Henry McCleary Timber Co.

In the Matter of HENRY MCCLEARY TIMBER COMPANY and INTERNA- TIONAL WOODWORKERS OF AMERICA; LOCAL No. 38 AFFILIATED WITH THE ,CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. C-1956.-Decided December 18, 1941 Jurisdiction : lumber industry. Unfair Labor Practices Inteiterence, Restraint, and Coercion: back-to-work petition circulated by su- pervisory employee, countenanced by employer ; anti-union statements of super- visory employees; anti-union campaign conducted by stockholder permitted by employer Diserlmination: refusal to reinstate one employee for union activity ; discharge of one employee for membership in the union ; allegation of refusal to employ as to one employee dismissed. Collective Bargaining: majority established by signed applications for member- ship-refusal to bargain, refusal to meet during temporary shut-down ; grant- ing wage increases and meeting with employees without notice to the repre- sentatives; refusal to bargain in good faith. Remedial Orders : order to bargain collectively; employees disci iminated against ordered reinstated with back pay Unit Appropriate for Collective Bargaining : all production and maintenance employees excluding temporary construction employees hired solely for that purpose, office employees, and supervisory employees with the rank of foreman or higher Air. William A. Babcock , Jr., for the Board. Mr. W. H. Abel, of Montesano, Wash., for the respondent. Ann Landy Wolf, of counsel to the Board. DECISION ,AND ORDER STATEMENT OF THE CASE Upon charges and amended charges 1 duly filed by International Woodworkers of America , Local No. 38, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional 'The original charge was filed on September 13, 1940, the amended charge on February 21, 1941, and the second amended charge,on March 21, 1941. 37N.L It B, No 118 725 433237-42--%OL 37--47 - 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director for the Nineteenth Region (Seattle, Washington), issued 'its complaint dated April 10, 1941, against Henry McCleary Timber Company, McCleary, Washington, herein called the respondent, al- leging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat: 449, herein called the Act: Copies of, the complaint and notice of hearing were duly served upon the respondent and upon the Union. Concerning the unfair labor practices, the complaint alleged, in substance: (1) that although since June 4, 1940, a majority of the respondent's employees in a unit appropriate for collective bargaining had designated the Union as their bargaining agent, the respondent on various dates from June 10, 1940, to January 29, 1941, refused to bargain collectively with the Union; (2) that the respondent on or about November 19, 1940, upon resuming the operation of its Shelton • sawmill after a temporary shut-down, refused to reinstate W. S. Rawdng and to employ H. F. Rishel, and on March 11, 1941, dis- charged E. A. Hawkins, because of their union membership and activities, thereby discriminating in regard to their hire and tenure of employment,, and (3) by the foregoing and by other enumerated acts including the threatening statements of its supervisory officials, the circulation of a "back to work" petition, and the anti-union campaign of its stockholder, Arnold Glidden, the respondent inter- fered with, restrained, and coerced its employees in the exercise', of the rights guaranteed in Section 7 of the Act. On April 21, 1941, the respondent filed its answer admitting its refusal to recognize the Union, but alleging that such refusal was in good faith, because (a) it believed that the bargaining unit claimed by the Union was inappropriate; (b) the Union never showed a list of ,its members to the respondent; and (c) prior to October 24, 1940, its mill was indefinitely, not temporarily, shut down. The respondent denied that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held in Shelton, Washington, from April 21, through May 1, 1941, before P. H. McNally, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- exannine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing a motion was granted to conform the allegations in the complaint to the proof. During the course of the hearing, the Trial Examiner made a number of rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner HENRY McCLEARY TIMBER COMPANY 727 and finds that no prejudicial error was committed. The rulings are hereby affirmed. On August 13, 1941, the Trial Examiner issued his Intermediate Report, copies of which were duly served on the respondent and the Union. In his Intermediate Report the Trial Examiner found that the respondent had engaged in unfair labor practices affecting com- merce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist therefrom, and that it take certain affirmative action de- signed to effectuate the policies of the Act. On September 7, Sep- tember 27, and October 6, 1941, respectively, the respondent filed with the Board its exceptions to the Intermediate Report, a brief, and a supplemental brief. On October 23, 1941, pursuant to notice duly served upon the parties, oral argument was had before the Board in Washington, D. C., Only counsel for the respondent appeared and participated in the oral argument. The Board has considered the exceptions and the briefs filed by'the respondent and finds the exceptions without merit, insofar as they are inconsistent with the findings, conclusions, and order set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Henry McCleary Timber Company is a Washington corporation having its principal office at McCleary, Washington. It operates a sawmill at Shelton, Washington, and a sash and door plant and a ply- wood- and veneer plant at McCleary, Washington, and is engaged in the manufacture and sale of lumber and lumber products. Practi- cally all the logs used in its operations are shipped by water to the Shelton mill from points within the State of Washington .2 Approximately 65 per cent of the 20,000,000 feet of lumber produced at the Shelton mill in the calendar year 1940 was shipped to points outside the State of Washington.,, Substantially all the balance of the output of the sawmill was shipped to the sash and door plant of the respondent at McCleary for use in manufacturing operations. During the same period, the respondent sold products of its sash and door plant and plywood and veneer plant worth approximately $800,000 and $900,000, respectively, over 95 per cent of which was shipped to points outside the State of Washington. The instant case concerns only the Shelton mill. 2 Logs received at the Shelton mill which are suitable for plywood are reshipped by--rail Jo the plywood and veneer plant at McCleary 'Orders for such lumber are received from the Puget Sound Associated Mills, which is the exclusive selling and shipping agent of its stockholders The respondent is one of such, stockholders. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED International Woodworkers of America, Local No. 38, affiliated with the Congress of Industrial Organizations, is a labor organization ad- mitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The shut-down of the mill on June 3, 1940 The respondent's sawmill at Shelton, Washington, was closed from June 3 to November 18, 1940. The complaint, which alleges that the respondent engaged in certain unfair labor, practices during this period, refers to the shut-down as "temporary." In its answer, the respondent denies that the shut-down of the mill was "temporary" and avers that "at all times prior to October 24, 1940, its sawmill .. . was shut down for an indefinite period." Whether the shut-clown be correctly termed "temporary" or "in- definite," it is clear that it was not regarded by the respondent as permanent. The primary cause of the shut-down, according to the respondent, was a lack of intercoastal shipping space to move "dimen- sion" 4 lumber, which represented about 65 per cent of the output of the mill. The employees were notified of the shut-down on June 2, 1940, and were told that the respondent did not know when operations would be resumed. During the period of the shut-down all opera- tions were suspended and work on the installation of a new and larger planer was stopped, but the ranking supervisors, the office manager, and watchmen remained on the pay roll. No steps were taken by the respondent to dismantle the mill. In October 1940, after shipping space had again become available, the respondent prepared to "reopen the mill by resuming work on the installation of the new planer. Operations, were resumed on November 18, 1940, at which time the respondent, in accordance with its practice in previous shut-downs, recalled to work all its employees who desired reinstatement with the exception of W. S. Rawding.5 More than two-thirds of the employees who had been on the respondent's pay roll on June 3, 1940, returned to work. That neither the respondent nor its employees regarded the shut-down itself as a permanent termination of their employer- employee relationship is further indicated by their acts and conduct, hereinafter described, during the period in question. We find that the Shelton mill was temporarily shut down from June 3 to November 18, 1940, and that throughout the,period of the shut-down the employees at the Shelton mill who were laid off on • Dimension lumber is a finished sawmill product which the respondent sells on the market. 