Inyo Lumber Co.

National Labor Relations Board - Board Decisions

Apr 1, 1952

98 N.L.R.B. 984 (N.L.R.B. 1952)

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL bargain collectively upon request with INTERNATIONAL ASSOCIA-
TION OF MACHINISTS , DISTRICT LODGE No. 727, as the exclusive representative
of all employees in the bargaining unit described herein with respect to
rate of pay , wages, hours, and other -conditions of employment and, if an
understanding is reached , embody such understanding in a signed agree-
ment. The bargaining unit is :
All employees of RAY BROOKS, Van Nuys, California, but excluding
salesmen , guards, professionals , and supervisors.
WE WILL NOT in any manner interfere with the efforts of the above-named
union to bargain collectively with us, or refuse to bargain with said union
as the exclusive representative of the employees in the bargaining unit set
forth above.
RAY BROOKS,
Employer.
Dated ------------------------------------- By ----------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date hereof,
and must not be altered, defaced, or covered by any other material.
WILLIAM I. MOFFETT , ANNE GOLDSTEIN , CARL B. GOLDSTEIN AND L. E.
MOFFETT, INDIVIDUALLY AND AS CO -PARTNERS , D/B/A INYO LUMBER
COMPANY and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA , AFL. Case No. 0O-CA-360. April 1, 1952
Decision and Order
On September 6,1951, Trial Examiner James R. Hemingway issued
his Intermediate 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
Intermediate Report attached hereto. Thereafter the Respondents
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case and finds merit in the Respondent's exceptions for the reasons
set forth below.
98 NLRB No. 145. -
INYO LUMBER COMPANY 985
On February 27, 1950, the Union filed charges alleging that the
Respondent had violated Section 8 (a) (1) of the Act by certain
conduct which occurred on February 18, 1950. On March 31, 1950,
the Regional Director approved a settlement agreement which pro-
vided inter alia-
Contingent upon compliance with the terms and provisions hereof,
no further action shall be taken in the above case. The Union
hereby requests the withdrawal of the Charge in this matter, such
withdrawal to become effective when the Regional Director is
satisfied that the provisions of this Agreement have been carried
out. '
The Regional Director did not at any time notify the parties of a
withdrawal of the charges.
On January 17, 1951, the Union filed new charges alleging unfair
labor practices in May, June, and July, 1950. These charges were with-
drawn. On March 9, 1951, the Union amended its original charges
of February 27, 1950, by the addition of allegations that in May, June,
and July, 1950, the Respondent had violated Section 8 (a) (1) and (3)
of the Act. On March 30, 1951, the General Counsel issued his com-
plaint based upon the allegations of the original and the amended
charges, and also alleging that the settlement agreement had been vio-
lated by the Respondents. The Trial Examiner held that Section
10 (b) of the Act did not bar the issuance of a complaint, and found
certain conduct of the Respondent which occurred in February, May,
and June, 1950, violative of Section 8 (a) (1) and (3) of the Act.
It has been a well-established Board policy, sanctioned by the courts,
that where unfair labor practices occur after execution of a settlement
agreement, the Board will, go behind the settlement agreement and
litigate the presettlement as well as the post-settlement violations.,
As the Trial Examiner points out in the Intermediate Report, the
Board has permitted under Section 10 (b) litigation of matters which
occurred after the filing of charges on the theory that ". . . once the
Board's jurisdiction is properly invoked by the timely filing and serv-
ice of a charge, any unfair labor practices thereafter committed by a
respondent and uncovered while the charge is being investigated be-
come cognizable by the Board and may be included in the complaint." 2
Here, however, the Board's investigatory processes, having been set
in motion by the filing of the original charges, were halted by the exe-
cution of the settlement agreement. Thereafter, the Union filed
amended charges alleging that the Respondent had violated the Act
Wallace Corporation, 323 U. S. 248 ( 1944).
s Ferro Stamping and Manufacturing Co., 93 NLRB 1459; International Longshoremen'a
and Warehousmen's Union and Local 19, International Longshoremen's and Warehou8e-
men'8 Union, 98 NLRB 284.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some 9 months before the amended charges were filed. Section 10 (b),
would not preclude the Board from reactivating the original charges
when the post-settlement violations were brought to its attention .3
However, such a course is not suitable in every case and, in our view,
should not be followed here.
It is not only salutary policy to protect parties to a settlement agree-
ment against violations of the agreement, but it is equally desirable
to encourage settlement agreements.' A party charged with violations
of the Act would be discouraged from entering into such an agreement
if we were to hold that such charges may be reactivated regardless of
how long a charging party waits after the occurrence of alleged post-
settlement violations before bringing them to the Board's attention.
In the instant case, the Union waited for more than 9 months to do so,
and nothing appears in the record to explain or mitigate that delay.
After due consideration of the Board's policies discussed above, and
mindful of the intent of Congress, in adding Section 10 (b) to the
original Act, to discourage unreasonable delays in filing charges, we
find that, under the circumstances presented here, the original charges
should not have been reactivated- or amended nor a complaint issued
thereon.5 Accordingly, we shall dismiss the complaint in its entirety.
Order
Upon the entire record in 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 complaint herein against
William I. Moffett, Anne Goldstein, Carl B. Goldstein, and L. E. Mof-
fett, individually and as co-partners, d/b/a Inyo Lumber Company,
be, and it hereby is, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On February 27, 1950, United Brotherhood of Carpenters and Joiners of
America, AFL, hereinafter called the Union, filed a charge against Inyo Lumber
Company, a partnership, whose partners are named in the caption hereof, and
who are hereinafter called, collectively, the Respondent. The charge alleged
that the Respondent, by its officers, agents, and representatives, had theretofore
by certain acts interfered with, restrained, and coerced its employees in the rights
guaranteed in the Act.
3 Member Murdock has serious doubts that Section 10 ( b) would permit the Board
,to reactivate charges of presettlement violations where the post-settlement violations
occurred , as here, more than 6 months before the filing of the amended charges . Inasmuch
as his colleagues are agreed that it should not be permitted here as a matter of discre-
tionary policy, the question whether the Board would have had the power- to permit it
becomes academic in the disposition of this case.
.4 Poole Foundry, 95 NLRB 34, enforced , 29 LRRM 2105, cert. den. 29 LRRM 227.
a Cf. Mundet Cork Corporation and Insulation Contractors of Southern California, Inc.,
96 NLRB 1142, where the Board permitted the litigation of presettlement as well as post-
settlement violations of the Act„where charges alleging post-settlement violations were filed
within 6 months of their occurrence.
INYO LUMBER COMPANY 987
On March 29, 1950, the parties hereto executed a settlement agreement (ap-
proved on March 31, 1950, by the Regional Director ) which provided for the
posting of a notice and for notification of the Regional Director by the Respondent
and the Union of compliance within 5 days and again after 60 days. It then
provided:
WITHDRAWAL.-Contingent upon compliance with the terms and pro-
visions hereof , no further action shall be taken in the above case. •The
Union hereby requests the withdrawal of the Charge in this matter, such
withdrawal to become effective when the Regional Director is satisfied that
the provisions of this Agreement have been carried out.
So far as the record here shows, no complaint of noncompliance was made
within the period stated , so presumably the withdrawal became effective at the
end of the 60 -day compliance period . No further procedural steps were taken
until this year when the Union filed a new charge x but later withdrew that
charge and on March 9 , 1951, filed a first amended charge in the instant case.
The amended charge repeated the original charge of February 27, 1950, and
added allegations that the Respondent on June 5, 1950 , discharged three named
employees discriminatorily , that on May 20, 1950, the Respondent closed its
boarding house because of employees ' membership in or activity on behalf of
the Union, and that on July 18, the Respondent shut down its box factory for
the same reason . By a second amended charge, filed on March 29 , 1950, the
Union added the name of another employee as discharged on June 5.
Upon the aforesaid charge and amended charge, a complaint was issued on
March 30, 1951. The complaint alleged a number of acts of alleged interference,
restraint , and coercion , failure to abide by said settlement agreement, the
discharge on about May 15, 1950, of Ruby Thomas ; on about June 3, 1950, of
Bert Dietzman ; and on about June 6, 1950 , of Clarence Thomas and Albert
Meredith , Jr., each allegedly because of his membership in or activity on behalf
of the Union , refusal thereafter to reemploy them for the same reason , and the
discharge on about July 18, 1950 , of all its employees for like reason.
On April 4, 1951, the Respondent filed with the Regional Director motions (1)
to dismiss the complaint under Section 10 (b) of the Act because of the lapse of
more than 6 months between the occurrence of the alleged unfair labor prac-
tices and the filing of the charge ( presumably the amended charge ), ( 2) to
have the allegations of the complaint made more definite and certain , and (3)
-to extend the time within which to file an answer . By order dated April 5,
said Regional Director referred the first two motions to the Trial Examiner
assigned to conduct the hearing and extended the time for filing an answer to
April 20, 1951.
On April 18, 1951, the Respondent filed an answer denying the commission of
any unfair labor practices and again raised Section 10 ( b) of the Act as a bar
because of the lapse of time.
Pursuant to notice , a hearing was held in Bishop , California , from May 15
to May 25, inclusive , before the undersigned . The General Counsel and the
Respondent were represented by counsel , and the Union was represented by a
representative . Opportunity to be heard , to examine and cross-examine wit-
nesses, and to introduce evidence pertaining to the issues was afforded all
parties.
At the opening of the hearing , the Respondent renewed its motion to dismiss
on the grounds that more than 6 months had elapsed between the time of the
alleged ,unfair labor practices and the filing of a charge . Ruling thereon was,
reserved and is herewith ruled on.
