report concluded merely that there had been no discrimination in Moore's demotion in Novem- ber 1937, or in his lay-off of May 1938, and then proceeded to recom- mend dismissal of the complaint. He failed to give due consideration to the allegation of the complaint that Moore was discriminated against by the respondent's refusal to employ him as a saw filer after his demotion and again after his lay-off from the bull gang. A few days after Moore's lay-off, he and other members of the Union Grievance Committee met with Reichman and Titcomb. The purpose of the meeting is not quite clear, Titcomb testifying that it was in connection with the proposed union agreement, and Moore that it was in regard to his discharge. In any event, Moore's case was discussed. According to Moore, Titcomb said that he "didn't know anything about" why Moore was discharged but that Moore would have to "make (his) peace" with Superintendent Covert before he could "get any place" in the respondent's organization.'1 Titcomb suggested that if Moore would contact him a few days later, Titcomb would "see what he could do" about Moore's case. Titcomb's version of this incident was that Moore stated that he had been laid off the bull gang and believed that he should be rein- stated in the filing room in preference to Vernon Galligan, who was to go to work when the second shift started at Mill C. Galligan, who was not a member of the Union, previously had worked with Moore in Mill C, had considerably less seniority than Moore, received less pay, and was less experienced as a saw filer.12 Titcomb stated, 10 In reply to the question, "Did you belong to the same union Paul did I" Bennett testi- fied, "I think I belonged to the C. I. O. at that time." He no longer belonged to the Union at the time of the hearing. n with a single exception, Moore previously had met Covert only in connection with his work on the Grievance Committee. 12 Although. Galligan testified that he had been a fitter and welder at Mill C for "practi- cally two years" before Moore was transferred there in August 1937, records introduced at the bearing showed he had entered the respondent's employ in March 1937 , a, year after Moore started work at Mill B. He was laid off in November 1937. According to his own testimony , his work during . this period constituted his only experience in "that type of work" up to the time of his reinstatement in May 1938. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD according to his testimony, that he would "check over the matter" and let_ Moore know whether or not he was entitled to employment in preference to Galligan. Titcomb's testimony thus is in substan- tial agreement with Moore's save that Titcomb made no mention of any reference by him to Covert.13 We are satisfied, in view of all the evidence, that the foregoing incident took place as Moore testified, and we so find. Moore went on to testify that a few days later he again spoke to Titcomb, who then stated that Moore never would be rehired as a saw filer by the respondent except in an emergency, since both head filers, Proctor and Malcolm, had FFeported that Moore was inefficient. Titcomb's testimony was that since the job was in Mill C, he had spoken to Malcolm, who had been head filer in that mill during the period of Moore's employment there, and had learned that Malcolm believed Moore to be a poor welder, whom he would take back into Mill C only "under protest." According to Titcomb he conveyed this information to Moore.14 Although he did not expressly do so, it may be fairly implied that Titcomb intended to deny having told Moore that he would never be rehired as a filer except in an emer- gency. It is clear, however, that Titcomb refused Moore reinstate- ment in Mill C at this time,15 and that Galligan was employed in preference to Moore. In view of the foregoing, the important issue to be decided by the Board is whether or not Moore was excluded from reemployment as a saw filer at this time because of an honest belief on the part of the respondent's officials that he was not competent. In seeking to resolve this difficult factual question, we note at the outset that at no time in the course of his work with the respondent as a saw filer was Moore ever told that his work, as such, was deficient. This is true despite the fact that it admittedly is one of the respondent's rules at the Everett plant that warning slips are to be given to employees who are "lax in carrying out their jobs." Printed forms are provided for this purpose.,a The first alleged criticism of the quality of Moore's work was made by Head Filer Malcolm at the time Moore was transferred back to Mill B. On this occasion there were typed on the slip customarily filled out at the time of a transfer or lay-off of an employee, the words "Don't want him back," in reference to Moore. It was Titcomb's testimony that when he learned of this about 10 days later, he mentioned the 1 The Trial Examiner made no finding as to whether or not this statement was made by Titcomb. 11 Moore testified that after this conversation he talked to Proctor on the telephone, and Proctor stated that he did not recall having talked to Titcomb about Moore 's efficiency. 16 The date of this conversation was stated by Moore to be "around May 7 or 8." A letter written by Titcomb fixes the date as May 10. 