Cathey Lumber Co.

National Labor Relations Board - Board Decisions

Dec 29, 1952

101 N.L.R.B. 1406 (N.L.R.B. 1952)

1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the exclusive representative of the employees in the bargaining unit set
forth above.
R. A. C. REALTY COMPANY,
Employer.
By ---------------------------------
(Representative) (Title)
Dated --------------------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Appendix B
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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with BUILDING SERVICE EM-
PLOYEES INTERNATIONAL UNION, LOCAL 231, AFL, as the exclusive representa-
tive of all the employees in the bargaining unit described below with respect
to rates of pay, wages, hours of employment, or other conditions of em-
ployment, and, if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is :
All our elevator operators, janitors, janitresses or maids, employed
at our 800 Peachtree Building, Atlanta, Georgia, excluding watchmen,
guards, professional employees, and supervisors as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of the above-named
union to bargain with us, or refuse to bargain collectively with said union
as the exclusive representative of the employees in the bargaining unit set
forth above.
R. A. C. REALTY COMPANY,
Employer.
Dated -------------------- By -------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, an anust
not be altered, defaced, or covered by any other material.
CATHEY LUMBER COMPANY and LOCAL 422, INTERNATIONAL WOOD-
WORKERS OF AMERICA, CIO . Case No. 15-CA-34k3. December 29,
1952
Decision and Order
On April 15, 1952, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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-
101 NLRB No. 220.
CATHEY LUMBER COMPANY 1407
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief, and the
General Counsel and Union filed briefs in support of the Intermediate
Report.
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-mem-
ber panel [Members Houston, Murdock, and Styles].
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief of the Respondent, the briefs of the Union
and the General Counsel, and the entire record in the case, and hereby
adopts the Trial Examiner's findings,' conclusions, and recommenda-
tions, with the following modifications.
The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (3) by discharging Eugene Street. In this
connection, we adopt the reasoning of the Trial Examiner that the
alleged insubordination was not the reason for Street's discharge but
was used as a pretext to cover the real reason-to rid the Respondent
of a vigorous union adherent .2 We do not, however, adopt the Trial
Examiner's statement that the alleged insubordination should be "over-
looked"; nor do we believe that the Trial Examiner intended this
statement to be interpreted literally. Insubordination is, of course,
a lawful reason for discharge. The significant fact here is that a pre-
ponderance of the evidence shows that the alleged insubordination was
not the reason for Street's discharge but, to the contrary, that Street's
union activity was.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the Board hereby orders that
Cathey Lumber Company, Montgomery, Alabama, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 422, International Wood-
workers of America, CIO, or in any other labor organization, by dis-
criminating in regard to the hire or tenure of employment of its,
employees, or any term or condition of employment whatsoever.
' The Respondent in its brief attacks the credibility findings of the Trial Examiner. It
Is the Board 's policy not to overrule a Trial Examiner's resolutions as to credibility unless
by a preponderance of the evidence they are clearly erroneous . In our opinion no such
adverse conclusion is warranted , and we. therefore , adopt the Trial Examiner 's credibility
findings. Photoswitch, Inc., 99 NLRB 1366, and cases cited therein.
' See Shell Oil Company v. N. L. R. B. , 196 F. 2d 637 ( C. A. 5) May 10 , 1952, enforcing
as modified 95 NLRB 102 and Editorial "El Impartial", Inc., 99 NLRB S. See also N. I
R B. v. Harris-Woodson Co ., 162 F. 2d 97.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act, the right to self-organization, to form labor organizations, to
join, or assist and remain a member of Local 422, International Wood-
workers of America, CIO, or any other labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid and protection, or to refrain from any or all 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 Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Eugene Street immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges; and make him whole in the
manner set forth in section V of the Intermediate Report, entitled
"The Remedy."
(b) Upon request make available to the Board, or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze and compute back pay and other reinstate-
ment rights, under the terms of this Order.
(c) Post at its plant in Montgomery, Alabama, copies of the notice
attached hereto and marked "Appendix A" 8 Copies of said notice,
to be furnished by the Regional Director for the Fifteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained 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 Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fifteenth Region (New
Orleans, Louisiana) in writing within ten (10) days from the date of
this Order what steps have been taken to comply with the order
herein.
8 In the event that this Order Is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order," the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing, an 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 :
CATHEY LUMBER COMPANY 1409
WE WILL NOT discourage membership in LocAL 422, INTERNA-
TIONAL WOODWORKERS OF AMERICA, CIO, or in any other labor
organization of our employees, by discharging or refusing to rein-
state any of our employees or by discriminating in any other
manner in regard to their hire or tenure of employment or any
term or condition of their employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to join or assist LOCAL 422, INTERNATIONAL WOODWORKERS OF
AMERICA, CIO, 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, or to refrain from
any and all 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 Sec-
tion 8 (a) (3) of the Act.
WE WILL offer to Eugene Street immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to any seniority or other rights and privileges pre-
viously enjoyed, and make him whole for any loss of pay suffered
as a result of the discrimination.
All of our employees are free to become, remain, or refrain from
becoming members of the above-named union or any other labor or-
ganization, 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 by Section 8 (a) (3) of the Act.
CATHEY LUMBER COMPANY,
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.
Intermediate Report
STATEMENT OF THE CASE
By reason of a charge filed on March 12, 1951, by Local 422, International
Woodworkers of America, CIO, herein called the Union, the General Counsel of
the National Labor Relations Board, herein separately designated as the General
Counsel and the Board, by the Regional Director for the Fifteenth Region (New
Orleans, Louisiana), issued a complaint dated November 6, 1951, against Charles
C. Cathey, individually and as executor of the estate of T. M. Cathey, d/b/a
Cathey Lumber Company, herein called the Respondent, alleging that the
Respondent engaged in and is engaging in unfair labor practices affecting com-
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce within the meaning of Section 8, subsection (a) (1) and (3), and Section
2, subsections (6) and (7), of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. Copies of the charge, complaint, and notice
of hearing, were duly served upon the Respondent.
With respect to unfair labor practices, the complaint, as amended, alleges in
substance that the Respondent discriminated in the hire or tenure of employ-
ment of its employee, Eugene Street, because of his membership in and activities
on behalf of the Union, in violation of Section 8 (a) (1) and (3) of the Act,
and engaged in independent violations of Section 8 (a) (1) of the Act by
stretching out the workweek from 4 to 5 days, discontinuing a weekly off-day
for each employee in its sawmill operations, and by other specifically enumerated
statements and conduct.
The Respondent filed an answer admitting the jurisdictional allegations of
the complaint, but denied the commission of any unfair labor practices. With
respect to the independent violations of Section 8 (a) (1) alleged in paragraph
7 of the complaint, the Respondent also specifically pleads the 6 months' statute
of limitations provided in Section 10 (b) of the Act.
Pursuant to notice, a hearing was conducted at Montgomery, Alabama, on
December 17, 18, 19, and 20, 1951, before the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. The General Counsel, the Union, and
the Respondent were represented by counsel. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to in-
troduce evidence bearing upon the issues involved. At the close of all the evi-
dence, counsel for all parties argued orally upon the record. Motion of the
General Counsel to conform the pleadings to the proof as to formal matters was
granted without objection. All parties were instructed concerning their right
to file written briefs and proposed findings of fact and conclusions of law with the
Trial Examiner. Briefs filed by counsel for the General Counsel, Respondent,
and the Union have been given due consideration.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Cathey Lumber Company is a partnership enterprise maintained and controlled
by Charles C. Cathey, individually and as executor of the estate of T. M. Cathey.
It operates a manufacturing plant at Montgomery, Alabama, where it engages
in logging, sawing, planing, drying, storing, selling, and shipping rough and
finished lumber, and other operations incident thereto. During the past repre-
sentative year, the Respondent purchased raw materials and supplies consisting
principally of logs and hewn timber valued in excess of $200,000, substantially all
of which originated within the State of Alabama. During the same period, it
cold and delivered finished products valued in excess of $500,000, approximately
85 percent of which was shipped to customers outside the State.
I find, therefore, that the Respondent 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 herein.'
II. THE LABOR ORGANIZATION INVOLVED
Local 422, International Woodworkers of America, CIO, is a labor organiza-
tion within the meaning of the Act, and admits to membership employees of the
Respondent.
1 Stanaslaus Implement & Hardware Co., Ltd , 91 NLRB 618.
CATHEY LUMBER COMPANY
III. THE UNFAIR LABOR PRACTICES
A. Background information
1411
A comprehensive understanding of the issues and contentions herein will be
promoted by an historical summary of labor relations between the Respondent,
its employees, and the Union. In an appropriate unit composed entirely of Ne-
groes, the Board conducted an election on July 16, 1945, and by secret ballot the
Union was designated as the exclusive representative of Respondent's employees
for the purpose of collective bargaining. The Union was formally certified as such
representative on August 25, 1945. Thereafter, on or about September 25, 1945,
the Respondent and the Union entered into a contract automatically renewable
from year to year with provision for cancellation or modification upon notice by
either party at least 30 days prior to the anniversary date. Subsequent negotia-
tions culminated in a strike on October 8, 1946. The record in Case No. 15-C-
1301, 86 NLRB 157, shows that the Union offered to "surrender unconditionally"
and return to work under the old contract or any terms prescribed by the
Respondent, but was informed by the Respondent that no work was available
for the strikers. Respondent's manager, Grover H. Ward, stated to one of the
strikers (Horace Morgan) : "You got union in you. We ain't going to have no
more union here. If you got union in your mind, you might just as well get on
out of here. You can't work because anybody that works here any more that
belongs to the union will have to do what Mr. Farriss [the sawmill foreman]
says. If Mr. Farriss says to get in a hole, you have to get in. Street and Watt
and David Byrd, I never will give them a job any more." 2
Pending a review of the foregoing case by the Board and the U. S. Court of
Appeals for the Fifth Circuit, the Respondent on November 30, 1948, issued the
following letter to strikers :
The trial examiner in case Number 15-0-1301 before the National Labor
Relations Board has made an intermediate report in which he recommends
that this company be required to offer you employment as therein provided.
Although this company will continue to defend itself against the charges
in said case, it now makes you the offer referred to in the report but without
waiving its right to continue to defend itself as stated.
Accordingly, this company offers you immediate and full employment to
the same or substantially equivalent position to which you would have been
employed, without prejudice to seniority or other rights and privileges, as
provided in said report.
Upon receipt of the foregoing letter 4 of the 17 strikers accepted reemployment
by the Respondent. Eugene Street, David Byrd, Henry Morgan, and Arthur
Harris went back to work on or about December 13, 1948.
On March 14, 1949, another charge was filed against the Respondent in Case
No. 15-CA-140 alleging violations of Section 8 (a) (1) and (3) of the Act. In
that case the Trial Examiner and the Board found violations of Section 8 (a) (1),
but dismissed the complaint with respect to discriminatory discharge of Arthur
Harris. It was specifically found that when Eugene Street and David Byrd
were reinstated on or about December 13, 1948, Manager Grover H. Ward
called them into his office to acquaint them with the amended company rules each
would be expected to follow ; ordered them to do anything the foreman or any
of the white people there told them to dq, even if it was to jump in a ditch ;
2 Watt Foggy was president of the Union. Eugene Street was shop steward and acted
as a captain on the picket line.
242305-53-90
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told them there was to be no gathering to talk, and that he was going to time
their work as he sat there and watched them. Ward told Street that he ought
to be trying to take care of his family, and that he was not going to have
that "damn union" back. Ward also told another striker (Andrew Bonner),
who applied for reinstatement, that he loved the Union "too much," and that
he was not going to have the Union back; that Street and Byrd were "going on
down Court Street" for the first error they made.
In Case No. 15-CA-140, the Board on February 28, 1951, issued its order
requiring the Respondent to cease and desist from conduct found violative of
the Act, and to post notices at its plant in Montgomery, Alabama, notifying
employees that Respondent would not interrogate or threaten them because of
union affiliation or activities, or warn them against having a union in the plant.
B. Interference, restraint, and coercion
Following the unsuccessful strike of 1946, the Union became dormant. No
concerted activities among the employees were observed until January 1951, when
the U. S. Court of Appeals for the Fifth Circuit published its decree enforcing an
order of the Board in Case No. 15-C-13018 By reason thereof the Union was
inspired with new life, and began to hold meetings. At a meeting called by
Eugene Street (president), 20 of the Negro employees signed membership cards
and renewed their affiliation with the Union. Street continued his activities by
handing out cards at the plant and signing up additional members during the
lunch hour next day. Street gave a card to one Willie Daniels, and saw him
go to the office of Manager Ward shortly thereafter. Daniels returned the card
to Street unsigned. Shortly thereafter Manager Ward approached Street on the
job, and said , "Skeeter, I done told you I wasn't going to have the dam union here.
I mean I ain't going to have the damn union here. If that is what you have
in your mind , you can get down on Court Street."' Thereafter, meetings of
the Union were poorly attended. Only the union officials appeared at the CIO
hall. Because of this nonattendance Street called an open-air meeting during
the lunch hour outside the store opposite the plant on Court Street on Thursday,
February 22, 1951. Practically all employees attended this gathering. Manager
Ward and all his white supervisors went over to see what was going on. Eugene
Street presided as president of the Union, and introduced Lloyd Welch ( a union
organizer) to make a speech. Welch exhorted the employees to have no fear
about union activities, and invited them to attend a meeting at the CIO hall
on the following Monday night. That afternoon Manager Ward closed down the
plant at 3: 30 p. m., and reduced the working hours from 10 to 8 hours per day,
and discontinued the usual custom of 1 day off for each employee at the sawmill.
Records of the Respondent show that the sawmill was customarily operated on
the basis of a 10-hour day. On March 5, 1951, the customary 10-hour day was
resumed. The customary workweek began on Monday and extended through
Friday without change throughout.
C. Discriminatory discharge of Eugene Street
Eugene Street has been periodically employed by the Respondent since 1935
or 1936. Because of his union activities and participation in the strike of
October 1946, the Respondent refused him employment until the offer of rein-
statement to all strikers set forth in its letter of November 30, 1948, supra. He
9 See 185 F . 2d 1021 and 189 F. 2d 428.
4 Ward denied having made this statement to Street but did not specifically deny the
Willie Daniels Incident . I credit the testimony of Eugene Street.
CATHEY LUMBER COMPANY 1413
was conditionally reinstated on December 13, 1948, and warned to refrain from
activities on behalf of the Union . The Union became dormant , but Street was
regarded as a troublemaker and watched with suspicion by supervisors of the
Respondent . Manager Ward meticulously recorded all complaints against him
and produced at the hearing herein a memorandum with exact dates of un-
favorable incidents attributed to Street . Shortly after his reinstatement a
fellow employee ( Coca Cola ) complained to Manager Ward that Street was not
performing his share of the work . When called to account , Street promised to
work harder . On January 4, 1950 , the millwright ( Alderson Hall ) found wash-
ing powder in the boiler water supply, and attributed it to Street because he
had been seen at the water reservoir . Ward took no action about it because
the report was based entirely upon suspicion , although it became necessary to
close down the mill and clean out the boiler . On February 22, 1950 , Alderson
Hall accused Street of throwing off a drive belt under the trimmer . He had been
seen by Willie Sears getting a drink of water from the water faucet nearby.
Street denied responsibility , but was reprimanded by Manager Ward and told
to stay away from the water faucet . On April 7 , 1950 , Alderson Hall accused
Street of putting a piece of wood in one of the wood chains, thereby causing the
chain to jump the sprocket . He had been seen near the trouble spot. Hall
testified that such incidents happened several times , and that he reported them
all to Manager Ward . He also testified that on one occasion Street refused to
help him fix a broken chain , saying that it was not his damn job to do so.
The planer mill foreman ( John R . Booth ) also made unfavorable reports
to Manager Ward concerning Street . On June 5, 1950 , Booth complained that
lumber brought to the planer was mixed up, and attributed it to Street. On
August 8, 1950, Booth made a similar report against Street . When confronted
with the accusation Street denied responsibility.
On September 13, 1950 , Street was again accused by the millwright of throw-
ing a slab of wood into the wood chain . Manager Ward inspected the cause of
the trouble , but said nothing to Street about it.
On November 10, 1950 , the sawmill foreman (W. E. Farriss ) reported that
Street had refused to help him police up the premises , but Manager Ward took
'no action about it.
Upon the cross-examination of Grover H. Ward , he admitted that on April 7,
1950, the sawmill was not in operation throughout the entire day. He admitted
that on August 8, 1950 , Street was absent from the mill premises in attendance
at the hearing in Case No . 15-CA-150 before a Trial Examiner in Montgomery,
Alabama. Ward then admitted that the dates of complaints against Street were
only approximate , and that he had prepared his memoranda from rough notes
for use at a hearing before the Unemployment Compensation Agency.
Coming now to the events of March 6 , 1951 , we find the Respondent again
operating its sawmill on the basis of 10 hours a day for 5 days a week with a
day off to each employee . Eugene Street and Mottis Murray were regularly
employed to remove and stack on pallets lumber from the chain conveyor which
transported it from the saws to the yard for further processing . It was re-
quired that the lumber be separated according to type, grade, width, thickness,
and length in accordance with rules prescribed by the Respondent . Considerable
experience was necessary to perform the job satisfactorily. Leroy Frank and
James Lee were customarily utilized as a relief crew , because of their familiarity
with the work . In the absence of Mottis Murray on March 6 , 1951, the sawmill
foreman designated Ephem Tellis to replace him at the chain conveyor . Tellis
had no previous experience on this job, and was not familiar with the company
rules about separating the lumber . According to the credible testimony of David
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Byrd and Eugene Street, Tellis was already at work when Street appeared at
7 o'clock that morning when the whistle blew. Tellis had removed and stacked
in one pile the lumber left on the chain conveyor from the previous day. Street
was somewhat discomfited to find an inexperienced man on the job mixing up
the lumber, and made no effort to instruct him. A few minutes later the yard.
foreman (Robert William Gardner) observed that the lumber was mixed up,
and immediately reported it to the sawmill foreman (W. E. Farriss). In com-
pany with the planer mill foreman (John R. Booth) Farriss looked at the pile,
and then called Manager Ward from the office porch nearby.' Ward demanded
an explanation from Street, and ordered him to separate the lumber. Street
denied responsibility, and remonstrated that it was unfair to require him to,
rectify the mistake of the other man on the job. Street credibly testified that
Manager Ward thereupon said, "You black son of a bitch, I said separate it."
A heated argument ensued between the two men in the course of which Street
told Manager Ward that "Him or no other damn man could make him straighten
the lumber out." ° Thereupon, Ward ordered Street to go to the office and get
his pay, and be discharged. Street refused to go, so Ward brought him his check
and dismissed him from the job. None of the white supervisors present, or
Ephem Tellis, admitted hearing Ward curse his discharged employee, but on that
point I credit Street and find his somewhat illiterate and incoherent testimony
worthy of belief.
Concluding Findings
It is clear from the record in this case, and especially from the testimony of-
Grover H. Ward, manager, that the Respondent was sorely grieved by the union
activities of its Negro employees, and has never become reconciled to the fact
that such activities are protected by the Act. Eugene Street, as leader of the
Union, was especially obnoxious to his white employees, as evidenced by a long
series of complaints listed against him based upon nothing more than suspicion.
The Trial Examiner in Case No. 15-C-1301 recommended that the Respondent
offer to approximately 17 striking employees immediate and full employment
to the same or substantially equivalent positions in which they would have
been employed but for the Respondent's discrimination against them, and to
make them whole by reason of the discrimination. Eugene Street was included
in the recommended order. Thereupon, the Respondent reinstated Street on
December 13, 1948, but reserved the right in its letter to him dated November
30, 1948, to continue litigating the charges in that case. The order of the Board
therein was finally dissolved by the U. S. Circuit Court of Appeals for the Fifth.
Circuit, for noncompliance by the CIO with Section 9 (h) of the Act on June 6,
1951. In January and February 1951, Street had renewed his activities on
behalf of the Union. Manager Ward at that time approached Street and told
him in no uncertain terms that he was not going to have the Union in his plant.
The statement was accompanied by a threat of discharge in that Ward said,
"If that is what you have in your mind, you can get down on Court Street."
This conduct of the Respondent was clearly interference, restraint, and coercion
of its employees in the exercise of the rights guaranteed in Section 7 of the
Act. I am also convinced from the evidence that the precipitate conduct of the,
Respondent following an open-air meeting of the Union on February 22, 1951,
6 Ward testified that he had just returned from posting Board notices in Case No.
15-CA-140, 96 NLRB 510, reached the office porch when the 7 o'clock whistle blew, and
had stood there a minute or two when Farriss called him.
"From credible testimony of Robert William Gardner . Street admitted saying, "I will
be damned if I am going to do it, Mr. Ward."
CATHEY LUMBER COMPANY 1415
reducing the working hours of employees to 8 hours a day and eliminating a
day off for sawmill employees was calculated to suppress their union activities,
and therefore constituted interference, restraint, and coercion.
The evidence fails to show that Eugene Street was responsible for mixing
up lumber removed from the chain conveyor on the morning of March 6, 1951.
He had not been notified that an inexperienced employee (Ephem Tellis) was
being assigned to that job, or instructed to supervise his work. The assumption
by Manager Ward that Street was responsible for the mistakes, angrily calling
him a black son-of-a-bitch when Street remonstrated that he was not at fault
indicates that Ward had seized upon this incident as a pretext to rid the Re-
spondent of this undesirable leader of concerted activities among its employees
and president of the Union. The alleged insubordination of Street in refusing
to carry out the provocative orders of Manager Ward on this occasion must
therefore be overlooked, and his discharge attributed to union activities rather
than failure and refusal to perform his duties as an employee of the Respondent.
The Respondent thereby discriminated in the hire or tenure of employment of
Eugene Street to discourage membership in a labor organization in violation
of the Act'
In making the foregoing findings of fact, I discredit the denial of Grover H.
Ward that he told Street that he was not going to have the Union back in the
plant, and threatened him with discharge if he had that in mind. I also dis-
credit Ward's contention that the reduction in working hours to 8 hours a day
from February 22, 1951, to March 5, 1951, thereby eliminating an off-day for
employees at the sawmill, was controlled by the supply of logs on hand.
The aforesaid acts and conduct constituting unfair labor practices all occurred
within the 6 months immediately preceding the filing of the charge herein, and
are not barred by the limitation provided in Section 10 (b) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent 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 burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
It having been found that the Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act by reducing working hours from 10 to 8 hours a day, thereby depriving its
employees of the privilege of a day off during the workweek; by stating to Its
employee, Eugene Street, president of the Union, words to the effect that it
would not countenance a reorganization of the Union in its plant, and that he
would be discharged if he persisted in his efforts to effect such reorganization.
It will therefore be recommended that the Respondent cease and desist from the
conduct herein found to be a violation of the Act. Further finding from the
'See : Gluck Bros., Inc., 81 NLRB 351 ; N. L. R. B. v. Electric City Dyeing Co., 178 F.
2d 980 (C. A. 3) ; Taylor Mfg. Co., Inc., 83 NLRB 142; Mathews Lumber Co ., Inc., 96 NLRB
322.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
past conduct of the Respondent and the nature of the unfair labor practices
thereby engaged in that it is likely that such practices may be continued in the
future, it will also be recommended that the Respondent cease and desist from
in any manner interfering with, restraining , or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.8
Having also found that the Respondent discriminated in regard to the hire
or tenure of employment of Eugene Street by discharging him because of his
union activities to discourage membership in a labor organization, it will be
recommended that the Respondent offer to said employee immediate and full
reinstatement to his former or substantially equivalent position ° without preju-
dice to his seniority or other rights and privileges, and that the Respondent make
him whole for any loss of pay suffered by reason of the discrimination by the
payment to him of a sum of money equivalent to that which he would have
earned as wages since the date of his discriminatory discharge to the date when
such offer of reinstatement is made, less net earnings"0 to be computed on a
quarterly basis in the manner set forth in the case of F. W. Woolworth Co.,
90 NLRB 289. Earnings in one particular quarter shall have no effect upon the
back-pay liability for any other such period. It will also be recommended that
the Respondent make available to the Board upon request its payrolls and other
necessary records to facilitate the computation of the back pay herein awarded.
Upon the basis of the foregoing findings of fact and the entire record in the
case, I make the following :
CONCLUSIONS or LAW
1. Local 422 , International Woodworkers of America , CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act, admitting to membership em-
ployees of the Respondent.
2. The Respondent has engaged in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act by threatening to discharge its employee ( Eugene
Street) because of his activities on behalf of the Union , and making a precipitate
change in working hours to eliminate a day off for employees during the work-
week , thereby interfering with , restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
3. By discharging him because of his union activities the Respondent dis-
criminated in regard to the hire or tenure of employment of Eugene Street
to discourage membership in Local 422 , International Woodworkers of America,
CIO, and thereby engaged in an unfair labor practice within the meaning of
Section 8 (a) (1) and Section 8 (a) (3) 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.
[Recommendations omitted from publication in this volume.]
s May Department Stores v . N. L. R. B., 326 U . S. 876.
9The Chase National Bank of the City of New York, San Junn. Puerto Rico , Branch,
65 NLRB 827.
10 Crossett Lumber Co ., 8 NLRB 440.