' Case No. 20-CA-535.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have given more than ordinary consideration to the Respondent's motion
in the belief that the circumstances here might make this case distinguishable
from those in cases heretofore decided by the Board. Where the processes of
the Board and its General Counsel are active, following the filing of the initial
charge, it is reasonable enough to believe that Congress would not intend to
prohibit the issuance of a complaint more than 6 months after certain of the
alleged unfair labor practices occurred, even though they are not mentioned in
the original charge, if they occurred within 6 months before the filing of the
original charge. Such unfair labor practices are themselves the subject of
investigation along with those included in the charge, and more than 6 months
might elapse before enough could be learned to guide the General Counsel in his
decision to include them in the complaint. But what of the case where, as
here, no investigation was going on? As the result of a settlement agreement
approved by the Regional Director, a notice was presumably posted for 60
days and presumably "withdrawal" of the charge was permitted. For some
9 months thereafter no complaint was made by the Union of any unfair labor
practices and the case was assumed to be closed. The Union actually filed a
new charge in 1951 before it decided to amend the original one. One of the
principal reasons for statutes of limitations is the desirability of litigating
the matter before memories become vague, before witnesses have disappeared,
and before documentary evidence has been destroyed. Although it does not
appear that the Respondent was inconvenienced here by the unavailability of
witnesses or essential documentary evidence, I am of the opinion that the
memories of witnesses were far from fresh. If an exception were to be made
by the Board, this would be an appropriate case for it. The difference between
this case and one where a charging party might decide to file an amended charge
10 years after the settlement agreement, alleging unfair labor practices occur-
ring 5 years before the date of the amended charge, is only one of degree. It
is difficult to imagine that such practice would be approved. But, according to
Board's interpretation of Section 10 (b), Congress did not intend that the
limitation therein provided should apply to unfair labor practices not mentioned
in the original charge but occurring in the period between 6 months before the
filing of that charge and the date of the complaint or of the hearing! In Ferro
Stamping and Manufacturing Co., 93 NLRB 1459, after quoting from its Cat hey
Lumber Company decision, 'the Board said, "It follows therefore that once the
Board's jurisdiction is properly invoked by the timely filing and service of a
charge, any unfair labor practices thereafter committed by a respondent and'
uncovered while the charge is being investigated [emphasis added] becomes
cognizable by the Board and may be included in the complaint." I am not con-
vinced, however, that the Board had in mind such a situation as exists in this
case when it used the emphasized phrase. Furthermore, I am led to the con-
clusion that the intervention of a settlement agreement would not alter the
rule announced in the Ca they case -if the acts occurring after the date of the
settlement agreement constituted unfair labor practices 3 In spite of the lan-
guage of the settlement agreement concerning the withdrawal of the charge, the
Board reactivates such charge and continues its investigation where subsequent
unfair labor practices appear to have been committed.' If such unfair labor
practices are committed during the compliance period it is especially important
2 Cathey Lumber Company, 86 NLRB 157,, enfd . 185 F. 2d 1021 ( C. A. 5), revd . on other
grounds on rehearing 189 F. 2d 428 (C. A. 5). Court decisions are not uniform on the
application of Section 10 (b), of the Act. Upholding the Board : N. L. R. B. v. Wester Boot
& Shoe Co., 190 F . 2d 12 (C. A. 5) ; Kansas Milling Company v. N. L. R. B., 185 F. 2d 413
(C. A. 10). Contra • Joanna Cotton Mills Company v. N. L. R. B., 176 F. 2d 749 (C. A. 4).
8 Victor Chemical Works, 93 NLRB 1012.
4 Ibid.
INYO LUMBER COMPANY 989
that the Board be free to reopen the investigation at any time, for, if there has
in fact been no compliance, the settlement agreement is no bar, and to permit
lapse of time then to bar further action by the Board would be to nullify the
settlement agreement and the purposes of the Act. Since I find here certain
unfair labor practices to have been committed after the date of approval of the
settlement agreement, the settlement agreement itself does not foreclose these
proceedings. The Union may have been negligent or dilatory in bringing the
later unfair labor practices to the Board's attention and, if this involved a
private remedy, the doctrine of lathes might be appropriately invoked. But
public rights are involved and they are paramount to the interest of the Union.
For all these reasons, I now deny the Respondent's motion to dismiss based on
Section 10 (b) of the Act. Despite my denial of the motion, I do not ignore
the lapse of time as of no effect. I am convinced that the lapse of time had its
effect on the memories of the witnesses. Conflicts of testimony were numerous.
There were variations in the testimony of witnesses for the same party. Some
witnesses were vague or confused. I have taken all this into account in
evaluating the testimony.
At the conclusion of the General Counsel' s case-in-chief, the General Counsel
moved to amend the complaint by adding an allegation of discriminatory
discharge of employee Harry Thomas "because of his membership in and
activity on behalf of the Union" and of the Respondent's subsequent refusal
to reinstate him. The motion was granted. At the close of the hearing, Gen-
eral Counsel moved further to amend the complaint by adding an additional
allegation of violation of Section 8 (a) (1) of the Act. Because of the fact
that the amendment had earlier been proposed and the matter had been fully
litigated, the undersigned granted the motion. A motion to amend the pleadings
to conform to the proof in instances of minor variances was granted. The
parties waived oral argument, but the General Counsel and the Respondent
each filed a brief.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE 13USINESS OF THE RESPONDENT
The Respondent, William I. Moffett, Carl B. Goldstein, Anne Goldstein, and
L. E. Moffett, are copartners doing business as Inyo Lumber Company, with
its principal office and plant located in Bishop, California. The Respondent
is engaged in the business of logging, manufacturing, and selling lumber and-
lumber products. During the calendar year 1949, the Respondent purchased
raw materials consisting principally of logs and lumber valued at $431,097.27,
of which amount approximately 33 percent was shipped to it from points
outside the State of California. During the same period, the sales of the
Respondent were in excess of $1,000,000, of which amount approximately 15
percent was shipped by it to points outside the State of California s I find
that the Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
.United Brotherhood of Carpenters and Joiners of America, AFL, is a labor
,organization admitting to membership employees of the Respondent e
5 The foregoing findings are based upon the allegations of the complaint admitted by the
answer . The evidence indicates that the Respondent 's business continued in like char-
acter during the period in 1950 when the unfair labor practices were alleged to have been
committed.
6 This finding is based upon a stipulation of the parties. -
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Outline of principal occurrences in chronological order
The Union started an organizational campaign in February 1950. Before
the middle of February a representative of the Union discussed the terms of
contracts with William Moffett, the Respondent's managing partner, showing
him a contract which had been entered into between the Union and another
mill in the central California area. Following such discussions, this repre-
sentative requested Moffett to notify his employees that there would be a union
meeting at the West Bishop School on a certain evening in the middle of
February.
After work that day, Moffett assembled the employees and made a speech,
which, it is alleged, violated the Act, and the details of which will be hereinafter
related. That night the union meeting was held.
The next day the union representative told Moffett that it looked like the
employees wanted the Union. Moffett told him that because there were claims
of other unions, the only way to settle the matter was to have an election. The
representative agreed to file for one.
As previously stated , the Union thereafter filed its original charge on February
27, 1950. On March 31 , 1950 , the Regional Director approved a settlement
agreement between the Union and the Respondent. So far as appears, the
notice called for in the settlement agreement was posted . In mid-May, the
Respondent closed its boarding house under circumstances which will later be
explained . This is the basis for one of the allegations of unfair labor practices.
On May 19, 1950, the Union, for reasons not too clear, decided at a meeting to
call a strike, and on Monday, May 22, employees of the mill and yard formed a
'picket line. Employees of the box factory worked that day, but the next day
most of them refused to cross the picket line. For a few days the Teamsters
continued to cross the picket line in the mistaken belief that the strike was
,illegal because the approval of the Central Labor Council had not been procured.
On the evening of May 31, the Union agreed with the Respondent to call off the
strike on condition that the Respondent would reemploy all of the strikers with
one or two exceptions. On June 1, the employees returned to work at the mill,
but the box factory was not reopened immediately because the Respondent
claimed it had to get new orders. The box factory reopened on Monday,-June 5.
About the middle of June, the Respondent decided that it could get more by
selling its box lumber than by operating its box factory , and from then until the
middle of July it began to clean up what it had on hand. On July 18, the box
factory was closed and was still closed at the time of the hearing. The closing
of the box factory is claimed to be a violation of the Act.
B. Interference , restraint , and coercion
1. Moffett's February speech
'Witnesses for the General Counsel testified that in Moffett's speech in mid-
February 1950 he said that if the Union "came in" he would close down the
box factory, close the bunkhouse, close the boarding house, abolish group in-
surance, eliminate women employees , and limit the operations of the Respondent
to 40 hours a week and 9 months a year. Witnesses for the Respondent were
just as emphatic that the statements were not made as were witnesses for the
.General Counsel that they had been. In evaluating the testimony of the wit-
nesses , I have taken into account , first , the difficulty of remembering verbatim
what was said more than a year before ; second , the logicality that the state-
INYO LUMBER COMPANY 991
ments were made in the way in which they were testified to have been made;
and third, my' appraisal of the testimony from my observation of the witnesses:
In reaching my conclusions, I do not find that witnesses were dishonestly dis-
torting the facts. Rather, I find that most of the witnesses, hearing a lengthy
statement but once, could at best remember mere fragments of the speech, and
these not verbatim. In many instances, the testimony, I am convinced, reflected
the conclusions or inferences drawn by the witnesses, rather than words spoken.
In some instances, ideas picked up at random were probably misincorporated
into the speech in faulty memories. I find that Moffett began with a statement
concerning his talk with the union representative and the contract exhibited
by him. He told the employees that he had been requested to announce the
meeting arranged by the union representative for that night at the West Bishop
School. He said that it was for them to decide whether or not to join a union.
Then he told them that he wanted to tell them of conditions in the Respondent's
business before they went to the union meeting. Moffett- stated that since the
Respondent had been in business it had always worked 48 hours a week, and
12 months of the year ; that conditions on the eastern side of the mountains in
central California were different from those on the western side; that the
Respondent's timber was of a species which grew only at high altitudes where
the snow came early ; that in order to get timber down during the favorable
weather it was necessary to work long hours in the woods and trucking; that
he had an agreement with the teamsters to work long hours ; that the Respond-
ent was in the habit of stockpiling enough logs so that they could operate during
the full year;' that he did this to keep his crew together; that he had heard
that most of the mills on the other side of the mountain that had contracts with
the Union worked only 6 to 9 months of the year and worked a 40-hour week.
He offered to pay the expenses of any two men that wanted to go to the other
mills to investigate their conditions and wages and that when they returned
they could get together and work something out a He said that some of the
employees were members of the Teamsters Union and some of the Operating
Engineers ; that he did not wish to get into a jurisdictional dispute where they
as well as he would be "out of luck," and that it would be impossible for him
to operate a sawmill with its box factory and yard with three different unions.