19 Plant Manager Relchman averred that although the system of giving warning slips was established in the plant , the respondent "never insisted" that it be carried out. WEYERHAEUSER TIMBER COMPANY 275 matter to Malcolm who told him that he had had to do all of Moore's saw welding "over again," but that he (Titcomb) did not think this criticism sufficiently important to ascertain whether Moore was doing his work properly in Mill B. He did not claim to have heard any further criticism of Moore's work until after the latter was laid off from the Mill B filing room, when "an accumulation of evidence" led him to conclude Moore was inefficient. Plant Manager Reichman asserted that when he heard that Malcolm did not want to employ Moore again, about a week after Moore returned to Mill B, he inspected the welding on some band saws lying on the floor in Mill C which Malcolm pointed out as being Moore's work 17 Reichman admitted that he made no attempt to compare the welds on these particular saws with welding done on other saws. In view of Malcolm's testimony that he had to do Moore's welding over in the morning, it is difficult to understand how any of Moore's work could have been lying around more than a week after Moore had left Mill C unless it had been specifically set aside for some reason.18 If such actually were the case, however, Malcolm would be likely to have mentioned it in his testimony. Under the circumstances we do not believe that Reichman's claim to have based his opinion of Moore's work on a personal inspection is entitled to credence. Apart front Reichman, Galligan and Malcolm also claimed to have personal knowledge of the quality of Moore's work in Mill C. At the hearing, Galligan proved to be a poor witness, who was obviously intent on disparaging Moore. He asserted he had done some of Moore's work for him, including welding. Early in his testimony Galligan testified as follows : Q. When he (Moore) would come to work, what would he do? A. He would change clothes. Q. Then what? A. Sit clown on the bench and wait to see what came up. He would wait for a saw to come up. Q. Did he put up his own saw? A. Well, usually, after they came up, sometimes he would, if he was not asleep. The circumstances of Galligans testimony made it clear that he was eager to volunteer the information that Moore sat down or slept instead of working. Later Galligan testified that sometimes Moore complained that he did not feel well, and would lie down to rest. Thereafter Galligan's testimony was as follows : i7 Malcolm made no mention of this incident during the course of his testimony. Reichman first stated that this inspection was made after Moore "left our [the re- spondent's] employment." 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. After his coming in and complaining about his stomach or sides, did he show any evidence of whether he was feeling pretty well after the shift was ended? A. Several times he went fishing. Q. Did you go fishing with him? A. Absolutely. After six o'clock he used to go fishing out at Monroe. Q. And that would happen the morning after he had been feeling bad the night before? A. Yes. On cross-examination, Galligan claimed that he had gone fishing 6 or 7 times, in all, with Moore, He could not estimate, and stated that he did not know, how many such fishing trips took place on mornings after Moore had been ill while at work. Likewise he stated that he did not know, and was unable to estimate, how many times Moore complained of feeling ill while he was at work.19 A careful examination of Galligan's testimony indicates that his vagueness and uncertainty on crucial points may have been attributable to a knowl- edge on his part that his testimony was not given in complete candor. In this connection we note especially Galligan's statement that "it was all around the mill" that Moore was "after" his (Galligan's) job. We have no doubt that Ga]ligan believed that by his testimony he could prejudice Moore's case, and thereby make certain that Moore would not oust him from his job. Under all the circumstances, we attach little weight to Galligan's testimony. Malcolm, the head filer in Mill C during the time Moore worked there, was the most important of the respondent's witnesses as to Moore's incapacity as a welder. It was allegedly on the basis of Mal- colm's opinion that Moore was denied further- employment as a filer. He testified that even before Moore was transferred from Mill B to Mill C, he (Malcolm) knew that Moore was "inefficient," because of statements by one Lorrie Jasperse and reports from Mill B as to the calibre of Moore's work. Lorrie Jasperse was the son of James Jasperse, under whom Moore had worked for 9 years as a filer at the McCormick Lumber Company. Malcolm claimed to have been in- formed by Lorrie Jasperse that Moore had let his work "pile up on him" at the McCormick mill, and that as a result James Jasperse had had to "jack up" Moore. James Jasperse, when asked at the hearing if he had ever criticized Moore's work, replied that he had not done so any more frequently than he had criticized the work of the other employees in his department. Lorrie Jasperse did not testify. According to Moore, at the time of his transfer to Mill C Malcolm 19 His previous testimony was that Moore was careless in his work only when he ""was feeling bum," but that Moore "sloughed on the job quite a few times." WEYERHAEUSER TIMBER COMPANY 277 stated that he "didn't know of anybody he would rather work under him" than Moore. The evidence adduced at the hearing serves to undermine Ma'lcolm's claim that he had heard reports from Mill B that Moore was inefficient. It is clear that Moore was not considered inefficient prior to his transfer to Mill C, and that in fact his transfer at this time amounted to a promotion. Under all of the circumstances, we find that no reports emanating from Mill B or from Lorrie Jasperse, to the effect that Moore was inefficient, had reached Malcolm prior to the time Moore started work under his supervision, and that Malcolm did not then believe Moore to be inefficient. Malcolm further testified that since Moore had been on the night shift at Mill C, he had had no occasion to observe Moore's work while it was being done, but stated that he could see it the next morning. His testimony was that while Moore's saw fitting was satisfactory, his saw welding was very poor and had to be done over in the morn- ing. Although he admitted that he did not know whether Galligan, who worked with Moore, had done any of Moore's welding, he stated that he later learned from Galligan that Moore "sat in the corner" while he (Galligan) did most of the work. Malcolm's entire testi- mony tends to stamp him as an unreliable witness. If it reflected his actual opinion of Moore's ability and industry, it is incredible that -he would have refrained from 'speaking to Moore in an effort to improve the latter's work. It is equally difficult to believe that Moore, having been a satisfactory filer and having done his share of the