Campbell & McLean, Inc.

National Labor Relations Board - Board Decisions

Aug 7, 1957

118 N.L.R.B. 967 (N.L.R.B. 1957)

CAMPBELL & McLEAN, INC. 96'
duties include making deliveries, collecting money at times for mate
rials delivered, picking up merchandise at the company depot in..
Pittsburgh, helping unload glass and paint in the warehouse, and
working as an assistant glazier. The manager testified that Bell is a.
semi-skilled glazier, and has done considerably more glaziers' work
than both Bucy and Dick. Bell gets the $2.70 rate when he is glazing,
and $1.80 an hour for his truck-driving duties, which is a higher rate
than that paid Bucy and Dick for their warehouse duties. He is,
entitled to $1.50 an hour when he is helping in the warehouse, but
spends such short intervals in this work that the Employer does not
break down his rate for these periods. Under all these circumstances,
particularly the extent to which the glaziers and other employees
doing glaziers' work drive a truck, and the extent to. which Bell does
both warehouse and glaziers' work," we shall include him in the unit
with the warehousemen and glaziers.19
We find that the following employees of the Employer at its Cumber-
land, Maryland, warehouse and sales operation, constitute a unit
appropriate for the purposes of collective bargaining within the,
meaning of Section 9 (b) of the Act: all hourly paid employees, in-
cluding glaziers, glaziers' helpers, warehousemen, and the truckdriver,
but excluding all office clerical employees, the store clerk, salesmen,
the warehouse supervisor, and all other supervisors.as defined in the
Act.
[Text of Direction of Election omitted from publication.]
38 The Employer and the Intervenor agreed, at the strike -settlement conference in Febru-
ary 1956, that the practice of permitting glaziers on occasion to drive a truck and the truck-
driver, on occasion , to assist the glaziers, would continue.
19 Sharon Wire Company, Inc., 115 NLRB 372; Pittsburgh Plate Glass Company, 111
NLRB 1210.
Campbell & McLean , Inc. and International Woodworkers of
America, AFL-CIO. Case No. 36-CA-745. August 7, .1957
DECISION AND ORDER
On November 14, 1957, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Jenkins].
118 NLRB No. 127.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, exceptions and briefs, and the entire record in this
case, and finds merit in the Respondent's exceptions for the reasons
hereinafter set forth.
The complaint alleged in substance that the Respondent, in violation
of Section 8 (a) (3) and (1) of the Act, discharged Etta Nelson on
March 27, 1956, and Ray Nelson on May 14, 1956, and thereafter failed-
and refused to reinstate them. The Respondent's answer denied the
commission of the unfair labor practices alleged in the complaint.
The record shows that on March 27, 1956, Superintendent Miller
instructed Perkins, the Respondent's day shift foreman, to close down
the tipple, a mechanism utilized to carry scrap lumber to the burner.
Etta Nelson, 1 of the 2 complainants, had been operating the tipple
for approximately 4 years while employed by the Respondent. About
20 minutes after she began operating the tipple on March 27, Perkins
and millwright Price came to her station and proceeded to immobilize
the tipple. The General Counsel does not contend, and the Trial
Examiner did not find, that by immobilizing the tipple and thereby
,eliminating Etta Nelson's job, the Respondent was motivated by dis-
criminatory reasons. Indeed, it is apparent from the record that the
Respondent was in the process of reducing the operating costs of the
plant, and that the shutting down of the tipple on March 27 was in
direct effectuation of that program.
It appears further from the record that Perkins, after shutting down
the tipple, informed Etta Nelson that she could work at the reclip
machine, if she wanted to, and that she told Perkins that because of
her seniority she was entitled to a better job. Perkins testified that
when he told her that her job was being eliminated and that she could
operate the reclip, she stated that she "wasn't going to run" the reclip.
He also testified that he reported this to Superintendent Miller. Con-
siderable evidence was adduced with respect to what occurred after
this conversation between -Etta Nelson and Foreman Perkins. The
General Counsel's witnesses testified that she proceeded to the reclip
machine but stopped on the way to answer inquiries of 2 fellow em-
ployees about the immobilization of the tipple; that she asked a lead-
lady, James, to instruct her in the operation of the reclip ; that she
operated it without assistance for about 10 minutes ; and that at this
point, the Respondent's bookkeeper came to her and informed her that
she was wanted in Superintendent Miller's office. Etta Nelson testi-
fied further that Miller thereupon informed her that she was dis-
charged but declined to state the reason. Superintendent Miller, on the
other hand, testified that after Foreman Perkins told him that Etta
CAMPBELL & McLEAN, INC. 969
Nelson had refused to operate the reclip because she felt she was en-
titled to a better job, he watched her for about 40 to 50 minutes during
which time he noticed that she was not working and the reclip machine
was not operating, and that he discharged her because of her refusal to
accept her new assignment. There was also testimony by Vice Presi-
dent McLean that when Etta Nelson and Union Organizer Gillie
spoke to him after the discharge and asked for the reason, he stated
that he didn't think it necessary to have any reason for taking a person
off the payroll.