To illustrate difficulties arising from conflicts of union interests, he mentioned
a case where one of his men had been delayed for 3 or 4 hours unloading
lumber because only a certain union could unload the lumber and the man
that had been put on the lift truck had been pulled off (presumably by the
union). He said that if the Union represented the drivers, the latter could
probably haul logs down from the woods to the mill but that they could not
make the long haul of lumber from the mill to Los Angeles. (I infer that he
was referring to jurisdictional disputes with Teamsters.) Someone asked what
would happen to the women if they had a union contract. Moffett replied that
'It appears to have been the sense of Moffett's speech that, if the Respondent could
not stockpile logs enough to keep operating in the winter, the Respondent would have to
shut down in the winter ; and this may be the source of the testimony that he threatened
to close the box factory. Judging by the fact that the Union's strength (as shown in the
strike) appeared to be in the mill and yard, it is not logical to infer that Moffett would
threaten to close the box factory in order to defeat the Union. If Moffett said anything
about closing the box factory, I am satisfied it was as the likely effect of inability to
stockpile logs if the truckers and woodsmen worked shorter hours.
8 Moffett here testified that be told the employees that when the men came back from
investigating the other mills "we would get together and try to work out a satisfactory
arrangement with the unions." In view of Moffett's attitude that he could not enter into
a contract with the Union before an election, I am skeptical that he included "the unions"
in his offer to work out a satisfactory arrangement . On the other hand, I am not satisfied
that the evidence makes out a definite promise of a wage increase.
' 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not know, but that he imagined that if there was a shortage of jobs and
there was a man and his wife working in the plant the Union would insist
that someone else take the wife's job.
2. Miscellaneous statements
Vera Chapman testified that for a year before a certain day in February 1950
she had been trying to get a job with the Respondent at the box factory ; that
before that date she had always seen Charles Maher (the man who handled
applicants for the Respondent ) ; but that on this occasion she asked Maher for
permission to see Moffett ; that Maher notified Moffett and that in a little while
Moffett ° came from his office and invited her in ; that she told him that- she
had heard there was an opening in the box factory and that she had been coming
out for a year ; that she asked him why he did not put her on ; that after a pause
he asked, "Well, what do you think about the union?" She testified that she
answered that she did not like the Union and that Moffet had said he was
going to "have to let Chapman go," referring to Arthur Chapman, an employee.10
Then, according to her testimony, Moffett said that there was no opening at the
time, but he took her to Maher and told him that she would be the next woman
that he would put on. Maher testified that he had spoken to Vera Chapman,
had told her there were no openings, that he had never introduced her to
Moffett, that Moffett h td never told him in her presence that she was to be
employed at the first opening, and that she was never hired. Moffett testified
that he had never seen Vera Chapman before the hearing and that he had never
had a conversation with her. I credit the testimony of Maher and Moffett
and find that no such conversation occurred as was testified to by Chapman.
Gerda Smith testified that in about May or the early part of the summer of
1949 Moffett, in his office, spoke to her and her husband, both employees of the
box factory at that time, and asked them if they knew if the crew was talking
of the Union ; that they replied they knew the employees were talking about
the Union but that they (the employees) did not talk directly to them (the
Smiths). She further testified that Moffett told them he would never "go
union" and that he would close down the box factory if it went union . Moffett
denied having made such statements. It is unnecessary to decide whether or not
to credit the testimony of Gerda Smith , because the statement , if made, was made
more than 6 months prior to the filing of the original charge in this case. But
even if it were permissible to make a finding for background only and not for
the purpose of finding an unfair labor practice , I would not make a finding on
the uncorroborated testimony of Gerda Smith . Her husband , Ernest Smith,
testified that in July 1949 in Moffett's office, just Moffett and himself present,
Moffett asked him how he felt toward the Union, that he replied that in some
ways he favored a union and in some ways he did riot like it, and that Moffett
told him that if "it" ever went union, he would shut it down. At this time
Smith was acting foreman and so the questioning would not be a violation of
the Act in any event. However , assuming that Ernest Smith 's testimony was
correct, I am led to believe that Gerda Smith 's testimony was based on hearsay
and that she was in fact not present nor questioned . This and other testimony
0 The witness' use of pronouns gave her testimony a confusing quality. Although it
may be inferred that the pronouns were intended to identify Moffett, I observed that
nowhere did she say, "I said to Mr . Moffett" or "Mr. Moffett said to me ." The resulting
vagueness may not have been intentional , but it derogates from the force of her testimony.
10 The witness testified that her real name was Vera White but that Arthur Chapman
was "known as" her husband . Chapman worked in the box factory in 1948, but in about
August 1949 he went to the sawmill and remained in the Respondent ' s employ until
August 1950.
INYO LUMBER COMPANY 993
make it appear that Gerda Smith testified as to some matters more positively
than her memory warranted. Ernest Smith also testified that in the early part
of 1950, when union activity began to increase, he was alone with Moffett in the
latter's office, and that Moffett asked him if he had heard "any of them" talking
about unions and to let him know immediately if he did. Smith testified that
be replied that he heard very little because "they" would not talk in his presence.
At this time Smith was no longer acting foreman. Although Moffett denied this
incident, I credit Smith's testimony and find that by Moffett's questioning of
Smith, the Respondent interfered with, restrained, and coerced its employees
in violation of Section 8 (a) (1) of the Act.
Gerda Smith further testified that in February or March 1950 in the box
factory by the band saw, in the presence 'of herself and her husband, Moffett
said that everyone that wore a button would, "regardless of his position, be'
let out" ; " that about a week later, Moffett spoke to her alone by the band saws
and asked her how she thought things were going toward the Union, that she
replied that it looked pretty much like they would go union, and that he just
shook his head. Moffett denied making these statements. I find that they were
not made.12 She also testified that Moffett spoke to her husband in March 1950
In her presence, by the band saw, and said that he wanted her husband to "let
Johnnie [Campbell] go because he figured he was an agitator." Ernest Smith
testified that in March, April, or May, of 1950 Moffett spoke to him in the presence
of his wife by the band saws and asked him "if I couldn't figure out some way
to get rid of Johnnie [Campbell] . . . that he was too much in favor of the
union." Moffett denied having made the latter statement, testifying that at the
time of the alleged conversation, Campbell had just got back from an operation
for appendicitis and that the doctor had said that Campbell could work if Mof-
fett could find something light for him to do, and that, whereas Campbell had
been on the resaws, he had moved him to lighter work. Although Moffett 'denied
having spoken to the Smiths at all about the work that Campbell should do in
the box factory, I believe that the incident was not necessarily fabricated by
the Smiths. I consider it quite likely that Moffett spoke to them, but that be-
cause of the noise of the band saws, the Smiths misunderstood what Moffett was
saying. It is improbable that Moffett would ask Smith to "figure out" some way
to get rid of Campbell because of the Union. If Moffett wanted to let Campbell
go, he could have done so without Smith's assistance. He might have made
Campbell's health the basis of releasing him. It seems much more probable
that if' Moffett spoke to Smith at all about letting Campbell go, it was to explain
why he was taking Campbell from Smith's work. Hence, I credit Moffett's de-
nial that he spoke the words attributed to him.
According to the General Counsel's witness, Ivan Stewart, Moffett came to
him in the boiler room in the latter part of April 1950, asked how he liked his
job, asked if he had heard about the Union, and when Stewart replied that he
had, asked if Stewart was going to join. Stewart testified that he answered
that he had already had and that Moffett had said, "I suppose you know I don't
"This was not corroborated by Ernest Smith and was denied by Moffett. Because of
the inaccuracies and unreliability of Gerda Smith's testimony, I do not find that Moffett
made this statement.
12 This finding is not based alone on Moffett's denial. Moffett testified that the band
saws make so'much noise that it is impossible to carry on a conversation. Gerda Smith
testified that it was necessary to stand close and speak in a loud voice. Although I
believe that one might make himself heard at the band saws if he shouted loud enough,
I believe that the noise would increase the likelihood of misunderstanding what was said.
Adding this to my lack of confidence in the accuracy of Gerda Smith's testimony, I am not
convinced that Moffett made the statement testified to.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
care for the Union." Moffett denied making the statement or asking the ques-
tion testified to by Stewart. Although there are instances in the testimony of
Moffett when I do not credit his denials, there are instances where the testimony
against him is improbable, or where the witness' testimony appears unreliable
because of poor memory or because of personal hostility to Moffett or for other
reasons. Stewart did not impress me as one who would give a completely dis-
interested account. There was cause for bias on his part, and I feel that his
testimony is not reliable. I therefore credit Moffett's denial.
Harry Thomas, a former employee of the Respondent, testified that in the
latter part of April 1950 he was sitting in his automobile with his wife and
Moffett's mother-in-law when Moffett approached to speak to his mother- in-law,
and then asked Thomas, who had been sick, how he was feeling and if he could
come back to work for a few days. According to Thomas he replied he could if
it was necessary, and that Moffett commented that the Union was getting pretty
strong and that he might need Thomas for a few days, adding, "Of course if
you are not on my side I don't want you." Thomas returned to work volun-
tarily about May 10, 1950. Moffett admitted that he had talked to Thomas at
the location mentioned, admitted that he had asked how Thomas was feeling
and when he would be back to work, but he denied that he said to him• that he
did not want Thomas if he was not on his side. Apparently through the error
of his counsel in questioning him, Moffett did not deny that he said to Thomas
that the Union was getting strong and that he needed him, but did deny that
he said that the Union was going to strike and that he needed him. Mrs. Effie
Fleming, Moffett's mother-in-law, likewise testified that Moffett merely asked
Thomas how he was feeling and when he thought he could come back to work
and that was all that Moffett had said. Thomas' wife, Ruby, testified that
Moffett asked Thomas if he would be able to come back to work soon and that
he said, "'I would like to have you . . . [but] if you are not for me I don't want
you,' or words to that effect."
I received the impression that, in reconstruction, the Thomases had placed
their own inferences on words which at the time were not clearly understood.
I find that they were mistaken with respect to this portion of the conversation
and credit Moffett and Fleming.
LeRoy McKelips, a former employee of the Respondent, testified that in the
latter part of April 1950, as he and employee Norman Craig were drinking a
Coca Cola in the lumberyard, Moffett asked McKelips what he thought about
the Union. He replied he thought it was good for some and bad for some and
that Moffett then said that if anybody asked him about the Union to pay no
attention to them and to tell them "to go to bell." At, this time McKelips had
already joined the Union. Moffett denied having had a conversation with
McKelips at that time and denied having ever made the statements to McKelips
that the latter had attributed to him. Craig testified that he could remember
no occasion when he and McKelips and Moffett were together. McKelips also
testified that in June 1950, after a time when he had been absent, Moffett came
to him and tapped him on the shoulder and gave him his check. The latter testi-
mony leads me to believe that McKelips confused someone else with Moffett, as
Moffett never gave out pay checks. Whether or not someone questioned Mc-
Kelips along the lines he testified to, I find that it was not Moffett and I credit
Moffett's denial.