work in Mill B for substantially more than a year, would suddenly lose interest in his job shortly after receiving a promotion, and let his helper do most of the work while he "sat in the corner." Nor does it seem possible, in view of his years of experience as a filer and his otherwise satisfactory work, that he was unable to weld at least as well as Galligan, whose only experience seems to have been in helping Moore.20 Under all of the circumstances, it is plain that Malcolm's testimony as to Moore's alleged inefficiency is characterized by gross exaggeration, if it is not entirely fabricated. The welding done by Moore while in Mill C was performed almost entirely on band saws, which cost $500 or more. It was asserted that during Moore's tenure in Mill C, defective welding resulted in exces- sive fracturing of these saws. If Moore had in fact shown himself unable to weld satisfactorily and had thus caused excessive fractur- ing of the saws, the refusal to reemploy him in Mill C was plainly justified. Aside from the unconvincing nature of the evidence of- fered to show Moore's incompetence, however, it appears that such fractures as took place may well have resulted from factors entirely m Galligan 's testimony was that welding "was not my job at all ," and that she did it "just to help him [Moore] out when he was feeling bum ." As already noted, Galligan had no experience as a saw filer except in the respondent's employ. 283035-42-vol. 24-19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unrelated to Moore's welding. The testimony of George B. Arm- strong, who had .been a saw fitter in Mill C during Moore's tenure there, tended to show that Moore's welding was not responsible for the saw fractures. Armstrong, who worked on the same shift with Moore, never heard any criticism of Moore's work at the time that he (Armstrong) was in Mill C.21 He knew at that time, however, that there was excessive cracking of the saws, and said that the saw filers in the plant attributed the frequent fractures to the condition of the band wheel. He thought this condition was later rectified by repairs to the band wheel during a week-end shut-down.22 Arm- strong's testimony, in so far as it indicates that there was no substan- tial relation between Moore's welding and the excessive number of saw fractures, derives additional support from an admission by As- sistant Manager Titcowb that the respondent was having "trouble ... with fractures of the saws" before Moore was transferred to Mill C. In view of all the circumstances, and particularly the fact that Malcolm never suggested to Moore that the latter be more careful in his welding, we find that the respondent's officials did not honestly believe Moore's welding was the cause of the fractures or that his ability in welding was inferior to that of Galligan. Although Moore did no welding during the year and a half he was in Mill B, the testimony regarding his work there is important in consider- ing his general efficiency. Proctor, the head filer, did not claim to have considered him inefficient until after his employment in the filing room was discontinued in November 1937. To determine the competency of a night-shift employee, Proctor stated he had to depend on the judgment of Head Fitter Willis Blackmore. Blackmore's testimony was that he had never told Moore that his work was unsatisfactory, had never requested Moore to do any work which Moore was either unable or unqualified to perform, and that Moore did his share of the work.23 The transfer slip made out by Proctor in August 1937, contained no criticism of Moore's work, and Proctor himself testified 21 He stated that about a week or so prior to the day when he testified he had first heard Moore's work criticized . Armstrong explained that he regarded this criticism as "sort of prejudiced." 22 The respondent introduced no evidence as to the condition of the band wheel. 22 Shortly after Moore's first employment by the respondent, Blackmore asked Proctor to instruct Moore to help in turning over a particular type of saw on which Blackmore worked, but the latter testified he did not regard this as a criticism of Moore's work. After Proctor spoke to him, Moore's work improved , and he did his share . Although Blackmore stated that he would prefer Lavelle to Moore as a helper, he explained that there was "nothing personal " in the comparison , and that it was meant as no reflection on Moore. When asked whether he preferred Malcolm or Moore, he said only that he "be- lieved" he preferred Malcolm. Proctor initially testified that Blackmore had on "several" or "two or three" separate occasions told him that Moore "did not cooperate" with Black- more. Proctor subsequently changed his testimony, and stated that he actually remem- bered only one occasion on which Blackmore reported to him as to Moore's work. It is clear that Blackmore criticized Moore's work to Proctor only once, shortly after Moore first was hired. WEYERHAEUSER TIMBER COMPANY 279 that when Titcomb asked him at that time whether there was anyone in his employ who could be advanced, he'said that the one man he had who might be able to go to Mill C was Moore. It was only after Moore left the Mill B filing room the second time, according to Proctor's statement, that he learned of Moore's inefficiency from his own observa- tion that he was getting longer runs on the saws and from comments of the mill foreman, Howard Nicholson, and the head sawyer, Fred Steil, who said that the saws were cutting more smoothly. This was at a time when Proctor himself was fitting all the saws. Nicholson and Steil corroborated this testimony to some extent, and claimed that they had complained to Proctor about the saws while Moore was there.24 Proctor did not refer to any such complaints. If there actually had been any complaints from Nicholson, whose job in part was "to see that the saws were working right," it is manifestly im- probable that Proctor would not have made some investigation at the time to determine what was wrong. It is also significant that Steil and Nicholson did not claim to have noticed any improvement in. the saws during the six-week period that Moore was in Mill