5 See Section III, D 1. HENRY McCLEARY TIMBER COMPANY 729 June 3, 1940, remained employees of the respondent within the mean- ing of the Act. B. Inter f erence, restraint, and coercion On June 4, 1940, the day following the shit-down, a number of the respondent's employees sought out Charles R. Savage, business agent of the Union, and applied for membership in the Union. Within two days the majority of the respondent's employees joined the Union and elected a committee to negotiate with the respondent. About September 1, 1940, C. M. Starr, a supervisory employee a at the Shelton Mill who had been laid off because of the shut-down and who was then temporarily employed at one of the respondent's plants in McCleary, approached H. R. Hamilton, superintendent of the Shelton mill, and asked him to sign a petition which he proposed to circulate among the laid-off mill employees. The petition, addressed to the respondent, read as follows : We the undersigned employees and former employees of Henry' McCleary Timber Co., Shelton, Washington, ask that you reopen your mill at Shelton when business conditions warrant. We are not members of any union and we request that you do not recog- nize any labor organization as our bargaining agent. Hamilton refused to sign the petition and immediately reported the incident by telephone to Frank McCleary, the respondent's vice presi- dent, who first instructed him to stop circulation of the petition but, about 30 minutes later, telephoned to Hamilton and ordered him not to interfere. Thereupon Starr and two non-supervisory employees at the mill, Art Byrne and Anthony Alamaden,' proceeded to circulate the petition extensively among the laid-off mill employees. Late in October, R. E. Rasmussen, a union member employed at the mill, told Hamilton that he wanted to sign the petition "to go back to work," and asked Hamilton where he could find a copy to sign. Hamilton referred him to Starr and Byrne. On October 22 and November 6, the Union inquired whether the respondent sanctioned the circulation of the pe- tition and whether the resumption of operations depended upon its success. The respondent did not reply to these inquiries.. The exact number of the signers of the petition and their identity are not established because the petition was destroyed prior to the Starr , the yard clerk, works with and directs the work of several employees in the yard crew, which varies in number from 4 to 15 . Hamilton , the plant superintendent , testified that Starr was one of the minor supervisory employees at the mill. He occasionally acts as yard foreman in the absence of I-1 W. Forbes, general foreman of the yard and planing mill, and is regarded by the employees as a "boss" or "foreman." 7 Byrne was one of several laid-off mill employees who worked at the respondent's McCleary plants during the shut-down. Byrne worked there from August 9 to October 30. Alamaden worked at the Shelton mill from September 2 to October 10. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing by Frank McCleary, who testified that Byrne delivered it to him about 3 weeks prior to the reopening of the mill, with a request that he not show it to anyone. McCleary further testified that the petition consisted of more than one page; that there were signatures on it but that he could not recall or identify any of the signatures; that he took the petition home and "hid" it there so well that he was unable to find it in November when a Field Examiner of the Board requested him to produce it; and that he found the petition about January 1, 1941, and destroyed it because he did not think that it was important and because he had promised Byrne not to show it to any- one. Early in September the Union obtained and copied one of the petitions which was then being circulated. This copy, which was re- ceived in evidence, contains the names of nine laid-off mill employees who had signed the petition. The first name was that of Bob Hamil- ton, the son of Superintendent Hamilton. Under all the circumstances, the petition indicated to the laid-off employees that the respondent would not resume the operation of the mill unless it were assured that its employees were not members of the Union. Although the respondent contends that it was not responsible for the circulation of the petition, the evidence compels the contrary conclusion. Starr, who was active in soliciting employees to sign the petition, is a supervisory employee whose interference with employees in the exercise of their right to self-organization is attributable to the respondent.,, Although the ,respondent's ranking officials were aware at the outset of Starr's connection with the petition, they did not at any time take steps, either to prevent the circulation of the petition or to disavow sponsorship thereof. The respondent remained silent even when the Union challenged it to clarify its position with regard to the petition. In view, also, of McCleary's suspicious conduct in hiding and later destroying the evidence, we find that the respondent coun- tenanced, if it did not authorize or direct, the circulation of the peti- tion and that it thereby attempted to discourage membership in the Union. Following the reopening of the mill, a number of the respondent's supervisors and officials, indicated to employees the respondent's oppo- SCf International Association of Machinists v National Labor Relations Board, 311 U S 72, aff g 110 F. (2d) 29 (App. D C ), enf'g Matter of The Serrick Corporation and United Automobile 1Vorlers of America, Local No /59, 8 N L R B 621 , H J Heinz Company v National Labor Relations Board, 311 U S 514, aff g 110 F (2d) 843 (C C. A. 6), enf'g Matter of Ig J Heinz Company and Canning and Piclle Workers Local Union No 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, American Federation of Labor, 10 N. L R B 963 It is immaterial that Starr is eligible to membership in the Union and that several other employees at the mill claimed by, the respondent to have supervisory positions comparable to Starr's are members of,the Union Matter of Tennessee Copper Company and A F. of L Federal Union No 21, 8 N. L R B 575; 9 N. L R B 117, Matter of Swift & Company and Amalgamated Meat Cutters and Butcher Worlmen of North America, Local 172, affiliated with the American Federation of Labor, 30 N L. R. B, No. 86. HENRY McCLEARY TIMBER COMPANY 731 sition to the Union. On November 20, Claude Warner, foreman of the "green chain,"9 told Cecil D. Hogarty, a union member employed on the green chain, that he had better tell the Union to "take it easy," stating "If they knew the management of the mill they would know enough that they would not recognize the Union." About 2 days later Warner suggested to Hogarty that he attend every union meet- ing "to see that the boys didn't put anything over." Hogarty's testi- mony was not denied; we credit it, as did the Trial Examiner, and find in accordance therewith. On December 26, following the discharge of Melford Lathrop, a union member employed at the mill, the Union voted to call a strike of the mill workers on the following Monday, if the respondent refused its demand that Lathrop be reinstated. Lathrop was sum- moned to the mill office on Sunday and Frank McCleary told him that he was reinstated. According to Lathrop's testimony McCleary said, on this occasion, "if you had come down with a union com- mittee, I wouldn't put you back . . ." McCleary testified that he did not recall mentioning the Union or union committees in his talk with Lathrop. We agree with the Trial Examiner and find that McCleary made the statement substantially as testified to by Lathrop. On December 18, during working hours, Foreman Warner told L. C. McCowan, an employee, that he should resign from the Union because of the way he was "situated." 10 McCowan understood Warner to refer to the fact that he had lost an arm. Pursuant to this conversation, McCowan resigned from the Union on February 7, 1941, and, upon Warner's suggestion, sent his letter of resignation by registered mail. Warner did not deny McCowan's testimony as related above ; we credit it and, as did the Trial Examiner, find the facts to be in accordance therewith. Francis W. Rickerson, a green-chain worker who had joined the Union in December, testified that in January 1941, during working hours, he was relieved by a fellow employee, Charles Ellis, who told him that his foreman, H. W. Forbes, wanted to talk to him. Ricker- son went to Forbes' office where, according to his uncontradicted testimony, Forbes said that he had heard that Rickerson was about to resign from the Union and that "several others Were doing the same thing" and that the way to resign from the Union Was by letter. Rickerson further testified that on 'this occasion Forbes stated that McCleary Would shut the mill down before he would recognize the Union. Forbes denied that he had made this latter statement to 0 Warner supervises the work of approximately 12 employees on the green chain, which conveys lumber from the sawmill to the timber deck. He was designated on the respond- ent's June 3 pay roll as "chain foreman." 