Bradley Lumber Co. of Arkansas

In the Matter of BRADLEY LUMBER COMPANY OF ARKANSAS and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA , LOCAL 2645, A.` F. L. ' ' , , Case No. C-1757.-Decided August 21,1941 Jurisdiction : lumber and lumber products manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: distributing liquor and money to employees after election to celebrate defeat of union ; making unusual number of loans to employees prior to and following election. Discrimination: discharges for union affiliation and activity. Remedial Orders : reinstatement and back pay ordered. Mr. Warren Woods and Mr. C. Paul Barker, for the Board. Mr. D. A. Bradlucm and Mr. B. Ball, of Warren, Ark., and Mr. John D. Conner, of Washington, D. C., for the respondent. Mr. Lee Temple, of Warren, Ark., for the Union. Miss Marcia Hertzmark, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Brother- hood of Carpenters and Joiners of America, Local 2645, affiliated with the American Federation of Labor, herein,called the Union, the Na- tional Labor Relations Board, herein called the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana) issued its complaint dated October 1, 1940, against Bradley Lumber Company of Arkansas, Warren, Arkansas, 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) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notices of hearing, were duly served on the respondent and the Union. Concerning the unfair labor practices, the complaint alleged in sub- stance that the respondent (a) discharged Rowland Hoyle''and Willie 34 N. L. R. B., No. 80. 610 BRADLEY LUMBER COMPANY 611 Lampton and thereafter refused to reinstate them for the reason that they were members of the Union and had engaged in activities in its behalf; (b) by its agents interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by the above acts and by (1) sending anonymous letters, through' the mails, to discredit the Union; (2) loaning or distributing money to negro employees, prior to a scheduled Board election to encourage them to vote against the Union; (3) on the night of the election furnishing alcoholic beverages to its negro employees to celebrate the defeat of the Union in the election; (4) spying and soliciting reports concerning the activities of the Union; (5) during December 1939 and January. 1940 attempting to divide the Union into two groups ; (6) suggesting that the Union change its leaders; (7) demonstrating its hostility to the Union by discriminatory denials to its members of privileges granted to other employees ; (8) advising its employees that certain union leaders were to be discharged; (9) warning union members to watch their step; and (10) advising employees the Union would do them no good. On October 10, 1940, the respondent filed an answer denying the commission of the unfair labor practices and alleging affirmatively that Rowland Hoyle was discharged because of insubordination and that Willie Lampton was discharged because of failure and refusal to perform his duties. Pursuant to notice, a hearing was held in Warren, Arkansas, from October 14 through 18,1940, before James C. Batten, the Trial Exam- iner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by its representative. All the parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the commencement of the hearing, the Trial Examiner denied the respondent's motion to make the complaint more specific and at the same time stated that if the respondent were in any way surprised during the course of the hearing by reason of the denial of the motion and it were called to the Trial Examiner's attention, the respondent's rights would be protected. Counsel for the respondent did not at any time during the hearing claim surprise, because of a denial of the motion. At the close of the Board's case, upon motion of the respond- ent, the Trial Examiner dismissed 3 1 of the 10 specific particulars in respect to which the complaint alleged that the respondent had inter- fered with, restrained, and coerced its employees in the exercise of 1 The allegations that the respondent had interfered with , restrained , and coerced its employees by (a) spying upon and soliciting reports concerning the activities of the Union; (b) warning union members to watch their step ; and (c ) advising its employees that the Union would do them no good. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the rights guaranteed in Section 7 of the Act. He granted motions by counsel for the Board and the respondent to amend the pleadings to conform to the proof. During the course of the hearing the Trial Examiner made a number of rulings on other motions and on objec- tions to the admission of evidence. The Board has reviewed the rul- ings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the Trial Examiner's request, the respond- ent filed a memorandum brief. Thereafter, the Trial Examiner issued his Intermediate Report, dated December 10, 1940, copies of which were duly served upon all the parties, finding that the respondent had engaged in and was en- gaging in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. He recommended that the respondent cease and desist from engaging in such practices and that it offer to Rowland Hoyle and Willie Lampton immediate reinstatement to their former or substantially equivalent employment and make them whole for any loss of pay suffered by reason of the discrimination against them. He granted the respondent's motion to strike certain testimony con- cerning an incident alleged to have accurred in 1935. He dismissed five 2 of the seven remaining specific allegations with respect to inter- ference in the exercise of the rights guaranteed in Section 7 of the Act. He denied the respondent's remaining motions to strike and to dismiss, made at the close of the hearing. The respondent filed exceptions to the Intermediate Report and a brief in support thereof, and requested permission to argue orally before the Board. Pursuant to notice, a hearing was held before the Board in Wash- ington, D. C., on March 20, 1941, for the purpose of oral argument. The respondent was represented by counsel. The Union did not appear. The Board has considered the exceptions to the Interme- diate Report and the brief and oral argument in support thereof and, in so far as the exceptions are inconsistent with the findings, conclu- sions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is an Arkansas corporation engaged in the business of processing, manufacturing, and selling lumber and lumber prod- ucts, with its principal office and mill at Warren, Arkansas. In the 2 These were allegations that the respondent (a) sent anonymous letters through the mails to discredit the Union; (b) during December 1939 and January 1940 attempted to divide the Union into two groups; (c) suggested that the Union change leaders; (d) demonstrated its hostility to the Union by discriminatory loans of money; and (e) advised its employees that certain union leaders were to be discharged. BRADLEY LUMBER COMPANY 613 course and conduct of its business, the respondent receives more than 5 per cent of the raw materials and supplies used in the manufacture of its products from points outside the State of Arkansas. It ships more than 80 per cent of all its products produced by it from its plant to points outside the State of Arkansas. The respondent employs approximately 900 employees at its plant in Warren, Arkansas. The respondent admits that it is engaged in interstate commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, Local 2645, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees engaged in sawmill and timber work in Bradley County, Arkansas. III. THE UNFAIR LABOR PRACTICES A. Background Prior to the summer of 1935, employees of the respondent were not organized. Sometime in June 1935, organization activities were begun by the Union with the active assistance of Lee Temple, Rowland Hoyle, and others. In July 1935, Temple, Hoyle and others secured a charter from United Brotherhood of Carpenters and Joiners of America and the first meeting of Local 2645 was held in Warren, Arkansas, on July 14, 1935. The next day Temple was discharged and a few weeks later the mill started closing, department by depart- ment,-until all operations ceased. When the mill reopened many of the active members of the Union were not recalled, with the result that the Union filed charges with the Board. A hearing was held the latter part of 1936 in New Orleans and on May 25, 1937, a settlement was reached between the respondent and the Union with the approval of the Board's Regional Director. The settlement provided for the posting of an appropriate notice, the holding of an election and the reinstatement of 76 named persons with varying amounts of back pay. - Shortly after the settlement of May 25, 1937, the Union filed new charges with the Board alleging that the respondent had failed to reinstate seven of the persons named in the first settlement. On Au- gust 16, 17, and 18, 1937, a hearing was held in New Orleans in a consolidated representation and complaint case. On August 18, 1937, the respondent and the Union, with the approval of the Board's Re- gional Director, entered into an agreement that the Board enter an order providing for the reinstatement under certain conditions of six - 451209-42-vol. 34-40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, with back pay to four of them, and for the holding of an election in a stipulated appropriate unit. On September 25, 1937, the Board, on the basis of the agreement, ordered'an election to determine whether the respondent's employees desired to be represented by the Bradley County Employees' Associa- tion or by the United Brotherhood of Carpenters and Joiners of America, Local 2645, for the purpose of collective bargaining.3 On September 27, 1937, balloting was conducted and upon the basis of the results the Board certified the Association. During the latter part of 1938 the Union filed charges with the Board and on February 16, 1939, the Board issued its complaint against the respondent alleging that it