During April and May of 1950, according to the testimony of Bert Dietzman,
who during the period of time he testified about was not an employee, he fre-
quently encountered Moffett at Paradise Camp, a highway resort where Moffett
INYO LUMBER COMPANY 995,
occasionally ate. Dietzman testified that Moffett commented to him that the
Union was there only to secure monthly dues from the men and had nothing to
offer other than a few titles , that the Union would get the employees ' dues and
leave them high and dry when they got into trouble. Dietzman testified that on
another occasion Moffett commented that the Union was getting a "little bit
hotter" and that Dietzman advised Moffett to try forming a company union or to
do something to benefit the employees so that they wouldn 't have any gripes.
Moffett denied having discussed the Union with Dietzman or having made the
statements attributed to him . I find Dietzman 's testimony to have been re-
liable and his memory reasonably accurate and I credit it. But I do not find
that Moffett 's statements constituted an unfair labor practice . They merely
indicate that Moffett had a distaste for the Union.
Robert Andreas , an employee of the Respondent 's box factory before it closed,
testified that in early May 1950 , Moffett took him and employee Buster Davis
into his office at about quitting time and told them that if the box factory went
union he would close it down and that he ( Moffett ) would not starve; that he
would sell his box lumber to Los Angeles . He further testified that about mid-
May he and Buster Davis again were called to Moffett 's office and that Moffett
gave them each a 10-cent raise , tpld them not to tell anybody else in the box fac-
tory, and told them to watch the Smiths to see if they started any trouble or tried
to start any trouble, and saying that if they did to notify Moffett so that he
could fire them. Moffett testified that he did not remember having made the first
statement to Andreas and he denied that he asked Andreas to "get something" on
the Smiths so that he could fire them. Moffett testified that he had given Andreas
a raise in February 1950, but had not given him one in May. Moffett also testi-
fied to having questioned Andreas about a reported tiff between Mrs. Smith and
another employee , which I find had nothing to do with the Union . Buster Davis,
although , according to Andreas , present at the time when Moffett made the
alleged statement first above related , did not quote Moffett as making any such
statement . He, like Andreas , testified that in early - or mid -May he was given
a raise the same time that Andreas was and he also testified to having been
questioned by Moffett in Andreas 's presence about the Smiths. Except for that,
Davis' testimony nowhere corroborates the statement that Andreas claimed that
Moffett made concerning shutting down the box factory . Davis did testify that
Moffett called him into his office about mid-February 1950, a few days after he
had been elected union treasurer , and that Moffett had said that he had heard
of Davis' having been elected , and that in the latter part of March Moffett called
him into the office again and said that he had heard that Davis had turned in his
resignation and that that was a wise move for him to make. Davis also testified
that in Moffett's office the latter had asked him how the employees in the box fac-
tory felt about the Union . Moffett testified that he did not know that Davis was
the treasurer of the Union and did not comment on it, that he did not ask Davis
if he knew how the employees felt about the Union , and that he did not ask Davis
to get anything on the Smiths in order to be able to fire them . Moffett did testify.
that he had called Davis and Andreas into his office to question them about anony-
mous notes that were being written in the plant and about an alleged name-calling
incident that occurred between employees . I am inclined to believe that Davis;
and Andreas ' testimony with respect to the other comments attributed to Mof-
fett were the result of faulty memory, a confusion of incidents , and a distortion
of statements that may actually have been made, and I find that their testimony
is not reliable enough upon which to base a finding.
Alvin Lent , before the closing of the box factory in 1950, an employee of the
Respondent, testified that in Moffett 's office about the first week , in May, 1950,
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about quitting time, Moffett called him in and asked him if he'was interested
in the Union ; that he replied to Moffett that he didn't know for sure what it was
all about ; and that Moffett , commenting on' the fact that Lent had been dis-
charged in the summer of 1949 and rehired in the early part of 1950 , said that
the reason he had hired Lent back was that he had heard he was having a hard
time. Moffett denied that he had questioned Lent about whether he was inter-
ested in the Union . He testified that in the early, part of May, Lent had brought
into his office a slat upon which was written , "There is a rat near , beware,"
that he had questioned Lent about where it came from and about whether he
had seen anyone near there at that particular time. I credit Moffett's denial.
.
Frank Plume , who was employed by the Respondent prior to August 1950 as a
dry lumber piler, testified that his foreman , Dan Sherman , in early May re-
marked that if the Company went union it would go 5 days a week and that
Moffett might close it down. Sherman denied that he had ever discussed union
with Plume and denied that he told Plume that he was afraid that if the Com-
pany went union they would work only 40 hours a week or 5 days a week, and
denied having said that Moffett might close down the box factory . A resolution
of the conflict is difficult , inasmuch as I find that both witnesses appeared to be
telling the truth as they remembered it. There was speculation at the time as
to what the effect of unionization would be upon the plant ; and it is not at all
improbable that employees generally were discussing it. However , I find that
this talk was in the nature of speculation as to what kind of conditions might
prevail in the event of a union contract , and that Sherman did not make any
statement in the nature of a threat.
Howard Plume , an employee in the yard prior to July 1950 , testified that in
mid-May he saw Moffett talking to a coworker , Bill Jannusch , and that after a
while Moffett called him over and asked , "Don't you make good money here?"
that he answered Moffett in the affirmative , and that the latter had then said,
"What in the hell do you want to go up and sign up with the Union for?" that
he had replied to Moffett, "Well there are others that don't make good money,"
and that Moffett had said , "Why do you give a damn about them ; they don't
care anything about you , do they?" Plume also testified that in this conversa-
tion Moffett told him that Sherman , his foreman, thought quite a bit of him
because he had been there for a long time. Jannusch testified that at this same
occasion Moffett had said to him , "You are making more money than some of
my foremen out here. . . . Why have you been going to union meetings?"
Jannusch also quoted Moffett as saying that if the outfit went union he couldn't
carry any deadwood around, and that he would have to let go an employee named
Russian Dan , for whom he felt sorry . With respect to the testimony of Howard
Plume and Jannusch , Moffett testified that there had been an occasion when he
had gone to the yard to speak to Jannusch about the complaint of an employee
named Malessa, who had said that Jannusch had been riding him, calling him
names, and threatening to put him out, and that he had asked Jannusch to lay
off him and let things run smoothly. He testified further that Howard Plume
then came up and that he had asked him to get Jannusch to "lay off" of Malessa.
He denied that the Union had been mentioned and that he said that if the Union
came in he would have to get rid of such deadwood as Russian Dan. I was
favorably impressed with the appearance and demeanor of the witnesses How-
ard Plume and William .Jannusch , and I believe that their memories were trust-
worthy. Although they may not have remembered the conversation verbatim
or entirely , I believe that Moffett did make statements substantially as testified
to by them . Moffett's denial may have been based upon faulty memory or upon
a reluctance to concede that he had discussed the Union with anyone..._
INYO LUMBER COMPANY 997
4. The strike
As previously stated, the Union voted on the evening of May 19 to call a
strike. Word of this reached the Respondent. Saturday night; May 20, Fore-
man Sherman told the yardmen that there would be a strike on Monday and
that "it is unauthorized and not sanctioned by the Teamsters Union nor the
Central Labor Council" and "you fellows that operate the yard, you fellows can
come through if you wish."
On Sunday, May 21, Employee Haas, the saw filer, who was not a union sym-
pathizer, but who had got wind of the strike planned for the following day, met
D. G. Riggs, a representative of the Union, and Cantrell Moody, president of
the local of the Union, on the street and suggested that Moffett might meet with
a committee to see if the trouble could be settled. Riggs said he was agreeable
and Haas agreed to let Riggs and Moody know if he could arrange a meeting.
After talking with Moffett and arranging a meeting, Haas notified Moody and
three other employees, Chick Denton; Reyes Durant, and Art Shaw, whom he
picked as a committee, and they assembled outside of Moffett's office. Riggs
learned of the meeting indirectly, went to the Respondent's office, and joined
the group. When they entered Moffett's office, Moffett asked Riggs what he
was doing there. Riggs said he understood that Haas had arranged a meeting.
Moffett said that he wanted "to talk with the boys." Riggs asked if Moffett
would talk to him, and Moffett said, "No." Riggs called the committee out, but
they told Riggs they wanted to hear what Moffett had to say ; so Riggs waited
outside while the four employees and Haas met with Moffett, Anne Goldstein,
Sherman, and Mill Superintendent Al Clark in Moffett's office. Moffett told the
employees that he had heard there was to be a strike on Monday and he asked
if the reason for it was to get him to sign a contract before an election or if it
was a matter of wages. They said it was a matter of wages. He asked each one
what the trouble was and each answered, most of them saying that they were
underpaid. Moffett told them that he would give them a pickup truck and that
two of them could ride to the other side of the mountain in the Central Cali-
fornia district, expenses paid, and get the wage scale at several places there and
that he would meet the scale.13 At about this time Riggs knocked on the door.
Moody opened the door and told Riggs that Moffett had agreed to let them take
a truck and get the rates in central California and that he would meet them.
Riggs, through Moody's intercession, got in and told Moffett that he understood
Moffett was negotiating a contract. Moffett denied this and said he was just
trying to stop the strike. Riggs asked Moffett to sign a contract recognizing the
Union as collective bargaining agent for the employees. Moffett refused to do so
before an election and Riggs called the employees out. I do not find that the
Respondent committed an unfair labor practice in Moffett's conferring with
the group of employees in an effort to forestall a strike. His proposal to meet
competitors' rates in order to forestall a strike might, if accepted by the em-
ployees, conceivably reduce the Union's opportunity to win concessions in bar-
gaining in the event that it should win in the proposed election, but, so far as
appeared, the Respondent was not foreclosing later wage discussions in the event
that the Union became the elected bargaining representative, and I cannot con-
u Moffett and Sherman testified that Moffett told them to get the wage scale , hours,
and conditions, and to come back and he would get together with the Union and work
out a satisfactory arrangement , but Moody 's testimony supports the finding above, and
Anne Goldstein 's testimony on direct does likewise , although on redirect she conformed her
testimony to, that of Moffett and Sherman. As Moffett showed a disinclination to confer
with Riggs about terms of a contract before an election , Moody's testimony appears to be
more consistent with the facts.