10 McCowan suffered the loss of an arm in an accident in the respondent's mill, but had returned to work prior to the shut-down. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rickerson. We find, as did the Trial Examiner, that the statements were made by Forbes substantially as testified to by Rickerson. During the first 10 days of February 1941 one Arno Glidden, a small stockholder in the respondent corporation, and former superin tendent of the Shelton mill," circulated among the mill workers during working hours and talked to the older employees who had formerly worked under him about the Union.' According to a number of these employees, Glidden told them that he was, a stock- holder in the respondent and was concerned about a satisfactory return on his investment; that the respondent would close the mill before it would recognize the Union; that if the Board entertained any complaints of the men the same result would follow; that if the men wanted to keep the mill operating and to continue to work they should resign from the Union; and that the resignations should be sent by registered mail. Following Glidden's talks 17 members sent letters of resignation to the Union. Many of the letters were registered. Glidden admitted that in the early part of February he was at the mill for 6 or 7 days, spending 21/2 to 3 hours a day talking to the mill employees who had worked under him formerly or whom he had hired originally. He testified that he told all the employees about the same thing, namely : You would be better off, if you would let things go along as they are and not stir up any trouble. Everybody has a good job and is getting along nicely, and you would be smart if every- body kept at work. .. . that I knew Henry McCleary very well, and, in fact I was very close to him for all those. years, and I knew that if things went along he would probably enlarge and go ahead and finish things up, but if there was trouble there, I doubted if he would. Glidden denied that he had expressly advised the employees whom he interviewed to resign from the Union. In view of the convincing evidence to the contrary as well as Glidden's testimony quoted above, we do not credit this denial and find, as did the Trial Examiner, that Glidden urged employees to resign from the Union and advised them to do so by letters of withdrawal. ll Glidden resigned as superintendent of the mill about 1939 . He held no official posi- tion with the respondent in February 1941. 11 Glidden testified that he was asked to visit the mill by G. J Mercer, who had been employed by the respondent for 20 years , and who told Glidden that he was afraid that the Union was going to cause some trouble at the mill. This testimony was corroborated by Mercer HENRY McCLEARY TIMBER COMPANY 733 Glidden's presence in the mill and the reasons therefor were known to the respondent's supervisory employees. Glidden testified that Superintendent Hamilton and Foremen Rhodes, Forbes, and Warner saw him in the mill. Foreman Warner himself asked Glidden, ac- cording to the latter's testimony, to speak to Warner's son, Lasley, an employee at the mill, about the Union because Warner "wanted him to work where he was." Foreman Warner overheard part of a conversation in which Glidden urged George Wiley, a union mem- ber employed in the mill, to resign from the Union and added his persuasions to Glidden's. Glidden both affirmed and denied that he talked to the other foremen and Hamilton during these visits, and testified that he "had an idea" that "they might have" known the reason for his being at the plant. It is plain that Glidden's activity was known to the respondent's supervisory personnel, and they not only permitted it but, at least in one instance, solicited it. We find, from all the evidence, not only that the respondent was responsible for Glidden's action since the employees were justified in believing that Glidden was acting as the respondent's representative, but that the respondent sanctioned Glidden's attempt to induce the withdrawal of members from the Union. We find that by the circulation of the anti-union petition in Sep- tember and October 1940; by the statements and conduct of its super- visors, Warner and Forbes, advising employees to resign from the Union and indicating that the respondent would never recognize and deal with the Union; and by the above-described activities of Glidden, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusal to bargain 1. The appropriate unit The complaint, as amended at the hearing, alleges, it was stipu- lated at the hearing, and Nye find, in accordance with the finding of the Trial Examiner, that all production and maintenance employees at the Shelton mill, excluding temporary construction employees hired solely for that purpose, office employees, and supervisory employees with the rank of foreman or higher, constitute a unit appropriate for the purposes of collective bargaining. We further find that said unit insures to employees of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Representation by the Union of a in ljority in the appropriate unit On June 3, 1940, the day the mill waF shut down, the respondent employed 10613 employees within the unit herein found appropriate. By June 7, 1940, at least 66 of 'them had signed applications for membership in the Union.' The respondent reinstated 73 of the employees on its June 3 pay roll to jobs within the appropriate unit when it resumed operation of the mill. Of these 73, 48 had signed membership application cards prior to the date when the mill re- opened. It is thus clear that immediately following the date when the mill was closed, and at all times during the shut-down, the Union was the duly designated collective bargaining representative of a majority of the respondent's employees in the appropriate unit. As found in Section III, B, above, the respondent, during the shut- down, engaged in unfair labor practices tending to discourage mem- bership in the Union. Hence it is immaterial whether the Union maintained its majority subsequent to the reopening of the mi1L15 However, of the 110 employees in the appropriate unit 16 on January 29, 1941, a number which apparently remained constant from and after the full resumption of operations at the mill,17 67, a majority, had signed union cards prior to January 29, while 60 had signed cards prior to December 10.15 In its brief, the respondent makes no con- '- The respondent's pay roll of June 3 contains 115 names The number of employees in the aPpropi rate unit is computed by excluding H R Hamilton, H W Forbes, C 1-1 Rhodes, A Skaugset and C A Warner, supervisory employees with the rank of foremen or higher, R F. Eddy and R W Sheldon, office employees, and S. Carter and D C Summers, tempo- rary construction employees 1{ The Union offered in evidence the membership application cards which also designated it as collective baigaining agent. Charles Savage, president of the Union, testified that all the applicants were members The respondent did not question the representative capacity of the Union, either at the hearing or in its brief ii See Matter of Bloomfield Manufacturing Company, et al and Metal Polishers, Buffers, Platers and Helpers International Union, Local # 6, afrli¢ted with the American Federa- tion of Labor, 22 N I, R B 83, 104; and cas,s cited in footnote 18, in fi a iii There were 117 employees listed on the pay roll of January 29, 1941 The number in the appropuate unit is computed by deducting the seven supervisory and office employees named in footnote 13, supra 17 The respondent did not reemploy a full working force until work on the installation of anew planing machine had been completed approximately 2 or 3 weeks after November 18 when the mill reopened 18 One eniployee, Andrew Palms, resigned from the Union by letter dated November 18, 1940, and 16 others tendered their resignations during February and March 1941 Such resignations from the Union, to the extent that they occurred, resulted from and were attiibutable to the unfair labor practices of the respondent, as herein found, in refusing to bargain collectively with the Union and in interfering with, iestraining, and coercing its mill employees in the exercise of rights guaranteed them under Section 7 of the Act, and therefore do not represent the true desires of the 17 employees in question Cf National Labor Relations Board v Bradford Dyeing Ass'n, 310 U S 318, rev'g and remanding 106 F (2d) 119 (C C A. 1) and enf'g Matter of Bradford Dyeing Association (U S A ) (a corporation ) and Textile Workers Oiganszing Committee , 12 N L R B 1238 , Interna- tional Association of Machinists v National Labor Relations Board , 311 U S 72, affg 110 F. ( 2c1) 29 ( App D C ), enfg Matter of The Serrick Corporation and International Union, United