Brown's Tie & Lumber Co.

National Labor Relations Board - Board Decisions

Mar 13, 1946

66 N.L.R.B. 637 (N.L.R.B. 1946)

In the Matter of CARL E. BROWN, WARREN H. BROWN, IDA H. BROWN,
DOROTHY C. BEYERLE, MARGARET DAVIES , AND ELIZABETH HARWOOD,
INDIVIDUALLY AND AS COPARTNERS , DOING BUSINESS AS BROWN'S TIE &
LUMBER COMPANY' and LUMBER & SAWMILL WORKERS, AFL
Case No. 19-C-1234.-Decided March 13,1946
DECISION
AND
ORDER
On August 5, 1944, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the respondents filed exceptions
to the Intermediate Report and a brief. No request for oral argu-
ment before the Board was made, and none was held.
The Board has reviewed the rulings made by the Trial Examiner
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief filed by the respondents,
and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations made by the Trial Examiner,
except as hereinafter modified.
1. The Trial Examiner found that, 2 days before complainant
Francis Davis was laid off by the respondents, in answer to Davis'
inquiry whether "it would be possible to obtain a release" from the
respondents, he was told by Foreman Vance Huskey that he thought
"it would be a very good idea because Brown knew of our union ac-
tivities and we were all going to be discharged anyway." The Trial
Examiner's finding that Huskey made this statement was based upon
Davis' testimony, which was denied by Huskey. We agree with the
Trial Examiner that Huskey's denial is not trustworthy. The Trial
1 The complaint , as amended at the hearing, was issued in the name of Brown's Tie &
Lumber Company. At the hearing , the parties stipulated, inter aiia, that Carl E. Brown,
Warren H. Brown , Ida H . Brown, Dorothy C. Beyerle, Margaret Davies, and Elizabeth
Harwood are co-partners , doing business under the trade name and style of Brown's
Tie & Lumber Company, as noted above.
.66 N. L. R. B., No. 89.
637
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner failed to make a finding as to whether Huskey's statement
constitutes an unfair labor practice. We find that Huskey's state-
ment to Davis constitutes interference, restraint, and coercion in vio-
lation of Section 8 (1) of the Act.
2. In the, summer of 1940, the respondents' mill was destroyed by
fire. It was subsequently rebuilt and, from 1941 to June 15,1943, was
operated on the basis of the two 8-hour shifts instead of the single
shift employed in the old mill before the fire. In the spring of 1943,
due to heavy rains in the area where the respondents' logging opera-
tions took place, the respondents experienced difficulty in securing
enough logs to keep the mill.in operation. On May 21, the mill was
shut down for 1 day and, beginning on June 2, for 4 days because of
the log shortage. On June 9, 1943, the Union held its first organiza-
tional meeting for employees of the respondents. Thirteen employees
attended this meeting which was held at the home of employee Grady
Eugene Quinn. At this meeting employees Francis Davis and Elmer
Quinn were elected temporary president and secretary, respectively,
and all employees present, except one, signed an application for a
union charter. Oro June 10, Grady Quinn and Elmer Quinn secured
the signature of employee Joseph Campbell on the charter applica-
tion, and Campbell secured the signature of Jack Sackerman. There-
after, Elmer Quinn, Grady Quinn, and Davis spoke to other employ-
ees about the Union and secured signed applications-for-membership
from 4 to 11 additional employees.2 On June 15, the respondents
again shut down the mill and, on June 15 or 16, they decided to elim-
inate the two 8-hour shifts and operate the mill on the basis of a single
10-hour shift. As a result of the elimination of one shift, on June 16,
of a total of 106^employees on the mill pay roll, the respondents laid
off 44.3 All 14 employees who had signed the application for a union
charter were among those laid off, and 3 of the 4 additional employ-
ees who had signed union application cards and whose names are
disclosed in the record were laid off. Thus, all but 1 of the 18
employees who the record shows were adherents of the Union were
laid off on Jiine 16.4
'The names of only four of these persons appear In the record . They are : E. E.
"Andy" Anders, George Gardunia , Robert Farrell , and Wilfred Swift.
8 According to the uncontradicted testimony of Superintendent Leslie Ulmer, prior to
the June 15 shut-down , approximately one-half of the employees laid off had worked on
the first shift and the other one-half had been employed on the second shift.
4 On June 24 , 1943, 2 days after the Union filed the original charges herein , the re-
spondents , Carl Brown and Warren Brown, together with the respondents' attorney, met
with representatives of the Union, a representative of the Board, a conciliator of the
United States Department of Labor, and employees Elmer Quinn and Francis Davis for
the purpose of negotiating a settlement of the dispute. At this meeting, the Union re-
quested reinstatement of employees , including the 5 complainants . No agreement, was
reached and , at no time thereafter, did the respondents offer to reinstate any of the
complainants . We agree with the Trial Examiner that the respondents ' letter to each
of the complainants , dated on or about August 10, 1943, did not constitute an uncondi-
tional offer of reinstatement.
BROWN'S TIE & LUMBER COMPANY 639
The respondents contend that they were impelled to lay off the
44 employees on June 16, 1943, because, due to the shortage of logs,
it was necessary to curtail the mill's operation by eliminating one of
the two 8-hour shifts and to operate the mill on the basis of one
10-hour shift. In view of Board counsel's concession at oral argu-
ment before the Trial Examiner that the respondents did not shut
down the mill for the purpose of discriminating against the complain-
ants, we agree with the Trial Examiner's finding that the decision on
the part of the respondents to reduce their working force was not in
itself discriminatory. However, the question remains whether the
respondents utilized the reduction in working force as a means of
discrimination by selecting the complainants for lay-off because of
their membership in and activities on behalf of the Union. The un-
disputed fact that all but one of the employees who the record shows
were adherents of the Union were laid off raises a strong presumption
of discriminatory motive on the part of the respondents.-' Of course,
a selection upon a discriminatory basis could have been made only if
opportunity existed for the respondents to discqver the union affilia-
tion of the employees. This opportunity arose a few days after the
Union's organizational meeting of June 9, and prior to June 16,
when Grady Quinn told Foreman Huskey that the respondents'
employees were organizing a union; that some employees had signed
an application for a union charter; and that he (Grady Quinn),
Elmer Quinn, Francis Davis, Frank Eberhardt, David Eberhardt,
and Ben Eberhardt had signed such an application.6
In support of their contention that the employees laid off were
selected without regard to union affiliation, the respondents sought to
show that the lay-offs were effected on the basis of seniority and
ability. Superintendent Ulmer, who was solely responsible for se-
lecting the employees to be retained, testified that he first chose for
retention all persons who had been employed prior to July 1940;
and selected the rest of the employees to be retained according to their
$ In Matter of F. W. Woolworth Company, 25 N L It. B. 1362, the Board stated :
It would be expected that in a selection of employees to be laid off without regard
to union affiliation the proportion of union members among those laid off would
approximate the proportion existing in the group from which selection was made.
* * * The natural assumption would be that in any selection to which the factor
of union affiliation was irrelevant , union membership would be distributed among
those laid off and those retained as if by the operation of chance . Of course any
combination is a possible result on the basis of pure chance . Variation from the
expected does not necessarily establish that the operation of chance has been frus-
trated by intelligent selection . When, however , the variation is marked or is mani-
fested consistently in repeated samplings , the hypothesis that union membership was
irrelevant to the selection gives way to the inference that the selection was made
upon a discriminatory basis.
e Only 5 of the 17 known union members laid off on June 16, 1943 , are involved in this
proceeding by inclusion in the complaint . The remaining 12 adherents of the Union had
left the vicinity of McCall , Idaho, for parts unknown at the time the amended charge
was filed , and the Union was unable to communicate with them,
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abilities. The record shows that, of the 62 employees retained, 32
had been employed since before 1940,' and that none of the employees
laid off were employed before 1940. Thus, in making his selection,
Ulmer took into consideration length of service as to the employees
whose seniority dated back to 1940. We agree that the retention of
the 32 senior employees was in no way discriminatory as to the com-
plainants. However, in addition to the 32 senior employees, the
respondents retained 30 employees who were employed after 1940.
The issue thus posed is whether the 5 complainants were discriminated
against because they were not among this group of 30 employees
who were retained.
