Clevenger Logging, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1975

220 N.L.R.B. 768 (N.L.R.B. 1975)

768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clevenger Logging , Inc. and International Woodwork-
ers of America, Local Union No. 3-90 , AFL-CIO.
Cases 19-CA-7427 and 19-CA-7551
September 26, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On June 20, 1975, Administrative Law Judge Earl-
dean V. S. Robbins issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the General Counsel
filed limited cross-exceptions to the Administrative
Law Judge's Decision and an answer to
Respondent's exceptions, and the Charging Party
filed a motion to strike Respondent's exceptions and
brief and an answering brief in support of the Ad-
ministrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs'
and has decided to affirm the rulings, findings,' and
conclusions 3 of the Administrative Law Judge and
to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Clevenger Logging, Inc.,
The Charging Party has filed a motion to strike Respondent 's exceptions
and supporting brief as not having been filed in accordance with Sec.
102.46(b) of the Board 's Rules and Regulations , Series 8, as amended, re-
quiring that they specifically set forth the questions of procedure, fact, law,
or policy upon which they are taking exception , and designate by precise
citation the portion of the record relied on. While the exceptions and brief
are not in precise conformance with our requirements , they are in substan-
tial compliance , and, in the circumstances , we deny the motion to strike. See
The Royal Himmel Distilling Company and Gerald Goldman, 195 NLRB 39
(1972).
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to over-
rule 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 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
3In adopting the Administrative Law Judge's conclusion that the Re-
spondent violated Sec. 8(a)(5) by subcontracting its log-hauling operations
and laying off all its log truckdnvers, we find it unnecessary to reach the
question of economic justification for the subcontracting as the record sup-
ports the conclusion that Respondent unilaterally subcontracted the log-
hauling operations and laid off its drivers without affording the Union ade-
quate opportunity to bargain.
Port Angeles, Washington, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
said recommended Order.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge: This
case was tried before me in Port Angeles, Washington, on
April 22 through 24, 1975. The charge in Case 19-CA-7427
was filed by International Woodworkers of America, Local
Union No. 3-90, AFL-CIO, herein called the Union, on
November 19, 1974, and was served on Respondent on
November 20, 1974. The complaint in Case 19-CA-7427,
which issued on January 3, 1975, alleges that Respondent
has violated Section 8(a)(1) and (3) of the National Labor
Relations Act, herein called the Act. The charge in Case
19-CA-7551 was filed by the Union on February 7, 1975,
and was served on Respondent on February 12, 1975. The
order consolidating Cases 19-CA-7427 and 19-CA-7551
and the consolidated complaint, which issued on February
28, 1975 , alleges in the complaint that Respondent has vio-
lated Section 8(a)(1), (3), and (5) of the Act. Posttrial briefs
were filed by the parties.
The issues herein are:
1. Whether Respondent violated Section 8(a)(1) and (5)
of the Act by: (a) on October 19, 1974,' dealing directly
with its employees rather than with the Union concerning
wages; (b) on October 19, announcing and implementing a
change in its wage system from an hourly rate to a trip rate
basis without prior notification and bargaining with the
Union; (c) on November 15, refusing to meet with the
Union to bargain concerning said wage change; and
2. Whether Respondent violated Section 8(a)(5) and
Section 8(d) of the Act on January 1, 1975, by modifying
its collective-bargaining agreement with the Union by clos-
ing down its log truck operations, laying off all its log truck
drivers and subcontracting out all its log hauling work
without complying with the requirements of paragraphs 1,
2, 3, and 4 of the proviso to Section 8(d) of the Act, and
without obtaining the agreement of the Union before im-
plementing said modification.
3. Whether Respondent violated Section 8(a)(1) and (3)
of the Act by: (a) discharging employees Thomas Haasl
and William Brown; and (b) laying off all its log truck
drivers and subcontracting out the work previously done
by them; and
4. Whether Respondent engaged in the following inde-
pendent violations of Section 8(a)(1) of the Act: (a) prom-
ising an employee that he would receive higher wages if
Respondent were nonunion; (b) threatening employees
that it would close down its log truck operation and lay off
all its drivers if they sought union assistance concerning
Respondent's unilateral wage change and/or if the Union
fought said change; and (c) threatening an employee with
discharge if he supported dischargee Thomas Haasl or at-
tended a union meeting.
All dates hereinafter will be 1974 unless otherwise stated.
220 NLRB No. 115
CLEVENGER LOGGING, INC. 769
Upon the entire record,2 including my observation of the
witnesses, and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Washington corporation with its office
and place of business located in Port Angeles , Washington,
is engaged in the business of logging, log hauling and log-
ging road construction . Respondent , in the course and con-
duct of its business operations during the 12 months pre-
ceding the issuance of the consolidated complaint herein
sold products and services valued in excess of $50,000 to
Washington firms which in turn sold and shipped products
valued in excess of $50,000 directly to points located out-
side the State of Washington.
The complaint alleges, Respondent admits , and I find,
that Respondent is, and at all times material has been, an
employer engaged in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
11. LABOR ORGANIZATION
The complaint alleges , Respondent admits , and I find
that the Union is, and at all times material has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. BACKGROUND
Respondent is engaged in logging , log hauling and build-
ing logging roads both for its own logging operations and
for others. It is owned by two brothers: James Clevenger,3
president and general manager , and William Clevenger,4
secretary-treasurer . J. Clevenger spends much of his time
managing the logging operation and is frequently away
from the office . W. Clevenger normally spends the entire
day in the office and is responsible for administrative de-
tails . Since he is in the office, he is more directly involved
with the truck operation than with the logging operation.
All of Respondent's logging is done under a contractual
arrangement with companies who own the timber, to their
specification and as required by them . Respondent's prin-
cipal customers are I.T.T. Rayonier and I.T.T. Peninsula
Plywood. Its log hauling is also done under a contractual
arrangement whereby the timber is transported from the
woods to a location designated by the customer . Since, at
least the early 1960's, Respondent has used some contract
labor in its logging crew, principally faller and buckers,5
and has also subcontracted its overflow hauling work. Its
principal supplier of fallers and buckers is Birdwell Broth-
Z The motion of the General Counsel to correct the official transcript of
the proceedings herein is granted and the errors have been noted and cor-
rected.
3 Referred to herein variously as Jim, Jim Clevenger and J . Clevenger
Referred to herein variously as Bill, Bill Clevenger and W . Clevenger.
s A faller cuts down a standing tree . A bucker then cuts the tree up into
prescribed lengths.
ers Busheling . It uses various trucking -subcontractors, but
the principal one is apparently Hughes Trucking.
The number of employees on Respondent's payroll vari-
es during the year. During the busiest season there are
around 35 employees. Although the Union represents all of
Respondent's employees, the ones we are principally con-
cerned with herein are the rigging crew, because one of the
alleged discriminatees, William Brown, worked in that
crew, and the log-haul drivers who are involved in the
other allegations of the consolidated complaint. The rig-
ging crew consists of a chokerman, a rigging Slinger, and a
hook tender.6 The hook tender and the rigging clinger are
the key classifications in the rigging crew. On the landing,
the key classifications are the shovel operator and the yard
engineer. The chaser 7 also works on the landing. Accord-
ing to the undenied testimony of W. Clevenger, which I
credit, a skilled logging crew is difficult to obtain. General-
ly, a logging company has to resort to training its crew, and
once they are trained, it is difficult to retain the rigging
crew particularly because they jump from job to job for
more money. For that reason many of the logging crew are
paid above union scale.
The rate- for log hauling is set by the State.8 This amount
is what Respondent is paid by its customers and that same
amount is also what Respondent pays to its subcontrac-
tors? Prior to January 1975, Respondent was utilizing six
highway logging trucks driven by its own employees. It
maintains a shop for truck maintenance in Port Angeles in
the same building where its office is located. Also, its log-
haul drivers live in the Port Angeles area.
According to J. Clevenger, Respondent's financial diffi-
culties with its log-hauling operation began when I.T.T.
Peninsula Plywood, its principal customer, and I.T.T. Ray-
onier set up a sorting yard at Forks, Washington, and di-
verted most of their log deliveries to Forks, which is about
55 to 59 miles from Port Angeles. Consequently,
Respondent's trucks were no longer hauling loads to Port
Angeles and they had to run empty trucks to Forks in the
morning and empty trucks to Port Angeles in the evening
which entailed, on the average, approximately 2-1/2 hours
a day per driver at overtime rates. Near the beginning of
1973 Respondent tried to cut its expenses by utilizing off-
highway rigs stationed at Forks.10 Either slightly before or
6 A rigging slinger grades the logs in the brush, selects the logs which meet
the size specifications and rejects those that are rotten or have too many
limbs or knots. He is normally assigned two or three chokermen . The chok-
erman secures a length of cable, called a choker, around a log which goes on
a butt rigging running to the tower. This is the method of bringing in the
lops.
The chaser unhooks the chokers as the logs come in, saws off the limbs
with a chain saw and brands the ends of the logs for identification purposes.
8 The rate is set by the Washington State Utilities and Transportation
Commission . Someone from the Commission runs the road and determines
what is known as the State rate
9 Under Respondent's contract with its customers, it is paid separately for
log hauling and also for falling and bucking . This amount is passed on to its
subcontractors without profit or loss to Respondent . The only exception
was for a period of approximately 2 weeks in 1975 when it incurred a small
loss on finishing a year-old contract on an off-highway haul, for which there
is no State rate . Hughes demanded State rate and Respondent paid it al-
though it was slightly more than Respondent was being paid.
10 The off-highway trucks were used only until the spring of 1973, at
which time it had become apparent that the vehicles had rear-end problems
Continued
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the same time, Respondent began implementing the
practice of parking its highway trucks in Forks and having
the trucks brought into Port Angeles only for servicing.
About the same time the off-highway trucks were put into
use, Respondent began using a crew bus. The crew bus
departed from Respondent 's Port Angeles shop in the
morning and picked up men either at their homes, along
the road , or at Callum Bay. According to J. Clevenger the
bus was not successful because gradually , the drivers began
to find more and more servicing reasons for bringing the
trucks into town so that finally they were returning to Port
Angeles almost every night. Then in the winter or spring of
1974, the crew bus had an accident and Respondent com-
pletely abandoned that experiment.I I
Until 1972 when Respondent signed a contract with
Rayonier, its employees were not represented by a union.