Automobile Workers of America , Local No 459, 8 N L R. B 621. HENRY McCLEARY TIMBER COMPANY 735 tention' that the Union did not represent a majority at any time. We find, as did the Trial Examiner, that on June 7, 1940, and at all`'times thereafter the Union was, and now is, the duly designated representative of a majority of the respondent's employees in the appropriate unit and, pursuant to Section 9 (a) of the Act, • the exclusive representative of the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain The complaint alleged that the respondent on various dates between June 10, 1940, and January 29, 1941, refused to bargain with the Union as the exclusive' representative of its employees within the ap- propriate unit. The respondent, in its answer, admitted that "on several occasions it has refused to recognize" the Union but alleged that this was done in good faith on advice of counsel, because the unit composed of employees of the Shelton mill was not appropriate and because the mill was shut down for an indefinite period. The evidence discussed below establishes the fact that the' respondent at no time questioned the appropriateness of the unit la On June 7, Charles R. Savage, president and business agent of the Union, telephoned Henry McCleary, president of the respondent, and requested that the latter meet with a negotiating committee of the Union. McCleary refused to do so. On the same day, following the foregoing telephone conversation, Savage, by letter, advised Vice-President Frank McCleary, who had charge of the operation of all three of the respondent's plants, that the Union had been selected as the exclusive bargaining agent of the em- ployees at the Shelton sawmill, and requested that he meet with the union committee for the purpose of negotiating with respect to their wages, hours, and working conditions. In response to this request, Frank McCleary met with the committee in the Shelton mill office on June 10. There is no substantial conflict in the evidence as to what occurred at the meeting. McCleary took the position that there was no reason for negotiating because the mill was not operating and his view apparently was acquiesced in by the Union. Savage testified that the committee had the impression that Frank McCleary would, negotiate with it when the mill reopened. The Union made no fur- ther' efforts to meet with the respondent until September. - 19 At the hearing the respondent abandoned the contention that the unit above found is not appropriate and stipulated to its appropriateness . At the oral argument before the Board, counsel for the respondent again admitted the respondent 's refusal to bargain but limited it to the duration of the shut-down and gave the uncertainty of conditions as the reason for such refusal 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 12, 1940, representatives of the Union, including Savage, met with President Henry McCleary and requested him to 'set a date when he would bargain with the Union regarding "work- ing conditions etc. at the Shelton Mill." Among other things, ac- cording to Savage's uncontradicted testimony, President McCleary on this occasion stated that the respondent had no reason to meet with the committee; that he had never met committees for 50 years and that it was too late to start then; that he dealt with his employees as he did with insurance adjusters, never permitting more than two at a time in his office; that he would talk to his employees one at a time, and if they were right he would tell them so, and if they were wrong he would tell them that too. . On September 17, the union group again sought a meeting with President McCleary. He refused to meet with them. In a letter dated October 22 the Union requested the respondent to meet with its negotiating committee. On October 24, Frank Mc- Cleary replied as follows : Inasmuch as we have no plans for the operation of the Shelton plant we can see no reason for taking our time to attend a meet- ing of this kind. Contrary to the representation made by McCleary in this letter, the respondent on October 24 did have definite plans for the reopening of the mill. McCleary testified that at the time he received the back- to-work petition mentioned above, which was about 3 weeks prior to the resumption of operation, the work of preparing the mill for re- opening was already under way. Furthermore, the respondent in its answer alleged that "at all times prior to October 24, 1940, its sawmill at Shelton was shut down for an indefinite period." 20 We find, as did the Trial Examiner, that on October 24, 1940, the respondent ,misrepresented to the Union its plans for reopening and that in fact the respondent then had definite plans for resuming operations. When the mill was reopened on November 18, the respondent with- out consulting the Union reinstated the men and voluntarily increased the basic wage of its employees at the mill from 56 cents to 671/2 cents per hour.21 On November 23, the Union requested that the respondent bargain with it on November 29, or on another date to be selected by the re- spondent.22 On November 27, Frank McCleary replied by letter that 20 Emphasis supplied. 21 The basic wage provided in the Union's contract with another mill in Shelton at this time was 621/2 cents. 22 Frank McCleary testified that the Union's letter of November 23 never came to his attention, supposedly because he was ill from about November 21 until sometime after December 6 This testimony is wholly incredible in view of the documentary evidence showing that he dictated and signed the reply letter dated November 27 Earlier in the HENRY McCLEARY TIMBER COMPANY 737 "previous engagements" prevented him from meeting with the com- mittee on November 29. The letter did not suggest another date for a meeting, but stated that McCleary would "advise the Union, through one of its members employed at the mill, at what time he could con- veniently meet the committee, provided that the Union named an em- ployee whom he might "talk with" for this purpose. At about the same time, McCleary called a meeting of all the mill employees in the plant after hours, and told them, in substance, that the mill would operate full time during December and January provided that they were willing to work for the current wage scale.23 Ballots were dis- tributed and the employees voted almost unanimously that they would work for the current wages during those 2 months. At the hearing, McCleary, who according to the Trial Examiner was evidently then in poor health, testified that he was ill during the period covered by the above-described correspondence, having been confined at his home by illness from about November 21 to November 27, when he entered a hospital for 10 days' treatment. Evidently, however, his illness did not disable him from addressing the assembled sawmill employees during the period in question, and securing their agreement to work for the existing wage scale. His letter of November 27 did not state that illness prevented his meeting with the Union, as requested, on the 29th, but assigned "previous engagements" as the reason therefor. By letters dated December 3 and December 20, and in a telephone conversation with Frank McCleary shortly before December 20. Savage repeated the request that McCleary set a date convenient to him for a meeting with the union committee. In a letter to the Union dated December 16, McCleary stated that the delay in reply- ing to the Union's letter of December 3, was caused by his illness. The letter concluded, "You did not advise me who (sic) to notify when it would be possible for me to meet, and wish you would give me this information." Inasmuch as Savage, in his letter of December 3, had indicated a convenient method whereby McCleary might com- municate with the Union with regard to a meeting date, McCleary's comment and request, above quoted, indicated that he was seeking excuses for delay in granting the Union's request for a bargaining conference. It is notable, also, that neither in his correspondence with the Union nor at the hearing, did McCleary assign illness or any other specific cause as the explanation of his failure to meet with the Union for another month after December 16. In December or hearing, McCleary testified that it was another letter from the Union, dated December 3, which escaped his attention "The date of this meeting was not definitely established William Simmons, a union member, who was the only witness to testify concerning it, placed it as a few days after the plant reopened and "right around" Thanksgiving Elsewhere he testified that it occurred near the end of November That McCleary did call such meeting is admitted by the respondent in its brief 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January, Savage interviewed McCleary at the sawmill office, at which time McCleary stated that he would meet `with the committee, but did not then set a date for such meeting. Ultimately, through Eddy, the respondent's office manager, Savage succeeded in arranging a meeting between McCleary and the committee on January 15, 1941. At this meeting, McCleary