After deciding to retain the 32 senior employees, there remained
74 employees on the mill pay roll from which the respondents selected
30 to be retained and 44 to be laid off. It is apparent that seniority
was not the determining factor that motivated the respondents to
exclude the 5 complainants from the additional group of 30 employees
to be retained, since of this group, 8 had less seniority than any of
the complainants, and Joseph Campbell and Francis Davis, 2 of the
complainants, had more seniority than 12 employees retained. There
remains the criterion of ability which, according to the testimony of
Superintendent Ulmer, was the sole factor considered by him in select-
ing the 30 junior employees to be retained. All 5 complainants
worked under the supervision of Foreman Huskey on the second
shift. In his testimony Huskey admitted that Davis performed his
duties in a satisfactory manner, and Huskey did not deny testimony
of Elmer Quinn, Grady Quinn, Joseph Campbell, and David Eber-
hardt that Huskey had complimented each of them at various times
about their work. Huskey further admitted that he had stated in
an affidavit given to an agent of the Board shortly after the lay-offs
that Grady Quinn "did a darn good job as tally man" and that Elmer
Quinn "was hard to beat as a carloader.^' Huskey also testified that
there were common laborer jobs in the mill which the complainants
could have performed if they had been retained. In his testimony
Ulmer admitted that he did not directly supervise the employees on
the second shift, the shift of the 5 complainants, and that he did not
consult Foreman Huskey, who had immediate supervision of the
employees on the second shift, as to the abilities of the complainants
but that he, Ulmer, based his determination as to their abilities upon
his own observation of their work which was limited to a period of
time varying from an hour to one and one-half hours a day when he
usually appeared at the mill in the afternoon. Each of the com-
plainants testified without contradiction that he had performed
several different jobs in the mill during his tenure of employment
7 So far as appears , none of these 32 employees was a member of the Union.
BROWN'S TIE & LUMBER COMPANY 641
with the respondents. The respondents failed to offer any evidence
as to the comparative abilities of the complainants and the 30 em-
ployees in the junior group who were retained. Under these cir-
cumstances, we find that, in selecting the 5 complainants for lay-off,
the respondents did not base the selection upon the factor of ability.
Of the 44 persons laid off, 5 were reemployed by the respondents
between June 17 and 21, 1943, to act as road laborers in the woods.
One of these was among the 14 employees who signed the application
for a union charter and his reemployment occurred after he had
asked a representative of the Union to remove his name from the
charter application. In addition, one of the employees who was laid
off on June 16 and who had not signed the application for a union
charter or an application-for-membership card was reemployed ap-
proximately 2 weeks after the lay-off by Superintendent Ulmer who
notified him to return to work. The respondents also hired 5 new
employees between June 26 and July 19, 1943, to work as road labor-
ers in the woods. Each of the 5 complainants was capable of perform-
ing the work done by any of the 11 persons who were either reem-
ployed or newly hired after June 16.
Upon the basis of the above findings of fact and the entire record
in the case, we find that the respondents selected the 5 complainants
for lay-off on June 16, 1943, because of their affiliation with or ac-
tivity on behalf of the Union, and that the respondents refused and
are refusing to reinstate the complainants because they signed the
application for a union charter and otherwise engaged in union ac-
tivities. By the foregoing conduct, the respondents discriminated in
regard to the hire and tenure of employment of the 5 complainants,
thereby discouraging membership in the Union and interfering with,
restraining, and coercing their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
THE REMEDY
Having found that the respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom.
Our cease and desist order is also predicated upon the following find-
ings : The respondents' illegal conduct discloses a purpose to defeat
self-organization among their employees and its objects. For exam-
ple, the respondents interrogated employees concerning their union
affiliation, and attempted to induce them to abandon the rights guar-
anteed under the Act. Failing in this, the respondents discrimina-
torily laid off employees who were adherents of the Union. Because
of the respondents' unlawful conduct and its underlying purpose, we
are convinced and find that the unfair labor practices found are per-
suasively related to other unfair labor practices hereinafter proscribed
686572--46---42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that a danger of their commission in the future is to be antici-
pated from the course of the respondents' conduct in the past. The
preventive purpose of the Act will be thwarted unless our order is
coextensive with the threat. In order, therefore, to make effective the
interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, and thereby to minimize strife which burdens
and obstructs commerce and thus effectuate the policies of the Act,
we shall order the respondents to cease and desist from in any man-
ner infringing upon the rights guaranteed in Section 7 of the Act.
We shall also order the respondents to take certain affirmative ac-
tion designed to effectuate the policies of the Act. We have found that
the respondents selected the five employees named in the complaint
for lay-off on a discriminatory basis. We have also found that these
lay-offs were part of a general reduction in the respondents' working
force which general reduction was not discriminatorily motivated.
Under these circumstances sufficient positions may not be available
for those four of the five named employees affected by the respond-
ents' discrimination who desire reinstatement.8 We shall accordingly
order the respondents to reinstate Grady Eugene Quinn and Elmer
Quinn in the following manner : each of these named complainants
shall be reinstated to the position that he occupied or would have
occupied but for the respondents' discrimination, or to a substan-
tially equivalent position, without'prejudice to his seniority or other
rights and privileges, the respondent to dismiss, if necessary, all
persons now employed in the same or similar positions who were
hired or rehired after the respondents' discrimination on June 16,
1943; if, after dismissal of all such employees, there are insufficient
positions for all employees remaining, including the two Quinns, the
available positions shall be distributed among all employees, with-
out discrimination against any employee because of his union mem-
bership or activity, following such a system of seniority or other
non-discriminatory practice to such an extent as has heretofore been
applied in the conduct of the respondents' business ; those employees,
if any, remaining after such distribution, for whom no employment
is immediately available, together with all the remaining employees
laid off on June 16, 1943, shall be placed on a preferential list, with
priority determined among them in accordance with such system of
seniority or other non-discriminatory procedure as has been hereto-
fore applied by the respondents in the conduct of their business, and
thereafter, in accordance with such list, shall be offered reinstate-
ment to positions as provided above, as such employment becomes
available and before other persons are hired for such work.
since one of the complainants, Joseph Campbell, secured another job after he was laid
off by the respondents and did not thereafter desire to return to work for the respond-
ents, we shall not order his reinstatement.
BROWN'S TIE & LUMBER COMPANY 643
We shall further order that, upon application by Francis Davis
and David Eberhardt within ninety (90) days after Davis has been
discharged from the United States Maritime Service and Eberhardt
has been discharged from the armed forces of the United States, re-
spectively, the respondents shall reinstate each of these named em-
ployees to his former position, or to a substantially equivalent position
in the same manner as that prescribed above for the reinstatement of
the two Quinns.
We shall also order the respondents to make the five complainants
whole for losses incurred because of the respondents ' discrimination.
The respective periods to be considered in computing the back pay
due the several complainants shall be as follows: (a) as to Grady
Eugene Quinn and Elmer Quinn, from June 16, 1943, to the date of
the respondents' offer of reinstatement or placement of their names
upon the preferential list; (b) as to Francis Davis, from June 16,
1943, to the date upon which he entered the United States Maritime
Service and from a date five (5) days after his timely application
for reinstatement, if any, to the date of the respondents' offer of re-
instatement or placement of his name upon the preferential list;
(c) as to David Eberhardt, from June 16, 1943, to the date upon
which he entered the armed forces of the United States and from a
date five (5) days after his timely application for reinstatement, if
any, to the date of the offer of reinstatement by the respondents or
placement of his name upon the preferential list; and (d) as to
Joseph Campbell, from June 16, 1943, to the date upon which he
secured employment elsewhere and no longer desired to return to
work for the respondents. The provisions of our order with respect
to the payment of back pay to Davis and Eberhardt by the re-
spondents shall be taken to mean that the respondents shall pay
immediately to Davis and Eberhardt, respectively, that portion of
the net back pay accumulated between the date of the discrimination
and the date on which Davis entered the United States Maritime
Service and the date on which Eberhardt was inducted into the
armed forces , without awaiting a final determination of the full
amount of their respective awards. It is possible that one or more
of the five complainants might have been discharged in the general
reduction of the work force, even if the respondents ' selection had
been made on a non-discriminatory basis. This possibility will be
taken into consideration in determining the amount due to the em-
ployees in compliance with our order herein.