C, prior to his second lay-off from Mill B. It is noteworthy that Moore's immediate superior, Blackmore, did not have any criticism to make of Moore's work during the period when Nicholson and Steil pur- portedly noticed that the saws were functioning so poorly. We are satisfied that Steil and Nicholson did not in fact make the complaints. which they claimed to have made. As already noted, Proctor did not claim to have been told by Steil and Nicholson that the saws were running more, smoothly until after Moore had left Mill B for the second time. At all times that Moore. was employed in Mill B, LaVelle also was employed there, on the day shift, and did the same type of work as Moore on the same saws. LaVelle was transferred to the bull gang at the same time as Moore. On direct examination, Proctor merely stated that Nich- olson had remarked that "the saws were cutting lots smoother," and Steil had inquired if Proctor "had made any changes in the saws, that they were cutting a lot smoother." On cross-examination Proc- tor was pressed to explain how he deduced from the remarks alleg- edly made by Nicholson and Steil that the removal of Moore, and not that of LaVelle, actually was responsible for the smoother opera- tion of the saws. He then said that the first and second saws used on the day shift were those fitted by Moore. When he was expressly asked if Steil had said that only the first saws on the day, shift were '* Steil first claimed to have reported "several times" that the saws were not cutting properly. He later said, however, that he did not know whether he had reported on this matter more than once. . He claimed that as head sawyer during the period from April 1936 to November 1937 he observed that the saws were "cutting very rough very often.'.' If such actually were the fact, it is incredible that Steil would not have bent every effort to have the situation remedied. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD running more smoothly, he denied that such was the case. We are fully satisfied, and find that Proctor did not honestly believe, on the basis of the remarks of Steil and Nicholson, that Moore's work was responsible for faulty operation of the saws.25 Proctor allegedly made out a transfer slip indicating some criti- cism of Moore when the latter was transferred to the bull gang. Moore's name and job classification are written on the slip in hard pencil. Below this, as a reason for Moore's transfer, a check mark, in ink, appears opposite the word "curtailment." The slip is signed in ink by Proctor. The words "weakest man on shift" were written en the slip in soft pencil, apparently as an additional reason for Moore's transfer. When asked why part of the slip was in ink and part was in pencil, Proctor replied only, "I imagine I forgot to sign it." We find that Proctor did not write the words "weakest man on shift" at the time that he signed the slip. We further find that at the time he signed the slip he marked "curtailment" only, as the reason for the transfer. It is noteworthy that Proctor at the hearing did not originally claim to have come to regard Moore as inefficient until after Moore had been placed on the bull gang; that is, after Proctor had filled out the transfer slip. On cross-examination, how- ever, Proctor flatly stated that he knew Moore to be inefficient at the time Moore was transferred to the bull gang. He further stated that he had written this on a "time slip," apparently referring to the words "weakest man on shift," as an indication of Moore's incompe- tence. He finally stated that he had not made out any slip showing Moore to be incompetent. Proctor's testimony, viewed as a whole, does not carry conviction, and we do not regard him as a credible witness. We find that Proctor's claim that Moore was an inefficient filer was without basis in fact, and that Proctor at no time honestly believed Moore to be inefficient. At the time Titcomb refused to reemploy Moore as a filer in Mill C, he said he would try to find something else for him. About a week later, after receiving a letter from a firm of attorneys in Seattle alleging that Moore was the victim of discrimination, the respondent wrote Moore confirming the proposition Titconib had made him that they would put him back somewhere in the mill as soon as a job developed. Moore telephoned Titcomb to ask whether the job would be in the filing department, and when he was told it would not, said he could not accept, but felt obliged to protect his rights by having the Board • determine whether the refusal to employ him as a filer was discriminatory. In the fall of 1938, after filing a charge with m We make no finding as to whether or not the alleged remarks of Steil and Nicholson, set forth above, actually were made . In view of the fact that Proctor, a highly skilled workman, was himself doine the saw fitting at the time of the alleged remarks, the making of some such remarks by Nicholson and Steil would not have been unlikely. WEYERHAEUSER TIMBER COMPANY - 281 the Board, through the Union,, Moore again applied for a position with the respondent as instructed by a Field Examiner. He testi- fied that before seeing Titcomb he saw both head filers, who told him his reinstatement would be all right with them, but was up to the management. He said that Keene Strobel'26 the new head filer in Mill C in the place of Malcolm, told him that "he had heard something about his case," that he did not want a man who would have other employees congregating around him during working hours "talking union," and that he (Strobel) had once been forced at the point of a gun to join a union.27 Proctor did not recall dis- cussing the possibility of Moore's reemployment. Strobel's testi- mony was that he knew of Moore's interest in unions, and asked him whether he had the "extreme attitude" and would lay off work to go to talk to a man about union activities. After talking to the head filers, Moore saw Reichman, who told him he could be put back at something around the mill,28 but not in the filing room since the head filers considered him incompetent. Moore said he would not return to work under those conditions. After this meeting Moore