9986 66-vol. 98-53--64
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elude that an offer to eliminate the cause of a strike is, under the circumstances
here, in the same category as a wage raise to undermine a union in its organiza-
tional drive or in its bargaining.
On Monday morning, May 22, 1950, about 17 of the employees from the sawmill
and yard went on strike and formed a picket line. At that time there. were
about 100 employees exclusive of the employees at the woods. The truck drivers
and box factory employees continued to work that day. On May 23, however,
most of the box factory employees either joined the strike or refused to cross
the picket line. Because the Kern County Central Labor Council had not been
asked to approve the strike, the members of the Teamsters Union continued at
first to cross the picket line and to work, but a few days later, after representa-
tives of the Central Labor Council arrived to investigate the strike and after
Riggs had gone to Bakersfield to ask the Council to approve the picket line, the
Teamsters respected the picket line. In the course of the last week in May,
representatives of the Central Labor Council, the Teamsters, the Operating
Engineers, and the Respondent met with Riggs and a committee of the Union's
local at various times in an effort to find a solution and settle the strike. Riggs
refused "to recognize the authority of the Kern County Central Labor Council
on the grounds that its jurisdiction did not extend to Bishop, and he refused to
settle the strike through the intercession of such other organizations. But
finally on the night of May 31, in a meeting with Moffett, Anne-Goldstein, and
McDaniel, the Respondent's attorney, Riggs agreed, subject to approval of the
membership, to call off the strike on condition that all the strikers would be
taken back. Two exceptions were raised. One employee who had been on the
picket line had previously been discharged by, Moffett for good cause. The other
was Bert Dietzman, an employee who worked only 1 day, May 22, and whose
discharge is alleged in the complaint to be discriminatory. Riggs agreed to
both exceptions 14 and asked if the employees could return to work the next day.
Moffett and Goldstein said that the mill would be opened the next day but that
the box factory could not be reopened right away as all its orders had been
canceled as a result of the strike and Goldstein had to get new orders. Riggs
asked to be notified and they promised to let him know. The mill opened the
following day and the mill employees returned to work.
Later Riggs notified Moffett that he would have to be out of town for a while
and that if the box factory should open, Moffett should notify employee Harry
Thomas, who would notify the others. Moffett and Goldstein testified that they
notified Riggs in person that the box factory would open on the following Mon-
day, June 5, but Riggs denied this, and apparently he was of the impression that
the date'was still uncertain. In any event,'the box factory did open Monday.
Because of lack of information, most of the employees did not learn of the
prospective opening until late Sunday. At least two of the employees failed
to receive any notification at that time and as a consequence were not back on
the opening day. These employees are Clarence Thomas and Albert Meredith,
Jr., who are alleged to have been discriminatorily discharged. Their cases will
be discussed hereinafter.
. 14 Riggs testified that Moffett objected to the return of Dietzman on the ground that if
he had to pull all the employees back there would not be any room for Dietzman inasmuch
as Dietzman had taken the place of an employee who had injured his finger and who
apparently was ready to return to work. Riggs testified that he said maybe there would
be room for Dietzman-later and that Moffett had replied that they could cross that bridge
when they came to it.
INYO LUMBER COMPANY 999
4. Alleged unfair labor practices committed during the strike
On the first day of the strike, May 22, Lou Haas and employee Snodgrass,
the sawyer, both of whom were opposed to the Union, came to Moffett, com-
mented on the small number of men on the picket line and said that they felt
they could get the thing settled if they could get the employees together in a
meeting and they asked Moffett to call the employees together. Moffett notified
the foremen to tell the employees there would be a meeting at noon at the
boilerhouse. At that time about 45 employees assembled there. Moffett stood
on a bench and told them that Snodgrass and Haas had a few words to say to
them. He then got down off the bench and went back to his office.' a Snodgrass
then commented on the strike, said there were two or three different unions that
wanted to represent the employees and that he though the employees ought
to get together and settle the matter themselves. Haas also apparently urged
a settlement by the employees themselves. None of the witnesses had too clear
a recollection of what Snodgrass and Haas said. However, it is clear that,
as time was running out that noon, Snodgrass suggested a further meeting that
night and it was arranged that the meeting would be held at the Indian Com-
munity Hall. That evening the employees went to the hall and Snodgrass and
Haas took charge, each addressing the employees. The meeting was not con-
ducted with too much order and the employees were nearly as confused in
their testimony as the meeting undoubtedly was. However, in some fashion,
at Snodgrass' suggestion, a committee was chosen to speak with Moffett. In-
sofar as the record discloses, however, this committee did not function. Some
of the witnesses testified that Snodgrass and Haas were urging formation of a
"company" union . I find that this was an inference drawn by the witnesses
from the fact that Snodgrass and Haas were attempting to select a committee
for the purpose of discussing current employee problems with Moffett. On all
the evidence I conclude and find that the purpose of Snodgrass and Haas in
urging the committee was to find a solution of the strike. It is possible that
they had in mind getting Moffett to increase wages or otherwise to dispose of
current grievances, but it does not appear that any step was taken in this direc-
tion. There is no evidence that Moffett suggested to, or authorized, Snodgrass
and Haas to form a company union. The evidence merely shows that he au-
thorized them to speak to the employees in an effort to settle the strike. On the
evidence I do not find that the Respondent committed any unfair labor practice
in connection with the activities of Snodgrass and Haas.
Gerda Smith testified that at about 2 minutes to 12 on May 22, the first day
of the strike, Moffett was talking to the crew in the box factory ; that Moffett
asked employee Art Magill if he had been to the meeting the night before and
Magill said that he had been ; that Moffett asked Magill how they decided. to
put the picket line in and that Magill had replied that they took a vote on it
that Moffett asked him if he had voted on it and that Magill replied that he had;
that Moffett then asked Magill whether he thought it was going to do him any
good and when Magill replied that he hoped so, Moffett had said, "You must
remember whether this box factory closes or not, I will eat." Magill did not
testify. Moffett denied that there had been such a conversation or statement
made by him on May 22 or before. Anne Goldstein testified that the records of
the Respondent indicated that Magill was not at work from May 22 to June 4.
I consider it quite unlikely that at the time when Moffett was calling a meeting
' Bert Dietzman quoted Moffett as speaking at greater length. I found considerable
confusion in the testimony of the witnesses as to what was said and by whom. I deem
it likely that Dietzman may have quoted Snodgrass or Haas and erroneously attributed it
to Moffett.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
together on behalf of Snodgrass and Hass he would have been in the box factory
talking to Magill. I am satisfied that no such conversation took place on May
22. In view of the reference to the meeting of the night before, it is possible
that such a conversation might have been held on Saturday, May 20, since the
strike vote meeting had been. held on Friday night. No explanation was made
as to why Magill himself was not called as a witness. Harry Thomas testified
that of 17 present, at the meeting of May 19, 17 voted to strike and that they
were nearly all mill hands. It does not seem likely that Moffett would question
a box factory hand about what the mill hands did unless Moffett had knowledge
concerning Magill which is not disclosed by the evidence. Although I do not
believe that Gerda Smith deliberately fabricated the story, I do not have enough
confidence in the accuracy of her testimony to base a finding on it alone. Under
the circumstances, I credit Moffett's denial.
The General Counsel sought to prove that the Respondent tried to undermine
the strike by soliciting individual employees to return to work. John Green
rather confusingly testified that he worked the first day of the strike on the
green chain, but that he did not cross the picket line that day. He also testified
that as he and a group of other employees were standing across the road from the
office, Moffett came to where they were and told them that the picket line was
illegal and that they should come in and go to work ; that all the Union wanted
was $3 and that they would have a job whether they went union or not. Making
the best of this confused testimony, I would infer that on some occasion during
the early period of the strike, the employees, mentioned were standing across the
road from the office so as not to cross the picket line. It does not appear from
Green's testimony whether, if this occurred on May 22, the first ddy of the
strike, Moffett was addressing employees who worked in the box factory or
employees who were on strike at the time. The General Counsel made no con-
tention that it was a violation of the Act for Moffett to refer to the picket line
as illegal" Under the circumstances, I consider Moffett's statement, if made at
all, to be no more than an invitation to those whom he believed to be not on
strike to come in to work" As previously stated, the box factory employees on
the second day of the strike stayed outside and refused to cross the picket line.
Ernest and Gerda Smith, Bert Dietzman, his wife, and another employee were
congregated in and around the Smith's automobile. Moffett came to them and
told them that he would like to have them come in and go to work. They said
that they could not cross the picket line. Moffett said that they did not have to
be afraid because he would stand behind them. However, they refused to go.
According to Dietzman's testimony, he said to Moffett that if the picket line
was not legal why did Moffett not call the sheriff and have it removed ; that
Moffett had replied that that could not be done, but that the picket line was not
sanctioned ; that Dietzman told Moffett that if he was in a position to underwrite
his future, he would consider going through, and that when Moffett said he could
not do that, Dietzman informed him that he would not go through ; and that
Moffett then said, "Well, you will all lose your damn jobs." The quoted state-
ment appears in variation in the testimony of Gerda and Ernest Smith. Accord-
ing to Gerda Smith, Moffett told them they had just talked themselves out of a
job. According to Ernest Smith, Moffett spoke to Dietzman and said, "Well,
you have just talked yourself out of a job." Moffett testified that he did on that
day have a conversation with the Smiths at their car and that Mr. and Mrs.
Dietzman light have been in the back of the car ; that hehad said to Smith, "Isn't
16 Moffett admittedly referred to the strike as a wildcat strike. Presumably no fault
is found with this either.
17 Celanese Corporation of America, 95 NLRB 664.
INYO LUMBER COMPANY 1001
this an awful mess? . . . Here is a picket line walking out in front of the office
and our trucks are going in and out and the Teamsters say it's illegal and the
Engineers are back , the Operating Engineers are unloading our lumber . . . I
hope to God to get it straightened out so you fellows can get back here and work."
He denied that he said in substance or in effect, "You have just talked yourself
out of a job " I find that Moffett made the statement substantially as Ernest
Smith testified. I find that Moffett's attempt to induce the Smiths and Dietzmans,
whom he regarded as nonstrikers, to come to work, was not in itself an unfair
labor practice, but I find that by the statement made to Dietzman that he had
talked himself out of a• job, Moffett was discouraging his activity in supporting
the strike, and that thereby the Respondent interfered with, restrained, and
coerced employees within the meaning of Section 8 (1) of the Act.