We also expressly reserve the right to modify the back-pay and
reinstatement provisions if made necessary by a change of conditions
in the future, and to make such supplements thereto as may here-
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after become necessary in order to define or clarify their application
to a specific set of circumstances not now appearing-9
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Carl E. Brown, Warren
H. Brown, Ida H. Brown, Dorothy C. Beyerle, Margaret Davies, and
Elizabeth Harwood, individually and as copartners, doing business
as Brown's Tie & Lumber Company, McCall, Idaho, their agents,
successors , and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Lumber & Sawmill Workers,
affiliated with the United Brotherhood of Carpenters and Joiners of
America and the American Federation of Labor, or any other labor
organization of their employees, by laying off or refusing to reinstate
or reemploy any of their employees, or by discriminating in any other
manner in regard to their hire or tenure of employment, or any term
or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Lumber & Sawmill
Workers, affiliated with the United Brotherhood of Carpenters and
Joiners of America and the American Federation of Labor, or any
other labor organization, to bargain collectively through representa-
tives 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 10
(a) Offer to Grady Eugene Quinn and Elmer Quinn full and
immediate reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights and
privileges, in the manner set forth in our Decision under the Section
entitled "The Remedy," placing those employees for whom no em-
ployment is presently available together with all remaining employees
laid off on June 16, 1943, on a preferential list and offering them
employment as it becomes available, in the manner therein set forth;
9 Matter of Fairmont Creamery Company, 64 N. L. R B. 824; cf. N. L. R. B. v. New
York Merchandee ng Co, 134 F. ( 2d) 949 (C. C. A. 2) ; International Union v. Eagle
Pscher Minting & Smeltsng Co., 325 U. S. 335.
io The Board expressly reserves the right to modify the back -pay and reinstatement
provisions if made necessary by a change of conditions in the fifture, and to make such
supplements thereto as may hereafter become necessary in order to define or clarify
their application to a specific set of circumstances not now appearing.
BROWN'S TIE & LUMBER COMPANY 645
(b) Upon application by Francis Davis and David Eberhardt
within ninety (90) days after the discharge of each of said em-
ployees from the United States Maritime Service and the armed
forces of the United States, respectively, offer each of said employees
immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and other
rights and privileges, in the manner set forth in our Decision under
the Section entitled "The Remedy," placing those employees for
whom no employment is then available together with all remaining
employees laid off on June 16, 1943, on a preferential list and offering
them employment as it becomes available, in the manner therein
set forth;
(c) Make whole Grady Eugene Quinn and Elmer Quinn for any
loss of pay that they may have suffered by reason of the respondents'
discrimination, by payment to each of them of a sum of money equal
to the amount that he normally would have earned as wages from
the date of the respondents' discrimination to the date of the re-
spondents' offer of reinstatement or placement of his name upon the
preferential list, less his net earnings during said period;ll
(d) Make whole Francis Davis for any loss of pay that he may
have suffered by reason of the respondents' discrimination, by pay-
ment to him of a sum of money equal to the amount that he normally
would have earned as wages during the periods (1) between the date
of the respondents' discrimination and the date upon which he en-
tered the United States Maritime Service; and (2) between the date
five (5) days after his timely application for reinstatement, if any,
and the date of the respondents' offer of reinstatement or placement
of his name upon the preferential list, less his net earnings during
said periods;
(e) Make whole David Eberhardt for any loss of pay that he may
have suffered by reason of the respondents' discrimination, by pay-
ment to him of a sum of money equal to the amount that he normally
would have earned as wages during the periods (1) between the date
of the respondents' discrimination and the date upon which he en-
tered the armed forces of the United States; and (2) between the
date five (5) days after his timely application for reinstatement, if
any, and the date of the respondents' offer of reinstatement or place-
ment of his name upon the preferential list, less his net earnings
during said periods;
(f) Make whole Joseph Campbell for any loss of pay that he may
have suffered by reason of the respondents' discrimination, by pay-
' In determining the amount due under this and the following provisions , consideration
shall be given to the possibility that one or more of the named employees might have
been discharged in the general reduction of the work force, even if the respondents'
selection had been made on a non-discriminatory basis.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to him of a sum of money equal to the amount that he normally
would have earned as wages from the date of the respondents' dis-
crimination to the date upon which he secured employment elsewhere
and no longer desired to return to work for the respondents,, less his
net earnings during said period;
(g) Post throughout their McCall, Idaho, mill and plant, and in
such office or offices, bulletin boards, or other central places of infor-
mation, if any, which are maintained in their woods operations,
copies of the notice attached hereto, marked Appendix "A." Copies
of said notice, to be furnished by the Regional Director for the Nine-
teenth Region, shall, after being duly signed by the respondents'
representative, be posted by the respondents immediately upon receipt
thereof and maintained by the respondents for sixty (60) consecutive
days ,thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the respondents to insure that said notices are not
altered, defaced, or covered by any other material;
(h) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what steps,
the respondents have taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
APPENDIX "A"
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER
of the National Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, we hereby notify our
employees that :
We will not in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Lumber & Sawmill
Workers, AFL, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
.gaining or other mutual aid or protection.
We will offer to Grady Eugene Quinn and Elmer Quinn immedi
ate and full reinstatement to their former or substantially equiva-
lent positions in the manner set forth in the Board's Decision
and Order, without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of the discrimination in the manner
set forth in the Board's Decision and Order.
BROWN'S TIE & LUMBER COMPANY 647
We will offer to Francis Davis and to David Eberhardt reinstate-
ment to their former or substantially equivalent positions in the
manner set forth in the Board's Decision and Order, without
prejudice to any seniority or other rights and privileges previ-
ously enjoyed, and make them whole for any loss of pay suffered
as a result of the discrimination in the manner set forth in the
Board's Decision and Order.
We will make whole Joseph Campbell for any loss of pay suffered
as a result of the discrimination, in the manner set forth in the
Board's Decision and Order.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
Carl E. Brown, Warren H. Brown, Ida H.
Brown, Dorothy C. Beyerle, Margaret
Davies, and Elizabeth Harwood, indi-
vidually and as copartners, doing busi-
ness as Brown's Tie & Lumber Company
(Employers)
By
(Representative ) (Title)
Dated
NoTE : In addition to Francis Davis and David Eberhardt, any of
the above-named employees presently serving in the armed forces of
the United States will be offered full reinstatement in conformance
with the Board's Decision and Order upon application in accordance
with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Joseph D. Holmes, for the Board.
Messrs. Eli A. Weston and J. L. Eberle, both of Boise, Idaho, for the re-
spondents.
STATEMENT OF THE CASE
Upon an amended charge duly filed on February 12, 1944, by Lumber & Saw-
mill Workers, affiliated with the United Brotherhood of Carpenters and Joiners
of America and the American Federation of Labor, herein called the Union,
the National Labor Relations Board, herein called the Board, by its Regional
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for the Nineteenth Region (Seattle, Washington), issued its com-
plaint, dated February 16, 1944, against Brown's Tie & Lumber Company,
McCall, Idaho, alleging that Carl E. Brown, Warren H. Brown, Ida H. Brown,
Dorothy C. Beyerle, Margaret Davies, and Elizabeth Harwood, herein called
the respondents, as co-partners doing business under the trade name and style
of Brown's Tie & Lumber Company, had engaged in and were 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 no-
tice of hearing, were duly served upon Brown's Tie & Lumber Company
and the Union.
With respect to the unfair labor practices, the complaint, as amended at
the hearing alleges in substance: that the respondents since 1941, by various
acts and statements, vilified, disparaged, and expressed disapproval of the
Union; interrogated their employees regarding their union affiliations and the
activities of the Union ; urged, persuaded, and warned their employees to
refrain from assisting, becoming members of, or remaining members of, out-
side labor organizations in general and the Union in particular ; and threatened
their employees with discharge, with a shut-down of operations, or other re-
prisals if they joined or assisted the Union; and (b) that, following temporary
suspension of operations at their sawmill on or about June 14, 1943, the
respondents, on or about June 16, 1943, and thereafter, failed and refused to
reinstate or reemploy five named employees' because of their membership in
and activities on behalf of the Union.