did not again apply for reinstatement. Galligan meanwhile retained the position in Mill C, and was still employed there at the time of the hearing. In the ultimate determination of whether Moore was discriminated against in violation of the Act, certain important facts stand out. Moore was the most important figure in the Union, and his union activity was, well known both to Head Filer Proctor, and to the respondent's higher officials. On one occasion, Proctor warned Moore that he was generally regarded as a. "radical or agitator" and to "keep his mouth shut" if he wished to stay in the respondent's employ. About five months thereafter the Union, under Moore's leadership, transferred its affiliation from the A. F. of L. to the C. I. 0., a move which admittedly was embarrassing to the re- spondent. There is no question that this transfer in affiliation pro- vided the respondent with a powerful motive to lead it to attempt to undermine the Union. This became especially true when, in March of 1938, the Union took steps to secure recognition as exclusive bar- gaining representative. Moore's position of leadership in the Union marked him as a convenient object for some form of discrimination which might have the effect of weakening the Union or discouraging its growth. 28 In September 1938 Strobel took the place of Malcolm as head filer in Mill C, and Mal- colm was transferred to the bull gang. The change was made because Malcolm "apparently didn't have enough filing experience to handle the job," when three shifts were running. ' Strobel testified he had joined the I. W. W. under duress. ie These offers of reinstatement in some other position have been given due consideration by the Board as evidence bearing on the respondent's motive in refusing to reinstate Moore as a filer. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was not until May of 1938 that Moore learned for the first time that he was "inefficient" as a filer, and thus would not be reemployed in that capacity. Prior to that time, Moore had never been criticized for his work as a filer, had received substantial wage increases, and had been given a promotion. His immediate superior regarded him as a satisfactory employee. No witness for the respondent claimed to have discovered any substantial basis for criticism of Moore's work until after the change in affiliation of the Union. The testi- mony of the respondent's witnesses Proctor, Galligan, Malcolm, Nicholson, and Steil, all of whom purported to have personal knowl- edge of circumstances indicating that Moore was inefficient, actually fell short of establishing that such was the case. Proctor, Galligan, and Malcolm, in particular, proved to be of doubtful veracity. It is clear from all the circumstances that the respondent's officials did not honestly believe that Moore was a less efficient saw filer than Galligan, who had considerably less experience and who at the time of the hearing was still being paid at a rate considerably less than Moore was paid prior to his transfer to the bull gang. It can safely be inferred that Moore would not have received substantial wage increases and a promotion without some inquiry having been made into the quality of his previous work. Although we have found no discrimination in regard to Moore's demotion in November 1937 and his lay-off in May 1938, and have found that other considerations justified the reinstatement of LaVelle rather than Moore in March 1938, it is apparent that on the first occasion when under normal circumstances the respondent should have restored Moore to a posi- tion in the filing room, the respondent refused to do so. Although in many respects the case is not entirely free from doubt, we feel that the weight of the evidence establishes, and we find, that the respondent by denying employment to Moore as a saw filer in May 1938, and at various times thereafter, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in Local No. 101. We further find that thereby, and by the statements of Proctor, Strobel, and Titcomb, evincing disap- proval of Moore's union activities, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. After being laid off the bull gang, Moore was employed by the W. P. A. from July 1938 until January 1939, at $48 a month. He then worked for the General Home Service for a month and a half or two months, earning between $75 and $100 in commissions. At the time of the hearing he was employed as seaman and cook for the U. S. Coast and Geodetic Survey on the "Surveyor" at $72 or $72.50 a month with board and room. In the respondent's employ WEYERHAEUSER TIMBER COMPANY 283 Moore's earnings had varied considerably, usually exceeding $25 a week, although during curtailment his pay was sometimes less than $100 a month. Aside from any question of salary, Moore expressed a desire for reinstatement in his former position at the Everett mill because he had bought a home near there, and wished to follow his trade as a filer. We find that at the time of the hearing Moore had not obtained substantially equivalent employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed 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 com- merce and the free flow of commerce. V. THE REMEDY. Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from further engaging therein. We shall also order the respondent to take certain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that by refusing to reinstate Paul Moore to a posi- tion as filer in May 1938, the respondent discriminated against him in regard to his hire and tenure of employment. In the case of em- ployees who have been so discriminated against, we normally order reinstatement with back pay from the date of the discrimination to the time of the respondent's offer of reinstatement. In view of the Trial Examiner's recommendations in the present case, however, back pay should not be required from the date of filing of the Intermediate Re- port to the date of this decision.29 We shall, therefore, order the re- spondent to reinstate Moore and to make him whole for any loss of pay he has suffered by reason of the discrimination against him, by pay- ment to him of a sum of money equal to the amount he normally would have earned as wages from May 10, 1938, to December 16, 1939, and from the date of this decision to the date of the offer of reinstatement, less his net earnings 30 during said periods. 