The Trial Examiner concluded that Etta Nelson was discharged be-
cause of her union affiliations and activities, and not for the reasons
advanced by the Respondent. In reaching this conclusion, he relied
on the failure to state a reason for discharge, the summary manner
of the discharge, its timing, and the Respondent's "past and present
antipathy for the unionization of its employees." From our reading
of the record in this case, and even accepting the Trial Examiner's
credibility findings, we are unable to reach the same conclusion.
In the first place, it seems clear had the Respondent been desirous
of discharging Etta Nelson, it would have availed itself of the oppor-
tunity to do so when it discontinued the operation of the tipple for
concededly economic considerations which occurred, as already indi-
cated, on the morning of March 27, and within a relatively brief inter-
val before her discussion with Superintendent Miller that same morn-
ing. This is a particularly significant fact, especially as the Trial
Examiner's rationale for finding a discriminatory discharge is pred-
icated on a pretext basis. It seems inconceivable that the Respondent
would forego an opportunity to accomplish her discharge and then
attempt to achieve that result by way of a pretext, and under circum-
stances that at the very least would be open to question.
In the second place, in the factual context present here, we are of
the opinion that the Trial Examiner's reliance on the attending cir-
cumstances as a basis for finding a pretext is not warranted by the
plain implications of the facts as he finds them. Thus, the alleged
summary action and timing do not necessarily lead to the conclusion
that discrimination was practiced. Foreman Perkins reported to
Superintendent Miller that Etta Nelson appeared to be recalcitrant
when informed of her new job assignment. The record shows that the
new assignment at the reclip machine called for no diminution in her
earnings. The information conveyed to Miller by Perkins was such
as to be reasonably calculated to justify Miller's explanation that Mrs.
Nelson's attitude appeared to him "a direct defiance of company
policy which I could not let pass without setting an example for the
other employees which would destroy the efficiency of the plant."
Miller engaged in personal observation, and it could not be said, even
from the version credited by the Trial Examiner, that the delay by
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. Nelson in assuming her new duties did not convey the impression
that Miller testified it did, or that his view of her conduct was not rea-
sonably justified by the objective facts. Likewise, the Trial Exam-
iner's reliance on the Respondent's refusal to state the reason for the
discharge does not appear to us to afford adequate ground for his
conclusion. The record indicates that when individuals were laid off
they were given the reason therefor but in cases of discharge no reason
was given, unless in writing, because of company policy to avoid
misstatements by disgruntled employees as to what had been said at the
time of the discharge. A fair implication to be drawn from this aspect
of the case is that the Respondent, having had earlier experience in
matters of this kind, was engaging in a more than the usual degree of
caution. This is a far cry from the implication that the failure to
state the reason necessarily connotes unlawful motivation or renders
support for a pretext finding.
Finally, in reaching his conclusion, the Trial Examiner relied on
the Respondent's "present and past antipathy for the unionization of
its employees." From our reading of the record there does not appear
to be a scintilla of evidence of any present antipathy or union animus
on the part of the Respondent; there is therefore no support for this
finding. Moreover, we are of the opinion that undue weight was
given by the Trial Examiner to an earlier case involving this Re-
spondent as a basis for his finding of a current violation of the Act.
In that case,' the Board found a violation of Section 8 (a) (3) based on
a discharge occurring in the early part of 1952; however, no relation-
ship, direct or indirect, is alleged between that case and the facts al-
leged here. The Board has held that while past conduct may be used
as background evidence it cannot be used as direct evidence of present
union hostility.2 Accordingly, we feel that this aspect of the Trial
Examiner's rationale, like the other basis on which he placed reliance
for his ultimate finding of discrimination, is not supported by the
record evidence or reasonably warranted by any inferences drawn
therefrom. As we are of the opinion, that the General Counsel did
not prove by a fair preponderance of the credible evidence that the
Respondent discriminatorily discharged Etta Nelson in violation of
Section 8 (a) (3), we shall dismiss the complaint as to her.
