J. E. Hamilton & Sons, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1958

120 N.L.R.B. 1468 (N.L.R.B. 1958)

I
.1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. E. Hamilton & Sons, Inc. and International Woodworkers of
America, AFL-CIO. Cases Nos. 19-CA-1382 and 19-CA-1435.
June 18, 1958
DECISION AND ORDER
On December 4, 1957, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative, action, as set forth in the copy of the
Intermediate Report attached hereto. He also found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint, and recommended dismissal of those allega-
tions. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
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 General Counsel's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, as modified hereinafter.2
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 Respondent , J. E. Hamilton
& Sons, Inc., Stanwood , Washington, its officers, agents , successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership of its employees in International
Woodworkers of America , AFL-CIO, or in any other labor organ-
ization, by discriminatorily discharging or failing or refusing to
1 As the Respondent failed to file timely exceptions to the Trial Examiner' s findings
that it violated Section 8 (a) (1) and (3) of the Act, we shall adopt these findings pro
forma.
2 With regard to the question of employer knowledge of union activities, employees
Lynn and Soule testified that they saw employee Carlson hand a card to Purley Hamilton,
secretary and treasurer-of the Respondent, shortly after Lynn gave a union application
card to Carlson. The Trial Examiner found that, as Lynn and Soule were about 300
feet from Carlson at the time,' it would be speculative to conclude that the card Carlson
gave Hamilton was a union card, or that Carlson informed Hamilton of the union activ-
ities. Carlson, however, after first denying it, later admitted that he did tell Hamilton
about the union application card This correction does not affect our agreement with the
Trial Examiner's ultimate conclusions
120 NLRB No. 197.
J. E. HAMILTON & SONS , INC. 1469
employ or reemploy any employee, or in any other manner discriminat-
ing against any employee in regard to his hire, tenure, or any other
term or condition of employment, except as authorized by Section 8
(a) (3) of the Act.
(b) Engaging in surveillance of any union activities of its em-
ployees, including any gathering or meeting of its employees involving
or relating to such activities; prohibiting any employees from dis-
tributing or receiving literature or any other document or paper in-
volving or pertaining to unionization or any labor organization, or
from engaging in any other union activities, on its premises, or else-
where, during any period when such employees are not required to be
at work; threatening such employees with discharge, reprisal, or dis-
cipline because of such distribution or receipt of such literature, docu-
ment or paper, or because they have engaged in or are engaging in
such other union activities; demanding, requesting, or otherwise
seeking, information from any employee regarding the identity or
name of any employee who has given any information or statement,
whether written or oral, pertaining to a charge filed with the National
Labor Relations Board; in any way threatening any employee with
reprisal or other consequences if he fails or refuses to give such
information; or in any other manner interfering with, restraining,
or coercing employees in the exercise of their right to self - organiza-
tion, to form, join, or assist any labor organization, to join or assist
International Woodworkers of America, AFL-CIO, to bargain collec-
tively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Robert Olson and Frank Soule immediate and full
reinstatement to their respective former, or substantially equivalent,
positions, without prejudice to their seniority and other rights and
privileges, and make each of them whole in the manner, according
to the method, and under the terms set forth in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and make available to the Board, or its agents, upon
request , for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of reemployment under the terms of this Order.
(c) Post in conspicuous places , including all places where notices to
employees are customarily posted, at its principal place of business
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Stanwood, Washington, copies of the notice attached to the Inter-
mediate Report marked "Appendix A."' Copies of said notice, to
be furnished by the Regional Director for the Ninteenth Region, shall,
after being signed by a duly authorized representative of the Respond-
ent, be posted by it immediately upon receipt thereof and maintained
by it for 60 consecutive days thereafter in such conspicuous places.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent has discriminated
against Richard Walker and Harry Lynn in violation of Section 8
(a) (1), (3), and '(4) of the Act ; that its discrimination against
Frank Soule violated Section 8 (a) (4) ; that it violated Section 8 (a),
(1), (3), and (4) by not employing Frank Soule to assist in the instal-
lation of the new carriage and gang saw; and that it violated Section 8
(a) (1) by promulgating and enforcing a rule forbidding union
organizers to enter its plant, and by the conduct or statements im
puted to its employee, Roy Carlson.
8 This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner," the words "A Decision and Order." In the event that this Order is en-
forced by a decree of a United States Court of Appeals, there shall be substituted for the
words "Pursuant to a Decision and Order" the words "Pursuant, to a Decree of the United
States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Based upon a charge in Case No. 19-CA-1382, another in Case No. 19-CA-1435,
and amendments of the latter charge, filed by International Woodworkers of America,
AFL-CIO (also referred to herein as the Union) against the Respondent, J. E.
Hamilton & Sons, Inc., the General Counsel of the National Labor Relations Board
(also designated herein as the Board) issued a complaint on May 14, 1957, alleging
that the Respondent had engaged in and was engaging in unfair labor practices
within the meaning of the National Labor Relations Act, as amended (61 Stat.
136-163), also referred to below as the Act. The Respondent has been duly
served with copies of each of the charges, the amendments of the second charge,
and the complaint.'
With respect to the claimed unfair labor practices, the complaint alleges, in
substance, that: On or about August 17, 1956, the Respondent, a sawmill operator,
discharged an employee named Robert Olsen (spelled Olson in the testimony and
so referred to below), and has since refused to reinstate him, because of his
membership in, or activities on behalf of, the Union; that the Respondent thereby
violated Section .8 (a) (1) and (3) of the Act; shortly after Olson's discharge, the
Respondent discriminatorily discontinued giving overtime work to Richard Walker,
an employee; in September 1956, during a period,when the Respondent's employees
3 The first charge was filed on August 20, 1956, and the second on February 5,,1957.
Amendments to the latter charge were filed on February 21, April 1, and May 13, 1957.
On May 14, 1957, pursuant to Section 102 33 of the Board's Rules and Regulations,
Series 6, as amended, the General Counsel of the Board, through the Regional Director for
the Nineteenth Region of the Board, entered an order consolidating the cases. The
Respondent .has been duly served with a copy of the- order of consolidation.
J. E. HAMILTON & SONS, INC. 1471
.were temporarily laid off and its sawmill was temporarily shut down for the in-
stallation of new equipment, the Respondent discriminatorily "refused to call back"
Walker, and two.other employees, Harry Lynn and Frank Soule, to assist in the
installation work; the Respondent discharged Lynn, on or about November 17, 1956,
.and Soule, on or about December 2, 1956; that on or about March 4, 1957, the
Respondent recalled Walker for employment, but instead of assigning him to his
former job, discriminatorily assigned him to other work at a lower rate of pay; the
Respondent's actions taken with respect to Lynn, Walker, and Soule, described
above, were due to their membership in, or activities on behalf of, the Union, or
because they had "given affidavits in support of the charge filed in Case No.