89 See Matter of B. R. Ha$eljinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760. 80 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 the unlawful discrimination against him and the consequent necessity of his seeking employment else- where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and the entire record in the case, the Board makes the, following : CONCLUSIONS OF LAW 1. International Woodworkers of America , Local No . 101, Everett, Washington , is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Paul Moore, thereby discouraging membership in Interna- tional Woodworkers of America, Local No. 101, Everett,. Washington, the respondent has, engaged in and is engaging in an unfair labor prac- tice within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent 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. 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 respond- ent, Weyerhaeuser Lumber Company, and its officers, agents, succes- sors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership, in International Woodworkers of America, Local No. 101, Everett, Washington,. or any other labor organization of its employees, by discharging, demoting, or refusing to reinstate any of its employees, or in any other manner discrim- inating in regard to their hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights 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 purposes of collective bargaining or other and Joiners of America, Lumber and Sawmill Workers Union,, Local 2590, 8 N. L. R . B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work- relief projects are not considered as "net 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. WEYERHAEUSER TIMBER COMPANY 285 mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Paul Moore immediate and full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority and other rights and privileges; (b) Make whole the said Paul Moore for any loss of pay that he may have 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 normally would have earned as wages from May 10, 1938, the date of the discrimination against him by the respondent, to December 16, 1939, and from the date of the Order herein to the date of the offer of reinstatement, less his net earnings 81 during said periods; deducting, howev'r, from the amount otherwise due to the said Paul Moore, monies received by him during said periods 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; (c) Post immediately in conspicuous places throughout its plant at Everett, Washington, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that it will take the affirmative action set forth in para- graphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become or remain members of International Woodworkers of America, Local No. 101, Everett, Washington, or any other labor organization, and that the respondent will not dis- criminate against any employee because of membership or activity in such organization; (d) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. WILLIAM M. LEISERSON , dissenting : I am unable to agree with the opinion of the majority in this case. The evidence fairly establishes, as the majority concedes, that there was no discrimination practiced against Moore prior to the refusal to reinstate him as a filer in May 1938. In my opinion the evidence tending to show discrimination in such refusal to employ Moore as a filer is no more substantial than the evidence as to the alleged 81 See footnote 30, 8upr¢. 286 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD prior acts of discrimination. The Trial Examiner who heard all the evidence recommended dismissal of the complaint; I find that the facts in the case bear out his conclusion. A. Background : Moore's union activities and employment record When Moore entered the respondent's employ at the Everett plant in April 1936, Local No. 2653, Sawmill and Timber Workers, Car- penters and Joiners, affiliated with the American Federation of Labor, was established there and had a contract with the respond- ent.32 In September, 1936, after transferring his membership from Local No. 1495, Sawmill and Timber Workers,-Port Ludlow, Wash- ington, to Local No. 2653, Moore became a member of its Grievance, Negotiating, and Resolutions Committees. On these committees he met with the management in regard to the discharge of one employee and the failure to reinstate two others after a strike, working con- ditions around the mill, grievances of the boom men, the question of wage adjustments in the Mill B filing room, and changes in the existing agreement.33 In September 1937, Local No. 2653 disaffiliated from the A. F. of L. and became Local No. 94 of the International Woodworkers of America, affiliated with the C. I. 0.34 Moore was president until June or July 1938, and served as chairman and spokesman of the Grievance Committee, spokesman of the Negotiating Committee, and member of the Executive Board. From February through April, 1938, he met with the management on several occasions to try to negotiate an agreement on behalf of the Union ; to take up the mat- ter of an employee named Canary, who had been reprimanded by the respondent for distributing union literature; and to arrange a meeting for the Medical Committee. . At the meeting to negotiate an agreement, Jonathan Titcomb, the respondent's assistant manager, asked the Committee why the Union had gone over to the C. I. 0. and how they knew they had a majority. In reply to Moore's suggestion that they have a Labor Board elec- tion, he asked why Moore should "stick his neck out." 115 At the same time he assured him that if the Union would delay negotiations for two months, the respondent would agree to an election and would not in the meantime negotiate with any other union. It is clear from the evidence that the respondent was embarrassed by the change in affiliation of the Union to the C. I. 0., and feared the institution of a .boycott of its products by the A. F. of L. For this reason the 82 See footnote 4, supra. 