On March 6, 1944, the respondents filed their answer in which they denied
that they had engaged in the unfair labor practices alleged in the complaint
and set forth therein certain affirmative averments by way of defense.'
Pursuant to notice, a hearing was held on April 3 and 4, 1944, at McCall,
Idaho, before David Karasick, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The Board and the respondents were
each represented by counsel and 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 undersigned granted, without objection, a motion of counsel for
the Board to amend the complaint in a minor particular.' The depositions of
Francis Davis and of David Eberhardt, taken at Wilmington, California, on
March 17, 1944, and at East Lansing, Michigan, on March 24, 1944, respectively,
pursuant to Section 20, Article II, of the Board's Rules and Regulations,
Series 3, were received in evidence during the course of the hearing, without
objection, upon being offered by counsel for the Board. During each of the
I Francis Davis, Joseph Campbell, Grady Eugene Quinn , David Eberhardt , and Elmer
Quinn.
S The respondents alleged as matters of affirmative defense : (1) that the Union re-
jected a proposal made by the respondents on or about June 17, 1943, to reinstate all
the employees who had been laid off in order of seniority and ability ; ( 2) that on or
about August 10, 1943, the respondents mailed to all former employees a letter, requiring
among other matters, applications for employment, statement of address and availability
of the employee , and other pertinent facts pertaining to seniority and that none of the
complainants replied ; and (3) that the lay-offs of June 16, 1943 , occurred solely by
reason of the fact that one shift of employees was eliminated for the purpose of increas-
ing production and efficiency and releasing essential workers for the same and other
industries . These contentions are discussed more fully hereafter.
0 The motion so granted was for the purpose of amending the complaint to allege that
the Regional Director issuing the complaint had been designated as agent of the Board
by virtue of the Board's Rules and Regulations , Series 3, rather than Series 2, as
amended.
BROWN'S TIE & LUMBER COMPANY 649
deposition proceedings, counsel for the respondents and for the Board objected
to certain questions asked, and in addition counsel for the respondents moved
to strike certain testimony of the deponent Eberhardt. The undersigned hereby
overrules all said objections and denies the aforesaid motion to strike. Motion
by counsel for the Board to conform the complaint to the proof insofar as
formal matters were concerned was granted. A similar motion on behalf of
the respondents in respect to their answer was likewise granted.
Opportunity for oral argument was afforded all parties at the close of the
hearing. Arguments were presented before the undersigned by counsel for
the Board and for the respondents. All parties were given opportunity to file
briefs with the undersigned. No briefs have been received.
Upon the entire record in the case, and from his observation of the wit-
nesses, the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Carl E. Brown, Warren H. Brown, Ida H. Brown, Dorothy C. Beyerle, Mar-
garet Davies, and Elizabeth Harwood, individually and as co-partners, doing
business as Brown's Tie & Lumber Company, are engaged in the manufacture,
sale, and distribution of railroad ties, finished lumber, and related products,
and maintain a sawmill, planing mill, and tie mill, collectively referred to
herein as the mill, and a logging operation in the vicinity of McCall, Idaho.
During the year 1942, the respondents cut and manufactured into railroad ties
and finished lumber 31,000,000 board feet of logs, 80 percent of which was
shipped to places located outside the State of Idaho.4
II. THE ORGANIZATION INVOLVED
Lumber & Sawmill Workers, affiliated with the United Brotherhood of
Carpenters and Joiners of America and the American Federation of Labor,
is a labor organization which admits to membership employees of the
respondents.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory lay-offs' and refusals to reinstate: interference
restraint, and coercion
1. Early attempts to organize, and the union meeting of June 9, 1943
At various times during the years 1939, 1940, and 1941, the Union unsuccess-
fully attempted to organize the employees of the respondents. Early in June
* The foregoing findings are based upon a stipulation entered into between the parties
at the hearing. Cf. N. L R. B. v. Suburban Lumber Company, 121 F. (2d) 829 (C. C. A.
3), cert. denied 314 U. S. 693.
5 The amended complaint alleged that the respondents had failed and refused to rein-
state or reemploy the complainants. At the hearing, however, both the respondents and
the Board introduced evidence with respect to the reasons for the lay-off of the employees
involved and that issue was fully litigated by the parties. See N. L R. B. v. Mackay
Radio f Telegraph Co., 304 U. 8 333.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1943, employees Grady Quinn, Elmer Quinn, and Francis Davis discussed the
matter of organizing a union. They spoke to the president of a local of the
Union in a town nearby, and asked him to send a union representative to
McCall. This message was conveyed to Donald Reed, a representative of the
Union, who came to McCall and was introduced to Grady and Elmer Quinn
and to Francis Davis. A meeting was arranged for the evening of June 9, 1943,
at the home of Grady Quinn, and 13 of the employees of the respondents who
had been invited to attend, appeared at the meeting. Francis Davis and Elmer
Quinn were elected temporary president and secretary, respectively, and all
employees present, except one, signed an application for a union charter. At
the conclusion of the meeting, Reed gave each of the employees union applica-
tion cards and told them that it would be necessary for them to sign up a
majority of the respondents' employees. Thereafter, Elmer and Grady Quinn
and Francis Davis spoke to other employees, and secured applications of from
4 to 11 additional persons.
2. Events from June 10 to June 15, 1943
On June 10, Grady and Elmer Quinn told employee Joseph Campbell about
the meeting and asked him to sign the charter application. Campbell did so
and in turn secured the signature of employee Jack Sackerman.
Grady Quinn testified that a few days after the meeting of June 9, he asked
Vance Huskey, at that time foreman of the night shift at the respondents'
mill, what he thought abput the employees organizing a union. Huskey replied
that he thought it would be a good thing, and asked how the employees would
do it. Grady Quinn then stated that some of the employees had signed an
application for a charter and that he, Elmer Quinn, Francis Davis, Frank
Eberhardt, David Eberhardt, and Ben Eberhardt had signed the application.
Huskey, who testified as a witness for the respondents, did not deny this testi-
mony of Grady Quinn.
Between May 13 and June 13, 1943, the respondents obtained the use of
two trucks which were owned by another lumber company. Ralph Thomas
and Charles Patterson, the drivers of these trucks, were regular employees of
the company which owned them but were, however, paid and supervised by
the respondents during this period. Sometime during the month they were
employed by the respondents. According to the uncontradicted testimony of
Patterson, Warren Brown, one of the respondents, told Patterson, "You tell
Thomas that if he keeps on talking Union, why we will shut her down and
go fishing."
3. The shut-down of June 15 and the lay-offs of June 16, 1943
From 1941 until June 15, 1943, the respondents operated their mill on two
8-hour shifts. Because of heavy rains during the spring of 1943, the respond-
ents experienced difficulty in securing enough logs to keep the mill in operation.
On May 21, the mill was shut down for 1 day and on June 2 for 4 days because
of the log shortage. On June 15, the mill was again shut down and on June 15
or 16, the respondents decided to eliminate the two 8-hour shifts and operate
the mill on the basis of one 10-hour shift instead. As a result of this change
in operations, 44 employees were laid off on June 16, among them all of the
14 employees who had signed the application for a union charter on June 9
and 10.
BROWN'S TIE & LUMBER COMPANY 651
On the afternoon of June 16, Ben Eberhardt and Elmer and Grady Quinn
went to the respondents' office to get their checks from Pat Hayes, the office
manager. The employees told Hayes that they thought that they were not
being treated properly. Warren Brown entered the office at this time and
asked the employees what their "beef" was, and the employees told him that
they were dissatisfied with the way things were run. Elmer and Grady Quinn
each testified that Warren Brown then asked why, if they were dissatisfied,
they did not come to see him or his father, Carl Brown, instead of bringing
in the Union. Warren Brown's version of this conversation was that he asked
the employees why they did not come to him or to his father with their com-
plaints, instead of to Hayes Ile denied that any mention was made of the
Union. Hayes, although he was called as a witness by the respondents, did
not testify with respect to this incident. The record in this case contains
undenied testimony indicating Warren Brown's antagonism to the Union, as
illustrated by the statement he made to Patterson a short time before the
conversation in question occurred, as noted above, and by the remarks he
made at the meeting of the Union on October 8, 1943, as noted hereafter. The
undersigned finds that Warren Brown made the foregoing statement as related
by Grady and Elmer Quinn.