inquired how many employees at the mill were members of the Union, and Savage replied that there were nearly 100. Savage presented McCleary with a copy of a contract which the Union had with another ii-lill at Shelton, and McCleary asked for time to study it, which was agreeable to the committee. On January 29, McCleary meet with the union committee again and told them, in effect, that, after- studying the contract, the re- spondent could not sign it. In the hope of ascertaining which of the individual clauses in the proposed contract the respondent would agree to, Savage asked McCleary to point out section by section what his objections were to the agreement. McCleary did so and, as he progressively reached the various sections, he told the committee that they were either not applicable to the respondent's mill or were in conflict with the views and policies of the respondent. He testified that he understood that the contract could not be modified and that it was a question of signing or not signing a contract identical with the printed one discussed. Savage, however, testified that the union committee indicated on this occasion its willingness to negotiate a different contract if the respondent were unwilling to accept its stand- ard contract which was under discussion. We credit Savage's testi- mony as did the Trial Examiner, and in the light of all the evidence, conclude that the contention of McCleary was neither justified nor advanced in good faith. After McCleary had finished discussing the printed contract Savage asked him to sign the following agreement : The Henry McCleary Timber Company hereby recognizes Local 38 International Woodworkers of America, at Shelton,, Wash., affiliated with the C. I. O. as the sole collective bargain- ing agency for all its employees at its Shelton mill excepting the office employees and all other employees of the rank of foreman or higher. The Henry McCleary Timber Co. further agrees to negotiate with said Union and reduce to writing and sign those clauses the Union and company can mutually agree on. McCleary declined to sign this recognition agreement but asked for time to consider it, indicating that he would discuss the matter further with the union representatives at a later meeting. The con- ference thereupon adjourned. There is a conflict in the evidence as to whether, at that point, it was understood that a further meeting HENRY McCLEARY TIMBER COMPANY 739 between the parties was to be arranged by McCleary notifying the Union when he would be ready to discuss the recognition agreement, or by the Union notifying McCleary when Savage, who was then serving in the State Legislature, would be available. Savage and two other Board witnesses who were present at the conference testi-_ fied that the understanding reached was that McCleary would arrange for the next conference. They were contradicted in this respect by McCleary and Hamilton, who was also present at the conference. The Trial Examiner was impressed with the frankness and apparent honesty of Savage, and from all the evidence, found that it was McCleary who was to get in touch with the Union about arranging another conference. We agree with his finding. Early in February, again without negotiation or discussion with the Union, the respondent granted another unsolicited wage increase to mill employees, raising the basic wage from 67i^q cents to 70 cents per hour. The Union has received no communication from the re- spondent since January 29, 1941. 4. Conclusions It is plain from the facts above set forth that the respondent con- sistently refused to bargain collectively with the Union and persist- ently sought to evade its duty in this respect by attempting to destroy the Union's majority. The refusal of Henry McCleary to meet with the committee on June 7, and again on September 12 and 17, 1940, made known to the newly organized employees the respondent's hostility to the Union and necessarily discouraged membership in that organiza- tion.24 The circulation of the anti-union petition by Starr, with the respondent's tacit approval, in September ' and October, as described above, showed the respondent's design from the outset to prevent unionization of the sawmill employees. The respondent's conduct in misrepresenting to the Union on October 24 that it did not contem- plate resuming operations and then reopening the mill and increasing wages 3 weeks later without discussing with the Union either the re- instatement of employees or the wage increase, constituted a refusal to bargain within the meaning of the Act. Further, the fact that the respondent bargained directly with the employees with respect to wages, toward the end of November, while evading the Union's re- peated demands that it negotiate with it concerning this fundamental object of collective bargaining is unquestionably inconsistent with the performance of its duty under the Act. The record reveals no legitimate excuse for the refusal of the re- spondent to withhold from the Union the formal recognition to which 14 National Labor Relations Board v Somerset Shoe Company, 111 F (2d) 681 ,(C C. A. 1), enf'g Matter of Somerset Shoe Company and United Shoe Workers of America, 5 N. L R. B. 486 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was entitled. That the respondent had no real doubt either as to the Union's majority status or as to the appropriateness of the unit is sufficiently demonstrated by the fact that at no time did the respond- ent ask the Union to present proof supporting its membership claims or question the unit. Considered in the light of the events preceding the conference of January 29, 1941 , it is evident that Frank McCleary's discussion-and rejection without counterproposals-of the Union's standard contract, as well as the recognition agreement, on that date constituted a further refusal to bargain rather than performance of the respondent's duty to attempt in good faith to find a basis of mutual agreement with the Union. McCleary's subsequent failure to com- municate with the Union, while Glidden engaged in a final effort to destroy its majority, must be viewed as an additional act of bad faith. It is apparent and we find, as did the Trial Examiner, that the re- spondent at no time intended to bargain in good faith with the Union. We find that the respondent, on June 7, 1940, and thereafter, refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, and that it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. Discrimination in regard to hire and tenure of employment 1. The refusal to reinstate W. S. Rawding The complaint alleged that W. S. Rawding, switch-engine' operator and yard employee, was denied reinstatement on or about November 18, 1940, when the mill reopened, because of his membership and activi- ties in the Union. The respondent averred in its answer that Rawding was denied reinstatement because the position formerly occupied by him had been abolished and he was not suited or competent to fill any other position. Rawding had been continuously employed by the respondent from July 1935 until the shut-down in June 1940. About November 13, he went to the mill office and asked R. F. Eddy, the office manager, when the mill would start up. Eddy told him that he did not know. On November 14, 1940, Rawding wrote to the respondent stating that he had heard that the mill would reopen on November 18 and that he would be available for work on 30 minutes' notice. He received no reply. The day the mill reopened, Rawding reported for work and not finding his time card in the rack, interviewed Superintendent Hamilton who told him that the yard crew would not be used for another 10 days. About 10 days later he returned and again asked Hamilton when he was going to put him to work. HENRY McCLEARY TIMBER COMPANY 741 Hamilton replied that he did not know.25 About 2 weeks later when Rawding talked to Frank McCleary about going to work, McCleary said, "There is nothing the matter with your work. You are just too old. I can't use you." Rawdmg inquired about a job as watch- man, alluding to the fact that watchmen had been hired at the mill, and McCleary replied, "That is a different department." If, as McCleary testified, the respondent decided prior to November 13 not to reinstate ,Rawding, it is significant that this decision Was not communicated to Rawding until about the-middle of December, when he was for the fourth time requesting reinstatement. Rawding joined the Union on June 4, 1940, and thereafter regu- larly attended its meetings. About September 1, he. became chairman of the McCleary sublocal of the Union. He was also a member of the union negotiating committee which called upon Henry McCleary on September 12 and 17. Rawding, prior to the shut-down of the mill on June 3, was a member of the yard crew, which varied from 4 to 15 in number depending on the amount of work to be done. He served about 11/2 hours a clay in the aggregate as engineer of the switch engine 26 which was used to move cars of lumber into, out of, and within the yard. The rest of the time he worked with the yard crew, per- forming miscellaneous tasks in connection with the sorting and piling of lumber and loading scows, as well as keeping the switch engine and tracks in repair. Frank McCleary testified that about a week prior to the reopening of the mill when he and Hamilton were "lining up the crew" he decided that Rawding should not be recalled to work for two rea- sons, namely, (1) that in order to reduce the number of employees on the pay roll, for reasons of economy, the respondent "would have to stop keeping a man on the locomotive" and Would assign the task of operating the locomotive to one of two other yard employees who could handle this work in addition to his other duties; (2) that Rawding's age 2' disqualified him for the work of "chasing the crane," 28 which sometimes required climbing stacks of lumber 24 feet high. McCleary testified, also, that «rhen he discussed the dismissal of Rawding with Hamilton, the latter reported that Rawding, while 2511amilton testified that on the occasion he told Rawding " . . that the job had been eliminated " We credit Rawding's version of the conversation , as did the Trial Examiner 26 As the locomotive operator , Rawding was paid 10 cents per hour more than other mem- bers of the yard crew 27 Rawding attained the age of 63 in December 1940 At the time of the shut-down, he was the oldest employee in the yard crew 24 When the yard crew removes the finished lumber from the green chain , it is te:npoi arily placed in small piles preliminary to being moved to the yard stacks bl means of the crane In the crane operations one member of the yard crew places a strap or rope around the piles and hooks it to the crane at-in The crane then lifts the bundle and deposits it on top of one of the y-aid stacks, where another member of the yard crew unhooks the bundle and straightens it on the stack The latter operation is called "chasing the ci ane ' 43,237 42-von. 37--48 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acting as engineer •of the switch engine, had missed signals and run the engine through switches. In explaining the need for economy which, he claimed, would be achieved by the elimination of Rawding as switch-engine operator, McCleary testified that there had been over 130 employees on the mill pay roll when it shut down on June 3, which was "too many men for the amount of lumber cut," indicating that the dismissal of Rawding would reduce this excessive number of employees. There were actually only 115 employees on the June 3 pay roll as compared with 117 on the pay roll after operations were resumed. Moreover, it appears from the testimony of Forbes, general yard foreman, and we find, that the number of employees in the yard crew after the mill reopened was greater than the number employed on June 3, and that several new em- ployees were hired in the yard following the reopening of the mill. It is apparent that Rawding's job was not abolished as the respondent contends, but that he was merely replaced. In support of his claim that Rawding was incompetent due to his age, McCleary testified that too much risk of industrial accident 20 was in- volved in permitting Rawding to perform the work of "chasing the crane." Hamilton, who claimed to have observed Rawding's work for a period of about 5 years prior to the shut-down,30 testified that Rawding was physically unfit for general yard work and had had to be assigned to easy tasks. If this testimony is to be believed, Rawding was eligible for discharge as early as 1939, when Hamilton became superintendent of the mill. He was nevertheless retained until the mill was shut down, and was even recalled to work on 2 days in June, work- ing a total of 24 hours, following the shut-clown, when the yard crew was moving the last lumber from the yard. Forbes, the yard fore- man, testified that the switchmen had complained of Rawding's ina- bility to observe signals when he was operating the locomotive. He particularized by stating that about once every 2 weeks Rawding had run the locomotive through closed switches. Hamilton testified that Forbes complained to him about Rawding having run through the switches about 4 or 5 months prior to the shut-down. Rawding, on the other hand, testified that during his entire employment with the respondent he had run the locomotive through the switches approxi- mately five times and that the last time it had occurred was about 6 months prior to the shut-down. Rawding denied that Forbes repri- manded him for it. Since Hamilton's testimony substantiates Rawding's statement rather than that of Forbes, and since the Trial Examiner was impressed with Rawding's credibility, we believe his 2 ^Rawding had never had an accident cloning the period of his employment by the iespondent "Hamilton testified that ever since he entered the respondent's employ as sawmill fore- man lie had observed Rawding. HENRY MCCLEARY TIMBER COMPANY 743 testimony, and find that he did not frequently run ,the; locomotive through closed switches. Rawding further testified that he had always performed his full share of work in the yard. It appears from his testimony as well as that of witnesses for the respondent, that he was satisfactory, if not superior, at the work of stencilling lumber on the scows, which fre- quently required him to work substantial overtime periods. We find, as did the Trial Examiner, that the evidence does not show that Rawding was either in fact, or in the opinion of the respondent, seri- ously disqualified by age from performing his work. Assuming, however, that Rawding was "slowing up," as the respond- ent claims, it is inexplicable that the respondent should have deter- mined upon the drastic step of finally terminating his employment instead of assigning him to less hazardous work in the mill for which he was suited. At the hearing, McCleary did not explain his refusal to employ Rawding as a watchman, although the respondent hired at least two new watchmen, upon reopening the mill, and later hired a new employee in the place of a watchman who died. The evidence indicates that the respondent had on several occasions transferred aged or disabled employees to easier work 31 instead of discharging them, and there is nothing to rebut the inference that this was its -usual practice. Under all the circumstances, we are convinced that the true explanation of the respondent's, refusal to reinstate Rawdmg to his former position or to transfer him to another available job, such as that of watchman, lies in its hostility to the Union and its desire to destroy the Union's majority, which was not at that time substan- tial. Rawding, because of his age, the unskilled character of his work, and his relatively short service record, was vulnerable. We find, as did the Trial Examiner, that the respondent, by refusing to reinstate W. S. Rawding on or about November 18, 1940, or there- after, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The discharge of E. A. Hawkins The complaint alleged that the respondent discharged Hawkins, a trimmer operator, about March 11, 1941, because of his membership and 71 Schirmer, a yard employee, was transferred to the pond in November 1941, but the respondent transferred him back to the yard after he had fallen in the water. Gustafson, who had been employed by the respondent for 12 years, became incompetent to function as button pusher for the edger because of poor eyesight. He was given the job behind the gang saw. McCowan, who lost an arm while spotting for the tummer, was later returned to work and ,operated a set of rolls behind the trimmer Two of the watchmen employed by the respondent on June 3, 1940 , had formerly held production jobs in the mill 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities in the Union. The respondent contends that he was dis- charged for incompetency. During some 26 years of continuous em- ployment by the -respondent, Hawkins operated an automatic trimmer, which is used to cut lumber vertically." The cutting of dimension lumber, a skilled operation, requires the exercise of quick judgment. Hawkins was recalled to work,when the mill reopened in November 1940; 33 he-received an increase from 80 cents to 941/2 cents per hour at that time, and worked until March 11, 1941. On that day Foreman Rhodes brought his successor to the trimmer and said, "I told you a while back that if you did not take care of the mill and keep it clean better, there would be a man in your place. I have a Iran here." Rhodes asked Hawkins whether he wanted to stay until noon or go home immediately. Hawkins elected to leave immediately. Hawkins has not applied to the respondent for reemployment. Hawkins joined the Union after the shut-down, but was not active, nor did he hold an office. He refused, however, to sign the back-to- work petition and to resign from the Union when requested to do so by Byrne and Starr in September 1940. When the plant reopened he wore his union button in plain sight while in the mill. Hawkins testi- fied without contradiction that Arno Glidden, former superintendent, spoke to him twice about his button early in February during the period when Glidden was engaged in his campaign to