•19-CA-1382" (alleging Olson's discharge to be discriminatory); by such actions
the Respondent violated Section 8 (a) (1) and (3) of the Act; "to the- extent that
the discrimination" against Lynn, Walker, and Soule occurred because they "had
given testimony under this Act" (meaning, apparently, because they had given the
affidavits mentioned above), the Respondent, by such discrimination, has violated
Section 8 (a) (4) of the Act; and that the Respondent, in violation of Section 8
(a) (1) of the Act, has interfered with, restrained, and coerced employees in the
exercise of rights guaranteed them by Section 7 of the said statute, by (1) promul-
gating and enforcing a rule forbidding union organizers to enter its plant; (2)
forbidding employees to pass out union literature on the Respondent's premises
at any time; (3) informing employees that their work would be reduced to a period
of 6 months a year, and the sawmill shut down, "if the Union came in"; (4)
engaging in surveillance of a meeting of employees with representatives of the
Union; and (5) interrogating Olson as to "which employees had given affidavits in
his behalf."
The Respondent has filed an answer in which it denies the commission of the
unfair labor practices attributed to it in the complaint. In addition, the answer
alleges, in substance, that: The charge in Case No. 19-CA-1382, dealing with the
discharge of Olson, was filed on or about August 20, 1956; although Olson had been
dismissed for "just cause," the Respondent was willing to reemploy him; in order
"to avoid the costs of Board hearings and delays incident thereto," the Respondent
"entered into a settlement agreement" on a form provided by the office of the
Board's Nineteenth Region; in accordance with the terms of the agreement, the
Respondent thereafter paid Olson a specified amount of back pay, and posted
certain notices required by the agreement; thereafter, by letter dated April 18, 1957,
the Regional Director for the Nineteenth Region advised the Union and the Re-
spondent that he "was withdrawing approval of the settlement agreement and
setting the same aside and reactivating the case"; although requested to do so, the
Regional Director refused to grant the Respondent a hearing concerning the action
taken; "the action of said Regional Director is arbitrary and capricious"; and the
Respondent thus "has been denied due process of law."
Pursuant to notice duly served upon all parties, a hearing was held before me,
as duly designated Trial Examiner, on June 12, 13, 14, 17, and 18, 1957, at Everett,
Washington. The General Counsel and the Respondent were represented at the
hearing and participated therein through counsel. The Union entered an appearance
through a business representative on the fourth day of the hearing. All parties
were afforded a full opportunity to be heard, examine and cross-examine witnesses,
adduce evidence, file briefs, and submit oral argument.
Before any testimony was taken, the Respondent moved to dismiss various alle-
gations of the complaint, including those dealing.with the discharge of Olson, basing
the motion primarily on the settlement agreement described in the answer. The
motion was denied 2 At the close of, the General Counsel's case-in-chief, the
Respondent moved to dismiss- the complaint. The motion was denied without
prejudice to its subsequent renewal. Decision was reserved on a similar motion
made by the Respondent at the close of the evidence. The findings, conclusions,
and recommendations made below dispose of the motion.
Since the close of the hearing, the General Counsel and the Respondent have
respectively filed motions to amend the transcript of testimony in numerous par-
ticulars. Each motion was opposed in some respects, but unopposed for the greater
part. An order was entered on November 27, 1957, granting each motion in part,
9 Prior to the hearing and my designation as Trial Examiner in the case, the Respondent
filed a motion of similar purport, dated May 20, 1957. The motion was referred to Trial
Examiner James R Hemingway for disposition. Trial Examiner Hemingway thereafter
entered an'order, dated May 24, 1957, denying the motion, but without prejudice to the
right of the Respondent to offer evidence at the hearing in support of its position.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.and denying each in other respects. Reference may be made to the order for the
particulars in which the transcript has been amended .3
The Respondent has filed a brief which has been read and considered. Neither
the General Counsel nor the Union has filed a brief.
Upon the entire record, and from my observation of the witnesses, I make- the
following findings of fact:
FINDINGS of FACT
1. NATURE OF THE RESPONDENT'S BUSINESS; JURISDICTION
The Respondent is a corporation of the State of Washington, and maintains its
office and principal place of business in Stanwood, Washington, where it is engaged
in the manufacture and sale of lumber, and operates in connection therewith, a
sawmill, resaw plant, planing mill, and retail lumber yard.
The Respondent's gross income from the manufacture and sale of its products
exceeds $800,000 annually. More than 40 percent of this revenue is derived from
the sale and shipment of lumber by the Respondent to customers located outside
the State of Washington. Thus, as the answer concedes, the Respondent is, and has
been at all times material to this proceeding, engaged in interstate commerce within
the meaning of the Act. The Board has jurisdiction of the subject matter of this
proceeding.
,Il. THE LABOR ORGANIZATION INVOLVED
As the complaint alleges, and the answer admits, the Union is, and has been at
all times material to this proceeding, a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The Respondent's affairs are directed by two brothers, Durley and Purley Ham-
ilton, who constitute the Company's board of directors. Durley is president of the
firm, but concerns himself principally with its sales activities. Purley is secretary
and treasurer of the company, and manages its manufacturing operations, including
those at the sawmill.
The Respondent employs approximately 35 persons. About 17 of these work in
the sawmill. So far as appears, the Respondent employs no individual, apart from
the Hamilton brothers, who is a supervisor within the meaning of the Act.4
The record contains much minutiae dealing with the Respondent's manufacturing
operations, but a summary of only some aspects of the production processes will
suffice as background for consideration of the issues. The logs from which the
Respondent manufactures lumber are stored, prior to processing, in a body of water
near the sawmill. Substantially, the process of converting a log into lumber begins
when it is lifted by mechanical means from the water to a log deck at the sawmill.
By means of mechanical devices operated by an employee known as the head
sawyer, the log is then lifted from the deck and deposited on a movable carriage
for sawing by the head sawyer whose sawing equipment is called the head rig.
As the log rests on the carriage, mechanically operated devices termed "dogs" dig
into the log and hold it in place while the head sawyer saws a slab off the log along
its length. The removal of the slab results in what is known as a "face" on the log.
The "face" may ultimately become one side of a length of lumber produced from
the log. In given circumstances, the head sawyer may saw an additional slab off
the 'log, -thus putting another "face" on it along its length. The head sawyer
uses his judgment in determining the width of the slab, and in deciding whether
3 There are a substantial number of inaccuracies in the transcript in addition to those
set forth in the motions These are reflected In obviously garbled transcriptions of testi-
mony or other statements, and in the attribution of remarks by one participant in the
hearing or another to some other person. As the parties have not addressed themselves
to these additional errors, and since the transcript and exhibits provide a sufficient basis
for a determination of the material issues, I deem it unnecessary to correct the transcript
in any particulars beyond those set forth in the order.
