Carter Lumber, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1973

207 N.L.R.B. 391 (N.L.R.B. 1973)

CARTER LUMBER, INC. 391
Carter Lumber, Inc. and Local No. 83, Laborers
International Union of North America , AFL-CIO
and Charles L. Parks. Cases 9-CA-7646-1' and
9-CA-7646-2
November 16, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 2, 1973, Administrative Law Judge
Abraham H. Maller issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
foreman, because he gave testimony under the-Act adverse
to the Respondent's interests in a Board hearing conducted
on or about March 2, 1973, in Case 9-RC-9970, and by the
conduct of Paul McKinley, assistant manager, in telling an
employee that if the employees voted in favor of the Union
their hours of work might be cut; that on or about March
12, 1973, the Respondent discriminated in regard to the
hire and tenure of employment of Andrew O. Deere by
reducing his hours of work, because of his sympathy for,
membership in, and activities on behalf of the Union, and
in order to discourage membership in the Union; and that
on or about March 19, 1973, the Respondent discriminated
in regard to the hire and tenure of employment of Charles
Parks by refusing to recall him to work and by failing and
refusing to reinstate him to his former position, because of
his sympathy for, membership in, and activities on behalf
of the Union and in order to discourage membership in the
Union; that the aforesaid conduct constitutes violations of
Section 8(a)(l) and (3) of the Act. In its duly filed answer,
the Respondent denied any violations of the Act.
Pursuant to notice, a hearing was held before me at
Chillicothe, Ohio, on June 13, 1973. All parties were
represented at the hearing and were afforded full opportu-
nity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs with me. Briefs were filed
by all parties on or before July 16, 1973. Upon' considera-
tion of the entire record and the briefs, and upon my
observation of each of the witnesses, I make the following:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Carter Lumber, Inc., Piketon,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
i The Respondent has excepted tocertain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (CA. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
ABRAHAM H. MALLER, Administrative Law Judge: On
March 12, 1973, Local No. 83, Laborers International
Union of North America, AFL-CIO, herein called the
Union, filed a charge against Carter Lumber, Inc., herein
called the Respondent. On April 13, 1973, Charles L.
Parks, an individual, filed a charge against the Respon-
dent. Upon said charges, the Regional Director for Region
9 of the National Labor Relations Board, herein called the
Board, on May 8, 1973, issued on behalf of the General
Counsel a complaint against the Respondent. Briefly, the
complaint alleged that the Respondent interfered with,
restrained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et seq.),
herein called the Act, by discharging Cecil Love, yard
207 NLRB No. 64
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio corporation, is engaged in the
retail sales of lumber and related products at its place of
business in Piketon, Ohio. During the 12 months proceed-
ing the filing of the complaint, a representative period, the
Respondent purchased goods valued in excess of $50,000,
directly from suppliers located outside the State of Ohio.
During the same period, Respondent's gross sales were
valued in excess of $500,000. 1 find and conclude that the
Respondent is engaged in commerce within the meaning of
the Act and that it will effectuate the policies of the Board
to assert jurisdiction here.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 83, Laborers International Union of North
America, AFL-CIO, is now, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
IIL THE ISSUES
1. Whether the Respondent discharged Cecil Love
because he gave testimony under the Act in a prior Board
proceeding, adverse to the interests of the Respondent.
2. Whether Respondent refused to recall Charles L.
Parks because of his sympathy for, membership in, or
activities on behalf of, the Union and in order to
discourage membership in the Union.
3. Whether the Respondent reduced the hours of work
available to Andrew Deere because of his sympathy for,
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in, or activities on behalf of, the Union and in
order to discourage membership in the Union.'
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At all tunes material herein, the Piketon yard employed
approximately 12 unit employees, consisting of 3 counter-
men and 9 yardmen. The supervisory, force consisted of
Manager John Couch who resigned or went on leave of
absence April 23, 1,973, Assistant Manager Paul McKinley,
and Yard Foreman Cecil Love. The Union's organizational
drive commenced in January 1973, when employee
Andrew Deere went to the Union and obtained authoriza-
tion cards. He proceeded to obtain signatures on these
cards at the yard from 10 of the 12 unit employees. On
February 7, 1973, the Union filed a petition with the
Board's Ninth Regional Office, and a hearing thereon was
held on March 2, 1973, in Case 9-RC-9970. At issue in the
representation proceeding was whether the countermen
should be included in the unit. On March 20, 1973, the
Regional Director issued his Decision and Direction of
Election in which he included the countermen in the
appropriate unit. Pursuant thereto, a Board election was
held on April 19, 1973. Eight votes were cast for the Union,
three against, and one ballot was challenged. Thereupon,
the Union was certified as the collective-bargaining
representative on April 27, 1973.
B. The Discharge of Cecil Love
Cecil Love had been employed by the Respondent since
April 1968. He started as a yardman at $1.60 per hour.
Approximately 2-1/2 years before the hearing herein, he
was promoted to yard foreman. Approximately a month
and a half before his discharge, he had received a raise of
10 cents per hour, and was earning $2.60 per hour at the
time he was terminated.
As previously noted, a representation hearing was held
on March 2, 1973, at Chillicothe, Ohio. Love attended this
hearing, without subpena, at the request of the Union. He
sat on the Union's side of the table, opposite Manager
Couch and Respondent's attorney. He was called to the
stand by the Union's attorney and testified on its behalf.
At that hearing, Respondent contended that the counter-
men should be excluded from the unit. An examination of
the official transcript of that hearing shows that Love's
testimony was favorable to the Union and adverse to the
Respondent's position on this issue. In addition, Love
contradicted the testimony of Manager Couch during this
hearing. Thus, Couch had testified that, for quite some
time, no countermen had gone into the yard to assist in
loading or unloading. He also stated that countermen
"very seldom" substituted for yardmen when the latter
were on vacation, the last such substitution occurring too
i As noted above, the complaint alleged that the Respondent violated
Sec 8(a)(1) of the Act by the conduct of Paul McKinley, assistant manager,
telling an employee that if the employees voted in favor of the Union their
hours of work may be cut. In his brief, counsel for the General Counsel does
not state this as one of the issues m the case, giving rise to the inference that
the General Counsel has abandoned this allegation of the complaint.
However,, in discussing the discharge of Foreman Love, the General
long ago for him to recall. Love, on the other hand,
testified that such occurrences were much more frequent
and that counterman Gullett had substituted for him in the
yard as recently as the previous weekend. The Regional
Director disagreed with the Respondent's position and
included the countermen in the unit, noting, inter alia, the
daily contact between the yardmen and countermen and
the fact that the countermen often work in the yard when
needed to help unload merchandise or operate equipment.
Immediately following the close of the representation
hearing, Manager Couch departed for Columbus, Ohio,
and Oklahoma and did not return to the yard until the
following Tuesday, March 6. Upon his return, Couch
complimented Love on the condition of the yard, stating
that "it looked nice." According to Love, Couch did not
voice any complaints, either at that time or during the
remainder of the day. To the contrary, Manager Couch
admitted that the yard was in particularly good condition
upon his return and did not claim to have reprimanded
Love at that time.
Late the next afternoon, however, Manager Couch
suddenly called Love aside and informed him that he had
"orders to fire you." When Love asked him why, Manager
Couch replied, "Well, I just got orders from the main office
to fire you today." The following colloquy, according to
Love, then ensued:
I says, "Well, what are you going to fire me for?"
He says, "I'm not firing you." He says, "I just got
them orders, I've got to carry them out."
And I says, "Well, if that's your orders, you've got to
carry them out."
He says, "Well," he says, "I feel like it's just giving
you a vacation with pay."
I says, "How's that?"
He says, "If you file charges," he says, "I feel that
the Company will have to take you back and pay you
for your time off."
Manager Couch then handed Love a termination slip for
signature and then checked a place where the form read
"Job Performance Unsatisfactory."
At this point, according to Love,
I says, "I thought you wasn't going to put anything
on that."
And he says, "Well, I've got to protect myself."
The foregoing is based upon the credited testimony of
Love who impressed me as an honest witness. Manager
Couch, called as a witness for the Respondent, did not
deny having the foregoing conversation with Love. Indeed,
Manager Couch did not testify concerning this conversa-
tion.
Two or three weeks after his discharge, Love returned to
the yard to purchase some material and spoke with
Manager Couch. Several of the employees gathered around
them, and one of them, John Hopper, asked Manager
Couch why he had fired Love. According to Love,
Counsel refers to McKinley's statement that if the Union came in and "if
the wages are raised more than likely your overtime will be cut," and
contends that this constituted a threat in violation of Sec. 8(a)(l) of the Act.
In view of my findings, infra, I find it unnecessary to determine whether
McKinley's statement was violative of the Act, as such a finding would in
no way affect the remedy which I recommended.
CARTER LUMBER, INC. - 393
Manager Couch replied that he did not fire Love, that
Love was a good foreman, and that he (Couch) was acting
on orders from the Company to let him go. Love's
testimony in this regard was corroborated by Deere and is
credited. Again, Manager Couch did not testify regarding
this conversation.
As noted above, Love's termination slip indicated that he
was discharged because of "Job Performance Unsatisfacto-
ry." To support this, Respondent presented the testimony
of Manager Couch to the effect that the yard was not kept
clean and as a result the Company failed to pass
inspections by insurance investigators,2 the occurrence of
excessive pilferage,3 excessive demurrage' charges because
of failure to unload railroad cars within the time limit,4
Love's failure to assign days off for the yardmen, and his
inability to get the yardmen promptly assigned to their
tasks in the morning. I find all of these reasons to be
pretextual. According to Manager Couch, the alleged
deficiencies of Love's performance had existed during 1971
and 1972. Yet, the Respondent did not warn Love that he
was subject to disciplinary action or discharge for these
alleged deficiencies, nor did it take any action against him
until after he had testified against the Respondent's
position in the representation hearing. To the contrary, it is
not disputed that Love received a raise of 10 cents an hour
approximately a month and a half before his discharge.
This circumstance speaks so eloquently that Respondent's
complaints about his alleged poor performance cannot be
credited.
It is well settled that the discharge of a supervisor
because he testified in a Board proceeding adversely to the
employer interferes with, restrains, and coerces rank-and-
file employees in the 'exercise of their self-organizational
rights within the meaning of Section 8(a)(1) of the Act.
Better Monkey Grip Company, 115 NLRB 1170, enfd. 243
F.2d 836 (C.A. 5, 1957), cert. denied 355 U.S. 864 (1957);
Oil City Brass Works, 147 NLRB 627, 630; Leas &
McVitty, Incorporated 155 NLRB 389, 390. The rationale
of the Board is set forth in Better Monkey -Grip, supra, as
follows:
In our opinion, the net effect of . . . [the supervisor's
discharge was to cause nonsupervisory employees
reasonably to fear that the Respondent would take the
same action against them if they testified against the
Respondent in a Board proceeding to enforce their
guaranteed rights under the Act. Clearly inherent in the
employees' statutory rights is the right to seek their
vindication in Board proceedings. - Moreover, by the
same token, rank-and-file employees are entitled to
vindicate these rights through the testimony of supervi-
sors whop have knowledge of the facts without the
supervisors risking discharge or other penalty for giving
testimony under the Act adverse to theiremployer. (115
NLRB at 1171.)
The Respondent argues that Love's testimony in no way
changed the outcome of the representation hearing. This is
2 Nevertheless, it appears that Manager Couch complimented Love on
the appearance of the yard the day before he was terminated. Furthermore,
it appears from the record that the appearance of the yard improved after
the Respondent changed trash collectors subsequent to Love's discharge.
3 It appears from the record that this condition also improved after the
Respondent's home office instituted a new ticket system, an event which
patently incorrect, as the Regional Director's inclusion of
the countermen in the appropriate unit appears to be the
result of Love's testimony as to their duties. However,
whether the testimony of a supervisor affected the outcome
of the Board proceeding is not the test . The test appears to
be whether the testimony of the supervisor was adverse to
the employer. And as noted above, Love's testimony was
directly contrary to the position taken by the Respondent
in the representation proceeding and to the testimony of
Manager Couch.
Respondent argues further that Love was discharged 4
days after the representation hearing "and that there were
no further hearings scheduled in the representation matter,
nor were any other hearings of any kind scheduled at the
time of the discharge. The contention is without merit. It
matters'not whether there were any further hearings in the
representation proceeding. The important consideration is
that the effect of his discharge "was to cause nonsuperviso-
ry employees reasonably to fear that' the Respondent
would take the- same action against them if they testified
against the Respondent in a Board proceeding to enforce
their guaranteed' rights under the Act" (Better Monkey
Grip supra in any subsequent unfair labor practice
proceeding.
Accordingly, I find and conclude that Love was
discharged for testifying adversely to the Respondent in
the representation proceeding and that such discharge
violated 'Section 8(a)(1) of the Act because it "interfered
with, restrained, and coerced rank-and-file employees in
the exercise of their self-organizational rights within the
meaning of Section 8(a)(1) of the Act" (Better Monkey Grip
supra ).
C. Respondent's Failure To Recall Parks
Charles Leroy Parks was employed by the Respondent as
a yardman for approximately 3-1/2 years. In December
1972, he received an on-the-job injury to his back. He
attempted to continue to work, but was unable to do so.
Following an examination by his physician, Parks was
released for work, with the stipulation that he be restricted
to light duty for a week. He attempted to work the next
day, but found that he was unable to do so. He again left
work and visited a chiropractor and began to undergo
treatment. Parks was placed on unemployment compensa-
tion for the next 2 or 3 months. During this period, about a
month after his injury, he had occasion to speak with
Manager Couch, who told him to "hurry up and get well"
so that he could return to work. In January, 1973, Parks
signed a union authorization card. -
Approximately a 'week before his discharge, Love was
looking at a work schedule hanging on a wall, when
Manager Couch walked up and also looked at the
schedule. Parks' name was at the top of the schedule.
Manager Couch said, "Here's a man we don't want no
more," and drew a line through Parks' name. Love asked
occurred after Love 's discharge Furthermore, Manager Couch admitted
that part of the loss in 1971 was due to the fact that he authorized the
yardmen to give customers a larger size when the yard was short of the type
of lumber ordered by a customer,
4 According to Love's credited testimony, which was not contradicted by
Manager Couch, there were no demurrage charges in 1973.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Couch why he was doing that, and pointed-out that Parks
was a good man. Manager Couch replied, "Yeah, but he's
mixed up in the Union." Respondent's records indicate
that Parks was terminated on February 24, 1913, at
approximately the time the foregoing conversation oc-
curred. Love's testimony, detailed above, is uncontradicted
and is credited.5 -
Parks recovered from his injury and was given an
unconditional release to return to work on March 19. On
that date, he approached Manager Couch with the release,
but was told that he was laid off for lack of work. A few
days later, Parks returned to the yard to buy some
material. Manager Couch called him aside and stated that
he "didn't know`whether I was for him or against him."6
Parks continued his efforts to return to work for the
Respondent. He was in touch with the new yard manager,
Bach, on two or three occasions. Although Bacli'promised
to do all he could, Parks was never recalled.
- Respondent defends its failure to recall Parks on the
ground that business was slow and it, did not need his
services. The record does not support 'Respondent's
contention. First, when Manager Couch told Parks that the
Respondent had no work available for him, he did not tell
him, as Respondent's payroll records reveal, that Parks had
already been terminated on February 24. Second, there is
no evidence that Respondent's business was slow when
Parks applied for reinstatement. The only evidence bearing
on this is the testimony of, Manager Bach that Respon-
dent's business is seasonal, slow in winter and busy in
spring. Yet, Parks application was made just before the
start of spring. Third, Respondent's records reveal that
employee Larry Thomas had quit work of his own accord 2
days prior to Parks' application. Yet, Parks was not
rehired.' Instead, Respondent rehired employee Gregory
Kazee on March 29. Respondent's records- indicate that
Kazee had less experience than Parks.7 Also, according to
Respondent's records, the Respondent hired two inexperi-
enced employees, Steven DeLong and Elmer' Fitzpatrick,
on May 25 and 29, respectively .$ Although both of these
employees are listed as part-time employees, an examina-
tion of Respondent's records reveals that DeLong worked
a full 40-hour week plus 2-1/2 hours overtime, while
Fitzpatrick during the second week- of his employment
worked a full 40 hours and 1/2 hour overtime. Manager
Bach, who succeeded Couch, explained that his failure.to
recall Parks, when he hired DeLong and Fitzpatrick, was
due to the fact that he knew that Parks was employed
elsewhere:
In view of all the foregoing, I find and conclude that
Respondent discriminatorily refused to allow Parks to
return to work on March 19, because it knew or believed
that Parks was a union adherent who would be "against" it
at the forthcoming election, in violation of Section 8(a)(3)
and (1) of the Act.
5 The record contains other evidence of Respondent's union animus.
Thus, according to Love's uncontradicted testimony, shortly after the
representation petition was filed, Manager Couch told him that "if the
Union gets in here, in the yard here, why, they'll be telling me and you our
jobs and I won't put up with that." Approximately a week later, Manager
Couch told Love that if he found out who was at the head of the Union, "he
would make it bard on them.-
6 The credited and uncontradicted testimony of Parks.
D. The Reduction of Andrew Deere's Hours
Andrew Deere had been employed by the Respondent
since January 1972, as a yardman. On May 1, 1972, he
sustained an on-the-job injury to his wrist, as a result of
which he missed much work.
In January 1973, Manager Couch informed Deere that
henceforth he would be considered a part-time employee,
rather than full time. The change in designation did not
affect the number of days or hours that Deere could work.
It merely deprived him of fringe benefits such as holidays.
The General Counsel conceded at the hearing that
Respondent's action in this regard was not violative of the
Act, as it occurred before the Respondent was aware of
any union activity by Deere.
Also, in January 1973, as a result of conversations with
fellow employees, Deere got in touch with the Union,
obtained authorization cards, and solicited signatures of
Respondent's employees. He obtained signatures to 10
cards, including his own. In addition, he attended union
meetings. He also attended the representation hearing,
sitting on the Union's side.
-On'the day that Foreman Love was terminated, Manager
Couch told Deere that henceforth he would be restricted to
working 4 days per week. Deere replied that he would like
to work full time . Manager Couch responded:
You can't work full time. I like you boys, but I'm
working for the Company, I'm right in the middle.
They've ordered me to cut you back to 4 days a week.
Manager Couch added that since he had to cut Deere
back to 4 days a week, he would let Deere pick the days he
wanted to work. For a week or two thereafter, Deere did
work more than 4 days, but then was restricted to taking
Monday and Tuesday off. The 4-day-a-week restriction
remained in effect until May 8, 1973.
In his testimony, Manager, Couch did not explain why
Deere was restricted to 4 days', work per week. On brief,
however, Respondent contends that Deere's reduction of
hours was a result of a lack of work. The contention is
without merit. Manager Couch did not assign this as the
reason for his action when he announced the restriction,
saying only that he had been "ordered" to do so by the
Company. Moreover, there is no evidence that Respon-
-dent's business was slow when Deere's workdays were
restricted. Although, as previously noted, Manager Bach
testified that Respondent's business is seasonal, slow in
winter and busy in spring, Deere was restricted to a 4-day
workweek just before the start of the-spring season. Also,
despite Manager Bach's testimony that business was slow
in winter, Respondent's payroll records indicate that Deere
worked a full 40 hours for each of the 4 weeks ending
February 10, 1973, plus 7-1/2 hours overtime during each
of the first 3 weeks, and 2-1/2 hours overtime in the 4th
week. Although Deere worked only 28-1/2 hours for the
7 Respondent's payroll records indicate that Thomas, as well as Kazee,
was designated as a "salesman," giving rise to a possible inference that both
Thomas and Kazee were employed as countermen, as distinguished from
yardmen. However. Respondent 's records indicate that Parks was also
designated as a "salesman." as was employee Deere, both of whom were
admittedly yardmen.
a According to Love's uncontradicted testimony, it takes at least 6
months for a man to become a competent yardman.
CARTER LUMBER, INC. 395
week ending February 17, he worked 17 hours overtime
during the week ending February 24, 1973.
I find and conclude that Respondent's restriction of
Deere's workweek to 4 days was discriminatory, in
violation of Section 8(a)(3) and (1) of the Act. As indicated
above, Deere was the leading union advocate among the
employees, and Respondent was fully aware of his union
sympathy when he appeared on the Union's side at the
representation proceeding. And as previously noted,
Respondent had in other respects indicated its union
animus. Coming as it did on the very same day that
Foreman Love was discharged, and in the absence of any
evidence to support a contrary inference, Respondent's
conduct irresistibly leads to the conclusion that it was
motivated by Deere's union sympathy as an attempt to
retaliate against him for such sympathy and to restrain him
from further union activity including voting for the Union
at the forthcoming election.
Respondent argues that Deere was not prejudiced by
being restricted to 4 days' work per week, because he did
not work 4 full days per week thereafter. The argument is
without merit. First, it assumes that Deere was offered 4
full days per week. Second, even if he had been offered 4
full days of work per week, it is patent that he would have
worked additional hours had he been permitted to work
more than 4 days per week. These considerations, however,
are irrelevant to the issue whether Respondent's action was
violative of the Act. They go,'instead, to the question as to
the amount of backpay that Deere may recover, a matter
which should be resolved in a subsequent compliance
proceeding.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
reason of such discharge, with interest to be computed in
the customary manner.9
Having found that the Respondent discriminatorily
refused to reinstate Charles L. Parks, I shall recommend
that the Respondent be ordered to offer him immediate
reinstatement to his former job, discharging, if necessary,
any employee hired to fill such-job, or if that job no longer
exists, to a substantially equivalent position , without
prejudice to his seniority or other rights , and make him
whole for any loss of earnings he may have suffered by
reason of such discharge, with interest to be computed in
the customary manner.
Having found that the Respondent discriminatorily
restricted Andrew Deere to working 4 days per week
between March 8 andMay 8, 1973, I shall recommend that
the Respondent make him whole for any loss of earnings
he may have suffered by reason of such restriction, with
interest to be computed in the customary manner. Since it
cannot be determined from the record in the instant
proceeding, whether during that period Deere could and
would have worked on days other than the 4 to which he
was restricted, the exact amount should be determined in a
compliance proceeding.
I shall further recommend that the Respondent be
ordered to preserve and make available to the Board or its
agents , upon request, payroll and other records to facilitate
the computation of backpay due and the right to
employment.
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employees'
rights safeguarded by the Act, ' I shall recommend that it
cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of the
Respondent set forth in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the -meaning of Section 8(a)(1) and
(3) of the Act, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Love's discharge interfered with,
restrained, and coerced nonsupervisory employees in the
exercise of their statutory rights, I shall recommend that
the Respondent be ordered to offer him immediate
reinstatement to his former job, discharging, if necessary,
any employee hired to fill such job, or if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights, and make him
whole for any loss of earnings he may have suffered by
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3_ By discharging Cecil Love because he gave testimo-
ny adverse to the interest of the Respondent in a Board
proceeding, the Respondent interfered with, restrained,
and coerced nonsupervisory employees in the exercise of
their statutory rights, in violation of Section 8(a)(1) of the
Act.
4. By discriminatorily refusing to reinstate Charles L.
Parks, the Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(3) and (1) of
the Act.
5. By discriminatorily restricting the number of days
which Andrew Deere 'could work, the Respondent has
engaged in an unfair labor practice within the meaning of
Section 8(a)(3) and-( 1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
9 F. W Woolworth Company, 90 NLRB 299; Isis Plumbing & Heating Co.,
138 NLRB 716.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 10
ORDER
Respondent, Carter Lumber, -Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against any witness with respect to his hire or tenure. of
employment or any term or. condition of, employment
because he has given testimony under the Act.
(b) Discouraging membership in Local No. 83, Laborers
International Union of North America, AFL-CIO, or in
any other labor organization of its employees, by refusing
to reinstate, restricting working days, or in any other
manner discriminating against employees with regard to
hire and tenure of employment or any term or condition or
employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities,
except to the extent that such right is affected by the
proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Cecil Love full and immediate reinstatement to
his former job, discharging, if necessary, any employee
hired 'to fill such job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights, and make him whole for any loss
of earnings he may have suffered by reason of his
discharge, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Offer to Charles L. Parkes immediate and full
reinstatement to his former job, discharging, if necessary,
any employee hired to fill such job, or if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights, and make him
whole for any loss of earnings he may have suffered by
reason of Respondent's refusal to reinstate him, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(c) Make Andrew Deere whole for any loss of earnings
he may have suffered by reason of the Respondent's action
in restricting the number of days he could work, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(d) Preserve and make available to the Board or, its
agents, upon request, for examination and copying all
records necessary for the determination of the amount of
backpay due and the right to employment.
(e) Post at its yard in Piketon, Ohio, copies of the
attached notice marked "Appendix."" Copies of the
notice on forms provided by the Regional Director for
Region 9, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
10 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommendations, and recommended Order herein shall,
as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions , and Order and all objections
thereto shall be deemed waived for all purposes.
ii In the event that the Board's Order is enforced by a judgment of the
United States Court of Appeals, the words in the notice reading , "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or in any other manner
discriminate against any witness with respect to his hire
or tenure of employment or any term or condition of
employment because he has given testimony under the
Act.
WE WILL NOT discourage membership in Local No.
83, Laborers International Union of North America,
AFL-CIO, or in any other labor organization of our
employees , by refusing to reinstate, restricting working
days, or in any other manner discriminating against
employees with regard to hire and tenure of employ-
ment or any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
rights to self-organization, to form , join, or assist any
labor organization , to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities, for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such right is affected by the proviso to
Section 8(a)(3) of the Act.
WE WILL offer Cecil Love full and immediate
reinstatement to his former job , discharging , if neces-
sary, any employee hired to fill such job , or if that job
no longer exists , to a substantially equivalent position,
without prejudice to his seniority or other rights, and
make him whole for any loss of earnings he may have
suffered by reason of his discharge.
WE WILL offer to Charles L. Parks immediate and
full reinstatement to his former job, discharging, if
necessary, any employee hired to fill such job , or if that
job no longer exists, to a substantially equivalent
position , without prejudice to his seniority or other
rights, and make him whole for any loss of earnings he
CARTER LUMBER, INC.
may have suffered by reason of our refusal to reinstate
him.
WE WILL make Andrew Deere whole for any loss of
earnings he may have suffered by reason of our action
in restricting the number of days he could work.
All of our employees are free to become and remain
members of the above-named Union or any other labor
organization, or to refrain from doing so.
CARTER LUMBER, INC.
(Employer)
Dated By
397
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Office Building,
Room 2407, 550 Main Street, Cincinnati, Ohio 45202,
Telephone 813-228-7227.