However, Rayonier had a collective-bargaining agreement
with the Union which requires all its contractors to main-
tain union standards, and shortly after Respondent entered
into its contractual arrangement with Rayonier, the Union
notified Respondent that it represented a majority of
Respondent 's employees and demanded recognition. On
August 18 , 1972, William Clevenger discussed with the
Union, the Union's contract proposal. It is not clear from
the record whether an agreement was reached on contract
terms at this meeting or later . 12 However, they did execute
and no parts were readily available . Highway trucks are designed to carry
75,000 pounds gross weight on the highways and a maximum of 80 to 85
thousand pounds, under overload conditions , whereas the off-highway
trucks were capable of hauling 180 to 200 thousand pounds gross weight.
' I This is from the testimony of J. Clevenger , whom I credit in this regard.
There was a substantial amount of testimony concerning whether Respon-
dent instructed the drivers to use the crew bus, whether they were instructed
to bring the trucks in for servicing once or twice a week , whether the crew
bus idea was deliberately sabotaged by the drivers , or whether the plan was
basically unsound because of the staggered work schedule of the drivers.
Resolution of these questions is, in the main , unnecessary and I have
reached conclusions thereon only to the extent necessary to resolve the basic
issues herein . I do credit the testimony of J. Clevenger that Respondent
attempted to implement a plan whereby the highway logging trucks were to
be parked at Forks except when servicing was required and, without at-
tempting to allocate blame , I further conclude that the plan was unsuccess-
ful. I think Clevenger 's testimony in this limited regard is more inherently
consistent than that of the employee witnesses . All driver witnesses were not
questioned as to the use of the crew buses. Spooner does not deny that
drivers used the crew buses . He testified, without explanation and without
contending the same was true of all highway log truck drivers , that a crew
bus was not available to him. I found Haasl to be an evasive witness with
regard to this aspect of his testimony . Furthermore, it is apparent from his
testimony that the drivers used the crew bus and that the trucks were parked
in Forks at some time.
12 There was extensive testimony as to the nature of these negotiations. In
general, the Clevengers contend that when they signed a Rayonier contract,
they were told they had to go union . Consequently , they considered the
Union contract to be much the same as all of the contracts a relatively small
logging company deals with in the logging industry, i.e., you negotiate mon-
ey items and time limits but you have no choice as to contractual language.
In essence, you are dealing with standard form contracts . The Clevengers'
undenied testimony is that the Union gave them a Rayonier wage scale and
told them to select the applicable classifications . Don Young , union busi-
ness agent, testified that they went over the Union 's proposed contract item
by item . J. Clevenger does not recall this approach and neither he nor
Young recall very much as to the details of this session. They agree that they
arranged that the Union wage scale would not become effective until Janu-
ary of 1973 . J. Clevenger is sure that the subcontracting clause was not
discussed because if it had been , there would have been extensive discussion
due to Respondent 's reliance on the use of subcontractors. Resolution of
this question is unnecessary since regardless of Respondent 's reason for
a collective-bargaining agreement effective October 30,
1972, which provides , inter alia, for hourly rates of pay and
prohibits the subcontracting of any work which is normally
done by, or expected to be done by, the employees covered
by the agreement . I credit J. Clevenger's testimony that
they did not negotiate that the marshalling point 13 would
be Port Angeles . Such an agreement is not memoralized in
the contract and the contract is worded to anticipate future
negotiations on a marshalling point . 14 Moreover, it would
appear logical that a marshalling point is something that
might change during the course of a 3 -year contract in
accordance with changes in the location of the woods site
or the customers sorting yard.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Pre-October 19 Threats
Ken Dawley , employed in Respondent's rigging crew,
testified that in early fall 1974, another crew member asked
McHaffie 15 for a raise . McHaffie replied , "If we were out
of the Union, we'd have a better chance of getting a raise."
He said the money they had to pay to the Union 16 could
go toward a raise . McHaffie further said , "If you don't like
the way we are running things, we'll shut everything
down."
McHaffie denies that he ever promised the logging crew
that they would get more money if they were out of the
Union . He does not deny that he threatened to shut ev-
erything down nor does he specifically deny the statement
regarding a raise ascribed to him by Dawley . I credit Daw-
ley, who impressed me as an honest and reliable witness.
McHaffie's testimony, on the other hand, was somewhat
confused and differed in several respects from his prehear-
ing affidavit. I find both statements to be coercive and
therefore violative of Section 8(axl) of the Act . Although
the latter statement is not specifically alleged in the com-
plaint , it was fully litigated at the hearing.
In August, Respondent laid off drivers Joel Spooner and
Frank Robinson for 2 days and utilized a subcontractor's
trucks in their place . When Young questioned J. Clevenger
in regard to this, Clevenger told him that this was done
only because the subcontractor had to have a certain
amount of work in order to obtain a Common Carrier Cer-
tificate of Convenience from the Washington State Utilities
signing the contract , or its assumption as to the extent it was negotiable, it
did sign the contract and it is obligated thereby . To the extent that it may
affect credibility resolutions regarding other issues herein , I conclude simply
that J. Clevenger's account of this meeting is the more creditable. Consistent
with his testimony, the contract appears to be a standard form with certain
blanks to be filled in. Young , himself, testified that there were just some
blank spaces that were filled in.
13 Marshalling point is the location from which trucks are dispatched each
dal.
° The contract provides:
ARTICLE-TRANSPORTATION
The Employer agrees to furnish all employees with free transportation
to and from their work each day from a station to be agreed upon by
the Employer and the Local Union.
Is The parties stipulated that McHaffie is a supervisor within the meaning
of the Act.
16 Presumably , he was referring to health and welfare and pension bene-
fits.
CLEVENGER LOGGING, INC.
and Transportation Commission.
Thereafter, during the first part of September at a union
meeting, the employees discussed Respondent 's use of sub-
contractors in preference to employees 17 and elected a
grievance committee consisting of Pete Johnson, Tom
Haasl, and Bill Brown . Haasl and Brown were also elected
to the safety committee.
Joel Spooner testified that during the week preceding
this meeting, J. Clevenger told him, "I don't know who
called this union meeting. If any heavy shit comes down
from it, I'll shut this whole sonofabitch down and you'll all
be looking for a job." Clevenger admits that he had conver-
sation with Spooner regarding the calling of a grievance
meeting. He does not specifically deny Spooner's account
of the conversation. I credit Spooner and find that Respon-
dent thereby violated Section 8(axl) of the Act as alleged
in paragraph 12 of the consolidated complaint.
In early October, the grievance committee met with Jim
and Bill Clevenger. Haasl requested permission to tape the
meeting and was refused . Haasl brought up the subject of
the layoff of Spooner and Robinson while subcontractors
were working. According to Haasl, the Clevengers re-
sponded, with shouting and profanity, that this was no
concern of the committee and they would not tolerate any
interference , that the drivers were making too much mon-
ey, were robbing them and if the employees persisted in
bringing the Union into the matter, they would shut the
trucks down , fire all the drivers, reorganize the Company
and hire new drivers. In substantial agreement Brown testi-
fied that J. Clevenger said they were tired of the employees
complaining and if the Union was brought into any more
matters, they'd shut the whole outfit down. Both Brown
and Haasl testified that they informed the Clevengers that
a safety committee had been formed, that Brown raised the
issue of some problems with the whistles, and the Cleven-
gers explained the difficulties and said they would attempt
to correct the problem.
Jim Clevenger denies that he was extremely upset 18 or
profane and that he ever said he would shut down the log
truck operation if the drivers sought union assistance. Ac-
cording to him, as soon as the drivers complained, and
prior to the meeting, he had taken care of the situation by
telling Carrell to make sure that everyone received a fair
amount of time. However, he makes no attempt to relate
17 Apparently their complaints were not related solely to the Spooner-
Robinson layoffs but also involved the rotation of subcontractor trucks with
Respondent's trucks . Respondent's normal practice had been to load one of
Respondent's trucks , then one subcontractor truck in rotation and the
trucks usually hauled two loads a day. However , Respondent had recently
initiated the practice of first loading all subcontractor trucks that could get
three loads-usually one to three trucks-and then beginning the rotation.
There is conflict as to whether Respondent's trucks were not assigned a
third load because the drivers considered three loads plus 2 -1/2 hours' trav-
el time made for an excessive workday and didn 't want to do so or because
the Clevengers did not want to subject their equipment to that kind of wear
and tear . The truth is probably a combination of these reasons . J. Clevenger
stated that three named drivers, including Carrell, told him they did not
want three loads . Although two drivers not named by Clevenger testified on
rebuttal that they had never refused a third load , Carrell , who had testified
as General Counsel witness was not called to testify on this point . Not did
the drivers who testified on rebuttal deny that they had simply not returned,
as Clevenger testified McHaffie reported to him.
18 He admits that he probably did get excited.
771
the details of that meeting. He does state that he thought
they were meeting with the safety committee and did not
realize that the meeting was a grievance meeting. I credit
him in this regard since safety matters were also discussed.
Apparently, there was no written grievance, 19 ahd, as set
forth below, a month later Bill Clevenger asked Young the
identity of the persons on the grievance committee. How-
ever, I do credit the testimony of Brown and Haasl that he
said he would shut down its log truck operation if the driv-
ers sought union assistance.-Their testimony is mutually
corroborative, and it is apparent from the record that for
several months the Clevengers had been making statements
to the effect that something had to be done regarding the
losses being incurred in the log-haul operation, that going
to the Union would not solve the situation and unless they
were allowed some flexibility, they would close the trucks
down. It is also apparent that they perceived fine distinc-
tions between what they admittedly said and the testimony
of employee witnesses that they handed down ultimatums
of the sort to which Brown and Haasl testified. It was fur-
ther apparent from their demeanor on the witness stand
that the Clevengers, particularly Bill, possess rather volatile
temperaments and tend to react adversely to accusations.
B. The October 19 Meeting
Haasl testified that one of the Clevengers said something
to the effect that "times were real tough" and they were
having trouble. He does not recall specifically what was
said in this regard. Then:
Jim Clevenger informed us that we would go onto a
trip rate, that we were no longer on an hourly rate. We
would be allowed so much time for each load, depend-
ing on its destination. We would be paid that rate
whether it was four hours, five hours, six hours, what-
ever they determined it would take us to make that
run, that's the allowable pay that we would receive
regardless of how long it took. We were informed by
him that that was the way it was going to be. We had
a choice, we could either take it, quit or get fired... .
I believe I made mention that some of their times were
not too far out if everything went as smoothly as it
should be, but otherwise there was no possible way it
could work out, and I think there were other com-
ments from other drivers that it didn't look like it
could work out.