4 The evidence does not establish, contrary to a claim advanced at the hearing by the
General Counsel, that an employee named Roy Carlson. is, or has been, a supervisor
within the meaning of the Act Thus testimony by various, employees describing state-
ments made to them by Carlson was stricken at the hearing, upon the Respondent's mo-
tion, as not binding upon the Respondent Needless to say, no findings made herein are
based upon the excluded testimony
J. E. HAMILTON & SONS, INC. 1473
to put more than one "face" on the log, and the exercise of the judgment may depend
upon such variables as the width of the log, and of the desired dimensions of the
lumber to be processed from it. Upon completion of the head sawyer's operations,
the slab (or slabs) and the "faced" log are transferred from the carriage by means
of conveyors or rollers for additional cutting operations. The employee who
operates the mechanical transfer controls works in close collaboration with the
head sawyer and is known as an offbearer or tail sawyer. The slabs ultimately arrive,
cut into pieces of wood (by processes that need not be described here), at the Re-
spondent's woodyard. The "faced" log is transferred by the offbearer to cutting
equipment called an edger, which an employee , who bears the classification of
edgerman , uses to saw additional slabs off the length of the log in the process of
shaping it into lumber of a desired width. At one point or another thereafter, the
resulting lumber (as well as the slabs taken from the log) passes over what is
known as a green chain for such subsequent operations as may be required.
During the latter part of 1956, the Respondent installed a new carriage at the
sawmill . The old one , unlike the replacement, required the services of an employee
called a setter. The setter worked at the carriage in close collaboration with the
head sawyer, performing his functions upon directions from the head sawyer, usually
communicated by signal . Basically, the setter 's functions consisted of operating
the devices which controlled the "dogs," making such adjustments, upon signal from
the head sawyer, as were necessary for the cutting of a "face" of the width specified
by the head sawyer. It was also the setter's function to operate a mechanical device
by which the log was turned on the carriage for the cutting of an additional "face."
B. The alleged discrimination against Robert Olson , and the miscellaneous
allegations of interference, restraint, and coercion
Robert Olson was hired by Purley Hamilton in or about February 1955, for
employment as an offbearer at the sawmill, and worked in that capacity for about
18 months thereafter. He had previously worked in another sawmill, but had had
no experience as an offbearer.
At the inception of Olson's employment, Purley Hamilton showed Olson how
to work the mechanical controls the offbearer was required to operate; and told
him to secure whatever additional information he needed for his work from Frank
Soule, then the head sawyer , or from another employee . Hamilton also instructed
Olson to keep the vicinity of his work station clean. Olson thereafter received
additional instructions concerning the operation of equipment from Soule, whose
work station was close to that of Olson, and whom the latter regarded as his "boss."
Olson resides in an area called Camano Island, which is about 6 miles from
Stanwood. Harry Lynn is a neighbor of Olson's, residing a few doors from the
latter's house . It may also be noted at this point , for future reference , that Purley
Hamilton resides in Stanwood near the Respondent 's plant , but has a summer home
on Camano Island. The summer home may be reached from Stanwood, by auto-
mobile, by a number of routes , including an arterial highway, and an older route
described in the testimony as the "waterfront" road. The Olson and Lynn homes
are situated along the waterfront road.
During the early part of August 1956, Olson and Lynn separately wrote letters
to the Union . Although the letters are not in evidence , it is clear from the testimony
that they sought assistance from the Union in organizing the Respondent 's employees.
Olson told a number of the employees about the letter he wrote. As a result of
the letters, Paul M. Pugh, a representative of the Union, accompanied by Ed Bordsen
(also identified in the record as Bjornson ), who is the business agent of the Union's
local in Everett , Washington , came to Olson 's home on the evening of August 14,
1956, and talked to Olson and Lynn, discussing with them the subject of organizing
the employees . In the course of the discussion , Pugh said that he would call on
Purley Hamilton the next day , and ask his permission to talk to the employees on
the Respondent's premises.
The next morning Pugh , accompanied again by Bordsen , met Purley Hamilton
outside the Respondent 's "retail office ." Pugh 's automobile was parked nearby
during the discussion that followed . The car bore a number of labels, some pasted
on the front bumper , and others on the rear of the vehicle. The labels contained
electioneering slogans relating to matters involved in an impending election in the
State cf Washington . Upon encountering Purley Hamilton , Pugh introduced and
identified himself. He then told Hamilton that two employees had written letters
"requesting some assistance in organizing the employees of the plant"; and requested
Hamilton 's permission to enter the Respondent 's premises for the purpose of talking
483142-59-vol. 120-94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the employees. Hamilton forbade Pugh to enter the plant. Pugh renewed his
request, pointing out that an opportunity to talk to the employees would facilitate
a determination whether there was sufficient organizational interest among the em-
ployees to warrant efforts to organize them, but Hamilton again denied Pugh per-
mission to enter the plant. At one point or another during the discussion, either
Pugh or Bordsen, directing Hamilton's attention to the labels on Pugh's car, "asked
him [Hamilton] if he would like a sticker for his bumper," and Hamilton replied
that he did not want any. (The only materiality of the conversation regarding the
labels is that it establishes that Purley Hamilton's attention was directed to Pugh's
car on the morning of August 15, and that he saw the vehicle on that occasion.) B
The General Counsel contends that the Respondent violated Section 8 (a) (1)
of the Act by denying Pugh access to the plant. The holding of the Supreme Court
in N. L. R. B. v. The Babcock & Wilcox Company, 351 U. S. 105, requires re-
jection of the contention. In that case, the Court held that an employer may not be
required to grant access to his premises to "nonemployee organizers" for organiza-
tional work among the employees when other means of communication with the
employees are readily available. There is no substantial evidence that the Union
was unable readily to communicate with the Respondent's employees outside the
plant. On the contrary, there is evidence that Pugh met with employees on a
number of occasions at various places away from the plant, and there is no reason
to conclude from the record that he had any special difficulty in doing so.6
Following their meeting with Hamilton, and on the evening of the same day, Pugh
and Bordsen met with Olson and Lynn and informed the two employees of Hamil-
ton's attitude toward Pugh's request for permission to enter the plant, and sug-
gested steps to organize the employees. The upshot of the meeting was that Olson
and Lynn agreed to solicit the Respondent's employees to join the Union, and to
that end to circulate applications for membership among the employees at the plant.
The discussion described above took place either at Olson's home or that of Lynn.
The union representatives visited both homes during the course of the evening,
meeting with Olson and Lynn first at Olson's home, and then proceeding to Lynn's
house a few doors away. While Pugh and Bordsen were at Olson's home, Pugh's
automobile was parked in front of the house at a point where the car was visible
from the adjacent road. Lynn's car was parked nearby. At about 6:30 p. m.,
while the union representatives were still at Olson's home, Purley Hamilton drove
B Pugh's version of the discussion is circumstantially detailed. Hamilton's is scant.