had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) of the Act. On February 17, 1939, the respondent, the Union, and counsel for the Board entered into a stipulation in settlement of the case and on March 9, 1939, the Board ordered the respondent (a) to cease and desist from interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and dominating or interfering with the formation or adminis- tration of the Bradley County Employees' Association; (b) to offer to 23 named persons reinstatement with back pay and to give specified amounts of back pay to 3 other named persons; (c) to withdraw and continue to withhold all recognition from the Bradley County Em- ployees' Association; and (d) to post for ninety (90) days appropriate notices.4 After the above settlement was made, the respondent's officers and its attorney called in all foremen and subforemen, explained the Act; stated that the respondent desired to avoid all unfair labor practices, cautioned them not to discriminate in any way, and warned that dis- charge might result from a violation of these instructions. Foreman Looney testified that similar instructions had been given him since 1935. On May 22, 1939, and on June 15, 1939, the Union filed with the Regional Director for the Fifteenth Region, a petition and amended petition alleging that a question affecting commerce had arisen con- cerning representation of employees of the respondent. On June 29, 1939, a hearing on the petition was held in Warren, Arkansas, and on July 22, 1939, the Board directed that an election be held to deter- mine whether or not the respondent's employees desired to be repre- sented by the Union.5 On August 4, 1939, in an election conducted by the Board at Warren, Arkansas, the Union received 462 votes to 3 3 N. L. R. B. 768. , * 11 N. L. R. B. 1036. 5 13 N. L. R. B. 841. BRADLEY LUMBER COMPANY 615 468 votes against the Union. No representative having been chosen, the Board on August 29, 1939, dismissed the petition .6 While'none of the actions of the respondent referred to above is alleged to constitute an unfair labor practice in the present case, they are important as background in connection with the alleged unfair labor practices as set forth in the complaint herein. B. Interference, restraint, and coercion Among other things, the complaint alleged that the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act in that: (a) within 2 weeks prior to August 4, 1939, it loaned or distributed money freely to negro employees in its main office through S. B. Fullerton and others, for the purpose of encouraging them to vote against the Union in a sched- uled election; and (b) on the night of August 4, 1939, and shortly thereafter it purchased and distributed free of charge at its main office through S. B. Fullerton and others a large quantity of alcoholic bever- ages to negro employees as a reward and an expression of the respond- ent's gratitude for their fulfillment of their promise to vote against and for voting against the Union, and to enable the said negroes to celebrate and to participate in the respondent's rejoicing at the defeat of the Union in the election of August 4, 1939. The election which was conducted by the Board in the County Court House in Warren, Arkansas, on August 4,1939, closed at 6 p. m., and at about 6: 30 an announcement was made of the result, which indicated that the Union had lost the election by six votes. The announcement was the cue for the beginning of a mass celebration by the colored employees of the respondent. The celebration, in the form which it assumed, was made possible by the respondent's gifts, loans of money, and donation of whiskey. Lee Smith, a former employee of the respondent of 16 years' standing left the courthouse after counting the ballots and as he crossed the street saw a group of colored men passing. Smith testified that he followed the group to Hughes' liquor store and that he saw Baker Fullerton (S. B. Fullerton, secretary of the respondent) give Wilbur Jackson $25 with which Jackson purchased liquor and passed it out to other colored employees. Jackson did not testify and Baker Fullerton denied giving him the money. Fullerton admitted that he secured several bottles of liquor at his home and gave them to colored em- ployees who were following him. We find, as did the Trial Examiner, that Fullerton gave Jackson $25, as testified by Smith. Mett Hoyle, who, was employed by the respondent at the time of the election, testified that he passed the liquor store of Will Darby, located 6 14 N. L. R. B. 1183. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD near the respondent's plant, and saw 60 to 100 negroes, many of whom he recognized as employees of the respondent. He saw Baker Fuller- ton at the bar and D. C. Harris; the respondent's head scaler, putting whiskey in cases. Hoyle later overheard Harris ask Fullerton, "Reckon this will be enough?" and Fullerton replied, "I think so." Thereafter Harris put the liquor in the car and drove up near the re- spondent's office where the liquor was passed out to colored employees. Baker Fullerton denied that he bought the cases of liquor and also that he had seen Harris in Darby's store. However, Darby testified that Harris and Baker Fullerton were in the store and that he sold Harris a case of liquor. He testified that Baker Fullerton was in the store 15 or 20 minutes and did not deny that Harris and Fullerton were there at the same time. Harris was not called to testify. William 0. Thomason, an employee, testified that he observed Harris handing out liquor near the respondent's plant and that as he came up to the group he saw Baker Fullerton leaving. When Thomason asked Harris for some whiskey he was told that there was no more. The Trial Examiner credited the testimony of Hoyle and Thomason and we find that the events occurred as recited by them. Tommy Shorter, a colored employee, saw R. W. Fullerton, president of the respondent, after the election and Shorter stated that Fullerton "gave us some money around the store." When asked as to the amount, Shorter stated "right smart little bit." Shorter further stated that Fullerton never gave any such amount before for distribution to others. Lynn Thomas, a cook at Hughes' liquor store, saw Tommy Shorter and Willie Hardin and waited upon Hardin when he purchased some liquor with a $10 bill. Thomas testified that it was a very unusual party and when asked if he had ever seen the colored employees with that amount of money before, said "Well, no sir, not that much money; that was too much money." R. W. Fullerton admitted that he gave Tommy Shorter and three or four other negroes each a $10 bill. He explained these gifts by stating that he was approached by a group of colored em- ployees and while he ordinarily would have given them each a $1 bill, he had only four $10 bills in his pocket and he gave this amount in order to get rid of the negroes. Fullerton was asked, "Well, the plain fact is Mr. Fullerton, and I think you will admit it for this record, you gave this money to the negroes and you were loaning them money later on because you were just jubilant that a majority had voted against the Union, is that right?" He replied "There is a good deal of truth in that." Willie Wherry, another colored employee, was at Hughes' liquor store on the night of August 4 and definitely identified Joe Reaves, a vice president of the respondent, who came into the Hughes' liquor store where 50 or 70 negroes were congregated. Reaves said "You all got what you want? Well, help yourself, it don't cost anything." BRADLEY LUMBER COMPANY . 617 Reaves denied that he was present at the Hughes' liquor store on the night of August 4. The Trial Examiner credited the testimony of Wherry, as do we. We find that Reaves was present at the liquor store and that he made the statements attributed to him. The foregoing recital of the events which occurred on the night of the election clearly indicates the respondent's attitude toward the Union and discloses that the respondent had no hesitancy in inform- ing its employees of that attitude. By gifts of money and liquor to its negro employees the respondent made it evident that it did not desire unionization of its plant and that it was greatly pleased over the Union's defeat in the election. Employees could not mistake the respondent's wishes after such a celebration, which was calculated to influence their future conduct in the matter of union activity. It is not the province of an employer to take part in such a celebration; and certainly not to finance it.7 Although the respondent has, for many years, made loans and ad- vances to its employees, the period immediately preceding and fol- lowing the election was the occasion for unusual activity in this respect. Exhibits showing the number of loans made during the last 6 months of 1939 disclose that normally the respondent made from 2 to 85 loans a week to employees but that during the week of the election it made 197 loans. It appears that on July 31, 1939, the respondent made 6 loans; on August 1, 43 loans; on August 2, 14 loans; on August 3, 22 loans; on August 4, the date of the elec- tion, 20 loans; and on August 5, 92 loans. During the previous week the respondent made only 30 loans. Of the loans made during the week of the election, 38 were to white employees and totaled $419, and 159 were to colored persons and amounted to $2,214. R. W. Fullerton explained the preponderance of loans to negroes by stating that about 95 per cent of the negroes are common la- borers and need loans more than the white men, who receive larger salaries. The respondent offered no explanation for the extraordi- nary total number of loans during the week of the election, and S. B. Fullerton testified that loans were made as they had always been made. However, it is obvious that the election accounted for the marked increase in the number of loans made, especially to the negro employees. R. W. Fullerton admitted that the respondent was exceedingly liberal after the Union's defeat in the election. It is also apparent that employees found the respondent unusually willing to make loans shortly before the election, as indicated by the large number of loans made then. There is no evidence that any 7 Matter of The Federal Mining and Smelting Company, a corporation, and Mallon Local No. 9, International Union of Mine, Mill and Smelter Workers, 20 N. L R. B. 192; Matter of Atlas Powder Company and District No. 50, United Mine Workers of America, Local No. 12083, C. I. 0., 15 N L. R. B. 912. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' employee was promised a loan in return for voting against the Union, nor does it appear that the respondent did not expect such loans to be repaid. However, the only reasonable explanation for the exceptionally large number of loans prior to the election was that employees knew that loans would be made upon-request because of the impending election. Lee Temple, president of the Union, testified that immediately after the election the membership of the Union declined and that a large number of employees who had signed authorization cards did not complete their membership in the organization. At the time of the hearing the Union had only 48 members in the respondent's plant, although it had 277 members at the time of the election. Temple testified that in' April 1940, when he appointed a special organizing committee, Willie Lampton was the only colored employee of the respondent who had been active in the Union for some time. It is clear that the respondent's action in celebrating the defeat of the Union and freely making loans to its employees-especially to its negro employees-immediately -before and after the election of August 4, 1939, caused the decline in the membership of the Union and discouraged activity on behalf of the Union." We find that by loaning and distributing money to its employees, and especially to its negro employees, prior to and following the election of August 4, 1939, and by distributing alcoholic beverages to its negro employees following the election, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discriminatory discharges Rowland Hoyle was employed by the respondent almost contin- uously, except for one lay-off in 1935, for approximately 15 years prior to his discharge on May 14, 1940. At that time he was em- ployed spreading lumber and pulling racks in the bundle room of the flooring plant. Hoyle's work was always satisfactory. Hoyle was one of the organizers of the Union and a charter mem- ber, having attended the first meeting of the Union on July 14, 1935. He was a witness in a Board hearing held in New Orleans in March 1936 and assisted Lee Temple , president of the Union , in securing witnesses for the hearing. This case was settled by a stipulation dated May 25, 1937. Hoyle was reinstated by the respondent a short time before this settlement, although his name was included in the stipulation as one of the employees to be reinstated with back pay. In a later settlement, dated February 17, 1939, Hoyle was named as 8 Matter of Atla8 Powder Company, supra, footnote 7. BRADLEY LUMBER COMPANY 619 one of the persons entitled to reinstatement with back pay. On September 27, 1937, and on August 4, 1939, Hoyle was an observer for the Union at Board elections. He also testified at a hearing on June 29, 1939. In April 1940, Hoyle was made chairman of a special union organizing committee and won first prize for having secured the most members. The fact of his outstanding union activity was well known to the respondent. The testimony concerning the occasion for Hoyle's discharge is conflicting. However, it is not disputed that on the morning of May 14, 1940, Hoyle approached John Woodall, a subforeman, and requested that Woodall see Gordon Harrison, the foreman, about hiring an extra man because Hoyle had not been relieved the previous afternoon. Woodall replied that he would see Harrison but stated. "it won't do a bit of good." Hoyle testified that he told Woodall that if he (Hoyle) left the job the work would pile up, and that Woodall replied, "Well, when you come back and the job is piled up, what the hell are you going to do about that?" Hoyle said, "What can I do about it," and returned to his work. Woodall testi- fied that Hoyle threatened to walk off the job and that, when Woodall said, "Well, when you do there will be a man in your place when you get back," Hoyle replied, "1' don't give a God damn if there is ten of them." Hoyle denied making these statements. A few minutes later Woodall reported to Harrison "word for word" what Hoyle had said and Harrison sent for Hoyle. According to Hoyle's testi- many, which the Trial Examiner credited, the following conversation occurred. Harrison asked Hoyle, "What the God damned hell is the matter with you?" to which Hoyle replied, "Not anything$ only I told John we needed an extra man, and asked him what about seeing you and seeing if you can get us an extra man." Harrison stated, "Well, there will be no God damned extra man" and Hoyle answered, "All right, if that is what you said, there will be no God damned extra man, I don't guess we will have no God damned extra