Haasl further testified that the meeting lasted about an
hour or an hour and a half, the Clevengers were quite excit-
ed and profane and that Jim Clevenger said:
... if we cause any stir on this on the union, they
were absolutely going to button everything up and
they would just shut the trucks down and we'd be out,
that they were going to quit hauling with their own
trucks if we caused any stir about this at all.
Jim Clevenger also stated that Carrell was truck boss, any
complaints or problems should be taken to him and he
would either immediately solve it or bring it to the atten-
19
The written grievances in the record, including one on the August lay-
offs, were filed after October 19.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of one of the Clevengers . One of the Clevengers said
the drivers were no longer required to have clock cards and
tachographs. They said time slips would be used and the
drivers should describe on the slips their loads, the pickup
and destination points , and the allowable hours.
Sooner testified that J. Clevenger opened the meeting by
saying the Company was economically in trouble and this
would necessitate a cut in wages . He said, "You can quit,
be fired , or leave , and he didn't give a damn which we did.
He didn 't care what the union thought about it, and this is
the way it was going to be , and we could take it or leave it
.... " He outlined a trip rate pay system with the rate to
be determined by the Company and said if the drivers
didn't go along they would shut down.
Jim Clevenger testified that he started the meeting by
saying:
I said, "Fellows , we have got a severe economic prob-
lem. We are losing an extreme amount of money on
the log truck portion of our operation and we are
going to have to do something to correct, this if we are
to continue operations ." I said, "Bill and I have dis-
cussed this. We would like to try to continue but we
cannot continue losing money as we are now" and I
said, "We have discussed this, we have three proposals
to present to you as solutions to the problem or that
we feel and we are open to any suggestions that you
might have. . . ." I told them that the [wage] percent-
age was between 50 and 60 percent of our gross... .
That it was a much higher percentage than we could
afford for the amount of money we were bringing in.
That with our operation at only 25 to 30 percent 20 we
could not subsidize the truck operations and . . . that
led up to the telling of what we had come up with or
felt could be solutions to the problem. I told them that
we had discussed the possibilities, we had three solu-
tions , one, starting all operations , and bringing no
trucks to town, at the Forks sorting yard which would
alleviate two and one-half hours approximately, of
overtime a day. The second was that they take or
make a reduction in the amount of time to compen-
sate approximately this time , so that we would elimi-
nate some of the financial burden and let them contin-
ue coming to town since they lived here . That way we
would have a kind of a give and take situation. They
would not have to move to Forks or drive their cars to
Forks and we would be able to maintain our mainte-
nance operation in Port Angeles . It was definitely ben-
eficial to both parties.
According to Clevenger, the drivers made negative re-
sponses to the idea of parking the trucks at Forks so, as-
suming that they didn't want the operation shut down, he
proceeded to a more specific discussion of a trip rate pro-
posal , talking in terms of a specific number of hours for a
specific run. As to one run, Carrell said he thought he
could make the trip in less time. Haasl said he thought the
times were fair. Clevenger asked if there was any objec-
tions to these times . They all indicated assent . Clevenger
said, "I am not after a hassle . I am not after a big fight. I'm
20 Rayonier and Peninsula Plywood had severely cut back Respondent's
operation.
trying to solve a critical problem we have run into until
economic conditions return to normal ." He further said
they wanted to try to maintain the operation both for the
drivers and for themselves , if at all possible and if there
were any problems, if the drivers foresaw any problems
they were to tell Carrell, he would pass them on to the
Clevengers and they would try to resolve them and hope-
fully this would not last longer than the spring of 1975. He
denies cautioning the drivers not to consult the Union or
that if they went to the Union, he would shut down the
trucks and fire them. J. Clevenger does not remember tell-
ing the drivers that it would do them no good to go to the
Union. He states that they did say that financially they
could not continue in the same manner , that having a has-
sle with the Union would not solve the financial problem.
W. Clevenger testified that he came in as Jim was going
over the details of the new wage schedule. According to
him, he made the statement that if it was not economically
feasible for the drivers to live with this, they would have no
alternatives but to park the trucks. He said it was not that
they were trying to fire the drivers and hire new ones, it
was just not economically feasible to run the trucks. Carrell
said something to the effect that he understood. There were
several responses but he doesn't recall any particular state-
ment. He further testified that he said, "You can go to the
union if you want, but it won't do you any good because
the union can't change our financial position."
Although Jim Clevenger's account is more detailed and
there are differences in emphasis , I find no significant con-
flict in these versions except as to the alleged threat to shut
down if union assistance was sought. Probably the meeting
was not as democratic as Clevenger would have it and not
as one-sided as Haasl and Spooner describe. However, es-
sentially it is undisputed, and I find, that the Clevengers
ruled out a continuation of the pay scale required by the
contract. Jim Clevenger admits that once the question of
parking the trucks at Forks was rejected, the sole option
left to the drivers was to accept a pay plan which reduced
their pay by roughly 2-1/2 hours overtime daily or lose
their jobs because Respondent would cease using its own
trucks to haul logs and all of the log-haul drivers would be
laid off. Further, Bill Clevenger admits that he told the
drivers it would do no good to go to the Union, and
Respondent's entire course of action, including the similar
threats made previously to Spooner and the grievance com-
mittee, indicate that Respondent was determined to brook
no union interference designed to cause Respondent to pay
its log-haul drivers the pay rate required by the collective-
bargaining agreement . In the circumstances , I find that the
statements made by the Clevengers were intended to, and
did, impress upon employees that their jobs would be in
jeopardy if they sought union assistance. Further, I credit
Haasl and find that Jim Clevenger specifically stated that if
there was any interference from the Union, Respondent
would shut the trucks down. Such a statement clearly
coerces employees in the exercise of their rights guaranteed
by Section 7. Accordingly, I find that Respondent thereby
violated Section 8(a)(1) of the Act.
On October 21, the new wage system went into effect
without notification to, or discussion with, the Union. As a
result, the drivers sometimes put in more hours than they
CLEVENGER LOGGING, INC.
were paid for. Sometime in December Respondent made at
least one change in the hours allowed for a run using the
5800 road . Again, there was no notification to, or discus-
sion with, the Union.
I also find that by implementing a new wage system
without notification to the Union Respondent violated
Section 8(a)(5) and (1) of the Act. The Act requires that an
employer bargain with the majority representative of its
employees with regard to wages, hours , and working condi-
tions. Unilateral action is violative of the Act regardless of
good faith or economic defense . Century Electric Motor
Company., 180 NLRB 1051 (1970).
I further find that Respondent violated Section 8(a)(5)
and (1) by presenting its proposed change in pay directly to
its employees rather than to their collective-bargaining rep-
resentative ; and by threatening employees with termina-
tion if they refused to accept the proposed changes. The
effect of such threat was to coerce the employees to accede
to Respondent's terms and to induce them to abandon
their support of the Union. Dust-Tex Service, Inc., 214
NLRB No. 60 (1974).
C. The November Refusal To Bargain
Young testified that on or about October 20 or 21, Rob-
inson informed him of the October 19 meeting. After wait-
ing to ascertain that the pay change was indeed reflected in
the November 10 paycheck, Young telephoned Bill Cleven-
ger on November 15 and told him he wanted to set up a
meeting to discuss the trip rate change. According to
Young, Clevenger replied, "No way are we. going to meet,
that we met with the son-of-the-bitches once, and they can
either take it or leave it." Young further testified that Cle-
venger inquired who wanted to meet him and when Young
replied the grievance committee , he asked who was on the
grievance committee and Young replied , Haasl and
Brown?t Clevenger inquired as to the identity of the third
member and Young said he couldn't tell him because they
had just had elections.
On cross-examination Young admitted that Clevenger
brought up the subject of the crew bus as an attempt to
solve Respondent 's financial problem and that it hadn't
met with any success or cooperation from the men. He
denies that at this particular time, Bill Clevenger offered to
furnish figures in support of his position.
Bill Clevenger does not deny this conversation . He testi-
fied on cross-examination that he may have received a tele-
phone call from Young on November 15. He does recall a
telephone conversation in which Young requested a meet-
ing regarding the new pay system. As to this conversation
Clevenger testified:
Q. Did you then plainly tell Don Young that the
company would not be represented at the meeting and
if the drivers couldn't or wouldn't work under the ex-
isting conditions that the company would stop using
company-owned trucks?
21 Young testified that he could not recall at the moment whether Pete
Johnson or Frank Robinson was on the grievance committee so he only
mentioned the two names.
A. That is correct.
773
However, he made no attempt to relate the entire conversa-
tion.
Jim Clevenger testified that he was present when Bill
Clevenger received a telephone call from Young regarding
a grievance meeting with the committee over the trip rate
schedule. According to him, Bill said he did not want to
meet at the union hall and have a big fight with the drivers,
that he didn't think that it would do any good to have a
meeting because it would not change the financial condi-
tion of the Company and that he had gone over it with the
drivers. He also said that they would be more than happy
to show them the financial figures of the Company and to
have a premeeting at Respondent's office to disclose the
problem and discuss it with him prior to any meetings that
might develop, because it was a complicated problem. He
does not recall Bill asking during that particular phone can
who was on the grievance committee and he denies hearing
Bill repeat the names of the union committee men. At some
point Bill did tell him Young had said Haasl and Brown
were on the committee . He is confused as to the time but
thinks it was after November 15. In fact he thinks, but is
not certain, that the request for the meeting was later than
November 15.
On cross-examination , Bill Clevenger testified that fol-
lowing this conversation he talked to Carrell and basically
told him to talk to the drivers and take a vote as to whether
they wanted to work under the trip rate system, and inform
them that if they didn't want to work under that system,
the trucks would be parked starting November 18. He fur-
ther told Carrell they would not be hiring other drivers, it
was just that economically they could not continue the op-
eration . They had made other offers and that was it. On
November 17, Carrell called and said he had talked to the
other drivers as instructed and that they wanted to contin-
ue work. He is certain about the November 17 date be-
cause it was the Sunday before Monday, November 18,
when the trucks would have been parked. He is uncertain
about the November 15 date.
In view of Bill Clevenger's admission, the fact that Jim
Clevenger was vague as to dates and may have been con-
fusing two separate conversations and obviously could not
testify as to the context of the statements he overheard,
and the fact that Bill Clevenger immedately responded by
again bypassing the Union and approaching the employees
directly, I find that Bill Clevenger did refuse Young's re-
quest to bargain concerning Respondent' s unilateral
change in the wage system. Accordingly, I find that Re-
spondent thereby violated Section 8(a)(5) and (1) of the
Act. I further find that Respondent violated Section 8(a)(5)
and (1) of the Act by Clevenger's threat to shut down the
trucks on November 18 if the drivers were not willing to
accept the trip rate pay system.
D. Haasl's Discharge
Haasl began work for Respondent in September 1972 as
a chuck tender drilling a pit. When that job was finished he
drove a gravel truck, then left Respondent's employ for
about 6 weeks until August 1973 when he was reemployed
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a log truck driver . Since then he has complained several
times to the Clevengers regarding safety matters . In Janu-
ary 1974 he appeared as the sole witness for a discharged
employee and his testimony was instrumental in having the
employee reinstated. In March , Haasl contacted the De-
partment of Labor and requested a safety inspection. The
inspection was made but there is no evidence that the Cle-
vengers knew that he had complained. Also in March,
Haasl telephoned Jim Clevenger , told him one of the driv-
ers had not returned home and he was quite concerned
about his safety. Clevenger replied that he shouldn't be
calling him , that Carrell would take care of it . According to
Haasl, they had a rather heated discussion over this and
Clevenger "slammed up the phone." 22
Shortly thereafter, on March 20 , Jim Clevenger delivered
a letter to Haasl , told him to read it and said it was a
warning , the first step in the grievance procedure . The let-
ter signed by William Clevenger reads:
This letter is to inform you that we have received com-
plaints from some of our crew about your recent criti-
cism of the management of Clevenger Logging, Inc.
Jim Clevenger and I have each received untimely tele-
phone calls from you, which have subjected both of us
to listening to these primarily unfounded complaints.
We are notifying you at this time that any further
complaints from the crew regarding this problem or
continuance of these unnecessary criticisms to Jim or
myself will result in your discharge from the employ of
Clevenger Logging, Inc.
We do wish to be informed of any pertainent[sic]
problems regarding operation of this company, but
will accept only constructive suggestions which are
made during the reasonable working day either ver-
bally or in written form . These suggestions shall be
directed to Jim Clevenger or myself only, not to fellow
employees.
During the week following the October 19 meeting,
Haasl filled out the new time slips with the information
required by Respondent, but he also included the actual
hours he worked. On or about October 24 or 25, Bill Cle-
venger gave Carrell Haasl 's October 23 and 24 time slips
and told him to instruct Haasl to rewrite the time slip and
leave off the extra time . Carrell informed Haasl and Haasl
changed the slips.
On November 13, at or around 5 p.m., as he was return-
ing to Port Angeles after delivering his last load, Haasl ran
out of fuel .23 He immediately radioed Respondent's office
and requested that fuel be sent out to him. Robinson had
heard the call over his radio so he informed Haasl that
Spooner had passed him shortly before and should be close
to Haasl 's position and suggested that he siphon some fuel
from Spooner's truck . Haasl said Spooner was probably in
22 Immediately pnor to calling Clevenger, according to Haasl, he had
reported this to Carrell and Carrell said he (Carrell) would have to call
Clevenger to find out what to do.
23 According to Haasl, his normal routine had been broken the previous
evening due to a shovel breakdown which resulted in him leaving his truck
in the woods . Since he is accustomed to refueling in Port Angeles he forgot
that he needed fuel on his return . His gas gauge was inoperative.
the same position since his truck had also been left in the
woods the day before and Haasl was almost certain that
Spooner had also forgotten to refuel. Shortly thereafter
Spooner passed Haasl and ran out of fuel about 100 feet in
front of him. Haasl remarked to Robinson that it was kind
of humorous that they ran out of fuel in in the same spot,
laughed and said you will probably never see it again?? At
this point Bill Clevenger came on the air. According to
Haasl, Clevenger said, "The next one of you sons-of-bitch-
es that runs out of gas will be canned . There is nothing
funny in this at all. I don't find it a damn bit funny sitting
down here at the desk and hearing you sons-of-bitches run
off the mouth like that , laughing over something like this.
The next one of you dirty, rotten, son-of-a-bitches that
runs out of fuel is canned . Do you understand?" Haasl
said, "Yes, sir."
Bill Clevenger testified that the levity with which Haasl
and Robinson viewed the situation really made him angry
so he picked up the radio and said, "The next son-of-a-
bitch that thinks it's funny running out of fuel will leave his
truck where it runs out of fuel and will walk to town."
There was a pause , then Clevenger said , "Is that clear?"
and one of them answered, "Yes, sir." According to Cle-
venger, he was still extremely angry so he told the office
clerk that he was leaving the office because if he didn't,
when Spooner and Haasl arrived, he would probably fire
both of them.
Later that day, according to Bill Clevenger's undenied
testimony, he discussed the matter with Carrell. At that
time Carrell told him that he had warned Haasl in 1973
when he had run out of fuel 25 that Respondent would not
tolerate this.26 On the morning of November 15 after Jim
Clevenger returned from out of town, Bill related to him
the incidents of November 13 and said it was his intention
to fire Haasl but he wanted to talk to him (J. Clevenger)
first. Jim's reply was, "He's already been warned. I don't
see where there is any problem."
According to Haasl, that evening when he returned to
the shop, Bill Clevenger told him, "I'm sorry to tell you
this, Tom, but we've decided to get rid of you." Haasl
asked , "Well, what's the reason for this?" Clevenger re-
plied, "You ran out of fuel the other night and we have just
decided we're going to get rid of you ." Haasl said he felt
his work record was very good, in 2 years he had only been
late once, he had been very easy on the equipment and the
maintenance record on his truck was very, very good. Bill
Clevenger said that did not make any difference , that he
had run out of fuel and they were going to get rid of him.
Jim Clevenger said, "A lot of it's your attitude too." Haasl
inquired if Spooner was being discharged and Bill Cleven-
ger said , "No, we're not going to fire Joel . He hasn't been
warned." At some point during the conversation Jim Cle-
24 According to Haasl, this normally would not happen because no two
drivers have the same foot on the throttle and he and Spooner had driven 2
days carrying more or less the same load , covering the same distance and
then ran out of fuel close together.
25 According to Haasl , this incident, which occurred during the energy
crisis, was not his fault. He had refueled, but during the night someone had
siphoned fuel from his truck while it was parked in the Rayonier yard.
26 Haasl denies that he was warned about this , and states that the only
warning he ever received was the March 20 letter . Carrell did not testify in
this regard
CLEVENGER LOGGING, INC. 775
venger said his father had discharged people for running
out of fuel.
Bill Clevenger testified he told Haasl that they were
going to have to let him go, that it was for running out of
fuel Wednesday night and for his attitude as well as run-
ning out of fuel. He explained that they only had one per-
son in the shop due to reduced operations2 and it took a
lot of time for him to gather up the fuel and the fuel filter
and that he had run out of fuel before. In response to a
leading question he further testified that by "attitude," he
was referring to his levity over the radio.
Jim Clevenger testified that when Haasl returned to the
shop, he told Haasl that they just could not tolerate the
continual running out of fuel, not following orders.2 8 Bill
Clevenger said, "Tom, we'll have to let you go because you
run out of fuel." Haasl said, "Doesn't my previous work
record mean anything?" Jim Clevenger said, "Well, you
have been warned previously by Carrell about running out
of fuel." Haasl said he had a good record, he had done a
good job. Jim Clevenger replied, "Tom, there has been sev-
eral things 29 that maybe you should have been canned on.
I haven't anything personal but you've got to follow our
directions. We have requirements or regulations. They
have to be followed."
Later that evening, Haasl told Young he had been dis-
charged for running out of fuel. Whereupon Young told
him that he had telephoned Bill Clevenger around 3
o'clock that afternoon, had asked them to meet with the
grievance committee and had told Clevenger that Haasl
and Brown were on the committee.
I find that Respondent seized upon Haasl's running out
of fuel as an opportunity to rid itself of Haasl. Both Cle-
vengers admit that running out of fuel was not the sole
reason for discharging him. As to the other reasons, Bill
Clevenger said it was his attitude of levity concerning the
incident. While the mild humor displayed by Haasl at the
irony of the situation might arguably cause a hot-tempered
person to fire him on the spot, upon sober reflection it just
does not add up to a major offense.
Furthermore, Jim Clevenger describes this intolerable at-
titude as something entirely different-telephoning them
with complaints when it appeared he had been drinking. I
completely discount the drinking contention. If that had
been a factor it would have been mentioned in the March
20 letter. Instead, the March 20 letter mentions only his
criticism of management to fellow employees and his "un-
27 Normally there are three persons in the shop.
28 Jim Clevenger testified that Respondent has standing instructions that
fuel, water, oil, tires , and general mechanical condition of the trucks be
checked prior to starting out in the morning . This is for safety as well as
maintenance reasons . There was testimony from Haasl that he had never
received such instruction but he concedes that all drivers know these things
have to be checked . Usually, however, according to Haasl , Respondent's
drivers made these checks at the end of the day . Fuel is available both at the
shoj and in the woods , and sometimes at the Forks sorting yard.
2 According to Clevenger, what he meant by several reasons that Haasl
might have been fired was that they had had a few problems. Haasl called
him up when Clevenger felt he had been drinking . He had also called Bill
Clevenger when it appeared he had been drinking. They had both told
Haasl if he had a reasonable complaint , talk to them during regular business
hours . If there was an emergency , he could call them but not to call when he
had been drinking. Clevenger denies that he was referring to union member-
ship or activities.
founded" complaints to the Clevengers. There is no evi-
dence from the Clevengers as to just what these complaints
were and they do not deny Haasl's testimony that he com-
plained about safety matters. Also, the letter forbids Haasl
to engage in the protected activity of discussing working
conditions with his fellow employees. In these circum-
stances , I do not credit J. Clevenger's contention that the
warning he referred to was the warning about running out
of fuel. Rather, I conclude that he was referring to the
March 20 letter.
In all of the circumstances, including the timing within a
few hours after learning that Haasl was a member of a
grievance committee whose expressed intent was to inter-
fere in Respondent's plans to maintain reduced wage costs,
the contemporaneous discharge of the other known mem-
ber of the committee, the hostility evinced by Respondent
toward such union interference, the attempts to bypass and
undermine the Union and Respondent's animus directed
toward Haasl for his prior complaints regarding working
conditions, I find that Respondent's discharge of Haasl
was illegally motivated by his union and other protected
activities. Accordingly, I find that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging Haasl.