C. Alleged discriminatory discharges
1. Ruby Thomas
In May 1947, shortly after the time that Respondent took over operation of
the box factory from the tenant who had been operating it under lease during
the war, the Respondent entered into an agreement with Ruby Thomas, the
wife of employee Harry Thomas , whereby she was to operate the boarding
house oh the following terms : Thomas,was to receive the use of the house
in which to live, was to have use of all the equipment on hand, and was to
serve meals to such of the employees as desired to eat there and as were referred
to her by the Respondent . The Respondent was to deduct $2 a day from the pay
of each man that chose to eat at the boarding house and , in addition, was to
subsibize each meal in the amount of 37% cents.18
Every 2 weeks Thomas would sign a board sheet giving the names of the
men that she served and the number of meals and , on the basis of this accounting,
the Respondent would pay her the amount due. At first , Thomas received
separate checks for the money deducted from the employees ' pay and for
the subsidy , but later both sums were included in one check . An average of
about 10 men ate at the boarding house at each meal.19 Thomas kept the
amount of the subsidy for herself and used the rest of the money to feed the
employees . The Respondent did not direct Thomas in the preparation of the
meals, but left her entirely on her own in the running of the boarding house.
On this evidence the General Counsel contends that Thomas was an employee
and that the closing of the boarding house, as hereinafter related, constituted
a discharge . However, I find that Thomas was an independent contractor and
not an employee20 Between May 7 and 17, Moffett, having decided to close the
boarding house, went there and told Thomas that he had decided to close the
boarding house, saying that he had a caterpillar mechanic who had been unable
to find a home for his large family and that Moffet wanted to give the boarding
house to him , but that she could stay until school was out. Later Moffet returned
and asked Thomas to vacate , earlier if she found a house for herself before
school was out. Thomas quoted Moffet as saying on the occasion of his first
visit that things were not going as they should for him and that he would have
to close the boarding house. She testified that she replied that that was his
privilege and that he then asked her what she thought about the Union, that
is The original subsidy was about 25 cents per meal, but it was raised when the price
of food went up and when the subsidy at the boarding house in the woods was increased.
30 Goldstein testified that the record indicated that the average was 11 In 1949 and 8 in
1950.
20 See Lee E. Stine, d.b.a. Fairchild Cafeteria, 87 NLRB 667; Consolidated Vultee Air-
craft Corporation, 57 NLRB 1680 ; Hearst Consolidated Publications , Inc., 83 NLRB 41.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she replied that she had joined the I. C. W. in Denver when they first organized
the cooks and waitresses union and that she had been a member ever since ;
that Moffett then asked her how her husband felt about the Union and that
she answered that he would have to figure it out, because her husband had
belonged to the Stationary Engineers and had been a union man all his life ;
and that Moffett had then said, "There's too -ing much union going on out
here, and I am tired of it." Moffett denied that there was any discussion of the
Union on the occasion of his notice to Thomas on the closing of the boarding
house. He testified that the reason he closed it was because of the fact that
only a small number of the employees at the mill made use of the boarding
house and that employees who did not make use of it felt that they should in
some other way have the advantage of the equivalent amount by which the
Respondent subsidized the meals of those who did eat at the boarding house.
Although Thomas testified that only she and Moffet were present on the occasion
of his first visit, Anne Goldstein testified that she was with Moffet on each
of the occasions when he went to speak to Thomas as related above. Goldstein
corroborated Moffett, denying that anything was said about the Union on the
occasion of either visit. A resolution of the conflict is especially difficult because
of the fact that it appeared to me that both Goldstein and, Moffett were inclined
to shade their testimony in a way more favorable to the Respondent than I believe
the facts warranted, but on the other hand, it appeared to me that Thomas bore
a decided grudge, and there is a possibility that this might have influenced her
testimony. I am not satisfied that the conversation was reconstructed by Thomas
in exact detail. The manner in which the subject of the Union arose as related by
Thomas appears to have been unusually abrupt. If the subject of the Union
came up it is more likely than not that Moffett, in speaking of his difficulties
from employee criticism, attributed them to the Union. But this is speculation
and I make no finding to that effect. On all the evidence and from my
observation of the witnesses, I believe and find that the conversation took place
substantially as related by Ruby Thomas. But even if Moffett questioned
Thomas about her attitude and that of her husband with reference to the
Union, it is apparent that Moffett was not closing the boarding house in order
to rid himself of the Thomases as union sympathizers inasmuch as he had already
announced the closing of the boarding house before Thomas revealed her attitude
and that of her husband, and her husband continued in the Respondent's employ
thereafter. I believe that Moffett had in mind the disgruntlement of the em-
ployees with what they considered an inequity when he decided to close the
boarding house, and I conclude that Moffett's decision to close the boarding
house was based on his desire to eliminate a cause for employee dissatisfaction
and criticism. Few of the employees who ate at the boarding house were
union members ; so it is not reasonable to infer that his act was intended to
strike at the Union through such employees. I find that if any unfair labor
-practice was committed at this time it was solely in questioning Thomas about
the attitude of her husband, who was an employee.
2. Bert Dietzman
Bert Dietzman was employed by the Respondent in the box factory from May
1947 to April 1948.. Most of the time he had spent on the cutoff saw. Dietzman's
wife worked at the box factory and on Saturday, May 20 , 1950, he went there
to see her at the lunch hour. While he was there an employee named Harold
Watterson, who was on the cutoff saw,n had an accident in which he injured
21 There were three cutoff saws. Watterson was an apprentice who operated one cutoff
saw part time . Two other employees regularly operated the other two cutof saws.
INYO LUMBER COMPANY 1003
his finger. Ernest Smith, seeing Dietzman asked him if he wanted to take the
cutoff saw job. When Dietzman said that he did, Smith took Dietzman to Moffett.
Moffett said that Dietzman could start right away. Dietzman said that, because
of a prior engagement, he would be unable to start before Monday. Moffett
told him to report to Foreman Mike Trivelpiece. Dietzman started on Monday,
May 22, the very day that the strike started.
Dietzman's conversations with Moffett at' Paradise Camp have heretofore been
related. According to Dietzman, about 2: 30 o'clock on the afternoon of May
22, Moffett came through the box factory, told him there would be a meeting
at the Indian Community Hall that evening right after work, and said that he
wanted Dietzman to be present and take an active part. Dietzman did attend
the meeting that night, but what he said there was more favorable to the Union
than what Snodgrass was advocating. During a discussion as to whether an
agreement that might be reached would be written or oral, Dietzman stated
that he would oppose any agreement oral or written if it did not provide-that all
of the strikers could return to their jobs with their pay and seniority recognized.
According to Dietzman, Snodgrass ruled that his statement was out of order.
Dietzman testified that he then asked for a vote as to whether the employees
wished to continue on a 48-hour basis without a union or if they wished to go
on a 40-hour basis with a union. Snodgrass refused to recognize the motion.
On February 23 Dietzman was with the Smiths when Moffett came to their car
to ask them if they would go to work. As previously related, Dietzman asked
Moffett if he was prepared to underwrite their future and, when Moffett said that
he was not, Dietzman said that in that event he would not cross the picket line.
As previously found, Moffett replied, "Well, you have just talked yourself out of
a job." At the hearing, Moffett displayed some antagonism toward Dietzman,
testifying that he did not want to put Dietzman back after the strike because
"he pulled a dirty deal," because he worked one day and "the next he was a busi-
ness agent:" As previously related, Moffett refused to rehire Dietzman at the
end of the strike, Moffett testified that at one of the meetings when attempts
were being made to settle the strike he said that he did not feel that Dietzman
was an honest employee when he went to work 1 day and the next day he was
"the leading light in all the dissension" they were having. It does not appear
that Riggs was present at the time when Moffett made this statement and it does
not appear that Riggs had any cause to believe on May 31 when he concurred
that Dietzman need not be reemployed, that Dietzman was being discriminatorily
denied employment. However, Moody, president of the local, testified that
Moffett thought Dieztman "had been put in" on purpose, and the union com-
mittee apparently approved the exclusion of Dietzman. But neither Riggs nor
the committee would have the right to agree to the commission of an unfair
labor practice as the price for taking the other employees back.'
On Sunday, June 4, 1950, Dietzman learned from Foreman Trivelpiece that
the box factory probably would open on the following day, so he notified all but
two of the employees, and he along with the others appeared at the factory for
work at starting time the next morning.'
n See Kalamazoo Coaches , Inc., 66 NLRB 171 (case of Charles Garrison).
23 Dietzman testified that on the afternoon of June 2, after hearing that Moffett had
refused to take him back, he went to Moffett's office and asked Moffett what his status
was and if he would be taken back when the box factory opened and that Moffett had
said he most certainly would not . Moffett denied that he had talked to Dietzman after
the strike and testified that Dietzman was not in his office . I find it unnecessary to
make a finding thereon because Moffett had already refused to take Dietzman back and
Dietzman returned on June 5, the day the box factory reopened , but was not reemployed.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the strike, when the box factory reopened, Watterson, the employee
whose injury was the occasion for Dietzman's hiring, returned to work. Moffett
testified that Dietzman's services were consequently not needed. At the time
Dietzman was hired, the Respondent may not have intended him to become a
permanent employee. But I deduce that even as a fill-in employee, Dietzman
would have been given work after the strike if a vacancy existed and if the
Respondent had no discriminatory reason for failing or refusing to give him
employment. I notice that two of the employees who had worked before the
strike, failed to report on the opening day because of failure to hear of the
,reopening. It is obvious that Dietzman might have done the work of one of
them. I also notice that five employees are on the payroll for the payroll period
.of June 5 to June 18, 1950, following the strike, who were not on the payroll for
the period May 8 to May 21, 1950, just before the strike. I note also that during
the period of June 5 to 18, four other employees are listed as having quit. I
assume, therefore, that there would have been work for Dietzman after the
strike, and I,find that, but for Moffett's decision to exclude Dietzman because of
his apparent union sympathy, Dietzman would have been reemployed at the time
the box factory reopened. 'I therefore find that by refusing to take Dietzman
back at the end of the strike the Respondent discriminated- in regard to his
hire and tenure of employment in violation of Section 8 (a) (3) of the Act.