man." Harrison thereupon told Hoyle he was discharged. Harrison denied that he cursed, and testified that when he told Hoyle "there will be no extra man" Hoyle replied, "I don't give a God damn what you do," and that Harrison then discharged Hoyle and told him it was for insubordination. He testified that he decided to discharge Hoyle after he made the above statement. The complaint alleged, and the Trial Examiner found, that Hoyle was discharged because of his union membership and activity. The respondent denied that this was the reason for his discharge. It pointed out in its brief that, although the use of language such as Harrison attributed to Hoyle is permitted in the mill, "the very way 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hoyle put his statement shows a taunting or bantering or challenging attitude." We are convinced that the Trial Examiner was correct in his conclusions from .the evidence with respect to Hoyle. Even if we were to credit Harrison's version of what happened, which we do not, it seems highly improbable that a man who had given satisfactory service to the respondent for 15 years would be subjected to such a drastic penalty merely for using intemperate language to his fore- man. Hoyle's discharge is more logically explained by the fact that lie had heretofore been the most active member of the Union in. the respondent's plant and that he had, in the 2 or 3 weeks just prior to his discharge, been engaged in a vigorous campaign to recruit members for the Union. As we stated above, the Union had lost a large part of its membership following the election of August 4, 1939, and it was not until the latter part of April 1940 that any effort was made to revive it. The respondent thereupon seized upon a pretext in order to rid itself of Hoyle and thereby avoid a resurg- ence of strength in the Union. We find that the respondent discharged Rowland Hoyle because of his membership and activity in the Union, thereby discouraging mem- bership in the Union and interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act. Willie Lampton was discharged by the respondent on May 17, 1940, 3 days after the dismissal of Hoyle. He had been employed approxi- mately 4 years, most of the time in the hickory mill but on occasions at other'types of common labor. He joined the Union in 1937 and was on a membership committee during that year. In June 1939 Lampton was one of two colored men who testified at a hearing con- ducted by the Board involving the respondent. In April 1940 he was appointed to a special organizing committee of the Union and there- after solicited 25 or 30 of the respondent's employees and secured a number of members. Lee Temple, president of the Union, character- ized Lampton as the only negro in the respondent's plant who was active in the Union at that time. The complaint alleged that Lampton was discharged because of his union membership and activity. The respondent contended that he was discharged because of inefficiency. About 5 weeks prior to his discharge Lampton was transferred to the pine mill and worked on the night shift. The latter part of April he was put on a day shift where he worked until about April 30, when he was injured and was disabled for a week. Upon his return to the plant he was assigned to work with Ernest Johnson, loading lumber in the yard. According to Lampton's testimony, which the Trial Ex- $RADLEY LUMBER COMPANY 621 aminer credited, 2 days before his discharge Subforeman Emmett Lum approached him and Johnson, asked Lampton what he was doing, and asked Johnson if Lampton was helping him. Johnson replied in the affirmative and Lum went on. On the morning of May 17, 1940, Lampton and Johnson were waiting for a load of lumber to pass through an alley so that they could go through when Lum approached Johnson and spoke to him out of the hearing of Lampton. Lum then went over to Lampton and told him to see A. C. Looney, the foreman. Looney told Lampton he was too slow and discharged him. Lum had been in charge of Lampton's work for only a few days but he testified that Lampton was "awful slow and he was idle." He recalled that on the day of Lampton's discharge he sent Lampton and Johnson to the rough shed to load lumber and then when he returned Lampton was "standing, up there talking with a bunch of men." However, Lum could 'not remember how long Lampton had worked for him, when he was discharged, how many partners he had worked with in the few days he was under Lum's supervision, how much lum- ber was loaded by the chew which replaced Lampton, and many other details of the work being done. Lum did not contradict Lampton's testimony that the alley through which his buggy had to pass was blocked by another load of lumber. Foreman Looney testified that a few days before Lampton's dis- charge he saw Lampton leaning against a post and told him to go to work, and that when he returned later he found that Lampton was still not working. Lampton denied this testimony and we find, as did the Trial Examiner, that Looney did not speak to Lampton