E. Brown's Discharge
Brown was hired by Respondent in March 1973 as a
choker setter at $5 an hour. Shortly thereafter he was pro-
moted to rigging Slinger at $5.75 per hour. He was dis-
charged in April 1974 for failing to report for work 30 Lat-
er, another employee told him that McHaffie said he could
return to work, which he did on May 16. He became job
steward in March 1974 but admittedly never really com-
plained about anything. His primary function, according to
him, was to sign up new employees for the Union. On No-
vember 13,31 he forgot his caulk boots which he is required
to wear as a rigging slinger.32 Since he couldn't work as
rigging slinger he was assigned to work on the landing as a
chaser. After 8-hours' work, he went to the crew bus. The
other members of the crew worked for 9 hours. Brown
states that Noone had told him to work overtime, it was
raining, another chaser was working, and there were only
two chokers to unhook, so there really wasn't anything for
him to do. Therefore, he went over to the crew bus to warm
it up, thinking the crew would be coming in from the brush
shortly. Another reason he went to the crew bus was that
when McHaffie left early, he took the shovel operator with
him so the yard engineer was bringing in the logs and put-
ting them in a big stack, making it a dangerous worksite for
30 Brown testified that he had gotten permission from McHaffie to go to
the doctor on a Monday. He attended a rock concert on Sunday night and
went to the doctor on Monday, but McHaffie evidently thought he took off
from work because of the concert. McHaffie testified that Brown and sever-
al others wanted time off to go to a rock festival in Seattle . Since they were
shorthanded, and Brown was a key man, McHaffie told him he could have
the day off only if he got someone to replace him. That Monday Brown
didn't show and didn't send a replacement.
31 Brown places the incident as sometime in October but admits it could
have been the week preceding his discharge . Since Brown also admits that
shovel operator Jack Hutto and McHaffie left early that day and
Respondent's time record shows that Hutto left early on November 13, 1
credit McHaffie 's testimony that this incident occurred on November 13.
32 Caulk boots are boots with big spikes used for walking on logs.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a person without caulk boots.
On November 14 McHaffie told Brown that he could
fire him for sitting in the crew bus while the rest of the crew
was working. Brown said yes, you're right. To which Mc-
Haffie replied , but I 'm not going to fire you for this.33 On
rebuttal Brown testified that he explained that the 8 hours
were up , he figured the crew was coming in and the other
chaser seemed to be able to handle things pretty well. Mc-
Haffie said he wasn't going to pay Brown for that time.
McHaffie denies that he said that and the time records
indicate that Brown was paid for the time he sat in the
crew bus.
Also on November 13 or 14, Respondent's operations
were given an on-site check by Wright Vanderwagen,
Rayonier's superintendent of contract logging . This visit
was prompted by the November semiannual utilization
survey prepared by the forestry department which indi-
cated that there was a higher than normal residue of mer-
chantable material left on the Clevenger clearcuts.34 Re-
spondent was notified of this problem and the visit
followed. Vanderwagen visited the clearcut covered by the
survey and also visited the existing operation . His resulting
evaluation was that Respondent 's logging was within ac-
ceptable standards and the utilization survey was incorrect.
Vanderwagen reviewed the utilization report with Mc-
Haffie and indicated that he was reasonably satisfied with
the job. During his check of the existing operation Vander-
wagen had observed Brown 's performance. His evaluation
was that he thought the logging was satisfactory but he
commented to McHaffie that they were logging too
clean 35 and that Rayonier would provide a man to help
Brown determine what should be taken and what should
be left.36 McHaffie told Vanderwagen that after he had
seen the utilization survey he told Brown to take it down
and make things cleaner . Since Brown had been selecting
properly,37 these instructions caused him to log too clean.
According to Jim Clevenger, on the evening of Novem-
ber 14, McHaffie telephoned him at home, told him about
Vanderwagen's visit and comments and related the crew
bus incident to him. Clevenger asked if Brown had been
doing an adequate job and if he had learned to make the
proper selection of logs. McHaffie said the problem at this
time is he is logging "too clean ." McHaffie said he liked
Brown, he was a good worker, but he could not learn to
make the proper selection of logs . Clevenger said he would
discuss the matter with his brother and would talk to Van-
derwagen regarding the utilization report . McHaffie specif-
ically told Clevenger that Vanderwagen had noticed that
Brown was logging nonmerchantable material and would
33 This is from the testimony of Brown with whom McHaffie is in sub-
stantial agreement.
34 A clearcut is a stand of timber that has been cut and is waiting to be
transported to the yard
33 Selecting logs smaller than the size specification
36 Rayonier has performed this service for other logging contractors but
never for Respondent . However , after the June utilization report , Clevenger
had requested assistance It is costly to a logging company to log material
which Rayomer cannot use and will not pay for. However , Rayonier would
rather that logging was too clean than not clean enough because the residue
can never be retrieved
37 Vanderwagen testified that the existing operation was being logged too
clean , not the previous one
like to send someone in to work with him.
The next day, J. Clevenger telephoned Vanderwagen.
According to him, he told Vanderwagen he understood
that Respondent had developed a problem on utilization,
that Vanderwagen had looked it over and Clevenger want-
ed to discuss it with him. Vanderwagen said, "You have
done a tum -around . Now you're logging too clean. Your
rigging slinger is costing you a lot of money and you had
better do something about it because while we were on
your landing he sent a considerable amount of non-mer-
chantable material to the landing ." Vanderwagen further
said that he recommended and would like to put a man in
the woods to train Brown. Clevenger replied, "I don't think
you are going to have to because when a man demands
approximately one dollar more an hour over union rates
because he is a professional and does a good job, knows
how to do the job and in fact, cannot do the job, then he is
not going to continue working for me." " Vanderwagen said,
"As far as a union problem , listen, I don't want any union
problems." Clevenger said there should not be any union
problems-they had worked with Brown since the first uti-
lization report , 18 he had taken time off without permission
or notification, he is not doing a proper job and Clevenger
did not see that there would be a union problem. Vander-
wagen said , "Actually, at this time , as far as utilization
goes, you have corrected your utilization problem as far as
I am concerned." He further said he did not want to get
involved in any union hassles . Clevenger said he felt there
would be no union hassle involved because of the record of
what Respondent had done from the June utilization re-
port to the present.
Vanderwagen testified that Clevenger said he was going
to fire Brown and wanted to use the utilization survey as
the reason. Vanderwagen replied, absolutely not, for one
thing his company did not want to be involved in any labor
dispute with contractors and he did not consider the utili-
zation survey a basis for firing Brown. Although
Vanderwagen's account is not as detailed as Clevenger's,
their versions do not actually conflict and I find that a
composite of their testimony more accurately reflects what
was said. Specifically, I find that in addition to details of
the conversation described by Clevenger, Vanderwagen
specifically stated that he did not think the utilization re-
port was a basis for discharging Brown. This statement is
in conformity with what Vanderwagen had earlier told Mc-
Haffie , which was essentially that Brown was doing an av-
erage job prior to McHaffie telling him to log cleaner. Van-
derwagen testified that it appeared that Brown had not
received adequate instructions as to what to log in. He
further stated that he does not recall any instances where it
came to his attention that Respondent was sending in logs
that were too small.
Also, on November 15, Jim discussed Brown with his
brother. He related the crew bus incident, that there were
continuous problems with him concerning utilization
which they had worked on for some time and that a month
38 Jim Clevenger testified that the June utilization report indicated that
Brown was not doing his job properly . Immediately after he received the
report, in the first or second week of July, he contacted McHaffie and
instructed him to call their immediate contract supervisor for Rayomer to
get assistance on the problem.
CLEVENGER LOGGING, INC. 777
earlier he had warned McHaffie that if Brown continued to
fail to show up for work and continued his sloppy work, he
was going to discharge him. They reached a decision to
terminate Brown . Clevenger told McHaffie to tell Brown
he was terminated , that it was Clevenger 's decision and if
he wanted a full explanation , to tell him to come to the
office and Clevenger would completely explain the reasons
for his discharge.
According to J. Clevenger , the earlier warning to Mc-
Haffie was prompted by Brown 's visit to the office about a
month or a month and a half prior to his termination. It
was on a payday and Brown came into the office to pick up
his check . J. Clevenger testified:
I said "What's the matter, you are not working?"
and he said "I'm sick . I've got the croup" and he goes
"cough , cough," kind of like that and I said nothing
else .... the minute he walked out I told Bill, I said
"He didn't seem sick to me. I am going to try calling
John. If he didn't call John and notify him that he was
sick and was going to be off, as far as I am concerned
he's done . . . ." Bill told me that Brown had, on two
or three other occasions that he had noted , had been
off in the approximate area of a payday and that he
thought that he was maybe developing some kind of a
habit. I said I would check it out with John, "We will
find out whether Brown actually asked to get off to see
a doctor or just took off on his own or what."
Clevenger radioed McHaffie to telephone him, which he
did that evening . McHaffie said Brown had just- failed to
show up that morning. Clevenger told him the next time
Brown committed a dischargeable offense 39 he would be
fired , that they could not , have an irresponsible ri gging
slinger . He further said , "If you have any reason , I want to
know about it. I plan to terminate him" and "if he comes
into the office and does that again you won't have to tell
me because he will be automatically terminated."
On November 16, according to Brown , he happened to
meet McHaffie in a restaurant . McHaffie took him to one
side and said he was going to have to lay him off. Brown
asked why . McHaffie said it was because he wasn't logging
right . Brown said that was "a bunch of bull" and demand-
ed to know the real reason , stating that McHaffie had been
out there on the job with him and had seen exactly what he
sent in. McHaffie replied that Brown was right, that wasn't
the real reason he was being laid off, and as far as he knew,
it was something that happened between Brown and the
Clevengers the last time Brown was in the office . McHaffie
further said that Brown could probably take this to the
Union and he would be crazy if he didn't. Brown said he
would take it to the Union. McHaffie said if it was up to
him, he wouldn 't let Brown go, because he liked him and
the job he was doing . McHaffie further said that one of the
Clevengers had instructed him to discharge Brown.
As to this discharge interview, McHaffie testified on di-
rect examination, "I told him that me and Jim had talked it
39 McHaffie 's undenied testimony is that the logging crew was plagued
with absenteeism so sometime between July 4 and September, he had laid
down a rule that anyone who failed to report to work without notifying him
of having a doctor'1 wntten appointment would be discharged,
over and we decided to terminate him and that he was
considered done at that time." When asked what Brown
said, McHaffie testified, "O=K. There was very few words
said," On cross-examination, he admitted telling Brown
that if he had any questions, the best thing for him to do
would be to go to the Union and that he doesn't recall
whether he told Brown that he was being discharged be-
cause of the utilization reports. He also admitted that he
told Brown he was not being discharged for just one partic-
ular thing, that there were a lot of reasons that he was not
completely aware of or did not completely understand.
I conclude that, like Haasl, Brown was discharged as a
result of Respondent learning that he was on the Union
grievance committee that was requesting a meeting to dis=
cuss Respondent's unilateral change to the trip rate wage
system. McHaffie considered Brown a good, hardworking
employee, Vanderwagen's check of Respondent's clearcuts
indicated that the utilization reports were erroneous and
that Brown was making satisfactory selections. In reaction
to the erroneous June and November utilization reports,
Respondent had instructed Brown to log cleaner. There-
fore, obviously, it was following these instructions that
caused Brown to log too clean . Clearly, McHaffie immedi-
ately understood this as manifested by his response to
Vanderwagen's observation that Brown was currently log-
ging too clean. I am convinced that a logger as experienced
as Jim Clevenger would also immediately, recognize this.
Furthermore, Bill Clevenger testified that it was extreme-
ly difficult to get and retain rigging slingers so that usually
Respondent had to train its own. Certainly in July Respon-
dent had requested some assistance from Rayonier in com-
batting its utilization problem. There is nothing in the rec-
ord to indicate what assistance was contemplated other
than training Brown . Brown was given his last two raises
after receipt of the June utilization report so at that -time
Respondent wasn't overly concerned about the alleged dis-
parity between his pay and his ability. I cannot credit that
Clevenger would accept Brown's work performance at a
time when it really appeared to be below standard and
then suddenly find it unacceptable when it became clear
that his work performance was indeed at an acceptable
level. As to his alleged absenteeism, from McHaffie's testi-
mony, it appears that such was common among the entire
crew. I therefore find unconvincing Jim Clevenger's con-
tention as to his concern a month earlier that Brown was
not really ill when he took off from work. It was at about
this time that the grievance committee, including Brown
and Haasl, met with Respondent and the Clevengers
launchedinto a diatribe against high wages, union interfer-
ence and the drivers in general, and threatened to close
down its log trucks if the drivers sought union assistance.
In all of the circumstances, including the timing, the
contemporaneous discharge of Haasl, Respondent's ex-
pressed hostility toward union interference in its unilateral
wage cost reductions, its efforts to bypass the Union and
undermine its attempts to negotiate as to the change in the
log truck drivers wage- system and the use of subcontrac-
tors, I find that Brown's discharge was discriminatorily
motivated in violation of Section 8(a)(1) and (3) of the Act.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The Alleged Threat by Carrel
According to Spooner 's undenied testimony , which I
credit, the Union scheduled a meeting for December 12.
Thereafter, on December 7 Carrell told him if he supported
Tom Haasl or went to the Union meeting that next week,
he would be automatically fired . Carrel said he had been
told by Bill Clevenger to give that message to all of the
drivers . This statement is violative of Section 8(a)(1) if it
can be imputed to Respondent.
Respondent denies Carrell 's supervisory status . General
Counsel contends that even if Carrell is not a supervisor
within the meaning of the Act, Respondent has clothed
him with sufficient apparent authority to make Respon-
dent responsible for his threat . Carrell drives a truck the
same as other drivers . He receives 25 cents an hour more
than the other drivers . This is to compensate him for dis-
patching trucks . This dispatching is a routine function
which does not require the exercise of independent judg-
ment . McHaffie determines when the trucks are to start,
how far apart they are to be scheduled and how many
trucks will be used . He transmits this information to Car-
rell on a daily basis . Carrell then tells each driver what time
he is to start the next day. The order of trucks is de-
termined on a rotation basis.
He has no authority to hire or fire nor does it appear that
he has the authority to effectively recommend such. Carrell
testified that he had recommended drivers once or twice
and that his recommendation had been followed only once.
In that instance , the driver telephoned Carrell and said he
would be interested if Respondent ever had an opening.
Carrell told Bill Clevenger that he knew a good dependable
driver . Clevenger said "if he's good and dependable, we'll
hire him." There is nothing on the record to indicate that
Clevenger relied solely on Carrell 's assessment of this pros-
pective employee and that he gave Carrell 's recommenda-
tion any more weight than he would give that of any trust-
ed, experienced driver . Nor do I consider it any more
significant that Clevenger sometimes asked Carrell if he
knew a particular driver and what he thought about him.
Based on the foregoing , I find that Carrell does not pos-
sess any indicia of supervisory authority . Electric Wiring,
Inc., 193 NLRB 1059 , 1062 (1971 ). However, I also find
that Respondent regularly used him as a conduit to relay
orders and information to the drivers and to receive com-
plaints from them . In the circumstances , including the fact
that Bill Clevenger did not deny that he told Carrell to
transmit this information to the drivers , I find that Carrell's
statement can be imputed to Respondent, see Broyhill
Company, 210 NLRB 288 (1974), and that Respondent
thereby violated Section 8(a)(l) of the Act.
G. The Unilateral Subcontracting of Respondent's Entire
Log-Hauling Operation and the Layoff of its Log Haul
Drivers
phoned Young and told him he had the figures to show the
loss Respondent was incurring in the log -haul operation.40
According to Young, he also informed him that Respon-
dent was shutting down the trucks as of January 1, 1975.
Clevenger agrees that he said the trucks would be shut
down but contends that he made it conditional. According
to him, he said he did not want any more problems, that if
Young wished, they would negotiate but if they didn't
reach some solution , the trucks would be shut down as of
January 1.
Two or three days later Robinson and Young met with
Bill and Jim Clevenger. Jim Clevenger gave them some
handwritten figures showing log-haul income and expenses
for the fiscal year ending June 30. According to Young,
Bill went over the figures with them with some explanation.
Robinson said he had heard that Respondent was going to
cut a half hour off the trip rate when they started using a
new road. Jim Clevenger said that was correct. Young also
testified that Jim Clevenger said that if the Union dropped
the charges with the Board , he would negotiate on the
trucks . Young said they wouldn 't drop the charges, that he
had requested assistance from the Union 's regional office
and had turned the matter over to them . However, on
cross-examination , Young admitted that the account of
this conversation contained in his prehearing affidavit
makes no mention of dropping charges and that Bill Cle-
venger said if the Union could come up with any way to
show them how to make money, fine.
Jim Clevenger denies that he said that the NLRB
charges must be withdrawn prior to entering into any nego-
tiations. His testimony, which I credit, is that they asked
Young if he would consider dropping the charges, that they
felt the charges were erroneous , that they were willing to
work this out, even to keep the trucks working, it was not
Respondent's intention to go against the Union or the driv-
ers, they were just trying to work themselves out of an
extremely difficult financial position . They suggested that
the Union try to come up with some alternatives , and fur-
ther stated that the Union could inspect their books or
have an accountant do so. Young said the Union was not
trying to force Respondent to run an operation that was
losing money. Young said he was not an accountant, that
he was going to get financial advice from the Union's re-
gional office.
Bill Clevenger testified in substantial agreement. Addi-
tionally, according to him, he told Young that the figures
for the last 6 months could not be prepared until the end of
the year, that this information would be furnished as soon
as it was available . Young said they would be having a
meeting with the drivers to see how they felt about it.
Several days thereafter, according to Bill Clevenger, he
heard that a union meeting had been held at which some
doubt was expressed as to the accuracy of the figures fur-
nished by Respondent because they included the cost of
the off-highway trucks. So, he had Respondent's book-
In December Rayonier notified Respondent that its
Christmas shutdown would begin on December 20 and in-
stead of the normal 2 weeks' shutdown, operations would
be suspended until January 13.
During the last week of December, Bill Clevenger tele-
A0 There is some dispute as to whether Clevenger, as early as November
29, told Young that he would prepare these figures and would like to get the
entire situation straightened out. In my opinion, it is immaterial whether he
did or not , the fact is the figures were not produced until the last week in
December.
CLEVENGER LOGGING, INC.
keeper extract from the fiscal 1974 statement of expense
the payments on the off-highway rig, and instructed that
this cost was not to be included in the statement of income
and expenses prepared for the first half of fiscal 1975.
As of January 1, 1975, Respondent shut down all of its
trucks, laid off all of its drivers and subcontracted its log
hauling to Hughes Trucking.41 The arrangement with
Hughes is oral, terminable at will. At the time of the hear-
ing herein, Respondent still owned all of its trucks though
they are not in use.42
Shortly after January 1, 1975, Bill Clevenger telephoned
Young, read him the revised fiscal 1974 figures and the
fiscal 1975 figures and told Young the figures were avail-
able when he wanted them. Young said he didn't need the
figures, that someone from the Union's regional office was
coming up to look at the figures and he would notify Cle-
venger of the date. Young then said, let's face it, he can't
force anyone to operate something that's losing money.
Young admits that Clevenger called and told him he had
more figures . He further admits that he never went to
Respondent's office to look at these figures.
On January 28, 1975, Bert Rahberger, a vice president of
the Union's regional council, Young, and Robinson met
with Bill Clevenger. According to Rahberger, the stated
issues were grievances which had been filed by the drivers
on the change to the trip rate schedule and the shutdown of
Respondent's trucks and subcontracting of all of
Respondent's log hauling. Rahberger testified that he told
Clevenger this was in violation of the contract and Cleven-
ger said, I admit and recognize that these are part of the
contract. He said something about an economic situation.
Rahberger said it was not proper to take unilateral action
and make the changes without notifying the Union. Cle-
venger said they did meet with the drivers and made them
a proposal which Respondent thought was acceptable, that
when they found out it wasn't, they laid the trucks off.
According to Rahberger, Clevenger said they would do
what was best for Respondent, to which he responded that
unilateral changes are not proper, that the procedure is to
return to the conditions in effect prior to the change and
-give the Union the opportunity to bargain. Clevenger stat-
ed that he didn't know anything about unilateral action or
about the contract, that Respondent's proposal was turned
down, the drivers were laid off and Respondent was going
to sell the trucks.
Rahberger further testified that Clevenger picked up a
folder, waved it in the air and said, "Here's some figures
that we took from our books" and laid it back down. Rah-
berger did not see the figures at this point. According to
Rahberger, the Union committee caucused, returned and
Rahberger told Young they were not interested in the fig-
ures at that time, that Clevenger had made his position
quite clear and there was no need to continue the meeting
because of an apparent lack of communication . On cross-
examination Rahberger admitted that Clevenger said, here
41 Other subcontractors are used when Hughes cannot handle the work
required for a particular day.
Bill Clevenger testified that due to economic conditions , the truck mar-
ket is very poor but Respondent plans to sell the logging trucks as soon as
the market picks up.