The complaint also alleged that the Respondent discriminatorily
discharged Ray Nelson, Etta Nelson's husband, on May 14, 1956, in
violation of Section 8 (a) (3) of the Act. Ray Nelson was employed
for about 3 years, first as a hooker and then as a sawyer. The Re-
spondent contended that Nelson was discharged solely because his
work was unsatisfactory. In explicating the circumstances surround-
ing Nelson's discharge the Respondent attributed the discharge to
1106 NLRB 1049.
2 Neaps Printing Co., Inc., 116 NLRB 210.
CAMPBELL & McLEAN, INC. 971.
Nelson's slowness, to the fact that his work fell off after his wife's
termination in March 1956, that other employees had to do his work
because of failure to do his share, and unnecessary financial loss en-
tailed by Nelson's carelessness. The Trial Examiner concluded from
,the evidence that the Respondent's allegations bearing on Nelson's
alleged incompetency were not borne out by the facts, and in view
of the inadequacy of the Respondent' s explanations , "coupled with
Respondent's past and present unconcealed union hostility," con-
cluded that Ray Nelson's discharge was due to his union activities.
We do not agree. The burden is on the General Counsel to establish
discriminatory motivation, not on the Respondent to disprove it.
The Trial Examiner's finding of present and past union hostility has
no support in the record. As we stated in our consideration of the case
of Etta Nelson, the record does not contain a scintilla of evidence
tending to show present union hostility or animus, and the weight
.accorded to the earlier case which was based on facts occuring more
than 4 years earlier and not even remotely related to the allegations of
the present complaint, is inadequate, in our opinion, to buttress a find-
ing of present union animus. As the General Counsel failed to prove
by a fair preponderance of the credible evidence that Ray Nelson was
discriminated against in violation of Section 8 (a) (3) of the Act,
we shall also dismiss the complaint with respect to him.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on August 20, 1956,1 by international Wood-
workers of America, AFL-CIO, herein called the Union , the General Counsel of
the National Labor Relations Board , herein called the General Counsel 2 and the
Board , by the Regional Director for the Nineteenth Region (Seattle, Washington),
issued his complaint on August 23, against Campbell & McLean , Inc., herein called
Respondent , alleging that Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 ( a) (1) and (3)
of the National Labor Relations Act, 61 Stat. 136, as amended , herein called the Act.
Copies of the complaint and amended charge, together with notice of hearing
thereon, were duly served upon Respondent and the Union.
With respect to the unfair labor practices , the complaint alleged in substance that
Respondent , in violation of Section 8 (a) (3) and ( 1) of the Act, discharged Etta
Margaret Nelson on March 27, and Ray Nelson on May 14, and thereafter failed
and refused to reinstate either of the Nelsons.
On September 11, Respondent duly filed an answer denying the commission of
the unfair labor practices alleged.
Pursuant to due notice , a hearing was held on October 9 and 10, at Gold Beach,
Oregon , before the duly designated Trial Examiner. The General Counsel and
Respondent were represented by counsel and the Union by a representative thereof.
All parties were afforded full opportunity to be heard , to examine and cross -examine
witnesses , to introduce relevant evidence , to argue orally at the conclusion of the
taking of evidence , and to file briefs on or before October 30. The briefs submitted
by the General Counsel and by Respondent have been carefully considered.
' Unless otherwise noted all dates refer to 1956.
This term specifically includes counsel for the General Counsel appearing at the hearing.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the record as a whole, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
Campbell & McLean, Inc., an Oregon corporation, has its principal offices and
plant at Eugene , Oregon . It also owns and operates a green veneer plant at Gold
Beach, Oregon, the employees of which are the only ones involved in these proceed-
ings. Respondent annually produces, sells, and ships plywood valued in excess of
$500,000 to customers located outside the State of Oregon.
Upon the above-conceded facts, the Trial Examiner finds that during all times
material Respondent has been, and now is, engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act for the Board to assert
jurisdiction in this proceeding?
II. THE ORGANIZATION INVOLVED
International Woodworkers of America, AFL-CIO, is a labor organization
admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
The record discloses no organizational activities by the union here involved
prior to about March 1, 1956. However, in the early part of 1952, a labor organi-
zation, then affiliated with the CIO, attempted to organize Respondent's employees
but its efforts were unsuccessful because, as the Board found in a former unfair labor
practice case involving Respondent (106 NLRB 1049), "The local became defunct
immediately after the discharge of John Tenvorde, its temporary president. .
Around March 1, Etta Nelson, her husband Ray, and then employee Corinne
Neely began soliciting members for the Union by calling upon Respondent's em-
ployees at their homes and otherwise attempting to interest the employees in the
Union.