Both versions are in basic accord that Pugh sought, and was denied, permission to enter
the plant. Hamilton's account makes no reference to any conversation concerning the
automobile labels. As on a substantial number of other subjects, Hamilton gave some
evasive and implausible testimony regarding the conversation Thus Hamilton testified
that he "wouldn't know" whether Pugh talked to him prior to Olson's discharge, and then
stated that the discussion "would have to be after" the dismissal Olson's discharge
occurred 2 days after Pugh's conversation with Hamilton. I believe that Hamilton was
aware of the fact, but gave the testimony that he did on the subject because of his con-
cern that the discharge would be linked to Pugh's interest in organizing the employees.
That conclusion is supported by the tact that Hamilton denied that Pugh identified him-
self as "a union organizer," and by Hamilton's testimony that "I don't think he [Pugh]
told me who he was." For all that appears in Hamilton's account, Pugh did not even
state the purpose of his proposal that he be allowed to talk to the employees Bearing
in mind the circumstances that led Pugh to call on Hamilton, and the object of the visit,
I think it implausible that Pugh would fail to introduce and identify himself and indi-
cate in some fashion to Hamilton that he wished to enter the plant to discuss union
organization with the employees. The findings made above regarding the conversation
with Hamilton are based on Pugh's testimony
6 The General Counsel presented testimony to the effect that "outsiders" such as sales-
men and "just visitors looking around" frequently came on the Respondent's premises
prior to the rejection of Pugh's request, notwithstanding signs prohibiting trespassing.
Although the General Counsel did not submit oral argument,after the close of the evidence,
and has not filed a brief, one may infer that the testimony concerning the "outsiders"
was offered to show that the Respondent discriminated, between them and Pugh. The
evidence in question has some vague features. It does not appear whether the salesmen
came on the premises to deal with the Respondent or the employees, nor whether the
"outsiders" entered the premises with the Respondent's permission. In other words,
there is no clear showing that Pugh's exclusion was discriminatory. It is thus unneces-
sary to consider whether disparate treatment of Pugh's request would warrant a different
result than the one reached in the Babcock & ,Wilcox case.
J. E. HAMILTON & SONS, INC. 1475
slowly past the house in his car, proceeding at a rate of about "ten, twenty miles
an hour," as Olson described it in his testimony.
It is not quite clear whether the General Counsel contends that Hamilton en-
gaged in surveillance of Olson's home on the occasion described above. The com-
plaint alleges that "on or about August 21, 1956," Hamilton "kept under surveil-
lance a meeting of certain of its [the Respondent 's] employees with Union repre-
sentatives," but it is likely that the allegation does not refer to the incident de-
scribed above, but to a subsequent occasion, to be described later, when, according
to testimony presented by the General Counsel, Hamilton drove by Lynn's home
three times while a meeting was in progress there. In any event, the evidence will
not support a finding that Hamilton engaged in surveillance of the home of either
Olson or Lynn on August 15, or that Hamilton either observed Pugh's automobile
outside Olson's home on that occasion or knew that Pugh and Bordsen were visiting
either Olson or Lynn.
On August 16 and 17, 1956, Olson distributed applications for membership in
the Union to employees at the plant and solicited their signatures for the applica-
tions, engaging in such activities during lunch periods and before work began.
Lynn also passed out such applications to various employees on both days.?
At quitting time on August 17, as Olson was leaving the sawmill, Durley Hamilton,
at the instance of Purley, discharged Olson, giving the employee his paycheck and
telling him, "You are through." Olson asked Durley for the reason for the discharge,
and the latter replied, "There has been to much playing around and your work was
unsatisfactory." Olson then asked Durley for "a slip" setting forth the reason for the
dismissal, and Durley told Olson to see his brother in the morning, and that the
latter would supply the slip. On the following morning, Olson requested Purley to
give him the slip he desired, and Purley declined to supply it, stating, "You got
your reason." Olson pointed out that he had been promised the slip by Durley,
but Purley replied that Olson was trespassing and ordered the latter to leave the
premises. Olson left as directed.
On Monday, August 20, 1956, Pugh, on behalf of the Union, filed the charge in
Case No. 19-CA-1382, alleging that Olson's discharge was unlawful. A copy of
the charge was served upon the Respondent, by registered mail, on August 21, 1957,
and Purley Hamilton became aware of the filing of the charge with such service.
Soon after the charge was filed, apparently on the evening of the same day, Pugh
interviewed a number of the Respondent's employees at a hotel in Stanwood on the
subject of Olson's dismissal, seeking "to substantiate" the allegations of the charge.
The employees interviewed included Soule, Walker, and Leo Fontaine. The upshot
of the interviews was that Soule and Walker, at least, gave Pugh affidavits or executed
them at his behest. Although the affidavits are not in evidence, the record, viewed
as a whole, justifies the inference, which I draw, that they bore on the subject of
Olson's dismissal and the 'allegations of the charge related thereto.
During the course of the week following Olson's dismissal, Pugh also met on
several evenings with various of the Respondent's employees at Lynn's home. At
one of these meetings (either on August 21 or 22), Pugh gave Lynn some union
'literature to distribute among employees. Lynn began to distribute the literature
at the Respondent's plant on the following morning, prior to the commencement
of work, giving copies to two employees at that time. Shortly after the literature
was handed to the two employees, and as they were walking away from Lynn, Purley
Hamilton came over to Lynn and asked the latter if he "knew whose property that
was," and told Lynn that he'had "better get wise" to himself.
By his remarks, Hamilton in effect forbade Lynn to distribute the literature under
circumstances in which the employee plainly had a right to do so under Section 7 of
the Act .8 Moreover, the admonition to Lynn that he had "better get wise" to him-
self conveyed the coercive implication that Lynn would be subject to reprisal or
discipline if he did not discontinue the distribution of the literature. Particularly
against the background of other unfair labor practices by the Respondent, which
4
7 The application cards were green Lynn testified that about a half hour after he
gave such a card to an employee named Carlson, he observed, at a distance of about 300
feet, that Carlson and Purley Hamilton engaged in conversation, and that Hamilton had
what "appeared to be a green card in his hand " Apparently referring to the same occa-
sion, Soule stated that while he was standing near Lynn, he saw Carlson hand Hamilton
a card. It would be speculative to conclude from the foregoing testimony of Lynn and
Soule that the card in Hamilton's possession was a union membership application, or that
Carlson informed Hamilton of either Lynn's or Olson's union activities. I base no findings
on the testimony in question
e Among other cases, see N L R B. v. The Babcock h Wilcox Company, supra
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will be the subject of findings to be made below, I find that as a result of Hamilton's
remarks to Lynn, the Respondent interfered with, restrained, and coerced employees
in the exercise of rights guaranteed them by Section 7 of the Act, and that the
Respondent thereby violated Section 8 (a) (1) of the statute.9
The General Counsel contends that Purley Hamilton engaged in surveillance of
one of the meetings at Lynn's house, during the week after Olson's discharge, and
in support of the claim presented testimony to the effect that: On the evening in
question Pugh, Olson, Walker, Lynn, and an employee named Leroy Housden were
present at Lynn's home; each of these, with the exception of Olson, had an automo-
bile parked in front of the house; that soon after those at the meeting arrived at
Lynn's home, Purley Hamilton drove by in his automobile, in the direction of Stan-
wood, slowing up as he passed the house; he drove by, proceeding in the same direc-
tion about one-half or three-quarters of an hour later; after it got dark, the same
automobile was observed passing the house in the same direction a third time, pro-
ceeding at about 15 miles an hour; there was disagreement among those present that
Purley Hamilton would be driving along the road at that hour; thereupon Lynn and
Walker, in the former's car, drove in pursuit of the automobile thought to be Hamil-
ton's; they overtook and passed it; and as they did so, they identified Purley Hamilton
as the driver. According to Lynn, the car he pursued had a label pasted to the left
portion of its rear bumper. Lynn testified that he "couldn't pinpoint the day" when
he pursued Hamilton's-car, but that it occurred "either the 21st or 22nd [of August],
around in there somewhere." Walker stated that it occurred on August 21, and
Pugh expressed the belief that the date was August 22. According to Olson, the date
was August 20.
Purley Hamilton denied that he ever drove by Lynn's house for the purpose of
"spying" on employees, and he testified that: he left for Aberdeen, Washington, early
on the morning of August 21 and went directly to his home in Stanwood upon his
return from Aberdeen about 10:30 or 11 o'clock that night; he uses the road that
passes Lynn's house "90 percent of the time" in driving between Stanwood and his
summer home on Camano Island; his daughter occupied the summer home -the
entire summer of 1956; when he drove by Lynn's home on any occasion during that
summer, it was to visit his daughter or to call upon an electrical contractor who
lives in the area; and he does not recall passing Lynn's house either on August 20 or
22 "when there was a crowd of cars there." Purley Hamilton also stated that: He
and his brother, Durley, own cars of the same make and. model (although the auto-
mobiles differ in color); a label bearing the legend "America Builds With Lumber"
is pasted in the center of the rear bumper of his car; and a similar label is located
in the left portion of Durley's automobile.
The differences among the General Counsel's witnesses as to the date of the alleged
surveillance are not decisive of the issue. The variances are minor and do not assume
special significance when it is borne in mind that the testimony is question was given
some 9 months after the events the witnesses describe. Hamilton's account of his
activities on August 21 is also not diapositive of the issue, for it does not meet the
question whether he engaged in the conduct imputed to him on some other date
during the week beginning August 20. Actually, there is no denial in his testimony
that he drove by Lynn's home on a number of occasions in one direction in a single
evening during that week. I am unable to attach controlling weight to the fact that
Lynn testified that a label is affixed to the left portion of the rear bumper of Purley
Hamilton 's car, whereas, according to the latter, the label is in the center of the
9 At one point or another in August 1956, the Respondent posted some "no soliciting"
signs in the plant. There is conflict in the evidence as to the date on which the signs were
posted, but the dispute need not be resolved for reasons to be noted below. The General
Counsel does not make clear what inferences he would have the Board draw from the
posting of the signs. If it is his position that the signs had the effect of prohibiting
lawful solicitation of employees to join the Union, and that the Respondent thereby vio-
lated the Act, it may be noted that the complaint contains no such allegation. To be
sure, the complaint alleges that the Respondent unlawfully forbade the distribution of
union literature, but the prohibition imposed upon Lynn. In the circumstances presented,
violated the Act, without regard to the "no soliciting" signs, and irrespective of the date
on which they were posted Nor does the evidence relating to the signs have any effect
on the conclusion, previously reached, that Pugh's exclusion from the plant did not violate
the Act. In any event, in the absence of a clear allegation that the posting of the signs
violated the Act, and of any brief or oral argument explicating the General Counsel's
position relating to the signs, I make no finding on the question whether the posting of
the signs involved or was related to a violation of the Act. See Herald Publishing Com-
pany of Bellflower, 114 NLRB 71, 85, 86.
J. E. HAMILTON & SONS, INC. 1477
rear bumper of his automobile , and a similar label is pasted to the left part of the
rear bumper of his brother 's car . The Respondent , it may noted , did not produce
Durley Hamilton as a witness , and the evidence will not support a finding that Durley
was the driver of the car that Lynn and Walker pursued and overtook. Both Lynn
and Walker testified unequivocally that Purley Hamilton was the driver of the car
they overtook, and I credit their testimony in that regard. My appraisal of the evi-
dence leads me to the conclusion, and I find, that Purley Hamilton drove by Lynn's
home on three occasions in the direction of Stanwood in one evening during the
week beginning August 20, most likely on the evening of August 22,10 while a meet-
ing attended by Pugh and some of the Respondent 's employees was in progress there,
and while Pugh 's automobile and the cars of some of the others were parked in front
of the house; and that Hamilton slowed down the first time he was observed passing,
the house , and proceeded at a slow rate of speed on a subsequent occasion."
The circumstance that Hamilton slowed down on one occasion when he passed
Lynn's house on the evening in question , and drove by practically at a dawdling rate
on a subsequent occasion that night , is a persuasive indication that he had the house
under observation, and a conclusion that he engaged in surveillance of the meeting
becomes inescapable , it seems to me, in the light of the evidence that he drove by
the house in the direction of Stanwood three times in the one evening. The fact
that he was facing in the direction of Stanwood on each of the three occasions indicates
that he either drove by the Lynn home more than three times along the waterfront
road that night , or, roughly speaking , that he circled the house on one or more
occasions . In that connection , it may be noted that a motorist can pass the house
going in the direction of Stanwood , then "circle back" along a 2-mile route, and
come out at a point on the waterfront road from which he can pass the house again,
driving in the direction of Stanwood . 12 In any event , Hamilton 's claim that on any
occasion in the summer of 1956 when he drove by Lynn 's home, it was to visit his
daughter at his summer home or to call on an electrical contractor does not plausibly
explain the fact that he drove by the Lynn home in the direction of Stanwood on 3
occasions during a span of a few hours in 1 evening . Certainly , it does not explain
why he slowed down the first time when he was observed driving by Lynn's house,
and why he passed by at a rate of about 15 miles an hour on a subsequent occasion.
Finally, with respect to Hamilton's denial that he engaged in surveillance of Lynn's
home, it is well to bear in mind , as will appear in substantial detail below, that
Hamilton gave a considerable volume of testimony in this proceeding which is not
credible . In sum , I do not credit his denial , and find that he engaged in surveillance
of a meeting attended by Pugh and some of the Respondent 's employees at Lynn's
iu It may be noted that Pugh and a number of the Respondent 's employees met at a
Stanwood hotel on August 20. In view of that evidence , and Hamilton 's undisputed tes-
timony regarding his trip to Aberdeen on August 21, I think it most likely that the events.
under consideration occurred on August 22 -
111 have made the foregoing findings notwithstanding the fact that none of the Gen-
eral Counsel 's witnesses, with the exception of Olson , saw Hamilton 's car go by more
than once on the evening in question, and that Olson did not actually see Hamilton drive
by on all three occasions Although Olson stated that Hamilton passi•d Lynn's house
three times, the sense of his testimony is, that he actually saw Hamilton go by twice,
and it is evident that he bases his conclusion as to the third occasion on a statement by
another at the meeting that Hamilton was driving by, and on the results of the pursuit
by Lynn and Walker. I have credited Olson's testimony to the effect that he saw Ham-
ilton drive by on two occasions in the one evening , notwithstanding Olson's statement
that the incidents he describes took place on August 20, a date on which, according to
the testimony of others, Pugh met with a number of the Respondent's employees at a
Stanwood hotel. Olson impressed me as a forthright witness, and I believe that his testi-
mony concerning the date is the result of an honest mistake in recollection . The re-
spective accounts of Olson, Pugh, Walker, and Lynn, considered in combination, lead me
to the conclusion that Hamilton drove by Lynn 's home on three occasions in the one "even-
ing, as found above, and that Lynn and Walker pursued him after Hamilton had passed
the house for the third time in the one evening.
12 It is unnecessary to resolve a conflict in the 'evidence whether the arterial highway'
provides a shorter route between Stanwood and Hamilton ' s summer home . Even if one
assumes that the 'distance along that road is shorter than that along the waterfront
route, it seems unlikely that the difference in distance is substantial , since Stanwood is
only about 6 miles from Camano Island. In short the fact that Hamilton used the water-
front road rather than the arterial highway does not of itself appear to me to be signifi=-
cant, particularly as it is common knowledge that a person may often prefer a waterfront
drive to one along an inland highway, especially in the summer.
1478' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
home one evening during the week beginning August 20 , 1956 , and that as a result;
the Respondent interfered with the exercise of rights guaranteed its employees by
Section 7 of the Act, thereby violating Section 8 (a) (1) of the statute.
The Respondent suspended the operation of its sawmill for a period of about 2a
months, beginning on September 21, 1956 , for the purpose of installing a new carriage
and gangsaw. On October 22, 1956, the Respondent wrote a letter to Olson, stating;
that it was thereby offering him reemployment "on the date our mill resumes opera-
tion"; that he would be advised in advance of such resumption; that by making the
reemployment offer the Company was not admitting that Olson was discharged
"because you may or may not have engaged in Union activities"; and that it main-
tained at the time of the dismissal , and was still maintaining , that "the discharge
was for just cause."
On November 19, 1956, the Respondent and the Union executed a "Settlement,
Agreement," pertaining to the charge in Case No. 19-CA-1382. The Settlement
Agreement was signed and approved on the same date by the Regional Director for-
the Nineteenth Region of the Board. Attached to the instrument, and incorporated':
in it by reference, is a document entitled "Notice To All Employees," which was
executed by the Respondent, stating, in substance, that the Respondent would not
in any manner interfere with, restrain , or coerce its employees in the exercise of-
rights guaranteed them by the Act; that it would offer Olson "immediate and full
reinstatement to [his] former or substantially equivalent" position , and' "make [him]
whole for any loss of pay suffered as a result of the discrimination ." By the, terms,
of the Settlement Agreement, the Union requested the withdrawal of the charge in
Case No. 19-CA-1382, "such withdrawal to become effective when the Regional
Director is notified that the provisions of this Agreement have been carried out";
and the Respondent agreed to "comply with all the terms and provisions of said"
Notice," to post copies of that document "immediately in conspicuous places in,
and about its plant," and to maintain such posting for a prescribed period. The•
Respondent subsequently paid Olson the sum of $267.14 as back pay due him under
the terms of the Settlement Agreement, posted a copy of the notice on a bulletin
board at its office , and another in the sawmill , for the required period.
On November 28, 1956, the Respondent, through its attorney, sent a letter to Olson
stating that in accordance with "the settlement . we hereby offer you employ
ment at the sawmill in a substantially equivalent position to the one occupied by you
heretofore"; and requesting Olson "to report to Purley Hamilton at the sawmill at
8 o'clock a. in., Tuesday, December 4, 1956."
Olson reported to Purley Hamilton at the sawmill at about 8 a. in. on the date
specified in the letter, proceeding to his former work station , and remaining there
for about an hour. There were only a few other employees in the sawmill while
Olson was there, and the head rig was not in operation during that period, although;
work at the mill usually starts at 8 a. m.
Upon Olson 's arrival , Purley Hamilton , visibly angry and speaking in a loud tone
of voice, opened a conversation with Olson by asking the latter whether he had quit
a job he had secured with a well driller named Kounkel after his discharge by the
Respondent . Olson replied that that was none of Hamilton 's business . The latter-
-then stated that he "would find out" and left Olson, but returned shortly thereafter.
After his return , Hamilton stated that he would operate the head rig himself; gave
Olson instructions concerning his duties; told Olson that the time for which he would
be paid that morning would begin when the head rig began to operate ; and forbade
Olson to leave his work station at any time during working hours, stating, also, that
Olson would not be permitted to go to the toilet without permission . Hamilton had
not previously voiced such working conditions to Olson , and when he did so, Olson
replied that he was not Hamilton 's "slave," nor that of anybody else, and never
would be. At this, Hamilton "calmed down." He produced a slip of paper, read
off a list of names ( those of Housden , Soule, Thomas, Walker, and Fontaine ), stating
that he "knew who had made out the affidavits" against him, and then, in substance,
told Olson that the latter "was going" to disclose the names of other employees who
had made affidavits if he did not wish Kounkel, his former employer, to be taken
to "court." Olson made no reply because, as he put it in his testimony , he "didn't
want to get Al [Kounkel l in trouble ." At about this point , Hamilton's son appeared
on the scene , and after some conversation with the latter (a conversation not described
in the record and, perhaps , taking place out of earshot of Olson ) Hamilton told
Olson that the latter had not quit Kounkel's employ, and that he was going "to drag"
Olson "into court ." Olson thereupon stated that he "was going to quit ." It appeared
to him that "the mill was [not] going to start ," and he left the plant. It was them
r
J. E. HAMILTON & SONS, INC. 1479
about, 9 a. in. Olson has not been paid for the time he spent at the sawmill
that morning.13
On April 18, 1957, the Regional Director for the Board's Nineteenth Region wrote
identical letters to Purley Hamilton and Pugh, stating that investigation had
disclosed that there had "not been good faith compliance with the terms of the
Settlement Agreement," that he was therefore withdrawing his "approval of the
Agreement and setting the same aside," and that the "case is hereby reactivated and'
restored to the pending docket." This was followed by exchanges of correspondence
between the Respondent, through its counsel, and the Regional Director. It is
unnecessary to set forth the contents of all the letters. A summary of various
features of two will suffice for consideration of issues raised in this proceeding.
In a letter dated April 25, 1957, the Respondent denied that it had failed to comply
with the Settlement Agreement; challenged the right of the Regional Director to
withdraw his approval of the Settlement Agreement upon the basis of "some investi-
gation or report made to you without giving the company an opportunity to be
heard"; and took the position that the Regional Director's conduct in the premises
violated the Administrative Procedure Act and the Respondent's "constitutional
rights to a fair hearing." Replying by letter dated May 3, 1957, the Regional'
Director stated that the Respondent had bound itself, in the Settlement Agreement,
not to interfere with, restrain, and coerce employees in the exercise of their statutory
rights; that since the execution of the Settlement Agreement, a "new charge" had
been filed (the one in Case No. 19-CA-1435), alleging violations of the Act by
the Respondent in addition to those set forth in the charge in Case No. 19-CA-1382;
that after an investigation, he had determined to issue a complaint based upon the
new charge; that the Regional Office was in possession of "substantial evidence"
that the Respondent had not complied with the Settlement Agreement, including
a failure to reinstate Olson in good faith; that a Regional Director has authority,
"without a hearing and without appeal, to withdraw his approval of a Settlement
Agreement"; and that "to the extent that rights of due process may be involved, it
seems clear that the company would have an opportunity to be heard at such time
as a consolidated complaint issues in the two cases (Cases Nos.' 19-CA-1382 and
19-CA-1435) and is set down for hearing before a Trial Examiner." Adhering to
"Findings concerning the events at the mill on the morning of December 4 are based'
on Olson's testimony. Hamilton denied that he had any knowledge on December 4 that
employees had given affidavits bearing on Olson's discharge, and that he "ever gave any
names of anyone who filed an affidavit " His version of what transpired is that upon
Olson's arrival, he gave the latter instructions as to the routing of slabs and other timber
products from the carriage ; that he then left Olson, and that nothing more was said.
However, at a later point, Hamilton stated that he does not know whether he told Olson
that he would not be paid "until the mill started." Subsequently, Hamilton denied that
he made such a statement. This somewhat inconsistent testimony of itself raises some
question about Hamilton's credibility Moreover, the fact that Olson had not been paid
for his time as of the time of the hearing, although Hamilton knows where he lives,
tends to support his claim that Hamilton told him that morning that he would not be
paid for time spent at the mill before the carriage was put in operation Hamilton
claims that he noted Olson's time "on a slip" on the night of December 4 and that Olson
"absolutely" would be paid if he came to the Respondent's office It seems to me, how-
ever, that-if Hamilton actually had any intention on December 4, of paying Olson, he
would have sent Olson a check at some point between December 4 and the hearing some
6 months later It is also noteworthy that Hamilton's version, in contrast to Olson's,
suggests no plausible explanation why Olson should have left the mill Where Hamilton
secured the names of employees who had given affidavits cannot be known in the state of
the record, but this does not inevitably mean that he did not have information on the
subject, and that he did not make the statements relating to affidavits imputed to him
by Olson. In that connection, it may be noted, incidentally, that although Hamilton
denied knowing at the time he spoke to Olson that "anyone had given affidavits," it is
undisputed that the Respondent received a letter (General Counsel's Exhibit No. 5),
dated September 21, 1956, from a representative of the General Counsel stating, among
other things, that an investigator on the staff of the General Counsel had taken "affi-
davits from other people," in addition to Hamilton and Olson, on the subject of Olson's
discharge. Finally, as will appear later, Hamilton gave much evasive, implausible, and
self-contradictory testimony at the hearing I do not credit his version of the events
on the morning of December 4, but on the contrary, credit Olson's account, and have
made corresponding findings In passing, it may be noted that various parts of Olson's
relevant testimony were transcribed in obviously garbled form ; and that the transcript
has been corrected by means of the order dated November 27, 1957, to'which previous
reference has been made.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his position, the Regional Director subsequently issued the consolidated complaint
in this proceeding without the prior "formal hearing" requested by the Respondent.
The Respondent advances substantially the same claims concerning the Settle-
ment Agreement in this proceeding as in its correspondence, maintaining in that
regard that the Settlement Agreement disposed of the charge in Case No. 19-CA-
1382; that the Regional Director's action in issuing the complaint without a prior
"formal hearing" was "arbitrary and capricious," thereby denying the Respondent
"due process of law"; and that those allegations of the complaint that are based
on the charge in Case No. 19-CA-1382 should be dismissed. Although I addressed
myself to these contentions at the hearing, in denying a motion by the Respondent
to dismiss the allegations in question, the Respondent makes much the same
argument in its brief, and I thus think it appropriate to comment upon the matter
here before proceeding to a disposition of other issues.
There are a number of infirmities in the Respondent's contentions. The first of
these is that there is no evidence that the charge in Case No. 19-CA-1382 was in
fact withdrawn. By the express terms of the Settlement Agreement, the efficacy
of withdrawal was committed by the Union and the Respondent to the discretion
of the Regional Director, for the Agreement provides that the withdrawal was to
"become effective when the Regional Director is satisfied that the provisions of this
Agreement have been carried out" [emphasis supplied]. Plainly, the Regional
Director was not "satisfied" that the Respondent had complied with its undertakings,
and it is thus evident that withdrawal of the charge has not "become effective."