779
are some financial records, you can look at them if you
want. He further admits that the Union group did not dis-
cuss with Clevenger the financial points he raised. This was
because the Union has more or less a form type of state-
ment on unilateral action-that it wants restoration of the
status quo and the employees made whole for any loss they
may have suffered.
William Clevenger's account is not in substantial conflict
with that of Rahberger. It does, however, underscore the
nature of the conversation which Rahberger, in essence,
described as a total lack of communication. It is apparent
that Clevenger expected to discuss his financial problems
and Rahberger was determined to follow his standard form
type response. Thus, Clevenger testified that Rahberger
said, do you realize that you have a contract with the
I.W.A., local I.W.A. here? Clevenger said, "I understand
that we have a contract with the I.W.A., yes, I do." Ac-
cording to Clevenger, it was very hard for him to under-
stand what Rahberger was saying. He talked with his head
down, did not talk directly to Clevenger and did not talk in
what seemed to Clevenger to be complete sentences as he
thumbed through what Clevenger assumed was the con-
tract. Rahberger said something about unilateral agree-
ment. Clevenger replied, "I understand that we have an
agreement. I don't know much about contracts or unilater-
ality or whatever, but I do know we have a problem that
we need to get settled and that is a problem of our econom-
ic conditions and the problem that we're having with the
men because we are not able to operate efficiently when
we're having problems with the men, union problems of
any nature upset the whole crew or any problems with the
men can upset the whole crew." Rahberger said, you don't
seem to understand, you have a unilateral agreement here.
Again Clevenger replied, "I don't know about that, but I
do know about the economic figures of Clevenger Logging,
Inc. I have these figures. If you would like to look at them
and if you would like me to explain them to you, I would
be happy to do so." Rahberger said, "That won't be neces-
sary." Then he said they would have to caucus. They left
for a few minutes. When they returned Rahberger said,
well, it's evident as to your position in this case, we won't
need to discuss this any further. Clevenger picked up the
folder containing Respondent's statement of income and
expenses and said, "Don't you want to look at these?
Aren't you even interested in the figures?" Rahberger said,
"No" and the Union group left.
The complaint alleges that Respondent violated Section
8(a)(1), (3), and (5) and Section 8(d) by laying off all of its
log truck drivers and subcontracting out all of its log-haul-
ing work. It is General Counsel's and Charging Party's po-
sition that the subcontracting amounts to a modification of
the contract, specifically the provision that provides:
ARTICLE-CONTRACTING-SUBCONTRACTING
The Employer agrees for the life of this agreement he
will not contract or subcontract any work which is
normally done by, or expected to be done by, the em-
ployees covered by this agreement.
This modification was never agreed to by the Union and
Respondent never gave the notices required by Section
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(d) of the Act. Further, contends the General Counsel, its
notification to the Union less than a week before its an-
nounced date for implementing its decision was insuffi-
cient to meet Respondent's obligation to afford the Union
an opportunity to bargain and thus violated Section 8(a)(5)
of the Act. As to the 8(a)(3) allegation, General Counsel
contends that Respondent 's action was in implementation
of its unlawful threats, motivated by the Union's refusal to
acquiesce in Respondent 's unilateral changes.
Respondent argues that its action is legal because the
Union's acquiescence in Respondent's practice of subcon-
tracting log-hauling work constituted a waiver of its con-
tractual rights and that Respondent was motivated solely
by economic considerations . I find both arguments lacking
in validity. It is well-settled that a waiver is not lightly
inferred and must be clear and unmistakeable . Murphy
Diesel Company v. N.L.R.B., 454 F.2d 303 (C.A. 7, 1971);
Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410
(1964); Century Electric Motor Co., 180 NLRB 1051 (1970).
Contrary to Respondent, I do not think the Board depart-
ed from this principle in Bancroft-Whitney Co., Inc., 214
NLRB No. 12 (1974). Rather, it applied the principle to the
facts of that particular case . The facts here simply do not
make out a waiver notwithstanding the fact that it is also
well-established that a past practice in which the union has
acquiesced does not constitute a unilateral modification
where the practice has become a condition of employment.
Westinghouse Electric Corporation, (Mansfield Plant), 150
NLRB 1574 (1965).
Here, Respondent 's practice has always been to subcon-
tract only its overflow work that required in excess of what
unit employees could do . This was the practice at the time
the collective-bargaining agreement was entered into and
the agreement does not prohibit it. Rather , the contract
provides that Respondent will not subcontract any work
which is normally done by, or expected to be done by, unit
employees . Such work is necessarily limited by the number
of trucks owned by Respondent. Clearly then, work nor-
mally done, or expected to be done, by unit employees is
that which can be performed with six logging trucks. The
record reveals that the Union immediately protested any-
thing that could possibly be construed as an attempt to
change this practice , i.e., the subcontractor 's position in the
rotation and the 2-day layoff of Spooner and Robinson. I
therefore conclude that no waiver can be inferred.
It is obvious , and I find, that the subcontracting had a
significant and detrimental impact on unit employees. In
these circumstances , Respondent was obligated not to
change its subcontracting practices unilaterally without
first consulting and bargaining with the Union. Fiberboard
Paper Products Corp. v. N.LR.B., 379 U.S. 203 (1964). I
further find that the less than I-week's notice did not af-
ford the Union an adequate opportunity to bargain. Ac-
cordingly , I find that Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally subcontracting log-haul-
ing work normally performed by unit employees, com-
mencing January 1, 1975, and continuing thereafter, with-
out first affording the Union an adequate opportunity to
bargain . In so doing I have given full consideration to
Respondent 's economic defense. However, I conclude that
Respondent 's economic position does not relieve it of its
obligation to bargain. Town & Country Manufacturing Com-
pany, Inc., and Town & Country Sales Company, Inc., 136
NLRB 1022 (1962).
I further find this subcontracting was in implementation
of its unlawful threats to shut down its own trucks if the
Union persisted in fighting Respondent's unilateral change
in its pay system, which I have heretofore found was de-
signed to undermine the Union's representative status.
Respondent 's entire course of conduct made clear that it
would brook no interference from the Union and if the
Union persisted in making an issue of Respondent's
change in its wage system it would shut its trucks down. On
January 1, 1975, it did just that.
Respondent argues that it was motivated by economic
reasons . Counsel for General Counsel contends that Re-
spondent has not proven that it was experiencing any eco-
nomic difficulty and urges that an adverse inference be
drawn from Respondent 's failure to introduce the business
records from which its statement of log-hauling income
and expenses were taken . Respondent entered into the rec-
ord the statement of income and expenses it prepared for
the Union. Respondent's bookkeeper testified that she had
prepared the statements from Respondent's books and that
they accurately reflect what they purport to. She also ex-
plained how indirect expenses were allocated . Finally, she
testified that Respondent from time to time instructs her to
prepare this type of income and expense breakdrown for
each of its three operations and that the statements in the
record herein were prepared in the same manner. Addi-
tionally, and most importantly, the record establishes that
Respondent offered to open its books to the Union in sup-
port of the accuracy of these statements . In these circum-
stances, I conclude that no adverse inference should be
drawn from Respondent 's failure to introduce certain busi-
ness records. I also find that Respondent was in fact incur-
ring a loss in its log-hauling operation . I note , however,
that Jim Clevenger admits that the log-hauling operation
had operated at a loss even before the Union contract was
entered into.
I further find that Respondent's decision to shut down
the trucks as of January 1, 1975, was suspiciously precipi-
tous . The record reveals no compelling reason for the selec-
tion of this date . Operations were suspended until January
13, 1975, and an extra 13 days clearly would have afforded
the Union a much better opportunity to grapple with the
issue . Respondent had no reason to think that the Union
would not be sympathetic to its financial plight. On two
occasions Respondent successfully negotiated with the
Union for some financial relief-once , during contract ne-
gotiations, when it obtained a delay in the effective date of
the wage scale and again , in midcontract term , when it
successfully negotiated concerning the travel-time rate for
drivers of off-highway trucks. Indeed, Young had already
indicated that the Union would not be unreasonable.
Furthermore , once before Respondent had used the set-
ting of a specific shutdown date as a hammer to beat its
drivers into submission, when it instructed Carrell on No-
vember 15 to take a vote of the drivers, whether they want-
ed to continue with the trip rate wage system or have the
trucks shut down on November 18. This occasion was
clearly in response to the Union 's request for negotiations
CLEVENGER LOGGING, INC.
on the issue . That incident , along with the threats, the un-
lawful discharge of the known members of the grievance
committee , the bypassing of the Union, and the unilateral
change in wage rate afford a background against which to
assess Respondent's motivation . in all of the circum-
stances, I find that the Respondent, in laying off its log-
haul drivers and subcontracting out the work previously
performed by them, was motivated by an intent to dispar-
age and undermine the Union, and was therefore violative
of Section 8(a)(3) of the Act. Pay'n Save Corporation, 210
NLRB 311 (1974).
The complaint also alleges a failure to comply with Sec-
tion 8(d) of the Act. The proviso to Section 8(d) provides
inter alia:
That where there is in effect a collective-bargaining
contract covering employees in an industry affecting
commerce, the duty to bargain collectively shall also
mean that no party to such contract shall terminate or
modify such contract, unless the party desiring such
termination or modification-
(1) serves a written notice upon the other party to
the contract of the proposed termination or modifica-
tion sixty days prior to the expiration date thereof, or
in the event such contract contains no expiration date,
sixty days prior to the time it is proposed to make such
termination or modification;
(2) offers to meet and confer with the other party
for the purpose of negotiating a new contract or a
contract containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation
Service within thirty days after such notice of the exis-
tence of a dispute, and simultaneously therewith noti-
fies any State or Territorial agency established to me-
diate and conciliate disputes within the State or
Territory where the dispute occurred, provided no
agreement has been reached by that time; and
(4) continues in full force and effect, without resort-
ing to strike or lockout, all the terms and conditions of
the existing contract for a period of sixty days after
such notice is given or until the expiration date of such
contract, whichever occurs later:
Respondent stipulated that it never complied with these
notice requirements but argues that Respondent's obliga-
tion not to take unilateral action has been met because
throughout October, November, and December, Respon-
dent sought, albeit perhaps improperly, discussions with
the Union on solving its economic problems. I find this
argument specious . Respondent never sought to bargain in
good faith with the Union. Rather, during this period it
embarked upon a course of conduct which I have found
hereinbefore was designed to disparage and undermine the
Union's representative status . Since its collective-bargain-
ing agreement with the Union provides that its employees
be paid on an hourly basis and that Respondent will not
subcontract any work normally performed by, or expected
to be performed by, unit employees, the October 21 change
to a trip rate wage plan and the January 1, 1975, subcon-
tracting of all of the log hauling previously done by unit
employees constituted a modification of the specific terms
781
of the contract within the meaning of Section 8(d) of the
Act. As these modifications took effect during the term of
the contract, and without compliance with the notice pro-
visions of Section 8(d) of the Act, Respondent thereby vio-
lated Section 8(d) and Section 8(a)(5) and (1) of the Act.