4. Events succeeding the lay-offs of June 16
On June 22, 1943, the original charges in this case were filed by the Union.
On June 24, Carl and Warren Brown, together with the respondents' attorney,
met with representatives of the Union, a representative of the Board, a con-
ciliator of the United States Department of Labor, and employees Elmer Quinn
and Francis Davis for the purpose of attempting to arrive at a settlement of
the dispute.' The parties failed to reach a final agreement, however, and the
complainants were not reinstated.'
Francis Davis, whose testimony as a witness for the Board was taken in
the form of a deposition, testified that 2 days before he was laid off he asked
Foreman Huskey, his brother-in-law, if it would be possible to get a release
from the respondents and Huskey replied that he thought it would be a good
idea because Brown knew of the union activities of the employees and they
were all going to be discharged anyway. Huskey, who was called as a witness
for the respondents and who was employed by the respondents at the time
of the hearing, denied that he had made such a statement . Huskey's testimony
was vague and at times contradictory. Although he testified that he knew
nothing about the union activities of the employees, he admitted that he had
his "suspicions," that he had heard groups of employees talking about the
Union, and that there was talk around the mill that the employees were
attempting to organize. He did not deny that a few days after the meeting
of June 9 he had been told by Grady Quinn, as the latter testified, that the
6 At this time, the Union requested the reinstatement of only 7 of the 14 employees
who had signed the application for a union charter since the rest of those who had
signed had left town and the Union could not communicate with them.
7 The respondents allege in their answer , as a matter of affirmative defense, that the
Union rejected a proposal of the respondents to reinstate all the employees who had
been laid off in order of seniority and ability. The undersigned is of the opinion that
the matter so alleged has no relevant bearing upon the question as to whether the com-
plainants were discriminatorily laid off. Nor did the proposal , as alleged by the respond-
ents and as developed in the record , constitute an unequivocal offer of reinstatement to
the complainants.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees were trying to organize a union and that Grady Quinn, Davis, and
several other employees had signed an application for a charter. In view of
these inconsistencies in the testimony of Huskey and on the basis of the entire
record, the undersigned is of the opinion that Huskey's denial is not to be
credited and accordingly finds that he told Davis that Brown knew of the
union activities of the employees and that they were going to be discharged,
as Davis testified.
On October 8, 1943, according to the undenied testimony of Donald Reed,
a. union representative, an open meeting of the Union was held at the com-
munity hall in McCall. The Union placed an advertisement in a local news-
paper, which stated that the meeting would be held on that date for the purpose
of discussing union organization. A number of the employees of the respond-
ents, as well as four or five employees of another company in a town nearby,
attended. Eli Weston, the respondents' attorney, and Warren Brown also
attended this meeting. Reed spoke and when the meeting was opened for
questions, Warren Brown asked Reed why, as an experienced lumber jack,
Reed was not producing lumber instead of trying to stir up difficulties for
employers who were trying to get out production for the war effort. Warren
Brown also stated that union employees were not as good as the employees lie
had, and, when the discussion turned to the question of grievance procedures,
further declared that any employee of the respondent who had any trouble
or any problem he wanted to discuss could come to him individually and
discuss it.
CONCLUDING FINDINGS
The Board contends, and the respondents deny, that the employees named
in the complaint' were discriminatorily laid off and thereafter refused rein-
statement upon the change in operations from two 8-hour shifts to one 10-hour
shift. The respondents further contend that Francis Davis quit and was not
laid off.
With respect to the respondents' contention that Davis quit, the evidence
shows that sometime shortly before June 16 Davis asked Foreman Huskey
whether it would be possible to obtain a release and that Huskey replied that
he thought it would. Davis testified that he had not quit and Huskey admitted
that Davis merely inquired about the possibility of obtaining a release and
did not state that he would quit. The termination slip given Davis stated that
he had been discharged because of curtailed operations due to a shortage of
logs. Warren Brown testified that Davis obtained his release after the respond-
ents had decided to eliminate one shift but before that decision had been
announced. He further testified that he told Hayes, the office manager, to
state on Davis' termination slip the fact that his services were being terminated
because of a shortage of logs rather than to note that he had quit since the
War Manpower Commission would probably send Davis back to the respondents
if the latter reason were given. O'Dell Barron, an employee, testified that on
the last day the mill operated on two shifts Davis told him that he had asked
for his release.
Davis denied that he had ever told Hayes that he was quitting. Neither
Hayes nor Ulmer, both of whom appeared as witnesses for the respondents,
testified concerning the alleged quitting of Davis. The record shows that
Hayes performed merely the clerical task of filling out termination slips when
they were required, but that a decision td release an employee because he
desired to quit, or to terminate his services for any reason, rested with the
s See footnote 1, supra.
BROWN'S TIE & LUMBER COMPANY 653
supervisory personnel of the mill who then notified Hayes of the action taken.
Thus Davis would have been required to actually ask for a release from either
Huskey, his immediate supervisor, Ulmer, the superintendent, or Warren
Brown. Yet none of these three persons testified that Davis did request that
a release be issued to him, and Huskey admitted that Davis merely inquired
about the matter and did not say that he would quit. The respondents knew
that Davis had signed the application for a union charter by reason of the
information conveyed to Huskey by Grady Quinn shortly after the meeting
of June 9, and Warren Brown was obviously antagonistic to the union as other-
wise shown herein. Davis, Elmer Quinn, and Grady Quinn were the three
employees who had initiated the union movement in the mill and were the
most active supporters of the Union among the respondents' employees.
In view of the foregoing facts, and particularly in view of Davis' denial, as
corroborated by Huskey, that he had stated that he was quitting, the failure
of Hayes and Ulmer to testify concerning the matter, and the failure of the
respondents to produce the testimony of any supervisory employee to the
effect that Davis had expressly requested and been granted a release, other
than the foregoing testimony of Warren Brown, the undersigned does not credit
the latter's testimony in this regard Nor under these circumstances does the
undersigned regard the testimony of Barron as convincing evidence that Davis
told Barron that he had asked for, rather than about, a release. Upon the
foregoing facts and the entire record in the case, the undersigned finds that
Davis did not quit his job as alleged by the respondents.
It is the respondents' position that they were impelled to lay off the
employees on June 16, 1943, because of a shortage of logs. Warren Brown
testified that for a period of about 5 weeks prior to June 15 there had been
a great deal of rain and that he and his crew had been working 16 hours a
day during that period of time to secure enough logs to keep the mill in
operation. When asked whether he could have continued to operate for any
length of time after June 15 on the same basis as he had operated for the
5-week period prior to that date, he answered that he thought he and his crew
"could probably work it another year." He admitted that conditions with
respect to the logging operations were no different on June 15 than they had
been during the prior 5 weeks and that the decision to shut down the mill and
to eliminate one shift was "sudden." The record does show that the respond-
ents were experiencing difficulty in securing logs because of weather conditions
and that they might have found it necessary eventually to lay off some of
the mill employees. While it is not altogether free of doubt that the decision
to eliminate one shift of employees, coming at the time and under the circum-
stances which it did, was made because of a shortage of logs rather than
because the respondents knew of the union membership and activities of the
complainants and determined to utilize a change in operations as a means of
eliminating them, the undersigned nevertheless finds that the decision on the
part of the respondents to reduce their working force was not in itself
discriminatory
The question remains, however, as to whether the respondents in selecting
the complainants to be laid off did so in consonance with business requirements
and practice or because of their union membership and activities.
9 At the conclusion of the testimony and during oral argument before the undersigned,
counsel for the Board conceded that the respondents did not shut down the mill for the
purpose of discriminating against the complainants but instead utilized the lay -off as a
means of doing so. Irrespective of the legal effect or lack of effect of such a concession
made during the course of oral argument, the undersigned has limited his findings herein
to conform to the concession so made.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As a result of the elimination of one shift on June 16, 62 employees were
retained by the respondents and 44 were laid off.10 All 14 of the employees
who had signed the application for a union charter were among those laid off.