On March 17 the Union held its first organizational meeting which was attended
by about 10 Respondent employees.
On March 24, the Union held its second meeting and about 16 of Respondent's
employees attended. Richard W. Perkins, Respondent's day shift foreman, appeared
at the hall where the meeting was to be held and requested permission to attend.
Although the Union's paid organizers were advised by Perkins and the employees
that Perkins was a supervisor he, nonetheless, was invited to attend the meeting?
During the course of the two meetings referred to above, Ray Nelson and his
wife, Etta, took a very active part, including asking various questions of the presiding
officer.
Prior to the commencement of the day shift on March 27, Miller instructed
Perkins to immobilize the tipple, which Etta Nelson had been operating during the
approximately 4 years of her employment with Respondent .5 About 20 minutes
after Etta Nelson began operating the tipple that day, March 27, Perkins and
Millwright Wilford Price came to her station and proceeded to shut down the tipple.
According to Etta Nelson, Perkins, after he had immobilized the tipple, came to
her and said, "You can go over on the reclip, if you want"; that she told Perkins
that because of her seniority she was entitled to a better job; that when Perkins
8 See Campbell & McLean, Inc., 106 NLRB 1049.
* Contrary to Respondent's contention, the Trial Examiner finds that Perkins, during
all times material, was a supervisor within the meaning of Section 2 (11) of the Act. This
conclusion finds support in the following: (1) On or about September 26, 1955, Respondent
posted at the time clock, over the signature of Superintendent John A. Miller, a notice that
henceforth "Richard Perkins will assume the duties and responsibilities as that of day
shift foreman . . ; (2) Perkins testified, and the Trial Examiner finds, that he was an
"acting foreman" without the authority to hire or fire, but that he had the authority to
change the employees' assignments in order to increase production, to report to Miller the
name of any unsatisfactory employee, to recommend discharges, to "carry messages between
Mr. Miller and various [employees] and to also carry messages the other way," to see that
Miller's instructions were carried out, and to otherwise assist Miller in running an efficient
mill.
5 By immobilizing the tipple, a mechanism to carry the scrap lumber to the burner, Etta
Nelson's job was-eliminated. The General Counsel does not claim, nor does the record re-
flect, that the. immobilizing of the tipple was discriminatorily motivated.
CAMPBELL & McLEAN, INC. 973
made no reply, she left the tipple and proceeded to go to the reclip job; that en route
to her new job, employee Ruby Preuss asked her, "What's happened, Etta?" to which
she replied, "They've eliminated the tipple and they want me to go on the reclip";
that after leaving Preuss' place of work, employee Marjorie Crossen stopped her and
made an inquiry similar to that of Preuss, to which she gave an answer similar to that
which she had given Preuss; that she then proceeded to the reclip machine; that
because she did not know how to operate it, she asked Anne James, a leadlady, to
instruct her; that after receiving the necessary instructions from James, she ran the
machine unassisted; that after operating the reclip alone for about 10 minutes,
Sthen, Respondent's bookkeeper, came to her and stated that Miller wanted her to
come to the office; and that in Miller's office the following ensued: 6
He (Miller) said, "This is it, Etta," and [he] handed me my check, and I said,
"You mean I'm being fired?" and he said, "Yes." So I said, "Well, why? Why
am I being fired?" He said, "Oh, I don't have to tell you why," and I said,
"Well, after being here nearly four years, I think I'm entitled to know why I'm
being fired," and he said, "Well, you're fired; that should be enough," and I
said, "It isn't enough, though," and then I left.
Etta Nelson further testified that during the above-quoted conversation Miller did
not mention the reclip machine nor did he make any reference to her refusal to
work on that machine; that after leaving the mill she went to Kenneth Gillie, a union
organizer, and informed him that she had been fired; that she and Gillie then went
to the mill where Gillie conferred with Miller alone; 7 that after leaving the mill she
,and Gillie spoke to Mac McLean, Respondent's vice president, and Gillie inquired of
him whether Respondent would put her back to work; that McLean replied that her
job "had been eliminated and [Respondent] didn't no longer need" her; that Gillie
then stated, "Well, there should be something else for her as long as she's been
there" 8 and that when she asked McLean whether her workmanship was
unsatisfactory, he replied in the negative.
Miller testified that after Perkins had informed him that Etta Nelson had refused
to operate the reclip machine because she felt that she was entitled to a better job,
he thereupon watched Etta Nelson for about 40 or 50 minutes during which time he
noticed that neither Etta Nelson was working nor was the reclip machine operating;
that because of her refusal to accept the reclip assignment he discharged her; and
that he never discussed with Etta Nelson the reason for her refusal to operate the
machine in question.