about his work until the time of his discharge. Johnson, who was Lampton's partner for a few days before May 17, testified that Lampton did not want to work and that on one occasion Looney "gave him (Lampton) a good talking about idling his time away." However, Johnson's testimony was elicited largely through leading questions and the Trial Examiner rejected it in its entirety. From our examination of the record we also discredit Johnson's testimony. Miles Woods, a subforeman under whom Lampton had worked for 5 weeks, until he was transferred to the day shift, testified that Lamp- ton was "a little awkward 2 or 3 nights when he did not know the grade marks or where anything went, but after that he made a good hand ... As far as I know he done his part." That Lampton's work had always been satisfactory may be inferred from the fact that al- though, in the 4 years of his employment, the work which he was doing was frequently discontinued he was always transferred to other 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobs. We are not convinced that Lampton suddenly became slow and idle. Looney and Lum denied having any knowledge of Lampton' s union membership or activity, although Lum admitted that he was aware of the special membership drive by the Union preceding Lampton's discharge. In view of the fact that Lampton was the only- colored employee who was active in the Union at this time and that he had testified in a hearing before the Board,9 and in view of all the cir- cumstances in the case, we believe that the respondent knew of Lamp- ton's activity in behalf of the Union. Lampton's discharge, at a time when he was engaged in soliciting membership for the Union and 3 days after the discharge of Hoyle, was clearly not due to his inefficiency. We find that he was dis- charged by the respondent because of his membership in and activity on behalf of the Union and that respondent thereby discouraged mem- bership in the Union and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 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 rela- tion to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent, by discharging Rowland Hoyle and Willie Lampton, has discriminated in regard to their hire and tenure of employment. We shall, therefore, order the respondent to offer them immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and to make them whole for any loss of pay they have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the 9 Lampton and one other negro were the only colored employees ever to testify in a case involving the respondent. BRADLEY LUMBER COMPANY 623 amount he would normally have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 10 during such period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. United Brotherhood of Carpenters and Joiners of America, Local 2645, affiliated with the American Federation of Labor, 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 Rowland Hoyle and Willie Lampton, thereby discouraging membership in the Union, the respondent has engaged in and is en- gaging in unfair labor practices 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 respondent, Bradley Lumber Company of Arkansas, Warren, Arkansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Brotherhood of Carpen- ters and Joiners of America, Local 2645, affiliated with the A. F. of L., or any other labor organization of its employees by discriminating against its employees in regard to hire 'and tenure of employment or any term or condition of employment; 10 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 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 shall be considered as earnings . See Republic Steel Corporation v. National Labor Relations Board, 311 U. S. 7. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their, right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Rowland Hoyle and Willie Lampton immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority and other rights and privi- leges; (b) Make whole Rowland Hoyle and Willie Lampton for any loss of pay they have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment by payment to each of them of a sum of money equal to the amount which each normally would have earned as wages during the period from the date of such discrimination to the date of the offer of reinstatement, less his net earnings during said period; (c) Post immediately in conspicuous places throughout its establish- ment in Warren, Arkansas, and maintain for a period of at least sixty (60) consecutive days from the date of said posting, notices to its employees 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 the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become or remain members of United Brotherhood of Carpenters and Joiners of Amer- ica, Local 2645, affiliated with the A. F. of L., and that the respondent will not discriminate against any employee because of membership or activity in that organization ; (d) Notify the Regional Director for the Fifteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith.