Dant & Russell, Ltd.

National Labor Relations Board - Board Decisions

Nov 29, 1950

92 N.L.R.B. 307 (N.L.R.B. 1950)

In the Matter of THOMAS W. DANT, ROBERT E . DANT ( INDIVIDUALLY
AND AS GUARDIAN FOR DIANA KERR AND DAPHNE KERR ), JOHN R.
DANT , ELEANOR C . DANT, MARY B . DANT, R. J. DARLING, E. S.
GOODELL , MRS. MARY GOODELL , GLEN W. CHENEY, AND DOROTHY D.
MCNARY , CO-PARTNERS D/B/A DANT & RUSSELL, LTD. and INTER-
NATIONAL WOODWORKERS OF AMERICA , LOCAL 6-7
Case No. 36-CA-100.-Decided November 29, 1950
DECISION AND ORDER
On August 28, 1950, Trial Examiner Ralph Winkler issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed ex-
ceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings.made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and supporting brief, and the entire rec-
ord in the case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.
We agree with the Trial Examiner's- finding that the Respondents
discharged employees Max Gassner and Henry J. Christopherson
because of their prominent role in the presentation and prosecution' of
collective employee grievances against the Respondents. As we have
heretofore held, the type of activities engaged in by Gassner and
Christopherson in the plant are clearly protected under the Act and
a discharge for engaging in such activities not only violates Section
8 (a) (1), but also discourages membership in a labor organization in
1 Pursuant to the provisions of Section 3 (b) of the Act , the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three -member
panel [Chairman Herzog and Members Murdock and Styles].
2 The Trial Examiner erroneously stated that before leaving the plant on his vacation,
Max Gassner requested Foreman Parker to replace his crew partner . The record shows,
however, and we find, that Max Gassner addressed such request to Plant Manager Clark
rather than to Foreman Parker.
92 NLRB No. 67.
307
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of Section 8 (a) (3).3 Moreover, whether the discharges of
Gassner and Christopherson be regarded as violative of Section 8
(a) (1) or Section 8 (a) (3) of the Act, we find it necessary to order
them reinstated with back pay, as hereinafter provided, in order to
effectuate the policies of the Act.'
ORDER
Upon the entire record iii the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Thomas W.
Dant, Robert E. Dant (individually and as guardian for Diana Kerr
and Daphne Kerr), John R. Dant, Eleanor C. Dant, Mary B. Dant,
R. J. Darling, E. S. Goodell, Mrs. Mary Goodell, Glen W. Cheney,
and Dorothy D. McNary, co-partners d/b/a Dant & Russell, Ltd.,
Redmond, Oregon, individually and as copartners, and their agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of
America, Local 6-7, or in any other labor organization of their em-
ployees, by discharging or refusing to reinstate any of their employees,
or by discriminating in any other manner in regard to their hire or
-tenure of employment or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their rights to self-organization, to
.form labor organizations, to join or assist International Woodworkers
.of America, Local 6-7, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the. purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all
of such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Max Gassner and Henry J. Christopherson immediate
.and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other .,rights and
,privileges ;
3 Kallaher and Mee, Inc.. NLRB 410; The Sandy Hill Iron & Brass Works, 55 NLRB 1,
enf'd 145 F. 2d 631 (C. A. 2).
See cases cited in footnote 3, supra.
DANT & RUSSELL, LTD. ' 309,
(b) Make whole Max Gassner and Henry J. Christopherson in the
manner set forth in the section of the Intermediate Report entitled
"The remedy" for any loss of pay they may have suffered by reason
of the Respondents' discrimination against them ;
(c) Upon request; make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay due and the right
of reinstatement under the terms of this Order;
(d) Post at their operations at Redmond, Oregon, copies of the
notice attached hereto, and marked Appendix A 5 Copies of said
notice, to be furnished by the Regional Director for the Nineteenth
Region, after being signed by a representative of the Respondents,
shall be posted by,the Respondents immediately upon receipt thereof,
and maintained by them for sixty (60) consecutive days in conspicu-
ous places, including all places where notices to employees are custo-
marily posted. Reasonable steps shall be taken by the Respondents to
insure that said notices are not altered, defaced, or covered by any
other material;
(e) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order What steps
the Respondents have taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL WOOD-
WORKERS or AMERICA LOCAL 6-7, or any other labor organization
of our employees, by discharging any of our employees, or in any
other manner discriminating as to their hire and tenure of em-
ployment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organi-
zation, to form labor organizations, to join or assist INTERNA.
TIONAL WOODWORKERS OF AMERICA, LOCAL 6-7, or any other labor
organization, to bargain collectively through representatives of
5 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice before the words "A Decision and Order " the words,
"A Decree of the United States Court of Appeals Enforcing."
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Max Gassner and Henry J. Christopherson im-
mediate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other
rights and privileges previously enjoyed; and we will make them
whole for loss of pay suffered as the result of the discrimination
against them.
All our employees are free to become or remain members of the
above-named union or any other labor organization.
DANT & RUSSELL, LrD.,
Employer.
By ---------------------------
Dated --------------------
(Representative) (Title)
This notice must -remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
-Robert E. Tillman, Esq., for the General Counsel.
J. P. Stirling, Esq., of Portland, Oreg., for the Respondents.
William A. Babcock, Esq., of Portland, Oreg., for the Union.
STATEMENT OF THE CASE
Upon a charge filed on August 3, 1949, by International Woodworkers of Amer-
ica, Local 6-7 (herein called the Union), the General Counsel for the National
Labor Relations Board, by the Regional Director for the Nineteenth Region
(Seattle, Washington), issued a complaint on March 28, 1950, alleging that the
Respondents, by discriminatorily discharging and thereafter refusing to rein-
state two of their employees, have engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called
the Act. Copies of the charge and the complaint were duly served upon the
Respondents. The Respondents filed an answer denying the commission of the
unfair labor practices alleged in the complaint; they also interposed affirmative
defenses to the complaint.
Pursuant to notice , a hearing was held in Bend, Oregon, from June 2 through
June 7, 1950, before the undersigned Trial Examiner. All parties were repre-
sented by counsel and participated in the hearing with full opportunity to be
heard, to examine and cross -examine witnesses , and to introduce evidence bear-
ing on the issues.
DANT & RUSSELL, LTD. 311
At the hearing the Respondents were permitted to amend their answer.
The Respondents also moved to dismiss the complaint, upon which ruling was
reserved ; the motion is now disposed of in accordance with the findings and
conclusions set forth below. A motion to conform the pleadings to the proof
was granted.
All parties presented oral argument before the Trial Examiner and were
afforded an opportunity to file briefs and proposed findings of, fact and conclu-
sions of law. The Respondents filed a brief.
Upon the entire record in the case, and from his observation of the demeanor
of witnesses, the Trial Examiner makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondents are a c-)partnership engaged in the operation of a planing
mill and molding plant at Redmond, Oregon. The Respondents annually make
out-ol-State shipments and purchases exceeding a value of $100,000 and $10,000,
respectively.
I find that t':e Respondents are engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The pleadings and preliminary motions
The complaint alleges that the Respondents discriminatorily discharged Max
Gassner and Henry J. Christopherson on July 18 , 1949, because of their member-
ship in and activities on behalf of the Union . The Respondents admitted the
discharges , but stated in their answer that they were made "for good and
sufficient causes, some of which are insubordination , failure to perform a full
day's work , loafing on the job, leaving their jobs without permission or author-
ity, stalling , slowing down , gross inefficiency , leaving lumber in solid loads
which they had been directed to pile, therefore causing staining of the lumber
and considerable loss in the value thereof, impeding production, gross negli-
gence and a toga and willful disregard of their responsibilities as employees
of the Respondents."
The Respondents preliminarily moved to dismiss the complaint on the ground,
in effect, that the Board has no jurisdiction to entertain the present action. In
support thereof , the Respondents rely on the following article of a contract
which was operative between the Union and the Respondents at the time of the
discharges:
ARTICLE VII-SUSPENSION OR DISCHARGE ,
In the event that any employee shall be suspended or discharged, if such
employee believes that he has been unjustly dealt with and requests the
Union to represent him, the matter shall be taken up by the Union standing
committee with the management committee. If it be determined that the
employee has been unjustly suspended or discharged, or that the action
taken was not merited in all of its terms, the Company agrees to reinstate
or reemploy such employee under such circumstances as may be agreed
312 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
upon. Any suspension or discharge not called to the attention of the Com-
pany by the Union within seven days from the date thereof shall be con-
sidered as waived, and thereafter shall not be made the basis of a com-
plaint or grievance.
There shall be no discrimination against any of the employees because of
any lawful activity on behalf of the Union.
Another supplemental provision of the contract, Article VI, reads in part:
A grievance committee and a Commissioner of the U. S. Conciliation
Service shall meet within five days of the presentation of Tiny grievance
and there shall be no strike or lockout pending a meeting of this committee ;
the grievance committee being the same as set up in the contract except
that the representative of the Conciliation Service shall sit in as Chairman.
The Respondents assert as a first proposition, that the foregoing grievance
procedure applies to the discharges here in dispute; that the procedure was
followed, with the result that the employees were not reinstated; and, therefore,
that the dischargees are bereft of further relief in the matter. The Respondents
assert as a second proposition, that the discharges, if discriminatory, involve a
breach of the second paragraph of Article VII set forth, above, and therefore
are in any event solely a matter for judicial determination and not within the
Board's competence.
The record shows that the Union promptly took up the discharges as a griev-
ance with the Respondents and that a commissioner of the United States Con-
ciliation Service attended a second such meeting between the parties. At these
meetings, the Union sought reinstatement for both employees ; the Respondents,
on the other hand, refused reinstatement. The commissioner made no recom-
mendation to the parties regarding the merits of the dispute. Both parties
were adamant and neither employee was taken back. The Union announced,
upon the inconclusive result of these meetings, that it would file the unfair
labor practice charges in the present case.
It is apparent merely from reading the foregoing grievance provisions that
the contract does not provide a method for the conclusive disposition of
grievances where, as in the present situation, neither party budges from- its
original position. The contract merely provides only for discussion of
grievances but not for their resolution ; such discussion was had. In effect,
therefore, the contract makes no provision for reinstating the employees unless
the Respondents are willing to reinstate them. Under these circumstances, the
Respondents' contention is tantamount to a claim of the right to decide, as
they will, their own unfair labor practices. This hardly is an appealing situa-
tion for the Board to relinquish its statutory authority of preventing unfair
labor practices, a power which "shall not be affected by any other means of
adjustment or prevention that has been or may be established by agreement,
law, or otherwise" (Section 10 (a) of the Act). And, without considering
whether the Union or the discharged employees also may obtain additional relief
in other forums for alleged breach of contract, the Respondents' second argu-
ment for divesting the Board of jurisdiction in the present unfair labor practice
action is similarly groundless. N. L. R. B. v. Walt Disney Prodtwctions, 146 F. 2d
44 (C. A. 9), cert. denied 324 U. S. 877; Al.'L. R. B. v. Netcark Morning Ledger
Co., 120 F. 2d 262, at 266 (on rehearing) (C. A. 3), cert. denied 314 U. S. 693.
The Respondents' motion to dismiss the complaint is denied. Accordingly, I
shall now consider the case on its merits.
DANT & RUSSELL, LTD.
B. Description of piling operations
313
As Christopher. on and Gassner worked as "pilers" until their discharge on
July . 1S, 1949 , it may be well to understand what a lumber piler does in the
Respondents ' operations.
After timber is felled, the logs are cut into lumber at a sawmill . This cut
lumber is rough and green and of various lengths, widths, and thicknesses; it
also is of three general quality grades-select, shop , and common , which is the
descending order of their comparative value . From the sawmill the lumber is
trucked to Redmond , Oregon , where it is dumped in the Respondents ' yards.
Staining: A physical action , in the nature of a fungus growth , occurs in green
lumber when it remains in the solid masses as received from the sawmill. This
action results in staining, manifested by a bluish color , which depreciates the
market value of the lumber . Staining may be prevented by drying the lumber
in a kiln , or by seasoning it in the open air (called yard or air drying). The
lumber must be properly stacked during this seasoning or drying period 'so that
the heat or air may get at the surfaces of the lumber . This stacking operation
is called piling and it is here that the pilers enter the functional picture.
Square aii(l Unit Piling: The Respondents generally used two methods of
piling green lumber (luring the period under discussion, namely, square piling
and unit piling ; however , in or about August 1948 , they changed from the square
method to unit piling . The piles in both methods are constructed in the. yard
by a team of two pilers . In square piling the crew builds a pile 16 feet long,
16 feet wide, and S feet high . ( The crew may square pile either by hand , called
bar piling , or by machine. ) The pile is supported at the base by cross pieces
called pile bottoms . A layer ( called course ) of lumber comprising a number of
pieces having a total width of 16 feet with a small space between each piece
is placed on the pile bottoms at right angles to the bottoms. Three or four
(depending on the grade of lumber) so-called stickers or pieces of wood are
then placed on top of the course running in the same direction as the bottoms
and at right angles to the course. The stickers are set at regularly spaced
distances from each other to support the succeeding courses which are piled in
the manner described . In building these piles, one man works on top of the
pile and the other works on the ground ; they alternate these positions while
piling.
Thus the lumber is piled with stickers separating each course . To permit
even greater air circulation , in square piling the pilers were also required to
leave a space in the middle of the pile, called a chimney . This chimney takes
the form of an inverted letter V , leaving a space of 14 inches at the widest
point at the bottom of the pile and a space of 6 inches at the top of the pile.
The effect of this chimney is to divide the pile into two halves , each 16 feet
long . If the chimney is not properly made, staining may result for lack of
full air circulation.
In the so-called unit method of green piling, two pilers working as a team
construct a pile 4 feet wide and 16 feet long. The same general procedure is
followed with respect to the use of stickers as described above, except.that in
unit piling five stickers are used between each course. The stickers in unit
piling are narrow strips of wood about 4 feet long . Properly placed , stickers
are directly above one another so that upon a frontal view of the long side of
the unit pile , the ends of the stickers make a vertical line, broken only by the
alternate courses of lumber . The proper placement of stickers is important to
prevent sagging or bowing of the lumber. To prevent staining , the stickers must
929979-51-vol. 92-22
314 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be dry, not green like the lumber being piled . In constructing these unit piles,
a crew member is on each long end of the pile. . One of these men is called the
"leader." The leader places two stickers on the course already laid and breaks .
the lumber while the other crewman is placing the three other stickers. In
breaking the lumber , the leader loosens a piece of lumber from the load of green
lumber for piling atop the stickers . The lead man is required to work more
speedily than his partner because of the additional work entailed in the breaking
operation . ( Gassner was the leader of his crew.)
After the unit piles are constructed , a lift truck operator removes the piles
and stacks several of them on top of one another . The lumber remains in this
fashion until it is dry. When dry, the lumber is removed to the Respondents'
planing mill for planing and finishing . preparatory to shipment . The square
piles (16' x 16' x 8'), when dry also must be taken to the planing mill for
similar processing . This removal of lumber in the square piles entails another
operation known as dry loading.
Dry loading is done by a crew of two men. It involves tearing down and
reloading the now dry lumber in the square piles. The crew member on top of
the square pile causes the lumber , piece by piece , to be lowered to his partner
on the ground below . The man on the ground loads this dry lumber on blocks,
this time , however, without stickers between courses . After the lumber is dry
loaded in this manner , it is transported to the planing mill by another employee
operating a carrier , which is a motor vehicle especially designed for this purpose:
C. Other employment attributes of green piling and dry loading
Gassner and Christopherson were contract pilers, that is, their job was to
build the square and unit piles of green lumber on a piecework basis. Em-
ployees doing this work are also called green pilers. Dry loading (the tearing
down and reloading of square piles which have dried and are ready for planing)
is generally performed as it was at the Respondents' operations on a day-labor
basis for which an hourly rate is paid. (At other mills, dry loading is sometimes
done on a piecework basis, as well.)
The last work performed by Christopherson and Gassner, before their dis-
charge, was dry loading on a day-labor basis. This dry loading is not one of
the required duties of contract pilers ; however, as an established industry-wide
custom and practice, such work is generally made available to contract pilers
when there is no green piling to be done. The reason for this, the record shows,
is that the industry has considered it desirable to keep skilled green pilers on
a company's payroll by giving them dry-loading work when green piling is slack.
The dry loading under such circumstances is considered as merely temporary
work of the contract piler. The record also establishes, as an industry practice,
that employees dry loading on a day-labor basis do not, and are not expected to,
work as hard as employees similarly engaged on a contract or piecework basis.
D. Management personnel
Since 1944, when the Respondents were rebuilding their plant which had been
destroyed by fire, there has been a succession of managers in charge of plant
operations. Victor Anderson was plant manager from 1945 until about May 1,
1948. Anderson was succeeded by V. V. Redman who occupied the position
until early July 1948. Robert Dant, one of the Respondents and the managing
partner of the enterprise, then took over the job until about August 1948, when
iie was succeeded by Percy Cook. Victor Clark, in turn, succeeded Cook early
DANT & RUSSELL, LTD. 315
in December 1948, and has been plant manager ever since. The Respondents'
late attorney, Meinke, also participated in personnel matters at the plant during
a strike in November and December 1948 and for a short period afterwards.
Dant, the managing partner, was not actively engaged in managing plant
operations from 1945 to May 1947. During this period, according to his testi-
mony, Dant may have visited the plant fewer than six times yearly, for short
periods at a time. These visits became more frequent later on, every 2 or 3
weeks, Dant testified, because of new construction work in the plant. Not until
July 1948, as stated above, did he personally take over active management of
plant operations, and then only for the short period indicated above.
Pilers work in the yard as do other categories of employees. The yard fore-
man from April 1948 until April 1949 was Pete Trautman. Floyd Parker, the
present foreman, succeeded Trautman ; he was foreman when Gassner and
Christopherson were discharged. Edward F. Endikott, the office manager, testi-
fied that he also assisted Dant in supervising yard operations during the
latter's short tenure as plant manager.
E. Labor relations: role of Gassner and Christopherson
Gassner was hired in December 1944 while the plant was still in process of
reconstruction following the fire mentioned above. Early in 1945, Gassner solic-
ited employees to join the Union, the employees being unorganized at the time.
By June 1945 a majority of the employees had designated the Union as their
bargaining representative, and that same month the Respondents recognized
and entered into a collective bargaining contract with the Union for all the
Respondents' employees, including pilers. The parties have been in contractual
relationship since that time.
Gassner was a member of the Union Standing Committee from June 1945
until June 1948, when he chose not to run again for that elective office. This
Standing Committee represents the Union in its dealings with the Respondents
In regard to grievances and contract negotiations. Christopherson was hired
in May 1947; he became a committeeman the following month, holding the posi-
tion until June or July 1948 when he declined further nomination, and again
from Spring 1949 until his discharge. Parker also had been a member of the
Standing Committee before becoming yard foreman.
The period immediately preceding the discharges was not one of harmonious
labor relationships at the plant. According to Dant, 1948 was.a year of constant
crisis during which the Respondents were ever faced with threats of strike.
Most of the complaints came from the pilers. It would serve no purpose to
discuss each of the complaints or the disposition made of them, except to mention
that on various occasions the men complained, among other things, that stickers
were unavailable; thereby slowing down work and reducing the pilers' pay ; that
lumber was not properly sorted, thereby reducing production and wages ac-
cordingly; that management failed to decide where lumber was to be piled,
thereby causing the pilers to stand idly by and to suffer consequent loss in earn-
ings ; that the pilers were required to handle lumber twice, but received com-
pensation for only one handling; that the Respondents reduced wages without
first notifying the Union; etc. On one of these occasions in the fall of 1948, all
the pilers walked off the job when management failed to decide where lumber
should be piled. There was a general employee strike from November 1 until
December 8, 1948, in connection with a contract matter. It was Gassner who
proposed this strike action at a union meeting in. Parker's pr°sence.
316 DECISIONS OF . NATIONAL LABOR RELATIONS BOARD
Not all the disputes or complaints were taken up as formal grievances by
the Union Standing Committee; on some occasions the pilers themselves com-
plained directly to management. The record establishes, however, that, what-
ever the manner by which the men expressed their complaint, whether through
formal committee action or by other collective action, Gassner and Christopher-
son were in the forefront as spokesmen for the employees in these dealings
with the Respondents and were so regarded by the Respondents.
This promin nt role of Gassner and Christopherson in their presentation of,
and other participation in, collective employee complaints and activities visited
upon these two employees the animosity of the Respondents. On various oc-
casions of such complaints, the succession of management representatives, after
Anderson had left, expressed a desire to get rid of both men. For example,
Manager Redman stated in July 1948 that we would he better off . . . if we
got rid of you." Manager Cook stated, on the occasion of the afore-mentioned
walkout by the pilers, that the Company would be better off without Gassner
or Christopherson ; Cook singled out Christopherson and Gassner from all em-
ployees who walked out, stating, in effect, that lie would fire both of them if
such incident recurred.' While negotiating the strike settlement in Decem-
ber 1948, Attorney Meinke said that Dant didn't want -to take back Some of the
pilers. In spring 1949, during Clark's managership, Foreman Parker stated
on the occasion of a complaint that two pilers-referring to Gassner and
Christopherson-were going to be without jobs. And a day or two before dis-
charging Gassner and Christopherson, Parker told some of the employees that
Dant would give Parker $25 to get rid of both men and would bet $50 that he,
Parker, couldn't get rid of them. (I do not credit Parker's different version
of this matter. I consider his testimony on disputed matters to be unreliable.)
F. The discharges
Three regular contract pilers, including Christopherson and Gassner, went
on vacation on July 1, 1949. They chose that time for vacation because no
green lumber was coming in. When leaving that day, Gassner repeated a
request to Foreman Parker for a man to replace his crew partner, Slim Erickson,
who had been injured several weeks before. Since the injury,. members of a
spare piling crew rotated with Gassner, the result being that all regular contract
pilers suffered a loss in earnings because of their established practice of pooling
their earnings. In any event, when Gassner told Parker on July 1 that he
wanted a regular partner upon his return from -vacation, Parker stated, "I
wouldn't be too sure about that."
Christopherson returned to the mill on July 12, 1949, to find the shortage of
green lumber still continuing. He inquired of Parker whether any other type
of work-was available, to which Parker replied that there was some dry loading
to be done. Christopherson then called Gassner, who was still on vacation, to
work with him, and they reported for work the following morning, July 13.
On July 13, 14, and 15, Gassner and Christopherson dry loaded for a total
period of 201,4 hours, and worked at green piling for the remaining 33/4 hours.
July 15 was a Friday. When the men reported for work the following Mon-
day, Parker advised them that they were fired for loafing on the job on July 13,.
14, and 15. Parker testified, in effect, that both men had loafed on the 3 days
in question and that on July 14 he decided to discharge them for that reason;
that he discussed the matter with Manager Clark on July 15 because of un-
certainty as to his power of discharge ; and that Clark concurred in his recom-
DANT & RUSSELL, LTD. 317
mendation and instructed Parker to discharge the men. Although Parker
stated at one point that he did not overlook this alleged loafing of Gassner and
Christopherson because of previous unsatisfactory work, he testified that when
he decided to discharge the men, he did not have these alleged previous defi-
ciencies in mind ; that in his discussion with Clark, he mentioned only the afore-
mentioned loafing as the reason for the discharges; that the discharges were
made solely because of loafing on the 3 days ; and that such loafing was the only
reason he (Parker) gave the men on July 18, when he discharged them. Parker,
moreover, made a statement to similar effect on August 16, 1949.
Clark testified that Gassner and Christopherson were discharged "only because
of what took place on those [31 days," and the record further shows that this
was the sole reason alleged by the Respondents at the afore-mentioned grievance
meetings on the discharges.
G. Other reasons alleged by the Respondents for discharges.
Despite the testimony of Clark and Parker as to their alleged reason for dis-
charging_Gassner and Christopherson and notwithstanding the Respondents'
stated position on the matter at the grievance meetings, the Respondents' answer
of May 1950 avers, and at the hearing they attempted to show, that the dis-
charges were also made for reasons relating to the work performance of both
employees during the period before July 1, including, among other things, that
they used green stickers instead of dry stickers, that they improperly placed
stickers while piling, that they constructed irregular chimneys, that they arrived
late at work and left their work before regular quitting time while there was
green lumber still to be piled, that they refused to pile lumber of narrow widths,
etc.-all of which, according to the Respondents, constituted insubordination
and caused lumber to be stained, with financial loss to the Respondents.
There would appear to be no question at all in this posture of the case, on the
basis of the Respondents' own testimony, that these other proffered reasons were
not considerations upon which the discharges were made, and that they are,
therefore, irrelevant to the issue. However, I shall summarize the evidence
relating to them, before considering more fully the events of July 13, 14, and 15.
During 1948 there were approximately six pilers, working as already indicated,
in teams of two. The composition of these crews was fairly permanent ; thus,
Gassner's regular partner was Erickson from 1944 until June 1949, and Mike
Gassner (not to be confused with Max Gassner, the alleged discriminatee) was
Christopherson's regular, partner from October 1948 until the latter's discharge
in July 1949. Until the 3 days under consideration, Gassner and Christopherson
had worked together as a team only during emergencies, for a total period of
approximately 3 days, not more than a day each time.
The record shows that the Respondents themselves had complained, but only
generally as to all pilers and not as to Christopherson and Gassner in particular,
concerning faulty piling,. including the use of green stickers, the improper align-
ment of stickers, and irregular construction of chimneys. The record establishes,
however, that because men worked together as teams, it was fairly difficult, if
not impossible, to determine whether one or both members of a team were at
fault in a particular. operation, and if only one, to identify which employee; it
appears, moreover, that the stickers may also be displaced, in the case of unit
piling, by the manner in which the piles were transported and stacked by the
lift truck operators. Although the Respondents' proof covered the entire periods
of employment of. both Gassner and Christopherson, the Respondents were able
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to show as to either of them only that the entire team of Erickson (who is still
in the Respondents' employ) and Gassner had specifically been criticized on
occasion in regard to their piling. Parker testified that there had been no evi-
dence of staining during the period of his foremanship, at least until the dis-
charges here in question ; and as to the use of green stickers, the record contains
no instance where either Gassner or Christopherson were personally criticized
in this respect. The record establishes, in regard to the matter of late arrivals
and early departures, that Christopherson and Gassner arrived at the same time
as Mike Gassner (who is still in the Respondents' employ) and that all pilers,
as contract workers, customarily left work before the day workers in accordance
with the industry practice to this effect ; and while Trautman testified that all
pilers left early on occasions when green piling still remained, Parker testified
that on no occasion during his foremanship did the pilers leave early without
'permission with uncompleted work behind ; in any event, Christopherson and
Gassner quit work when the other pilers did and had never been criticized on
this score. Dant testified that on one occasion in or about June 1948, Gassner
and his partner quit work early ; however, Dant further testified that Gassner
allegedly did so because of a sore arm.