secure resigna- tions from the Union. Hawkins had known Glidden for about 2m years and had worked under him when Glidden was mill superin- tendent. On the first occasion, Glidden inquired, "What is ill the buttons you are wearing" and Hawkins replied, "They are mine, I paid for them, I guess." The second time Glidden remarked, "I see you are still wearing your buttons, I am surprised at you." The record shows that at or about this time Frank McCleary and Hamilton de- cided to discharge Hawkins, and began making attempts to locate a new trimmerman to replace him.34 Hawkins testified that although there was no change in the quality of his work after the mill i eopened, he was repeatedly reprimanded and criticized by Foreman Rhodes, who complained particularly that he was not filling orders for lumber of specified dimensions rapidly' enough. He further testified that Rhodes refused to listen to his explanation that he was endeavoring to cut the maximum number of merchantable lengths from the lumber, regardless of whether they 32 The machine consists of a gang of more than 20 cylindrical saws stationed in a row 2 feet apart; the lumber automatically approaches the saws at the desired angle , and the operator, by pushing a button or by foot control causes the proper saw to drop down and cut the lumber to the indicated length 33 Superintendent Hamilton personally visited Hawkins at his home to recall him to work 31 McCleary testified that he finally decided to discharge Hawkins subsequent to February 10, when a new foot control v.as installed on Hawkins' machine McCleary went to Cah- fornia on or about February 21, and was there for about 2 weeks Meanwhile, Hamilton coriesponded with at least three persons in an effort to secure a new trimmer operator HENRY McCLEARY TIMBER COMPANY 745 filled the immediate order or not. Hawkins claimed that prior to the shut-down in June 1940 his, «-ork had never been criticized, and that the change in Rhodes' demeanor towards him after the reopening of the mill was extremely marked. Rhodes denied that there had been any change in his manner towards Hawkins, and testified that he had reprimanded Hawkins "almost daily" during the period of 2 years or more prior to the shut-down. As to this, we credit the testimony of Hawkins, whose attitude, demeanor, and apparent honesty as a wit- ness impressed the Trial Examiner, and,we find that upon the reopen- ing of the mill Rhodes suddenly exhibited toward Hawkins a hostile and critical attitude which he had not displayed prior to the shut- down. McCleary and Hamilton explained, at the hearing, that they had decided to discharge Hawkins because, apparently due to his ad- vancing age, he failed to trim dimension lumber properly to fill orders, and because his slowness delayed operations in the mill. Prior to the shut-down the respondent had, for the most part, oper- ated two trimming machines. Upon the resumption of operations, cnly one trimming machine was operated. Hawkins was recalled to this work, and the other trimmerman was transferred to a different position. Despite these 'facts indicating that Hawkins' work was satisfactory to the respondent prior to the shut-down, both McCleary and Hamilton, as well as Rhodes, testified that Hawkins' trimming had been unsatisfactory, and that Hamilton and Rhodes had con plained to McCleary about it a considerable time before June 1940.31 The Trial Examiner did not credit this testimony, nor do we, in view of the fact that the respondent recalled Hawkins in November 1940, and in view of the further circumstance that, while both McCleary anti Hamilton claimed that it was Hawkins' trimming of dimension lumber which was defective,3C both testified that prior to the shut- down Hawkins had ordinarily trimmed only shop lumber at whiclhi, they admitted, he was competent. Regarding Hawkins' alleged slowness, the respondent called as witnesses a number of his fellow employees who testified that Haw- kins was slow. Kenneth Archer, lumber sorter on the green chain, called as witness by the Board, on the other hand, testified that 35 McCleary testified that Hamilton and Rhodes had first complained to him of Hawkins' work 2 or 3 months before the June 3 shut-down Hamilton testified that he had com- plained to McCleaiy "many times" during the period of about 2 years prior to the shut- down. 30 The respondent's witnesses claimed that as a result of Hawkins' poor judgment in trimming dimension lumber, the respondent accumulated an excessive amount of "odd" lengths which had to be marketed at a lower price, and that it was also obliged frequently to settle claims from customers on account of the delivery of short lengths. No documen- tary evidence was produced to support these general assertions Moreover, according to McCleary, the excessive accumulation of odd lengths had occurred prior to the shut-down, when another tummerman was trimming most of the dimension lumber, as well as after the mill reopened. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hawkins trimmed more lumber than the men on the green chain could handle and that the lumber frequently piled up on the chain. Richard Dale Schmidt, who is the spotter to the trimmer,;' testified that although Hawkins was slower than his successor, Foreman Rhodes told him that Hawkins was not discharged for being slow but for not trimming his umber. It appears that stoppages were frequent occurrences in the mill, and that a delay at Hawkins' machine could cause the stoppage of all other principal, operations. The evidence establishes, however, that the trimming machine fre- quently had to be stopped because of stoppages on the chain which conveyed lumber away from the trimmer to the lumber yard. There is no evidence indicating to what extent, if at all, Hawkins was re- garded by the respondent as responsible for any such stoppages. It is clear that prior to the shut-down the respondent did not intend to discharge Hawkins. It recalled him to work upon re- opening the mill despite his age and even though -it proposed to have him cut dimension lumber, at which he was allegedly incompe- tent. Moreover, by shutting down the second trimmer, the re- spondent apparently increased the volume of his work. Having meanwhile resisted Starr's efforts to induce him to resign from the Union, Hawkins appeared at work wearing his union button. He was thereupon continually upbraided by a previously friendly fore- man. His discharge was determined upon shortly after he had resisted a second attempt, by Glidden, to induce him to withdraw from the Union. Finally, the- respondent abruptly terminated his 26 years' service by discharge, apparently without even considering the possibility of transferring him to another position, thus adopt- ing, in this instance, a more severe solution of the alleged problem of inefficiency due to old age than was its usual practice 38 Haw- kins, like Rawding, was vulnerable because of his age to the respond- ent's desire to destroy the Union; unlike Rawding, he had a very long record of service with the respondent, and held a skilled job at which he could not be easily, replaced. The only factor which explains all these circumstances attending Hawkins' discharge is his steadfast adherence to the Union. We find, as did the Trial Examiner, that the respondent dis- charged E. A. Hawkins on March 11, 1941, because of his member- ship in the Union, thereby disriminating in regard to - his hire and tenure Gf employment and discouraging membership in the Union; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 37 The spotter sorts out the lumber and puts it on the roll of chains to have it ready for the tiimmermen 11 See footnote 31, supra. HENRY McCLEARY TIMBER COMPANY 747 3. The alleged refusal to employ H. F. Rishel The complaint alleged that the respondent refused to employ H. F. Rishel when the mill reopened on November 18 because.; of his membership in and activities on behalf of the Union. The respondent averred in its answer that Rishel was not an employee when the mill shut down and that it was under no obligation to reemploy him. Rishel had been employed by the respondent for 5 years prior to May 1940, as a pond worker at the mill. On May 29 he volun- tarily qi. t to seek a job in Seattle. Rishel, in an attempt to show that his employee relationship with the respondent was reestablished after he quit on May 29, testified that he was recalled to work about June 7,by Forbes and worked several hours unloading logs with Rawding and Starr. However, the records of the Northern Pacific Railroad, which transported logs to the mill, and the respondent's pay roll, time records, and record of cash receipts and disbursements, established that he did not work for the respondent on any clay in June 1940. We find, as did the Trial Examiner, that Rishel was thus discredited as a witness, and for that reason we shall disregard all his testimony in so far as it is not corroborated by other evidence. Rishel was unsuccessful in getting a job in Seattle and returned to Shelton early in June. He joined the Union that month. In Sep- tember, while Almaden was circulating among