3. Albert Meredith, Jr., and Clarence Thomas
Albert Meredith, Jr., started work for the Respondent in its yard in Febru-
ary 1950 and was shifted to the box factory in about March. According to Moffett,
he was not a regular employee. On May 22 Meredith joined the strike and stayed
on the picket line except when he was ill. On June 5, the day the box factory
reopened, Meredith was visiting a doctor's office around noon, and when he left
there he met two of the employees, who told him to come to work. Meredith
started to drive to the mill,` but had a blowout on the way and, by the time
he took care of that, he assumed it was too late to work and did not report
until 7 a. m. the next day. At that time he discovered that his card had been
pulled.
Clarence Thomas had been employed at the box factory for a year or more
before the Respondent took it over. He was the cleat machine operator there.
During the strike, Thomas did not work, but he was not on the picket line.
After the strike, Thomas learned on the evening of Monday, June 5, from
Dietzman that the box factory was open. On Tuesday morning, June 6, he
went to work and found his card had been pulled.
Meredith and Thomas each were told by Trivelpiece, the*box factory foreman,
to see Moffett. They went to the office and, waited for him for half or three-
quarters of an hour but did not see him, and then they left. There is no evidence
that Moffett was in his office or that he refused to see Meredith or Thomas.
.It does not appear that either Meredith or Thomas has made any application
for reemployment since that day. Moffett testified that he had had Meredith's
card pulled the day the box factory opened because he did not show up. He
did not testify that this was the customary practice, but in the absence of
evidence to the contrary, I- cannot assume that it was unusual to pull the
card of an employee who failed to show up for work, and if Meredith was an
irregular employee, it would be the natural thing to do. Moody testified that
24 The mill ,' box factory , office, and other buildings , and the drying yard were all in the
same general location . The word "mill" is used to cover all , unless otherwise distinguished.
INYO LUMBER COMPANY 1005
after he had been absent a day or two in February or March 1951 he returned
to find his card pulled, that Maher told him to see Moffett, that he did, and that
after talking to Moffett, the latter replaced his card. If Meredith and Thomas
had talked with Moffett, it is not unreasonable to suppose that they might have
fared the same as Moody. On all the evidence, I conclude and find that the
General Counsel has failed to make out a prima facie case of discriminatory dis-
charge of Meredith or Thomas.
4. Harry Thomas
41
Harry Thomas was first employed by the Respondent in April of 1944 and
worked for a few months. He returned again in the spring of 1945 and, with
the exception of a period of illness between August 1948 and April 1949 and
again between Christmas 1949 and May 10, 1950, he was continuously employed
until the occasion hereinafter related.
Thomas attended the union meeting on the night of May 19 and spoke in
favor of calling the strike. He went on strike on May 22 and was on the
picket line throughout. When Riggs was absent, he would put Thomas in
charge of the picket line.
Thomas returned to work after the strike and was employed at the mill as
a log-hoist operator. In the latter part of June, Thomas asked Al Clark, his
foreman, for a half day off the next day to see a specialist at 8 o'clock in the
morning. Clark granted it, and after Thomas returned to work from his appoint-
ment with the doctor, he told Clark he had another appointment for the following
Friday, also at 8 o'clock in the morning. He testified that Clark said, "All right."
The next afternoon Clark told Thomas that Moffett wanted to see him in the
office, and Clark took over Thomas' duties as hoist operator while Thomas
was gone. Moffett told Thomas that he could not afford to take a man out of
the yard and put him in Thomas' place each time Thomas wanted to see a
doctor," and asked if he could not arrange to have his appointments after
working hours. Thomas said that the doctor was a specialist and was difficult
to see and that he did not think he could change the appointment?5 Moffett
asked Thomas whether, if the doctor thought Thomas were going to lose his
job, he might be willing to change the appointment. Thomas said he did not
think so. Moffett suggested that he, himself, talk to the doctor, and he reached
for the telephone. Thomas said, "You don't need to call him up. All you
have got to do is just get in there and get my check." Moffett asked Thomas
if he would work the rest of the shift, and he did. At 4 o'clock Thomas got
his check and has not been back since.
Moffett testified that it was part of Thomas' job to operate a hoist run by
an electric motor and that it required careful handling, and that he was nervous
when an inexperienced hand ran it. He also testified that he did not know
the name of the doctor or his telephone number and thus could not have tele-
phoned him. He testified that, when Thomas indicated he did not want the
telephone call made and said,"All right, keep it," he told Thomas not to blow up
and asked him to stay until he could get someone else to take his job and that
Thomas had replied that he would-stay only for the afternoon shift. The dif-
25 The fact that Clark took Thomas' place when Thomas went to the office is not neces-
sarily inconsistent with Moffett's statement about taking a man out of the yard when
Thomas took a morning off. A foreman might tie himself up for a few minutes on pro-
duction work, whereas he could not afford to do so for half a day.
26 Thomas testified that this doctor had treated him once for about 6 months and another
time for about 3 months and that he had made appointments with him for treatment
after working hours.
1006 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ference in the two accounts is immaterial. It is apparent by either account
that Moffett did not urge Thomas either to quit or not to quit at all.
On the foregoing evidence it, appears to me that Thomas resigned it a huff.
It is the theory of the General Counsel that Thomas was constructively dis-
charged. In support of this theory, the General Counsel, in his brief, points to
the fact that Moffett had questioned Ruby Thomas, Harry Thomas' wife,
about her and her husband's union sympathies and calls attention to Thomas'
union activities. From this the General Counsel deduces that the Respondent
was "seeking a means of eliminating among its mill employees active and
ardent adherents of the Union," and that the Respondent was so eager, to do
this that it made no effort at the end of the last day of Thomas' employment
to get him to change his mind or to "withdraw its own position that unless he
[Thomas] changed his appointment time with his physician it would cost him
his job." There is some cause to suspect that Moffett was not averse to letting
a union adherent resign and that he might have made a stronger effort to
conciliate if Thomas had entertained antiunion sentiments, but the fact remains
that Thomas did resign, and I find that the evidence falls short of proving that
Thomas was constructively discharged.
5. Closing of the box factory
Following resumption of the operations of the box factory on June 5, 1950,
and before June 15, 1950, the Respondent opened negotiations with the Harbor
Box & Lumber Company of Los Angeles for the sale of 3 million feet of box
lumber at a price of $57.75 per thousand board feet, delivered in Los Angeles.
The effect of such a sale would, if consummated, have taken all of the
Respondent's box lumber which otherwise would have been used for the oper-
ation of the box factory for a period of 4 to 6 months for each 1,500,000
feet. On about June 15, 1950, the Respondent prepared a proposed contract, in
the form of a letter to Harbor Box for the sale of 1,500,000 feet of box lumber
at the aforesaid price, with provision for a later sale of another 1,500,000 board
feet at the market price at the time of the completion of the delivery of the
first quantity. The contract acknowledged the receipt of $10,000 to apply on
account of the purchase price.n
The Respondent sent this contract to the Harbor Box & Lumber Company.
It was never signed by the latter company, however, because of advice of
counsel. Deliveries were nevertheless commenced and continued until some-
time in July, when the Harbor Box & Lumber Company complained of the
quality of the lumber and made deductions in the amounts paid. The Respon-
dent called in a Western Pine Association inspector to inspect the lumber and,
according to his report, the lumber was up to grade. The Respondent thereafter
discontinued selling box lumber to Harbor Box & Lumber Company, Goldstein
testified, because the buyer broke the contract. It does not appear whether
Harbor Box & Lumber Company refused to settle on the basis of the inspection
or whether the Respondent discontinued deliveries because of past deductions.
Goldstein testified that the Respondent sent altogether from 10 to 15 loads.
William Arblaster, manager of Harbor Box & Lumber Company, testified that
that company received from 16 to 20 loads over a 3-week period. This would
have amounted to anywhere from 230,000 to 360,000 board feet. The inspection
reports are dated July 13 and 14. Although the date of the termination of
the contract is not stated in evidence, I infer that it was after these dates.
$T The buyer's check for $ 10,000 was actually sent on June 27.
ZNYO_LUIVIBER COMPANY 4 1007
After the cancellation of the afore-mentioned contract, the Respondent' sold
its box lumber to others than the Harbor Box & Lumber Company. According
to Moffett, the Respondent decided sometime in June to close the box-factory,
and from then on merely did cleanup work; that is to say, it used up the lumber
it.had on hand and sold its odds and ends of shook. On July 18 the Respon-
dent ceased operations of its box factory and at the end of that day handed
each employee his check, together with a notice of the closing. This notice
stated that "due to lack of supply of box lumber, and the unsettled world con-
ditions, this box factory will cease operations for an indefinite period, beginning
for part of the box factory employees July 18, 1950, and the remainder, July 19,
1.950." It was further stated that the Company had no present plans for re-
opening and that employment relations with all employees in the box factory
were permanently terminated. This was the first notice that the employees
had that the box factory was going to close.
On July 14, a hearing was held in a representation case on the petition of
three unions,28 including the Union involved in this case.
The General Counsel, in his brief, contends that the box factory was closed,
not for legitimate business reasons, but to eliminate the box factory employees
from participation in any election that might be directed by the Board and
thus affect the results of the election adversely to the interests of the Union.
In order to find that this was the purpose of the Respondent, it would be neces-
sary to know more accurately the relative number of union proponents in the
box factory as well as elsewhere in the plant. The fact that the box factory
employees refused to cross the picket line does not necessarily mean that they
would have voted for the Union in the event of an election. In the representation
case proceeding, the Respondent took the position that the unit should be a
plant-wide unit. In the Board's decision of January 11, 1951,29 the Board
decided that a unit of all production and maintenance employees of the Em-
ployer, including woods, mill, yard, box factory, and retail yard employees,
with certain exceptions, was appropriate. There is little evidence in the record
in the instant case which would indicate the extent to which a failure of the
box factory employees to vote would affect the result of the election.
A few circumstances arouse some suspicion that the Respondent might not
have been motivated solely by business reasons. The Respondent offered proof
that the price of box lumber started to increase in about May 1950 and continued
thereafter until January 1951, while the box factory had consistently failed to
make a profit. Therefore, it asserted, it closed the box factory because it could
make a greater profit selling box lumber without fabrication than it could make
by using it in the operation of the box factory. In respect to this contention, I
note that the average price of box lumber went down from January 19, 1949, to
May 1950, from $51.20 per thousand board feet f. o. b. mill to $46.40 per thousand
board feet ; that on June 1, 1950, the market price was $46.75; that on June 12,
1950, the market price was $49.70; that on July 18, 1950, the market price was
$51.70; and that the price thereafter continued to increase to $63 on January
24, 1951. These market prices approximate the net average prices of box lumber
sold by the Respondent during the last half of 1950. Market prices are always
quoted f. o. b. mill. The price at which the Respondent sold box lumber to
Harbor Box in June 1950, $57.75, includes the cost of delivery. In the market,
the Respondent could charge the buyer the freight rate to Los Angeles of $14.25
28 The Operating Engineers filed its petition on May 31 , 1950; the Teamsters , June 2,
1950; and the Lumber and Sawmill workers, affiliated with the Union, June 12, 1950.