Concerning the Respondents' claim that both men piled wider lumber rather
than narrower lumber, the record shows as follows : Because of the piece-
work method of paying contract pilers, pilers were able to make more money
piling greater widths of lumber and, in the industry generally, pilers accordingly
pile wider lumber when it is available. This had been the practice of all the
Respondents' green pilers: Moreover, the record contains no instance where
either Christopherson or Gassner had refused to handle lumber which they had
been ordered to pile.
The record further shows that both Gassner and Christopherson were com-
petent and industrious workmen, at the very least, and Parker admitted that
during the entire period of his foremanship he had no occasion to criticize the
specific work performance of Christopherson or Gassner in any respect.
H. .July 13, 14, and 15
Parker testified that on these 3 days, Christopherson and Gassner reported
for work on time, but that they- were late in actually beginning to'work ; that
frequently and for protracted periods during these days, they wasted time in their
car; that they didn't exert themselves while they were working; that several
employees, all unidentified except a truck driver named Conger, told him on
the morning of July 13 that other employees would be discharged if they loafed
the way Christopherson and Gassner were doing (Conger credibly denied making
this statement) ; that at the time of the discharges he believed both men had dry
loaded about 53,000 feet of lumber during the 201/4 hour period, although he
later learned the amount to be 48,000 feet ; and that this amount-presumably
the 53,000-foot figure, for it was on the basis of this amount that he allegedly
made or recommended the discharge-was unreasonably small output for the
period in question. Parker admitted that not once during this entire 3-day
period did he criticize the men concerning their work, or otherwise advise
them that he was dissatisfied with the manner of their performance.
The General Counsel, on the other hand, adduced testimony to the effect that
Gassner and Christopherson began to work shortly after reporting ; that they
dry loaded approximately 50,000 feet during the period in question, and that
this was the figure agreed upon by all parties at the grievance meetings mentioned
DANT & RUSSELL, LTD. 319
above ; that they were slowed down somewhat because of the 100 degree tem-
perature those days; that they took their regular morning and afternoon rest
periods ; that they carried their own drinking water with them and, occasionally
during the day, obtained such water at their car where with the Respondents'
permission the water was kept ; and that their output on these days also was
reduced because the lumber they were handling contained miscuts and wood of
random sizes, and because the lumber had been standing for a long time and
contained much dust and was therefore particularly difficult to handle in view of
the hot weather at the time. The General Counsel conceded that the men did
not work as hard as they might have on contract basis, but he contended that
the amount of their production was wholly reasonable, considering all the fore-
going circumstances including the fact that the men were contract pilers working
at day-labor rates.
The record shows that the lumber handled by the men on the 3 days in question
was of various lengths, widths, and thicknesses ; that some of it was not edged,
that is, the bark had not been removed; and that it contained miscuts as well,
which is wood of one thickness at one end and another thickness at the other.
This random sized and wedged lumber is much slower in loading than regularly
cut wood of similar size. The Respondents did not deny the testimony con-
cerning the high temperature on the 3 days, and the record. also shows that
the lumber had, in fact, been standing and accumulating dust in the yard since
it had been piled the year before. On the basis of the entire record, I find
that the men dry loaded approximately 50,000 feet during the 3-day period.
(This also is the figure given by Parker in a statement he made in August 1949.)
And as they spent 201/4 hours in dry loading and 3a/4 hours in green piling during
this period, I find that the average amount of lumber dry loaded by the men on
an 8-hour daily basis exclusively devoted to dry loading was approximately
19,750 feet. On the basis of 53,000 feet, the amount Parker believed they had
loaded when he discharged the men, the average daily output would be ap-
proximately 20,930 feet ; and on the basis of Parker's alleged actual amount of
48,000 feet, the average daily amount would be approximately 18,960 feet. The
small differences between these various amounts are not, in any event, dis-
positive of this case in my opinion.
The record contains a wide range of estiiirates of what is a reasonable amount
of dry loading to be done by a crew of men working on a day-labor basis. (It
is recalled in this connection, that day laborers do not and are not expected to
work as hard as employees engaged in dry loading on a contract or piecework
basis.) These estimates range from 30,000 feet to 11,200 feet ; however, these
figures were not based on lumber containing miscuts, the presence of which
would materially lessen the output, as the record shows. In fact, one witness
testified that, for this reason, men are paid a double wage scale when dry loading
miscuts on a contract basis at another mill in the vicinity of the Respondents'
operations. The record further shows that the Respondents had no prescribed
standard as to the amount of lumber a dry loader on a day-labor basis was
expected to handle. Upon all the foregoing and upon the entire record, I con-
elude that Christopherson and Gassner dry loaded a reasonable amount of
lumber on.the 3 days in question.