John W. Bolton & Sons, Inc., 91 NLRB 989 (1950); Kinard
Trucking Company, Inc., 152 NLRB 449 (1965).
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(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. All employees of the Employer, including temporary
and part-time employees, excluding office and clerical em-
ployees, guards, professional, and supervisory employees
as defined in the Act, as amended, constitute a unit appro-
priate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
representative for purposes of collective bargaining of a
majority of employees in the unit described above in para-
graph 3, and by virtue of Section 9(a) of the Act, has been
the exclusive representative of all employees in said unit
for purposes of collective bargaining with respect to wages,
hours, and working conditions.
5. At all times material herein the Union and Respon-
dent have been parties to a collective-bargaining agree-
ment covering employees in the above-described unit,
which collective-bargaining agreement provides for an
hourly wage rate for log truck drivers and further provides
that: "The Employer agrees for the life of this agreement
he will not contract or subcontract any work which is nor-
mally done by, or expected to be done by, the employees
covered by this agreement."
6. By bypassing the Union and dealing directly with its
log truck drivers with regard to wages, hours, and other
conditions of employment by threatening its log truck driv-
ers with termination in the absence of their acceptance of
its unilateral changes in their wages, hours, and working
conditions, or if they sought the Union's assistance in op-
posing said changes; and by its November 15, 1974, refusal
to bargain in good faith with the Union as the exclusive
bargaining representative of the employees in the appropri-
ate bargaining unit; Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act.
7. By changing the wages of its log truck drivers on Oc-
tober 21, 1974 without notification to, or bargaining with,
the Union and by subcontracting all of the log-hauling
work previously done by bargaining unit employees and
laying off all of said drivers on January 1, 1975, without
affording the Union adequate opportunity to bargain, all
in modification of existing contract provisions without
meeting the notice requirements of Section 8(d) of the Act,
Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(1) and (5) of the Act.
8. By reducing the wages of its log truck drivers; by
discharging its employees Thomas Haasl and William
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown; by subcontracting bargaining unit work; laying off
bargaining unit employees for the purpose of discouraging
its employees from supporting the Union and to under-
mine the Union's representative status, Respondent en-
gaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act.
9. By suggesting that employees would receive higher
wages if Respondent were nonunion; by threatening to
close down its log truck operation and lay off its log truck-
drivers if the Union fought Respondent's subcontracting of
log-hauling work previously performed by unit employees
or if its employees sought the Union's assistance regarding
Respondent 's unilateral change in the wage system; and by
threatening an employee with discharge if he supported
discriminatee Thomas Haasl or attended a union meeting,
Respondent has interfered with , restrained , and coerced
employees in violation of Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I shall recommend that Respon-
dent cease and desist therefrom and take certain affirma-
tive action in order to effectuate the policies of the Act.
Having found the Respondent violated Section 8(a)(3)
and (5) by its unilateral change in wage and subcontracting
practices , I shall recommend that Respondent return to its
former method of operation ,43 and shall recommend that
Respondent offer reinstatement and backpay to all log
truck drivers in its employ on January 1, 1975 who were
denied continued employment because of Respondent's
unlawful conduct and make them whole for any loss of
earnings suffered as a result of their layoff. I shall also
recommend that Respondent revoke the wage reductions
and revert to the contractual pay plan in effect prior to
October 21, 1974, and make whole the employees who suf-
fered losses by reason of Respondent 's change to the trip
rate wage system. Nothing herein should be construed as
precluding Respondent from bargaining with the Union as
to any proposal to subcontract log-haul work previously
performed by unit employees or change its wage system for
nondiscriminatory reasons, and consistent with its obliga-
tions under Section 8(a)(5) and Section 8(d) of the Act.
Having found that Respondent unlawfully discharged
Thomas Haasl and William Brown, I recommend that the
Respondent offer them immediate reinstatement to the
same positions they would have enjoyed if they had not
been discriminated against and make them whole for any
loss of earnings suffered as a result of the discrimination
against them . All of the backpay ordered herein shall be
computed on a quarterly basis as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and shall in-
clude interest at the rate of 6 percent per annum as provid-
ed for in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
43 Respondent 's contract with Hughes is oral , terminable at will, and Re-
spondent still owns its log trucks.
As the unfair labor practices committed by the Respon-
dent are of a character which go to the very heart of the
Act, I shall recommend an order requiring the Respondent
to cease and desist therefrom and to cease and desist from
infringing in any other manner upon the rights of employ-
ees guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER44
Respondent, Clevenger Logging, Inc., its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Bargaining directly with the employees in the unit
found to be appropriate herein; or unilaterally reducing
their wages by changing its wage system ; or subcontracting
work previously performed by employees in said bargain-
ing unit and laying off said employees; or making any
other changes affecting the terms and conditions of em-
ployment of such employees without affording their statu-
tory representative an adequate opportunity to bargain; or
otherwise refusing to bargain collectively with the Union as
the statutory representative of such employees.
(b) Discharging and laying off employees, subcontract-
ing work , changing wage rates , or otherwise discriminating
against employees in order to discourage employees from
supporting the Union and to undermine the Union as the
bargaining representative of the employees in the unit
found appropriate herein.
(c) Telling employees they would receive higher wages if
they were not represented by a union; threatening to close
down its log-truck operation and lay off its log truck driv-
ers if the Union fought Respondent's subcontracting of
log-hauling work previously performed by unit employees
or if employees sought union assistance regarding
Respondent 's unilateral change in the wage system; and
threatening to discharge employees if they support a dis-
charged fellow employee or attend union meetings.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guar-
anteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Return to its former mode of log-hauling operation
existing in the appropriate bargaining unit described herein
prior to the unilateral subcontracting of work, commencing
January 1, 1975, previously done by log truck drivers.
(b) Offer all log truck drivers in its employ on January 1,
1975, who were denied continued employment by reason
44 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 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.
CLEVENGER LOGGING, INC.
of its unlawful subcontracting, immediate reemployment to
the positions they held prior to the discrimination against
them and make them whole for any loss of earnings suf-
fered by reason of its unlawful refusal to continue them in
its employ, in the manner set forth in the section herein
entitled "Remedy."
(c) Revoke the trip rate wage system and revert to the
method and manner of paying log truck drivers as provid-
ed by the contract in force and effect prior to the institu-
tion of the trip rate wage plan and make said employees
whole for any loss of earnings suffered by reason of its
unlawful institution of the trip rate wage plan in the man-
ner set forth herein in the section entitled "Remedy."
(d) Bargain collectively in accordance with the provi-
sions of Section 8(d) of the Act with respect to any change
in the method and manner of paying log truckdrivers or
with respect to any subcontracting of work previously per-
formed by log truck drivers in the appropriate bargaining
unit herein.
(e) Offer to Thomas Haasl and William Brown immedi-
ate employment at the same positions at which they would
have been employed had they not been discriminated
against or, if these positions no longer exist, to substantial-
ly equivalent positions, without prejudice to their seniority
or other rights and privileges , and make them whole for
any loss of earnings suffered by reason of its unlawful re-
fusal to continue them in its employ, in the manner set
forth in the section herein entitled "Remedy."
(f) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(g) Post at its headquarters in Port Angeles, Washingg-
ton, copies of the attached notice marked "Appendix." 5
Copies of said notice , on forms provided by the Regional
Director for Region 19, after being duly signed by the
Respondent's representative , shall be posted by Respon-
dent immediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees em-
ployed in the bargaining unit are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered , defaced, or covered by any
other material.
(h) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order , what steps
the Respondent has taken to comply herewith.
45 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
783
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of those activities.
WE WILL NOT do anything to interfere with these
rights . More specifically:
WE WILL NOT refuse to meet or bargain collectively
in good faith with International Woodworkers of
America, Local Union No. 3-90, AFL-CIO, as the
exclusive bargaining representative of our employees.
WE WILL NOT refuse to bargain collectively with the
above-named Union by unilaterally changing the
wage rate of our log truck drivers or by unilaterally
subcontracting work normally performed by said log
truck drivers or, by otherwise changing the wages,
hours, and other terms and conditions of employment
of these employees without complying with our obli-
gations under Section 8(a)(5) and Section 8(d) of the
National Labor Relations Act.
WE WILL NOT lay off employees, subcontract work,
change our wage rates or otherwise discriminate
against employees to discourage our log truck drivers
from supporting the above-named Union or to under-
mine the Union as their bargaining representative.
WE WILL NOT threaten employees that we will close
our log truck operation or otherwise threaten employ-
ees with loss of jobs because they have supported the
above-named Union or sought its assistance or to dis-
courage them from supporting the Union or seeking
its assistance.
WE WILL NOT threaten to discharge employees if they
support a discharged fellow employee or attend union
meetings.
WE WILL NOT tell our employees that they would re-
ceive higher wages if they were not represented by the
Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL , upon request, meet and bargain in good
faith with the above-named Union with respect to any
changes in the wage rate of our log truck drivers or
with respect to any subcontracting of work previously
performed by the log truck drivers in the appropriate
bargaining unit.
WE WILL place back into operation our log trucks,
offer reinstatement to all log truck drivers laid off be-
cause we shut down said truck operations and subcon-
tracted all our log-hauling work , without prejudice to
seniority or other rights and privileges , and WE WILL
make them whole for any loss of earnings suffered by
reason of our unlawful refusal to continue them in our
employ.
WE WILL revoke the trip rate method of paying our
log truck drivers and revert to the method and manner
of paying log truck drivers as provided by the contract
in force and effect prior to the institution of the trip
rate wage plan and make said employees whole for
any loss of earnings suffered by reason of our unilater-
al institution of the trip rate wage system.
WE WILL offer to Thomas Haasl and William Brown
immediate employment at the same positions at which
they would have been employed had they not been
discriminated against or , if those positions no longer
exist, to substantially equivalent positions, without
prejudice to seniority or other rights and privileges,
and WE WILL make them whole for any loss of earnings
suffered by reason of our unlawful refusal to continue
them in our employ.
CLEVENGER LOGGING, INC.