In addition to the 14 employees who signed the union charter application were
employees who had signed union application cards. The record shows the
names of 4 of these employees and 3 of them were also included among the
employees laid off.
Of the 44 persons laid off, 5 were reemployed by the respondents between
June 17 and 21 to act as road laborers in the woods. One of these was among
the 14 employees who signed the application for a union charter and his
reemployment occurred after he had asked a representative of the Union to
remove his name from the charter application. In addition, one of the
employees who was laid off on June 16 and who had not signed the application
for a union charter was reemployed approximately 2 weeks after the lay-off
by Superintendent Ulmer who notified him to return to work. The respondents
also hired 5 new employees" between June 26 and July 19 to work as road
laborers in the woods.12 Each of the complainants was capable of performing
the work done by any of the 10 persons who were either reemployed or newly
hired after June 16.
Thus, all but one of the 18 employees who the record shows were adherents
of the Union were laid off on June 16. Elmer and Grady Quinn testified that
all but one of the employees who had either signed the application for a union
charter or union application cards were laid off and variously estimated the
number of such employees to be between 18 and 25. The names of 18 of these
employees appear in the record. If 18, as the smaller of these two figures,
be regarded as the total union membership, slightly less than 17 percent of
the employees of the respondents were members of the Union prior to the
lay-offs. Yet in excess of 38 percent of the employees laid off were members
of the Union. Furthermore, it is significant in this connection to note that
10 One of these 44 persons is listed on the respondents ' employment records as having
quit.
"One of these 5 persons had previously worked for the respondents from 1936 to
January 1, 1942, upon which latter date he quit.
12 Warren Brown testified that the operations in the woods and in the mill are separate
and distinct and that employees are not transferred from one operation to the other,
and both he and Ulmer testified that the 5 employees who were rehired as road laborers
in the woods between June 17 and 21 applied for work and were therefore given jobs.
The record shows, however, that one of the 5 persons first hired after June 16 was
transferred from a job as load laborer in the woods to a lob in the mill and that one
of the employees retained in the mill had previously worked in the woods. The record
further shows that the complainants were told that they were permanently laid off and
that they did not thereafter apply for work for that reason. Moreover, one of the
employees who was laid off on June 16 and who had not signed the application for a
union charter was reemployed approximately 2 weeks after the lay-off by Ulmer who
notified him that he had a job for him. On previous occasions following seasonal lay-
offs In the mill and in the woods, the respondents notified the employees when to return
to work.
13 The union application cards were not available at the hearing . However, Elmer
Quinn, who had been in charge of the cards as temporary secretary of the Union, testified
that, although he could not remember the names of all the employees who had signed
application cards, exclusive of the 14 employees who had signed the charter application,
he did remember 4 of them, whom he named. Both Grady Quinn and Elmer Quinn tes-
tified that a fifth employee , Earl Hill, had signed a union application card and was
among those laid off The employment records of the respondents show a Walter Hill
among the employees retained but do not list Earl hill as an employee either among
those retained or those laid off.
BROWN'S TIE & LUMBER COMPANY 655
the number of union employees laid off comprised practically the entire mem-
bership of the Union in the operations of the respondents."
In a similar situation, the Board has stated :
It would be expected that in a selection of employees to be laid off
without regard to union affiliation the proportion of union members among
those laid off would approximate the proportion existing in the group
from which selection was made. * * * The natural assumption would
be that in any selection to which the factor of union affiliation was Irrele-
vant, union membership would be distributed among those laid off and
those retained as if by the operation of chance. Of course any combination
is a possible result on the basis of pure chance. Variation from the
expected does not necessarily establish that the operation of chance has
been frustrated by intelligent selection. When, however, the variation is
marked or is manifested consistently in repeated samplings , the hypothesis
that union membership was irrelevant to the selection gives way to the
inference that the selection was made upon a discriminatory basis.15
In view of Warren Brown's antagonism to the Union, knowledge on the part
of the respondents as to the identity of the union adherents as hereafter shown,
the excessively disproportionate number of union adherents among the
employees laid off, and the subsequent reemployment of two of the persons
laid off, one of whom had immediately prior to such reemployment requested
the union representative to remove his name from the application for a union
charter and the other of whom had not signed such application, it was incum-
bent upon the respondents to offer proof negativing the inference that the
lay-offs were discriminatory."
The respondents contend that they do not follow a strict system of seniority
but that the employees in this instance, as on prior occasions, were laid off on
the basis of length of service, ability, marital status, number of children, and
whether they owned homes in McCall. The record shows that Superintendent
Ulmer was solely responsible for selecting the employees to be retained and
that he did not receive instructions from or consult with anyone else about
the matter." Warren Brown testified that the respondents do not have a
14 The Board has recognized that such a state of facts comprises strong support for an
inference of discrimination, when, in a recent case (Stewart Warner Corporation, 55
N. L. it. B. 593) it has said :
Clearly, a complete house cleaning of union members and supporters is not essential
to a finding that some employees have been discriminated against.
15F. W. Woolworth Company, 25 N. L. it. B. 1362, enforced as modified in other re-
spects, F. 1V. Woolworth Company v. N. L. R B., 121 F. (2d) 658 (C. C. A. 2).
"See N. L. R. B. v. Chicago Steel Foundry Company, 142 F. (2d) 306 (C. C A 7),
where the Court said :
But the disproportionate treatment of union and non-union workers may be very
persuasive evidence of discrimination * * * and may create an inference of
discrimination leaving it to an employer to give an adequate explanation of the
discharge or lay-off * * *
And in Montgomery Ward ti Co., Inc. v. N. L. R. B, 107 F. (2d) 555 (C. C. A. 7), the
Court in an analogous case stated,
This inference of discriminatory discharge leaves it up to the employer to give an
adequate "explanation of the discharge," even though the burden of proof remains
on the Board, since it is obvious that the reasons of the discharge "lay exclusively
within its [the employer' s] knowledge."
See also F. W. Woolworth Company V . N. L. R. B., 121 F. (2d) 658 (C. C. A. 2)
N. L. it. B. v. Bachelder, receiver for Hoosier Veneer Company, 120 F. (2d) 574
(C. C. A. 7).
17 At the time that the decision was made to eliminate one shift , Ulmer was told by
Carl Brown in general terms to select the employees as he had always done. The record
also shows that Ulmer was instructed to retain one employee because he was the hus-
band of one of the respondents.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specific policy in determining which employees should be laid off when the
necessity arises but that a general attempt is made to retain the oldest and
best employees and that such other factors are considered as family status,
number of children, and home ownership. However, Superintendent Ulmer,
when asked to explain the method he followed in determining which of the
employees were to be retained, testified that he first chose the persons who
had been employed by the respondents prior to July 1940 and that he selected
the rest of the employees to be retained according to their abilities." At one
point in his testimony, Ulmer stated that in the elimination of one shift it
was necessary to retain employees who could do several different kinds of work.
Later, however, he testified that this was not absolutely necessary, but that he
nevertheless did choose some of the men to be retained for that reason and
that none of the complainants were qualified on that basis. Nowhere in his
testimony did he refer to factors other than those of length of service and
ability as having been considered by him at the time the lay-offs were made 11
The undersigned is of the opinion and finds that the record does not support
the contention of the respondents as to the factors which governed the selection
of the employees to be laid off on June 16 other than those considerations
testified to by Ulmer, who alone made such a determination. The criterion of
length of service as to which Ulmer testified is not applicable to the complain-
ants since none of them were employed by the respondents prior to July 1940,
the determining date for such selection. There thus remains the criterion of
ability which Ulmer testified provided the basis for his choice of the employees
to be retained.
As'to the abilities of the complainants, the record shows that each of the
five complainants had experience and was able to perform several jobs in
the respondents' mill other than the one at which he regularly worked. Not
one of them ever received any complaints about his work.21 All of them
received substantial wage increases during their period of employment by they
respondents. As noted above, the record shows, and Ulmer among other wit-
nesses testified, that he alone decided which employees were to be laid off on
June 16. Ulmer further testified that he did not consult Foreman Huskey
about the lay-offs. Ulmer was in charge of the first shift and Huskey was in
charge of the second shift prior to the change in operations on June 10. All
five complainants worked under the supervision of Huskey on the second shift.
Ulmer admitted that he did not direct the employees on Huskey's shift but
instead gave instructions to Huskey who then directed the employees, and that
Ulmer's decision as to the abilities of the complainants was based upon his
observation of their work during a period of time varying from one-half hour
to one and one-half hours a day when he usually returned to the mill during
the afternoon. The record shows that the complainants were frequently
18 Ulmer testified that approximately 50 persons were retained upon the change in
operations which occurred on June 16.
19 It is significant also in this connection , as the record shows and as the answer of
the respondents alleges, that the respondents proposed to the Union that all employees
laid off be reinstated in order of seniority and ability and that no other factors were
advanced as a basis for the proposed selection.
zu The undersigned regards as inconclusive the testimony of Foreman Huskey to the
effect that he complained to Superintendent Ulmer about the failure of Elmer Quinn
and several other employees to inform Huskey when they took time off from work in
view of the fact, as noted above, that Ulmer testified that he decided upon the employees
to lay-off on June 1 without consulting Huskey and Huskey's admission that when he
complained to Ulmer he talked about the general situation and not about Quinn, and
Huskey's further admission that he never complained to Quinn or warned him about the
matter.
BROWN'S TIE & LUMBER COMPANY 657
assigned by Huskey to jobs other than those which they regularly performed.
Ulmer admitted that the complainants might also have exhibited versatility
in handling other jobs than their own and that he might not have had an
opportunity to observe that fact during the limited time he spent at the will
while the second shift was in operation.
Although Huskey testified that he "would a little rather have" the employee
who replaced Elmer Quinn, that the person who replaced Campbell was a more
capable employee, and that the person who replaced Davis had more experi-
ence, he admitted that Davis performed his duties in a satisfactory manner
and did not deny the testimony of Elmer Quinn, Grady Quinn, Joseph Campbell,
or David Eberhardt that he had complimented each of them at various times
about their work. Nor did he deny Grady Quinn's testimony that in the spring
of 1943 Huskey told Grady Quinn that he was "worth a lot more money" than
he was being paid." Huskey further admitted that he had stated in an
affidavit given to an agent of the Board shortly after the lay-offs that Grady
Quinn "did a darn good job as a tally man" and that Elmer Quinn "was hard
to beat as a carloader." Huskey testified that there were common laborers'
jobs in the mill which the complainants could have performed if they had been
retained. As previously noted, Ulmer did not consult Huskey with reference
to the men who worked under his supervision prior to the time the employees
were laid off.
In the light of the entire record and the circumstances surrounding the lay-
offs and in view of the fact that the complainants had experience in and were
able to perform several jobs, that no complaints had ever been made about
their work, that all of them received substantial wage increases during their
employment, that with the exception of Davis who had the greatest length of
service of the complainants gratuitous expressions of approval as to their
work were made by Huskey who was their immediate supervisor, that Ulmer
at best had only a limited opportunity of observing the manner in which they
performed their regular jobs and other jobs to which they were on occasion
assigned by Huskey, and that Ulmer admittedly failed to consult Huskey who
was in direct charge of and familiar with the abilities of the complainants,
the undersigned does not regard as adequate Ulmer's explanation of the basis
upon which the complainants were selected for lay-off and finds that the
employment of the complainants was terminated ky Ulmer for reasons other
than his judgment as to their abilities"
In summary, the record shows that the lay-offs occurred within one week
after the union meetipg of June 9, that all 14 employees who signed the appli-
cation for a union charter were laid off, that only one of these persons was
reemployed and that his reemployment occurred after he had requested a
representative of the Union to remove his name from the charter application,
that all but one of at least 4 employees who signed union application cards,
=Approkimately a week before the lay-off, Grady Quinn was transferred to Ulmer's
shift. Prior to that time he had worked on Huskey's shift, first as a carloader and
then as a tally man. At the time he was transferred to the job of tally man shortly
after he began to work for the respondents he was told by Huskey that he had been
chosen for a better job because Huskey wanted someone with responsibility. In addition
to telling Grady Quinn that he was "worth a lot more money" and stating in an affidavit
that he "did a darn good job as a tally man ," as set forth above, 'Huskey told Grady
Quinn at the time he was acting as a carloader that Huskey had the best set of car-
loaders that he had ever had, that his crew was the best crew in the plant, and that their
production was far greater than that of the first shift. Grady Quinn's wages were
increased from 704 to 904 per hour during the period of his employment by the re-
spondents.
22 See footnote 16, supra.
686572-46-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in addition to those who had signed the charter application, were also laid off,
and that practically all the union adherents were among those laid off. The
record does not support the respondents' contentions as to the factors which
governed the selection of the employees to be retained, Ulmer's own testimony
reveals that he did not consider the factors which the respondents contended
constituted a general lay-off policy, other than the matter of ability, and his
testimony shows that he had only a limited opportunity to observe the manner
in which the complainants performed their work and did not seek to secure
a judgment as to their abilities from Huskey who was in a position to supply it.
Warren Brown's antagonism to the Union is amply shown in the record.
Shortly before June 16, he threatened to shut down the respondents operations
unless one of the employees stopped talking about the Union2 On June 16
he told Elmer and Grady Quinn in substance that they had been laid off
because of their efforts to secure self-organization, and on October 8, he
attended a meeting of the Union which had been called for the purpose of
discussing the organization of unions by the employees and at that meeting
accused the union representative of stirring up trouble among the employers
instead of helping to produce lumber, further stated that union labor was not
as good as the employees of the respondents, who were not organized, and
indicated to the employees present that representation by the Union was
unnecessary since the employees could deal with him individually. These
statements by Warren Brown not only indicated an anti-union animus on the
part of the respondents, but also constituted interference, restraint, and coer-
cion, in violation of Section 8 (1) of the Act.
The record further shows that the respondents knew that Elmer and Grady
Quinn, Francis Davis, David Eberhardt, Frank Eberhardt, and Ben Eberhardt
had signed the application for a union charter by reason of the fact that Grady
Quinn so told Foreman Huskey a few days after the union meeting of June 9.
Warren Brown, during the course of his testimony, referred to the fact that
McCall is a small town u and the record shows that the respondents employ
a small number of persons.n Both Warren Brown and Huskey admitted that
they had heard that the employees were attempting to organize and that the
matter was a subject of general conversation, and Warren Brown also admitted
that at times he "might have" asked an employee if he belonged to the Union.
As noted above, 2 days before the lay-offs occurred, Foreman Huskey told Davis
that Brown knew of the union activities and that all the union adherents were
going to be discharged. And on June 16, Warren Brown asked Elmer and
Grady Quinn why they had not come to him or to Carl Brown if they were
not satisfied, instead of bringing in the Union.
The record as a whole convincingly demonstrates, and the undersigned finds,
that the respondents knew of the union activities of the complainants and laid
them off for that reason.
23 As previously found, Warren Brown told employee Patterson that the respondents
would cease operations "and go fishing" if employee Thomas did not stop talking about
the Union. Patterson and Thomas were working temporarily for the respondents at
this time but were regularly employed by another company, and each of them was a
member of a local of the Union at their place of regular employment. Although Patter-
son stated that he thought Warren Brown was joking from the manner in which he made
the statement, he nevertheless testified that he repeated the statement to Thomas but
did not indicate to him the manner in which it was said. The undersigned finds that
the statement was not relieved of Its coercive effect because of the uncommunicated
impression of Patterson that it was made in a joking manner.
u The undersigned takes official notice of the fact that the total population of McCall
is only 875. Surteenth Census of the United States (1940), Vol. I, p. 286.
25 Prior to June 16, the respondents employed between 225 and 275 persons In the mill
and the woods operations.
BROWN'S TIE & LUMBER COMPANY 659
Upon the basis of the foregoing facts and upon the entire record, the under-
signed is convinced and finds that the respondents laid off the complainants
on June 16, 1943, and thereafter refused to reinstate or reemploy them because
they had signed the application for a union charter and otherwise engaged in
union activities, and that such action on the part of the respondents consti-
tuted discrimination in regard to the hire and tenure of employment of the
complainants, thereby discouraging membership in the Union and interfering
with, restraining, and coercing their 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 respondents set forth in Section III, above, occurring
in connection with the operations of the respondents described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondents have engaged in certain unfair
labor practices, it will be recommended that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the
Act. It has been found that the respondents discriminatorily laid off and
thereafter refused to reinstate or reemploy Francis Davis, Joseph Campbell,
Grady Eugene Quinn, David Eberhardt, and Elmer Quinn.