Tim Sullivan, president of the Klamath Basin District Council, IWA, CIO,
testified that his union jurisdiction includes nine local unions and covers the
geographical area from McCloud, California, to Heppner, Oregon, and that he
has occupied this office since 1941, except during a period of wartime military
320 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
service. He stated that all grievances arising out of discharge cases under his
jurisdiction come to his attention and that during his entire term of office no
contract piler has ever been discharged because of the manner of performing
temporary dry-loading, work. Sullivan also testified that the practice of the
industry is not to discharge an employee without first warning the employee
and his union, neither of which was done in this case.
Conclusions
Upon the basis of the entire record in this case, I believe that the Respondents
did not discharge Gassner and Chistopherson for loafing on the job on July
.13, 14, 15. These employees, proficient at a job which the industry itself con-
sidered deserving of particular consideration, had performed their work com-
petently and industriously for respective periods of 41A and 2 years without
receiving any warning concerning the performance of their job. In the mean-
time, they had been active in union affairs ; together they were principal
spokesmen in representing the employees, particularly the pilers, in concerted
activities respecting wages and other general conditions of employment.
Christopherson and Gassner incurred the Respondents' displeasure by such rep-
resentation and, at various times in 194S and 1949, the Respondents indicated
a desire to get rid of them, the last such indication only a few days before
the discharge.
There is no question that the Act protects the right of employees to act
concertedly in presenting complaints and grievances regarding their terms and
conditions of employment. It also is true that recognizing and bargaining with
the statutory representative does not relieve an employer from his other obli-
gations under the Act and give him carte blanche to rid himself of the spokesmen
in such matters.
Returning to the factual summary, however, we find Christopherson and
Gassner temporarily engaged in dry loading. They perform this work for 3
days, without receiving any criticism or word of caution that management
considers their performance to be unsatisfactory. Their output is reasonable
for these 3 days, particularly in view of the kind of lumber they were handling,
the high temperature, the fact that they were then engaged in day labor, and
also the special industry considerations applicable to green pilers engaged in
temporary dry loading on a day-labor basis. In addition to the departure from
the established labor relations practice in the industry which the discharges
involved, as indicated above, there is further to be considered the matter of
shifting reasons for the discharges. Despite the testimony of Clark and Parker,
and Parker's August 1949 statement, as- to the cause of the discharges ; despite
the position of the Respondents at the grievance meetings; despite the reason
assigned Christopherson and Gassner at the time of the discharges-despite all
this, the Respondents now contend that earlier conduct of both men entered into
the decision to discharge them and that the events of July 13, 14, and 15 were
merely the final straw. Under the circumstances, this assertion of such newly
discovered reasons fortifies the conclusion that the Respondents are attempting
to conceal their actual motivation; and the Respondents' already untenable
position becomes weaker still when it appears that this additional broadside
criticism of both men is itself without substantial record support. However,
even if the record supported the criticism of the past performance of Gassner
.and Christopherson, such evidence would be irrelevant to the case, as the testi-
mony of Clark and Parker demonstrates.
DANT & RUSSELL, LTD. 321
I conclude upon a preponderance of the evidence that the Respondents did
not discharge Christopherson and Gassner because of their performance on
July 13, 14, and 15; I find, rather, that the Respondents discharged these em-
ployees because of their preeminent advocacy of matters relating to the Union
and in connection with other concerted activities of employees which the Act
protects. The Respondents thereby discriminated in regard to their hire and
tenure of employment, discouraging membership in the Union, and by such
conduct, the Respondents also interfered with, restrained, and coerced their em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act. This
conduct violates Section 8 (a) (3) and 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above , occurring in
connection with the operations described in Section I, above , have a close, inti-
mate, and substantial relation to trade, 'traffic , and commerce among the several
States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
In order to effectuate the policies of the Act, I shall recommend that the
Respondents cease and desist from the unfair labor practices in which they have
engaged. I also shall recommend that the Respondents offer reinstatement to
Gassner and Christopherson and make each of them whole for any loss of pay
they may have suffered by reason of the Respondents' discrimination against them,
by payment to each of them of a sum of money equal to the amount he would
normally have earned as wages from the date of his discharge (July 18, 1949)
to the (late of a proper offer of reinstatement, less his net interim earnings. The
hack pay shall be computed on a quarterly basis in the manner established by the
Board, and the Respondents shall make such records available in this connec-
tion as is hereinafter provided. F. W. Woolworth Company, 90 NLRB 289.
In view of the nature of the unfair labor practices committed, I shall also
recommend, in order to make effective the interdependent guarantees of Section
7 of the Act, that the Respondents cease and desist from in any other manner
infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Woodworkers of America, Local 6-7, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. The Respondents have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]