88 See footnote 5, supra. 84 See footnote 6, supra. 85 See footnote 7, supra. WEYERHAEUSER .TIMBER COMPANY 287 respondent did not, in early 1938, wish to have any extensive deal- ings with the Union. It appears from the foregoing facts that Moore was active in union affairs at all times during the two years of his employment with the respondent, and that the respondent knew of his union affiliations. Moore testified that the only time his activities were referred to was in April 1937, when the head filer, Glen Proctor, told him he had heard he was a radical or agitator, and if he did not "keep his mouth shut" he would not be in the respondent's organiza- tion long. The statement was denied by Proctor.36 Assuming that he made it, however, whatever inference we might draw therefrom must be qualified in the light of the fact that Moore was a few months later transferred to a better position at a substantial increase in pay. Prior to his employment with respondent, Moore had had nine years' experience as a filer with the McCormick Lumber Company at Port Ludlow, Washington. In April 1936 he was hired by Proctor, the head filer in Mill B, one of the two mills in the respondent's Everett group, and was put to work on the night shift on the same day that Robert LaVelle, a beginner, was put to work as a filer on the day shift. Although there is some conflict of testimony as to Moore's rate of pay, it appears that he started at 55 cents an hour, was given a raise within a, few days, and from the time of a general increase in 1937 until his transfer to Mill C in August, was receiving 721/2 cents an hour.37 His work was evidently considered satisfac- tory during this time, although there is some evidence that on one occasion shortly after he was hired, Proctor, at the request of Willis Blackmore, the head saw fitter at night, spoke to him about being more helpful. Blackmore testified that thereafter Moore's work improved. In August 1937, on Moore's assurance that he had had some experi- ence in welding, Titcomb, the assistant manager, transferred him to a position in Mill C at the rate of 921/2 cents an hour.38 It was understood the place was temporary, but Moore was to retain his seniority rights in Mill B and return to his position there when the one at Mill C came to an end. Except for welding, the work in Mill C was similar to what he had been doing in Mill B. While he was in Mill C his work was not criticized, but when he left the mill, Percy Malcolm, the head filer at Mill C, wrote on his 86 At the hearing Proctor admitted that he had told the Field Examiner for the Board that he had spoken to Moore about being on a "blacklist " at Ludlow, but said he had not actually made the statement to Moore, or said anything to him about the Union. 3' Moore testified that during this time he received one raise of 2% cents an hour as the result of an attempt by the respondent to settle in that way a grievance of the men in the Mill B filing room, who claimed that the men in Mill C were getting a higher rate of pay for the same class of work. The arrangement was not satisfactory to the men , and the respondent finally agreed to a general increase in the Mill B filing room. 38 See footnote 3, supra. 288 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD lay-off slip, "Don't want him back." This took place shortly after the Union changed its affiliation to the C. I. O. Titcomb testified that he thus learned for the first time that Moore's work had been unsatisfactory, that he talked to Malcolm about it and found that Moore's welding had to be done over, but that he was not particularly disturbed since Moore was then back in Mill B. Reichman, the manager, testified that after receiving this report, he inspected some of Moore's work and found poor welds; 3U and Vernon Galligan, a fitter on the night shift, testified that he had done some of Moore's work when Moore was not feeling well. On October 4, 1937, the shift at Mill C was discontinued, and Moore was transferred back to Mill B in accordance with his un- derstanding with Titcomb. He remained there for about six weeks, continuing to receive 921/2 cents an hour. While his work was not criticized during this time, Proctor testified that soon after Moore left Mill B, both Howard Nicholson, the mill superintendent, and Fred Steil, the head sawyer, commented on the fact that the' saws were running more smoothly. His testimony on this point was cor- roborated by Nicholson and Steil. Blackmore testified that both LaVelle, who became his helper when Moore went to Mill C, and Malcolm, who held the position at the time of the hearing, were more useful to him than Moore had been. B. The alleged discriminatory demotion, discharge, and refusal to reinstate, and other alleged acts of intimidation, restraint, and, coercion The complaint alleges that the respondent discriminated against Moore on November 24, 1937, by demoting him from the filing room at Mill B to a job at common labor on the bull gang. Testimony that the work of the mill was curtailed at that time, and that both Moore and LaVelle were dropped from the filing room was not contradicted. Moore's own testimony was that the transfer was made because the night shift on which he was working was dis- continued. A reduction in his pay to 621/2 cents an hour resulted from the change, but there is no evidence that the demotion was in any way connected with Moore's union activities, nor can such an inference fairly be drawn from the evidence before us. In March 1938, when an extra shift started work in Mill B, Moore applied to Mr. Covert, superintendent of that mill, for reinstate- ment in the filing room. He was not taken back, but LaVelle was. Testimony introduced on behalf of the respondent indicated that 89 It is not apparent how he could be sure this was Moore 's work, as Galligan stated he had done some of the welding for Moore, and Malcolm testified .that he had had to do much of the work over. WEYERHAEUSER TIMBER COMPANY 289 LaVelle was preferred because he was more willing and ambitious than Moore, was the son of an old and trusted employee, and had seniority, based