the laid-off mill em- ployees the "back-to-work" petition described above, a copy of the petition disappeared for a few days, during which time it was taken to the union office and copied. When it reappeared a few days later, Almaden spread the report that Rishel was responsible for its dis- appearance. Frank McCleary admitted at the hearing that he heard the rumor attributing the "theft" of the petition to Rishel, but claimed that he heard it after Rishel had been refused employment. On or about November 18, Rishel went to the plant and asked Frank McCleary for a job. Rishel testified that McCleary rejected his ap- plication, stating, "One, . . . I have the crew picked; two, you stole the petition." McCleary denied that he mentioned the petition in his conversation with Rishel, and testified that he said that he be- lieved Hamilton had the crew "about filled up," and that he thought Rishel had quit to take a job in Seattle. For the reason above stated, we do not find that McCleary made the statement attributed to him by Rishel. At the hearing, the respondent sought to establish that Rishel was not rehired because he had been a poor worker. Hamilton testified that he decided not to reemploy Rishel because he was negligent in performing some of his tasks. He claimed to have reprimanded Rishel for poor work many times during the period of about 18 months prior 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the shut-down and to have complained about Rishel in March or April 1940 to the latter's father, Murl Rishel, the head boomman. Murl Rishel, a witness for the Board, although he declined to corrob- orate his son's claim that he had been rehired by the respondent sub- sequent to May 29, testified that his son's work had always been satis- factory, and that he could not recall that Hamilton had complained about it. The Trial Examiner found that the respondent refused to employ Rishel because of his union activity. In so finding, he adverted to the respondent's customary practice of preferring former employees to new men, and found that pursuant to such practice Rishel would have been reemployed in the absence of some specific objection to him. Re- lying on Murl Rishel's testimony, the Trial Examiner dismissed the respondent's contention that Rishel was an unsatisfactory employee, and concluded that his rumored connection with the disappearance of of the petition was the reason for the respondent's refusal to reem- ploy him. However, the respondent's practice of recalling former employees applied only to employees who had been laid off due to a temporary shut-down and therefore did not apply to Rishel, who voluntarily quit his employment. Although Rishel had been em- ployed for about 5 years, a fact which leads us to doubt the respond- ent's assertion that he was incompetent, we do not believe that the rumor connecting Rishel with the disappearance of the petition war- rants an inference that the respondent refused to employ him for that reason. We find that the evidence does not support the allegations of the complaint that the respondent discharged Rishel for union member- ship or activity. The allegations of the complaint with respect to the discharge of Rishel will be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE 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 unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find will effectuate the policies of the Act. HENRY McCLEARY TIMBER COMPANY 749' We have found that the respondent discriminatorily refused to reinstate W. S. Rawding on November 18, 1940, and discriminatorily discharged E. A. Hawkins on March 11, 1941, and thereby discour- aged membership in the Union. We shall order the respondent to offer Hawkins and Rawding immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and to make each of them whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to W. S. Rawding of a sum of money equal to the amount which he normally would have earned as wages from November 18, 1940, the date the mill was reopened, to the date of the offer of reinstatement and- by payment to E. A. Hawkins of a sum of money equal to the amount which he normally would have earned as wages from March 11, 1941,-the date of his discharge, to the date of the offer of rein- statement, less their respective net earnings- during such periods. We have found that the respondent refused to recognize or bar- gain )collectively with the Union as the exclusive representative of its employees in an appropriate unit. In order to effectuate the policies of the Act, we shall order the respondent to bargain collec- tively with the Union, upon request, and in connection therewith, if understandings are reached between the parties, to embody such understandings in a signed agreement, if requested to do so by the Union. 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. International Woodworkers of America, Local No. 38, affiliated with the Congress of Industrial Organizations, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. All the respondent's production and maintenance employees at its Shelton mill, excluding temporary construction employees hired solely for that purpose, office employees, and supervisory employees with the rank of foreman or higher, constitute, and at all times material herein, constituted a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the, Act. 19 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 Cont'pany and United Brotherhood of Carpenters and .loaners of Amer- ica, Lumber and Sawmill IVorkers 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 Relax bons Board, 311 U S 7 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. International Woodworkers of America, Local No. 38, affiliated with the Congress of Industrial Organizations, was on June 7, 1940, and at all times thereafter has been, and now is, the exclusive rep- resentative of all employees in such unit for the .purposes of.collec- tive bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing from and after June 7, 1940, to bargain collectively with the Union as the exclusive bargaining representative of the employees in such unit, the respondent has engaged in and is engag- ing in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- inent of W. C. Rawding and E. A. Hawkins, thereby discouraging membership in the Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. By discharging H. F. Rishel the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent , McCleary Timber Company , McCleary and Shelton, Washington , and its officers , agents , successors , and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Wood- workers of America , Local No. 38 , affiliated with the Congress of Industrial Organizations , as the exclusive representative of all pro- duction and maintenance employees at its Shelton mill, excluding temporary construction employees hired solely for that purpose, office employees and supervisory employees with the rank of foreman and higher ; (b) Discouraging membership in International Woodworkers of America, Local No. 38, affiliated with the Congress of Industrial Organizations , or any other labor organization, of its employees by discharging or refusing to reinstate 'any of its employees , or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment; 1 HENRY McCLEARY TIMBER COMPANY 751 (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted ac- tivities 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) Upon request bargain collectively with International Wood- workers of America, Local No. 38, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all pro- duction and maintenance employees at its Shelton mill, excluding temporary construction employees hired solely for that purpose, office employees, and supervisory employees with the rank of foreman or higher, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Offer to W. C. Rawding and E. A. Hawkins immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority or other rights or privileges; (c) Make whole W. C. Rawding and E. A. Hawkins for any losses of pay they may have suffered by reason of the respondent's dis- crimination against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings during such period; (d) Post immediately in conspicuous places throughout its mill at 'Shelton, Washington, and maintain for a period of at least sixty (60) days from the date of 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), (b), and (c) of this Order; (2) that it will take the affirmative action set forth in para- graphs 2 (a), (b), and (c) of this Order; and (3) that the respond- ent's employees are free to become or remain members of Interna- tional Woodworkers of America, Local No. 38, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee because of membership in or activity in behalf of that organization; (e) 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. AND IT Is FURTHER ORDERED that the allegation of the complaint, charging the respondent with engaging in unfair labor practices with- in the meaning of Section 8 (3) of the Act, by discharging H. R. Rishel be. and it hereby is, dismissed.