In a sworn statement, dated June 16, given to a Board agent, and received in
evidence as Respondent's Exhibit No. 3, Miller gave the following explanation for
Etta Nelson's discharge:
On March 27 I sent the millwright and the foreman (Perkins) to Mrs. Nelson's
position to shut off the air valve [on the tipple which Etta Nelson was then
operating] . I had instructed the foreman, Richard Perkins, to have Mrs.
Nelson operate the reclip while we were trying out this change in opera-
tions. . . About a half hour after Mrs. Nelson was sent to the reclip Perkins
reported to me that "Etta told me she felt she was entitled to a better job than
the reclip." He said she was not on the reclip, that she was roaming along the
chain talking to all the women. I walked outside the office and saw that Mrs.
Nelson was talking to other women on the chain, and so I returned to my office
and proceeded to write out her time. I told the foreman to go out and send
Etta into the office. She came in and I handed her the check. She asked
"What's the reason?" and I replied, "I'm not giving you any reason." She
insisted that a reason be given and I told her "It appears your job has been
eliminated." That was all I said.
Miller further testified that he had knowledge of Etta Nelson's and of her husband's
membership and leadership in the Union before he discharged either of them; 9 that
6 Only Miller and Etta Nelson were present.
7 What Gillie and Miller discussed is not disclosed by the record. Gillie did not testify
and Miller was not questioned about the incident.
8 The record is silent as to what McLean replied, if anything, to this remark.
9 It is significant to here note that in his June 19 sworn statement Miller stated
I was aware of the employees' union activity at the time of Dirs. Nelson's discharge,
and that she was one of the instigators. . . . Knowing that the union had told the
employees who signed the pledge card that once they had signed the card nothing could
happen to their job, that they were fully protected, I felt that Mrs. Nelson's refusal
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their union affiliations and activities played no part in his determination to discharge:
the Nelsons; and that when Etta Nelson asked the reason for her discharge, he gave
her "a half reason," to wit, the elimination of her job.
Sthen testified when he went to Etta Nelson to inform her that Miller wanted to;
see her, the reclip machine was in operation.
Perkins, although admitting that because of the din caused by the mill's machinery
he and Etta Nelson had great difficulty "understanding" each other, testified that
when he told her that her tipple job was being eliminated and that she should operate:
the reclip machine, she "impulsively" stated that she "wasn' t going to run" the reclip;_
and he reported to Miller that Etta Nelson stated that she would not operate the:
reclip machine. -
In a sworn statement, dated June 19 (Respondent's Exhibit No. 6), given to a
Board agent , Perkins stated, with respect to Mrs. Nelson, as follows:
on March 27, I and a millwright, W. M. Price, proceeded to block out
the air valve [on the tipple Mrs. Nelson was operating]. . . While the mill-
wright was doing that I . . . asked her [Mrs. Nelson] if she would go on.
the reclip temporarily while we were trying out this method of operation.
Mrs. Nelson replied that she considered she was due something better than.
reclip because of the time she had been here. She seemed quite indignant
over it. . The way she put her objection to the reclip job it didn' t sound as.
though she meant to refuse to do it. .
To the best of my knowledge Mrs. Nelson never went near the reclip,
although I didn't stay there to watch what she did but went on about other
duties. I went to the lathe-end of the mill and came back later on. I don't
remember just how long an interval there was before I came back to the chain,
but it was at least a half hour and maybe longer. I was coming into the office
for some reason I now don't remember, and I saw Mrs. Nelson was not at the
reclip and the machine wasn't operating. I looked around to see where she
was and I saw her on the reclip side of the number two chain alongside of
another girl who was pulling on the chain.10 I don't remember what she was,
doing there, but when I came on into the office I commented to Miller about
her absence from the reclip. I don't remember just how I put it, but what I
asked him was to find out if he had changed my orders to her to go on the
reclip. I don't remember what his response was, whether he said he would
see what she was doing or just what, but whatever he said it relieved me of
responsibility for it and I went on with my other work. . I left the office
and gave it no further thought myself. I think the first thing I knew about
her being gone was when I set up the crew the next morning and noticed she
was gone. . . . [Emphasis supplied.]
McLean testified, and the Trial Examiner finds, that because of the expense
entailed in defending two previous Board cases 11 and because of Respondent's
desire to avoid any further clash with the Board, he had given "the Gold Beach
management specific instructions" to give each person discharged, in writing, the
reason for the discharge; that on several occasions he so instructed Miller; 12 and
that during the conversation he had with Gillie and Etta Nelson on the day Etta
Nelson was discharged, "she demanded to know what the reason was, and the only
answer that I could possibly give her was that I didn't think it was necessary to
have any reason to . . . take a person off the payroll."
In the light of the Trial Examiner's observation of the conduct and deportment
at the hearing of Etta Nelson, Miller, and Perkins, and after a very careful scrutiny
of the record, all of which has been carefully read, and parts of which have been
reread and rechecked several times, and being mindful of the contention of the
to operate the reclip was a direct defiance of company policy which I could not let
pass without setting an example for the other employees which would destroy the
efficiency of the plant.
10 On cross-examination, Etta Nelson testified as follows :
Q. When did you go to see Anne James?-A. After I went to the reclip, I went to the
reclip and then when I got there, I thought, well, I'd never run it and I'd better have
someone show me how. So, I saw Anne James, which was the leadlady then, right
across the chain, so I went over and asked her if she would come and show me
how, . . .
106 NLRB 1.0049, enfd. per curiae by the Ninth Circuit on September 22, 1954; and
;t6 -CA-299.
12 Miller denied receiving any such instructions.
CAMPBELL & MCLEAN, INC. 975
parties with respect to the credibility problems here involved, the Trial Examiner
finds Etta Nelson's version of what transpired on March 27 to be substantially in
accord with the facts. This finding is not only supported by the credited testimony
of Preuss, Crossen, and Frances Legler, but also by the fact that Etta Nelson
particularly impressed the Trial Examiner as being one who is careful with the truth
and meticulous in not enlarging her testimony beyond her actual memory of what
occurred. On the other hand, Miller and Perkins, while they were on the witness.
stand, gave the Trial Examiner the impression that they were studiously attempting.
to conform their testimony to what they considered to be to the best interest of
Respondent. Sthen's testimony to the effect that the reclip machine was working
when he informed her of Miller's message to come to his office, also tends to prove
that Etta Nelson was a truthful witness. Furthermore, the inconsistencies between
Miller's and Perkins' testimony with respect to Etta Nelson and the statements
contained in their respective June 19 sworn statements is further evidence that they
were not testifying to the true facts which led up to Etta Nelson's termination of
employment.
Upon the entire record in the case, the Trial Examiner is convinced, and finds,.
that Etta Nelson was discharged on March 27, because of her union affiliations and
activities, and not for the reasons advanced by Respondent. This finding is buttressed,
among other things, by Miller's and McLean's refusals to give Etta Nelson, an
apparent competent worker of approximately 4 years' employment with Respondent,
any reason for her discharge,13 the summary manner in which the discharge was
handled, the timing thereof, and Respondent's past and present antipathy for the
unionization of its employees. The Trial Examiner further finds that by said dis-
charge Respondent interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, thereby discouraging
membership in the Union.
The Discriminatory Discharge of Ray Nelson
When Ray Nelson was discharged on May 14, 1956, he had been in Respondent'.,
employ for approximately 3 years. During the first 2 years or so of such em
ployment he was a hooker and thereafter a pond sawyer on the day shift.
There is no credited evidence in the record that Nelson's workmanship as a hooker
had ever been criticized. On the contrary, Nelson testified without contradiction, and
the Trial Examiner finds, that no management representative ever adversely criti.'
cized his hooker performances.
The primary responsibility of the pond sawyer, as the record discloses, was the
actual sawing of logs into blocks. The logs purchased by Respondent, after having
been scaled and graded, are dumped into the pond and then pushed across to the
sawyer's shack where they are sawed into blocks. The blocks are then pushed
up a chute approximately 200 feet to the deck where they are hoisted out of the
water and run through the barker and lathe. The resulting sheets of veneer are
then carried into the mill on conveyors for further processing.
The logs are of varying lengths and the sawyer's job is essential to saw them into
blocks of 104 inches. On occasion, either through faulty sawyer workmanship or
because of the length of the logs, shorter blocks are cut.
The sawyer is also required to detect "barber chairing" or crooked log ends in
order to produce more 104-inch blocks. In addition, the sawyer, when free to do
so, is required to help push blocks up the chute and to help push logs in the pond
to his shack. The sawyer is also obliged to submit to the office, at the end of his
shift, a written report of the number of logs cut and the length of each.
Respondent contended at the hearing and in its brief that Nelson was discharged,
not because he was a member and active in behalf of the Union, but solely because
his work was unsatisfactory. In support of its contention, Respondent advanced
various reasons why Nelson was an unsatisfactory worker. Respondent shifted and
abandoned each reason when it became evident that it had no reliable evidence to
support it. For example, (a) Respondent first took the position that Nelson was a
slow worker and that in February, Miller warned him that if his production did not
increase he would be discharged; that despite this warning, Nelson's production con-
13 It goes without saying, as the Fifth Circuit recently pointed out in N. L. R. B. v.
McGahey, 233 F. 2d 400 (C. A. 5), "Management can discharge for good cause or bad
cause, or no cause at all" provided the discharge was not motivated by any purpose pro-
scribed by the Act. But, the court, however, pointed out that where the evidence reveals
that the real and dominant purpose for the discharge was discriminatory, as here, then a
finding of a violation of Section 8 (a) (3) of the Act is clearly warranted.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinned at low ebb; (b) then Respondent contended that Nelson's production fell
off sharply after his wife's employment had been terminated; (c) then it intro-
duced evidence tending to prove that because Nelson failed and refused to do
his share of pushing the logs across the pond Respondent had to assign two other
employees to do this work; and (d) that because of the excessive amount of short
blocks (under 104 inches) Nelson cut, due primarily to his carelessness, Respondent
suffered unnecessary financial losses.
As to (a) : Nelson, while admitting that Miller called him into the office in
February, denied that his workmanship was discussed. Regarding what took place,
Nelson testified, and the Trial Examiner finds, that Miller told him, to quote Nelson,
"To keep as many blocks sawed ahead as I could, keep that boomed off place in
the pond full of logs, and, if that wasn't big enough to hold them, they would extend
the boomed off place bigger."
As to. (b): Respondent's books and records disclose that Nelson, both before and
after his wife had been fired, produced as many, if not more, blocks than the night
shift sawyer. Further, the credited evidence of Crane Operator James Carter, Lathe
Operator George Hall, Lathe Spotter Lewis Page, and Barker Operator Jack Noble,
each of whose work depended upon the amount of blocks Nelson cut, testified, without
contradiction and the Trial Examiner finds, that Nelson's production was equal to that
of other sawyers and that at no time did Nelson's production necessitate any slowing
down of their operations.
As to (c): Miller testified that from approximately the fall of 1955, up to the
time of Nelson's discharge on May 14, 1956, he had to have two men help push the
logs across the pond because of Nelson's failure to aid in this operation; that after
Nelson's termination this additional help was not necessary. The record, however,
clearly discloses that Ernest Gardlin, one of the men referred to by Miller, was not
hired until February 1, 1956, and was not assigned to pond duty until approximately
March, 1. According to Carter's credited testimony, and this is supported in part by
the testimony of Thomas Westfield, the other man mentioned by Miller as being
needed on the pond because of Nelson's failure to aid in pushing logs, both he and
Gardlin pushed logs across the pond after Nelson's discharge.
As to (d): Carter, Hall, and Noble each credibly testified that the number of
short blocks cut by Nelson were no greater than those cut by other sawyers. More-
over, Perkins testified that all sawyers cut short blocks on occasions. It is true,
,as Miller testified, he complained to Nelson regarding the number of short blocks
Nelson had been cutting but it is equally true that Miller also made the same
complaint to the night sawyer about the latter's short blocks. If, in fact, Nelson had
negligently cut an excessive number of short blocks, Respondent's books and records
would have proven that point beyond question. Respondent, however, produced no
such records although they were in its possession at the time of the hearing.
In view of the inadequacy and inconsistencies of Respondent's explanations for
Nelson's discharge, coupled with Respondent's past and present unconcealed union
hostility, a finding is clearly warranted that Nelson was terminated because of his
union activities and sympathies and because he had engaged in concerted protected
activities with his fellow workers.14 In N. L. R. B. v. May Department Stores
Company, 154 F. 2d 533 (C. A. 8), the court said at page 538, regarding a situa-
tion similar to the one here presented, that there is a "broad scope of interference
open . . . on questions of motive and discrimination, where the evidence indicates a
desire to thwart or nullify unionization effort, either generally or to a particular
employee-organization." And where, as here, the employer has shown strong oppo-
sition to its employees' unionization "a very convincing case of discharge for cause
would have to be made to make unreasonable a conclusion that [the] discharge
was because of union affiliations." 15 This burden Respondent failed to establish.
Furthermore, the shifting and unsupported grounds assigned by Respondent for
terminating Nelson's employment are further persuasive indications that anti-
union reasons, rather than the reasons advanced by Respondent accounted for the
action taken against Nelson.15'
14 Of course, disbelief of the reasons advanced by Respondent does not itself make out a
violation. The burden is on the General Counsel to establish discriminatory motive, not on
Respondent to disprove it. But here, the General Counsel has more than amply met that
burden.
15 Danner. Grain and Milling Co. v. N. L. R. B., 130 F. 2d 321, 328 (C. A. 8).
16 The courts have frequently recognized that shifting explanations by an employer for
the discharge of an employee may warrant an inference that the true reason was the em-
ployer's hostility to the union. See N. L. R. B. v. International Furniture Co., 199 F. 2d
CAMPBELL & McLEAN, INC. 977
Upon the entire record in the case , the Trial Examiner finds that Respondent
discriminatorily discharged Ray Nelson on May 14, in violation of Section 8 (a) (3)
of the Act , 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.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection
with the operations of Respondent as described in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States and , such of them as have been found to constitute unfair labor practices, tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8 ( a) (1) and ( 3) of the Act , the Trial Examiner will recommend that it
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and tenure
of employment , and the terms and conditions of employment , of Etta M. Nelson
and Ray Nelson, the Trial Examiner will recommend that the Respondent offer
them immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority and other rights and privileges. The
Trial Examiner will also recommend that the Respondent make Etta M. Nelson and
Ray Nelson whole for any loss of pay they may have suffered by reason of the
Respondent 's discrimination against them , by, payment to each of them a sum of
money equal to the amount he or she normally would have earned as wages from
the date of their respective discharges to the date of the Respondent 's offer of rein-
statement , less his or her net earnings during that period.
Loss of pay shall be computed and paid in accordance with the formula adopted by
the Board in F. W. Woolworth Company , 90 NLRB 289.
The unfair labor practices found to have been engaged in by Respondent are of
such a character and scope that in order to insure the employees their full rights
guaranteed them by the Act it will be recommended that Respondent cease and desist
from in any manner interfering with , restraining, and coercing its employees in their
rights to self-organization.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Woodworkers of America, AFL-CIO, 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 Etta M.
Nelson and Ray Nelson, thereby discouraging membership in the Union , Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (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, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
[Recommendations omitted from publication.]
648 (C. A. 5) ; N. L. R. B. v. Crystal Spring Finishing Co ., 116 F. 2d 669 (C. A. 1) ;
N. L. R. B. v. Yale ct Towne Mfg. Co., 114 F. 2d 376 (C. A. 2) ; N. L. R. B. v. Condenser
Corp ., 128 F. 2d 67 (C. A. 3) ; N. L. It. B. v. Eclipse Moulded Products Co., 126 F. 2d 576
(C. A. 7). And this is so even where the employer had "plausible grounds" for the dis-
charge . United Biscuit Co. v. N. L. R. B., 128 F . 2d 771 (C. A. 7).
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notifyour employees that:
450553-58-vol. 118-63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 International Woodworkers of America , AFL-CIO, or any other
labor organization , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any and all
of such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment , as authorized in Section 8 (a) (3) of the National Labor Relations
Act.
WE WILL offer to Etta M. Nelson and Ray Nelson immediate and full reinstate-
ment to their former or substantially equivalent positions 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 our discrimination against them.
WE WILL make Etta M. Nelson and Ray Nelson whole for any loss of pay
suffered as a result of our discrimination against them.
All our employees are free to become or remain members of the above-named
Union or any other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the amended
Act. We will not discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of membership in or
activity on behalf of any such labor organization.
CAMPBELL & MCLEAN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
International Union of Operating Engineers, Local 825, AFL-CIO
and Building Contractors Association of New Jersey. Case No.
2-CD-133. August 7, 1957
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in
,an unfair labor practice within the meaning of paragraph (4) (D) of
Section 8 (b), the Board is empowered and directed to hear and de-
termine the dispute out of which such unfair labor practice shall have
arisen...."
On August 27, 1956, Building Contractors Association of New Jer-
sey, herein called the Association, filed with the Regional Director for
the Second Region a charge alleging that International Union of
Operating Engineers, Local 825, AFL-CIO, herein called the Engi-
neers, had engaged in and was engaging in certain activities pro-
scribed by. Section 8 (b) (4) (D) of the Act. It was charged, in
substance, that the Engineers induced and encouraged employees and
members of the Association to engage in strikes or concerted refusals
to work in the course of their employment with an object of forcing
the members of the Association to assign particular work to members
of the Engineers rather than to employees who are members of several
118 NLRB No. 126.