on his having originally started work earlier in the day, and having previously put in two weeks without pay learning the work under his father's supervision. There is no reason to believe that the respondent's motives in reinstating LaVelle rather than Moore were other than those stated. On May 4, 1938, further curtailment of work at the mill made it necessary to drop some of the men on the bull gang. Moore testi- fied that up to this time his work had not been criticized, and con- tradicted the testimony of John Gischel, the maintenance superin- tendent, and Thomas Bennett, the strawboss, that he had been warned not to stand around talking with other men during working hours. Both Gischel and Bennett testified that although Moore had at first seemed a good man, he apparently lost interest, was ineffi- cient, and when it was decided to drop the men who "produced least," he was on the list. The action was taken by Gischel on the recom- mendation of Bennett. As Bennett had been a member of the Union 40 and had served on the Grievance Committee with Moore, it seems unlikely that he would have made the recommendation be- cause of Moore's union activities. I am of the opinion that the action of the respondent was not motivated by any such consideration. A few days after the lay-off, Moore and other members of the Union Grievance Committee met with Reichman and Titcomb. The purpose of the meeting is not quite clear, Titcomb testifying that it was in connection with the proposed union agreement, but in any event, Moore's case was discussed. He asked about his seniority rights over Galligan, who was going back to work in Mill C, and Titcomb said that seniority rules -would apply if the ability of the two men was equal. He promised to look into the matter, and after talking to Malcolm, told Moore that his work had not been satis- factory, and that he could not be put in the filing room over the head filer's objections. He promised, however, to try to find some- thing for him. About a week later, after receiving a letter from a firm of attorneys in Seattle regarding Moore's case, the respondent wrote Moore confirming the proposition Titcomb had made him that they would put him back somewhere in the mill as soon as a job developed. Moore telephoned Titcomb to ask whether the job would be in the filing department, and when he was told it would not be, said he could not accept, but felt obliged to protect his rights by taking up the matter with the Board. 40 See footnote 10, supra. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During this time, according to Titcomb, Moore was still considered an employee of the respondent, had a check waiting for him at the office, and had not been given a time slip as was done when an employee was discharged. Moore admitted he was told there might be extra work for him week ends, and that Titcomb said he would try to find something for him, but said that he considered the lay-off a discharge. In view of all the evidence that his work in the filing rooms was con- sidered unsatisfactory, and the uncontradicted testimony offered by the respondent that it was willing to reemploy him in some other ca- pacity, but that he did not accept the offer, I am of the opinion that the respondent's refusal to reinstate Moore as a filer was due to the respondent's belief that he was not as efficient as the men who were reinstated. In the fall of 1938, after filing a charge, through the Union, with the Board, Moore again applied for a position with the respondent as instructed by the Field Examiner. He testified that before seeing Titcomb he saw both head filers and that they told him his reinstate- ment would be all right with them, but was up to the management. Proctor, however, testified he did not recall discussing with Moore the possibility of his reemployment, and stated at the hearing that he would not be willing to reemploy Moore in his department as there were other fitters or helpers available who were more competent. With Keene Strobel, the new head filer in Mill C, Moore had some discussion of unions, Strobel saying, according to Moore, that he did not want a man who would have other employees congregating around him during working hours "talking union" and that he [Strobel] had once been forced at the point of a gun to join a union. Strobel's own testimony was that he knew of Moore's interest in unions, and asked him whether he had the extreme attitude and would lay off work to go to talk to a man about union activities. He also testified that there was no job available when Moore applied, that he had hired no one since getting the job in Mill C, and that if they had a place for a filer in Mill .C he would have to be able to do welding. It appears, there- fore, that whatever Strobel's own attitude toward unions might be, it had no effect on Moore's case. After talking to the head filers, Moore saw Reichman, who told him he could be put back at something around the mill, but not in the filing room. Moore said he would not go in under those conditions. Ac- cording to Moore, he and Reichman then discussed the National Labor Relations Act, Moore saying that the laws would be made tighter and Reichman saying that he had better come back and take what they gave him, as eventually the Act would be thrown out, and then it -would be better to be on the inside looking out than on the outside look- WEYERHAEUSER TIMBER COMPANY 291 ing in. Reichman did not recall this conversation regarding the Act. After this meeting Moore did not again apply for reinstatement. In many respects the case is not free from doubt. But on the basis of the record before us and the findings of the Trial Examiner, I can- not find that the respondent has discriminated in regard to the hire or tenure of employment of Paul Moore, thereby discouraging mem- bership in Local No. 94 or No. 101; nor that it has interfered with, restrained, and coerced employees in the exercise of the rights guaran- teed in Section 7 of the Act. Since I And that the allegations of the complaint in regard to the commission of unfair labor practices are not supported by the evidence, I would uphold the Trial Examiner in dismissing the complaint.