Campbell testified at the hearing that within about thirty days after he had
been laid off by the respondents he secured another job and that he would
not have been willing to return to work for the respondents after he had
secured such other employment. At the time of the hearing, David Eberhardt
had entered the armed services of the United States, and Francis Davis was
serving as a member of the United States Maritime Service. It will therefore
be recommended that the respondents : (1) offer Grady Eugene Quinn and
Elmer Quinn immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other rights and
privileges; and (2) upon application by David Eberhardt and Francis Davis
within forty (40) days after Eberhardt has been discharged from the armed
forces of the United States and Davis =8 has been discharged from the Maritime
Service, offer each of said employees immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
and other rights and privileges.21
It will be further recommended that the respondents make whole each of
the complainants for any loss of pay he may have suffered by reason of the
respondents' discrimination against him, by payment to him of a sum of money
"Though the record shows that during negotiations between the parties in an attempt
to secure the reinstatement of the complainants prior to the hearing Carl Brown stated
that he would not reinstate Davis under any circumstances since he was a "trouble
maker" and not good as a worker, the respondents failed to produce any evidence which
would militate against Davis' reinstatement.
27 On August 10, 1943, the respondents sent each of the complainants a letter , asking
the complainants whether they wished to return to work for the respondents in the
event jobs should become available and requesting certain information. None of the
complainants replied. It is clear, and the undersigned finds, that these letters did not
constitute unconditional offers of reinstatement upon the part of the respondents.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equal to the amount he would normally have earned as wages from the date
upon which he was laid off to the following dates in each case: (1) in the
case of Joseph Campbell, to the date upon which he secured other employment
and no longer wished to return to work for the respondents, less his net earn-
ings 28 during said period ; (2) in the case of Grady Eugene Quinn and Elmer
Quinn, to the date of the respondents' offer of reinstatement to each of said
employees less the net earnings" of each during said period; and (3) in the
case of David Eberhardt and Francis Davis (a) to the date upon which
Eberhardt entered the armed services of the United States and Davis entered
the United States Maritime Service, and (b) during the period from a date
five (5) days after the timely application by each of said employees for rein-
statement, if any, to the date of the offer of reinstatement by the respondents,
less his net earnings 30 during those periods"
It will further be recommended that in the event Grady Eugene Quinn or
Elmer Quinn enter the armed services of the United States prior to the time
they have been offered reinstatement and have received the back pay to which
they are entitled pursuant to the foregoing recommendations, the reinstatement
and back pay to which they shall then be entitled shall be determined according
to the provisions set forth above with respect to David Eberhardt and Francis
Davis.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Lumber & Sawmill Workers, affiliated with the United Brotherhood of
Carpenters and Joiners of America and 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 employment of
Francis Davis, Joseph Campbell, Grady Eugene Quinn, David Eberhardt, and
Elmer Quinn, thereby discouraging membership in the aforesaid labor organi-
zation, the respondents have engaged in and are engaging 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 respondents have engaged
in and are 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.
28 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondents 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 $590, 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.
N. L. R. B, 331 U. S. 7.
9B See footnote 28, supra
80 See footnote 28, supra.
'a The fact that certain employees may become entitled to additional back pay follow-
ing timely application for reinstatement upon discharge from the armed forces or services
of the United States shall not affect the respondents' obligation to pay to them immedi-
ately whatever amount is due them for the period from the date of the respondents'
discrimination against them to the date upon which they have been inducted or entered
into such armed forces or services, The American Laundry Machinery Company, 45
N. L R. B. 355.
BROWN'S TIE & LUMBER COMPANY 661
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that Carl E. Brown, Warren H. Brown, Ida H. Brown,
Dorothy C. Beyerle, Margaret Davies, and Elizabeth Harwood, individually and
as co-partners, doing business as Brown's Tie & Lumber Company, McCall,
Idaho, their agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Lumber & Sawmill Workers, affiliated with
the United Brotherhood of Carpenters and Joiners of America and the Ameri-
can Federation of Labor, or any other labor organization of their employees,
by laying-off or refusing to reinstate or reemploy any of their employees, or
by discriminating in any other manner in regard to their hire and tenure of
employment, or any term or condition of employment ;
(b) In any other manner interfering with, restraining, or coercing their
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 purposes of
collective bargaining or other mutual aid or protection, as guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Grady Eugene Quinn and Elmer Quinn immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to their seniority and other rights and privileges."
(b) Make whole Grady Eugene Quinn and Elmer Quinn for any loss of pay
they may have suffered by reason of the respondents' discrimination against
them, by payment to each of them of a sum of money equal to the amount
he normally would have earned as wages during the period from the date of
the respondents' discrimination against him to the date of the respondents'
offer of reinstatement, less his net earnings" during such period;"
(c) Make whole Joseph Campbell for any loss of pay he may have suffered
by reason of the respondents' discrimination against him, by payment to him
of a sum of money equal to the amount he normally would have earned as
wages during the period from the date of the respondents' discrimination
against him to the date upon which he secured other employment and no
longer wished to return to work for the respondents;
(d) Upon application by Francis Davis and David Eberhardt, within forty
(40) days after the discharge of each of said employees from the United States
Maritime Service and the armed forces of the United States, respectively, offer
each of said employees immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority and other
rights and privileges ;
(e) Make whole Francis Davis and David Eberhardt for any loss of pay
they have suffered or may suffer by reason of the respondents' discrimination
m In the event that Grady Eugene Quinn or Elmer Quinn enter the armed services of
the United States prior to the time they have been offered reinstatement and have
received the back pay to which they are entitled pursuant to the foregoing recommenda-
tions, the reinstatement and back pay to which they shall then be entitled shall be
determined according to the provisions set forth in these recommendations with respect
to Francis Davis and David Eberhardt.
9a See footnote 28, supra.
'+ See footnote 31, supra
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against them, by payment to each of them of a sum of money equal to the
amount he normally would have earned as wages during the period: (1) from
the date of the respondents discrimination against him to the date upon which
he entered the United States Maritime Service and the armed forces of the
United States, respectively; and (2) during the period from a date five (5)
days after the timely application for reinstatement, if any, by each of said
employees to the date of the offer of reinstatement by the respondents, less
the net earnings" of each during those periods;
(f) Post immediately in conspicuous places throughout their McCall, Idaho,
mill and plant, and in such office or offices, bulletin boards, or other central
places of information, if any, which are maintained in the woods operations,
and maintain for a period of at least sixty (G0) consecutive days from the
date of posting, notices to their employees stating: (1) that the respondents
will not engage in the conduct from which it is recommended that they cease
and desist in paragraph 1 (a) and (b) of these recommendations; (2) that
the respondents will take the affirmative action set forth in paragraph 2 (a),
(b), (c), (d), and (e) of these recommendations; and (3) that the respondents'
employees are free to become or remain members of Lumber & Sawmill
Workers, affiliated with the United Brotherhood of Carpenters and Joiners of
America and the American Federation of Labor, and that the respondents will
not discriminate against any employee because of membership in or activity
on behalf of that organization.
(g) File with the Regional Director for the Nineteenth Region on or before
ten (10) days from the date of the receipt of this Intermediate Report, a
report in writing setting forth in detail the manner and form in which the
respondents have complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondents notify said Regional
Director in writing that they have complied with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the
respondents to take the action aforesaid.
As provided in Section 33 of Article II, of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 26,
1943-any party or counsel for the Board may within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such
statement of exceptions and/or brief, the party or counsel for the Board filing
the same shall serve a copy thereof upon each of the other parties and shall
file a copy with the Regional Director. As further provided in said Section
33, should any party desire permission to argue orally before the Board, request
therefore must be made in writing within ten (10) days from the date of the
order transferring the case to the Board.
DAVID KASASICx,
Trial Examiner.
Dated August 5, 1944.
as See footnote 28, supra
x The respondents' woods operations are maintained at places as far distant as 45
miles from the sawmill and plant.