29 Inyo Lumber Company, 92 NLRB 1267.
1008 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
per 1,000 board feet. However, by trucking the lumber, the cost of delivery to
the Respondent would be $8.25 per 1,000. If the latter sum is deducted from
$57.75, the price f. o. b. mill would be $49.50 per 1,000. This would have been
higher than the market. But if the-allowable freight rate were deducted, the
price f. o. b. mill would have been $43.50 per 1,000, which would have been con-
siderably under the market. On a contract for a very large quantity, I infer,
it would not be odd that the parties would settle on a price allowing a delivery
cost between the regular freight rate and the cost of trucking.
Moffett testified that the Respondent never made shook from its box lumber
if there was a market for its box lumber. The Respondent started into business
in 1942 and from 1944 or 1945 until May 1947 it leased the box factory to the
Bishop Box Company and sold box lumber to it. At the termination of the lease,
the Respondent was unsuccessful in its effort to sell box lumber as such and there-
fore it continued operation of the box factory. From 1947 until July 1950, the
box factory had apparently never been closed for any substantial period of time
for lack of a supply of box lumber. I note that from November 1948 to March
1949 the average price of box lumber was higher than it was again until July 18,
1950. If, as Moffett testified, he would not operate the box factory when there
was a market for the sale of the Respondent's box lumber, a question may readily
be asked why the box factory was not closed in January 1949 when the price of
box lumber was so high. From the evidence available, I cannot find that the
Respondent did not sell Its box lumber at the time. Gerda Smith testified that
the women in the box factory were laid off from January 14, 1949, (she was some-
what uncertain about the year) until March of the same year. Whether or not
the Respondent sold its box lumber at that time is not satisfactorily revealed.
On the evidence I believe no finding should be made that the Respondent did not
sell at that time.
Although the Respondent introduced evidence to show that the box factory
failed to make a profit in any year from 1947 to 1950, there would unquestion-
ably have been a greater loss if the box factory had not operated, because the box
factory is able to use the poorer grades of lumber, for which there is not always
a ready market. One might expect, therefore, that the Respondent would not
wish to lose its box factory crew unless it was sure that it would, not operate
the box factory for a long time. There is no doubt that the commencement of
the war in Korea had a material influence on the price of box lumber ; it is well
known that commencement of that war was accompanied by a rush of buying
which started prices upward. However, if the Respondent commenced nego-
tiations for the sale of its box lumber in early or mid-June, it did so before the
commencement of the Korean war and before there was any tangible prospect
that prices might rise materially. And in view of the fact that the Respondent
did not choose permanently to close its box factory in 1949 when the price of box
lumber was high, a question arises as to why it should do so in July 1950 when
the price of box lumber was only 50 cents per thousand higher than on January
19, 1949. It was not until August 10, 1950, that the price of box lumber increased
materially over the 1949 price. But Moffett testified that he had been approached
by Harbor Box men in June 1950 regarding a sale of box lumber before he and
Goldstein met Arblaster in Los Angeles to discuss the matter. That he was first
approached by Harbor Box is believable. O. A. Maule, sales manager of the
Mount Whitney Lumber Company as well as a buyer for Harbor Box & Lumber
Company, testified that in May 1950 he forecast.higher prices for box lumber for
1950 whereas Arblaster felt that shook would not advance. The circumstances
concerning the making and termination of the contract for the sale of box lumber
to Harbor Box & Lumber Company were not explained as fully as might be
INYO LUMBER COMPANY 1009
desired. But the evidence does not establish that the sales to Harbor Box were a
result of collusion or ulterior design. As the evidence stands, therefore, the
Respondent, with an expected contract for the sale of 3,000,000 feet of lumber-
had cause in June to believe that it would not have box lumber to operate the
box,factory for a considerable length of time.
Again, since the price of box lumber in July 1950 was only a little higher
than it was in January 1949 when the Respondent did not permanently close
th4 box factory, the question might be asked why, after the Harbor Box & Lum-
ber Company contract was terminated in July 1950, the Respondent did not
reconsider its determination to close the box factory and keep it operating.
However, in all fairness , it should be remembered that in January 1949 there
appeared to be no prospect, of such an inflationary influence as that which
usually results from war conditions and such as there was in 1950. The Mount
Whitney Lumber Company, closed its box factory in May 1950 on the afore-
mentioned forecast that the price of box lumber was likely to increase to a
greater extent than was the price of shook, and its box factory was still closed
at the time of hearing. It was Moffett's practice to keep in touch with price
trends, and there is no reason for assuming that he would have made a different
forecast. As it actually turned out, although the price of both box lumber
and shook rose, there was enough of a demand for box lumber so that Respond-
ent had no difficuly in selling its box lumber. There is evidence that when the
Respondent is able to sell its box lumber it can make at least as much profit
as it can from the sale of shook and, in addition, it can avoid the cost of
fabrication, so that its net profit is probably higher. In the manufacture of
shook there is always a certain amount of waste. When box lumber is sold, as
'such, this waste is passed on to the buyer. The cost of loading shook is also
greater than it is for box lumber, and box lumber can be delivered faster and
oftener than can shook. Conditions during the past year have, from a profit
standpoint, apparently justified the Respondent's decision to close the box
factory ; and to decide that Moffett had not anticipated these conditions would
be to give him less credit than his years of experience would seem to warrant.
The notice of termination did not tell the employees the same reason for
closing as that advanced at the hearing. The notice did not state that the
Respondent found it more profitable to sell its box lumber than to operate the box
factory ; but the effect of such selling was to create a shortage of box lumber ;
so the language of the notice is not exactly inaccurate. That the Respondent
was shy about revealing its profit motive does not necessarily establish that its
true motive was to defeat the Union. I would assume that the reason given by
the Respondent in the notice would not be an unusual one for an employer to
give his employees when he is motivated by a prospect of a profit in terminating
certain operations.
If any suspicion is aroused by the fact that the Respondent retained some
of the Bonner family in its employ, the Bonners not being union sympathizers,
it must be observed that the male Bonners were skilled in making moulding,
a product for the retail trade that is made from small strips of good grade lum-
ber rather than from box lumber. They were, therefore, not strictly box
factory employees. Mrs. Bonner would presumably remain available when her
husband remained with the Respondent. To the extent that other suitable jobs
were available, Moffett reemployed other box factory employees after July 18,
1950. Mrs. Bonner was not the only one reemployed.
That there are many aspects of the case which arouse suspicion is true. In
the absence of proof of as legitimate a reason for closing the box factory as was
advanced by the Respondent, the General Counsel's evidence might support the
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding of an un unfair labor practice in the closing of the box factory . But con-
sidering all the evidence here, I find that the General Counsel 's case is not sup-
ported by a preponderance of the evidence 80
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above , occurring in
connection with the operations of the Respondent described in Section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing,commerce and the free flow of commerce.
V. THE REMEDY
I have found that by Moffett's questioning of Ernest Smith in February 1950,
his questioning of Howard Plume and William Jannusch concerning their union
views, and his questioning of Ruby Thomas concerning her husband's attitude in
May 1950, as well as by threatening Bert Dietzman with discharge on May 23,
1950 , the Respondent has interfered with , restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act. I have also found
that by refusing to reemploy Bert Dietzman on June 5, 1950, following the strike,
thereby discharging Dietzman , the Respondent has discriminated in regard to
his hire and tenure of employment . I shall therefore recommend that the Re-
spondent cease and desist from such unfair labor practices and take certain
affirmative action to efface, as well as may be, the effect of, the unfair labor
practices and thus effectuate the policies of the Act. Inasmuch as I have found
that the box factory was closed on July 18, 1950 , for valid business reasons, I find
that Dietzman would , in the absence of the Respondent 's discriminatory motive,
have been employed until the closing of the box factory,, when the Respondent
permanently severed the employment status of the employees there. I shall
therefore recommend that the Respondent' make said Dietzman whole for any loss
he may have suffered by paying him an amount equal to what he would have
earned between June 5 and July 18, both dates inclusive , 1950, less his net
earnings " elsewhere during said period. I shall also recommend that the Re-
spondent , upon request , make available to the Board and its agents all pertinent
records
In view of the nature of the unfair labor practices committed , particularly
the unlawful , discharge of Dietzman , I shall also recommend , in order to make
effective the interdependent guarantees of Section 7 of the Act, that the Re-
spondent cease and desist from in any manner infringing upon the rights guar-
anteed in Section 7 of the Act '
Inasmuch as I have found that the Respondent did not commit the other
unfair labor practices alleged in the complaint , I shall recommend that the com-
plaint be dismissed as to them.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
90 See F. M Stamper Company, 54 NLRB 297 , 313-315 , where in the face of antiunion
conduct, the Board found that business reasons justified the respondent there in making
a departmental layoff See also Busman Manufacturing Company v . N. L. R. B., 111 F
2d 783 ( C. A. 8).
si Crossett Lumber Company, 8 NLRB 440 , 497-8.
F. W. Woolworth Company, 90 NLRB 289.
as N. L. R. B.' v. Empress Publishing Co., 312 U. S. 426.
INYO LUMBER COMPANY 1011
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Bert
Dietzman, thereby discouraging membership in a labor organization, the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a.Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS or- AMERICA, AFL., or in any other labor organization
of our employees by discriminating in regard to their hire and tenure of
employment, or any term or condition of their employment, except to the
extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT interrogate our employees concerning their union member-
ship, interests, or sympathies.
WE WILL NOT in any manner interfere with, restrain, or coerce our employ-
ees in the exercise of their rights to self-organization, to form labor organiza-
tions, to join or assist UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL, or any other labor organizations, to bargain collectively
with representatives of 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 membership in a labor
organization as a condition of employment as authorized in Section 8 (a)
(3) of the Act.
WE WILL make Bert Dietzman whole for any loss of pay suffered as a result
of the discrimination against him.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard
to hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
INYO LUMBER COMPANY,
Employer.
Dated -------------------- By ---------------------=-------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced, or covered by any other material.