Secondly, the contention that the Regional Director acted without lawful warrant,
and infringed upon statutory and constitutional rights of the Respondent by issuing
the complaint without first affording the Respondent a hearing, lacks merit. The
complaint here, as in any other proceeding arising under the Act, was issued under
Section 102.15 of the Board's Rules and Regulations, Series 6, as amended, which
expressly authorizes the issuance of complaints by Regional Directors. To accept
the Respondent's position, one could with equal logic maintain that in any other
case a respondent is entitled to an antecedent hearing on the question whether a
complaint should issue, or, in other words, to a hearing on the question whether
a hearing should be held. The protection of constitutional rights requires no such
hobbling of administrative action. The fact is that the Respondent has had a
hearing, and that is the hearing held before the Trial Examiner. There the parties
were afforded a full opportunity to adduce evidence and be heard on the issues
raised by the pleadings, and on the question whether the Respondent has complied
with the Settlement Agreement. The Board, through its prescribed hearing pro-
cedures, and not the investigatory process of the Regional Director, is the proper
forum for a determination of the issues. In short, the record provides no basis for
the claim that the Regional Director acted arbitrarily or capriciously; On the
contrary, the course followed by him conformed with the procedures provided by
the Board for the resolution of issues arising under the Act, and the determination
of questions of compliance with agreements for disposition of charges by settle-
ment.14 Finally, regarding the contentions under consideration, it is well established,
as the Board has held, that "where, after the execution of a settlement agreement,
unfair labor practices occur which violate that agreement, the Board will go behind
the agreement and litigate the presettlement as well as the postsettlement violations,
for the reason that it is a `salutary policy to protect parties to a settlement agree-
ment against violations of the agreement' "; and that where "alleged postsettlement
violations are brought to its attention, the Board is not precluded by Section 10 (b)
of the Act from processing the unfair labor practices alleged in the presettlement
charge, notwithstanding such violations occurred more than 6 months before the
filing of the postsettlement charge" (Courier Post Publishing Company, 102 NLRB
26, 28, omitting citations and footnote references).
Turning to the question whether the Respondent has complied with the Settlement
Agreement, the events at the sawmill on December 4, described earlier, impel the
conclusion that the - Respondent has not fulfilled its undertakings in material
respects.
11 Section 101.7 of the Board's Statements of Procedure, Series 6, as amended, which
have been duly published in the Federal Register, provides, in part : "These [settlement]
agreements, which are subject to the approval of the regional director, provide for the
withdrawal of the charge by the complainant at such time as the respondent has complied
with the terms of the settlement agreement Proof of such compliance is obtained by the
regional director before the case is closed. If the respondent fails to perform his obliga-
tions under the informal agreement, the regional director may determine to institute
formal proceedings "
J. E. HAMILTON & SONS, INC . 1481
It will be recalled that Hamilton displayed anger and hostility toward Olson when
the latter reported for work; questioned Olson whether he had quit Kounkel's.
employ and later charged Olson with not having done so; imposed working condi-
tions upon Olson to which the latter had not been subject previously; named a
number of employees as having given affidavits bearing on the charge relating to
Olson's dismissal; in effect demanded that Olson disclose the identity of any
other employees who had made such affidavits, threatening to involve Kounkel in
litigation if Olson did not comply; and threatened to "drag" Olson "into court."
The implication of Hamilton's assertion that Olson had not quit Kounkel's employ,
and of the litigation threats, was that Olson was not in fact interested in returning
to work at the sawmill', and thus had acted in bad faith in reporting there; and
that Olson's conduct in that regard would be made the subject of litigation involving
both Olson and Kounkel.15 The validity of Hamilton's legal conceptions is imma-
terial, and it would be idle to speculate whether he actually entertained an idea that
he had a basis for some claim against either Olson or Kounkel, or both, or whether
he expressed the notion solely as a means of extracting information from Olson.
The controlling fact is that Hamilton's demand for information as to the identity
of any employees, in addition to those Hamilton named, who had made affidavits
bearing on Olson's discharge, was an abridgement of the rights guaranteed em-
ployees by Section 7 of the Act, even if one puts aside the threats Hamilton voiced
to implement his demand. As a result of the demand, and of the threats, the
Respondent interfered with, restrained, and coerced employees in the exercise of
such rights, and thereby violated both the Settlement Agreement and Section 8 (a)
(1) of the Act.
What is more, Hamilton's conduct persuades me that the offer of reinstatement was
no more than a gesture of surface conformity with the reinstatement requirements
of the Settlement Agreement; and that the offer was not made in good faith. Mani-
festing anger and hostility toward Olson, Hamilton imposed onerous working condi-
tions on Olson, telling him that his paid time would not begin until the head rig
began to operate, and going so far as to prohibit Olson from leaving his work
station to go to the toilet without first securing permission from Hamilton (who,
it may be noted, does not spend all of his time in the sawmill). Employees' paid
time at the sawmill begins upon their reporting for work at 8 a. in., and Olson had
never previously been required by Hamilton to secure permission to leave his work
station to go to the toilet. The imposition of these conditions clearly did not
conform to the reinstatement provisions of the Settlement Agreement, which require
the Respondent to offer Olson reinstatement "without prejudice to any . rights
and privileges previously enjoyed." Moreover, there is good reason to conclude that
the onerous conditions were imposed upon Olson in order to make it so uncom-
fortable for him as to lead him to quit; and that the underlying reasons for
Hamilton's behavior were Olson's union sentiments and activities,16 and the fact
that a charge had been filed alleging that Olson's discharge some months earlier
was unlawful. That the union sentiments or activities of employees, and the charge,
were still much on Hamilton's mind, notwithstanding the Settlement Agreement,
and that he harbored resentment because the charge had been filed, is evidenced by
the fact that he referred to a list of employees who, according to the sense of
Hamilton's statement to Olson, had given affidavits relating to the allegations of
the charge, and that he demanded that Olson supply the names of any others who
had given such affidavits, implementing the demand with a threat that he would
involve Kounkel in litigation unless Olson' complied. Hamilton's conduct on
December 4 is indicative of an attitude of hostility by him not only toward Olson,
but toward participation by the Respondent's employees in organizational or union
activities. I think it clear that when Olson reported for work on December 4,
Hamilton was of a mind to speed Olson's departure, and almost immediately em-
barked upon a course of conduct to achieve that result. In the light of Hamilton's
15 There is no evidence that Olson was still in Kounkel's employ on December 4; and
the record does not warrant any conclusion that Olson acted in bad faith in reporting to
the sawmill It may also be borne in mind that he came there pursuant to the Respond-
ent's request
19 Without passing at this point on the question whether Hamilton was aware of Olson's
union sentiments or activities at the time of Olson's discharge, there can be no doubt
that Hamilton had knowledge, on December 4, 195G, that Olson was an adherent of the
Union and had engaged in activities on its behalf before his dismissal In that connection,
it may be borne in mind that the charge in Case No 19-CA-1382 was served on the
Respondent on August 21, 1956, and that Hamilton acquired knowledge of its contents
with such service. -
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behavior, it is little wonder that Olson quit.17 The sum of the matter is that
Hamilton's behavior toward Olson, particularly the imposition of onerous working
conditions upon the employee, was designed to compel him to quit; that the design
was rooted in hostility by Hamilton toward Olson because of the latter's union
sentiments and activities, and because a charge had been filed alleging that Olson's
discharge was unlawful; that Hamilton's attitude and conduct toward Olson were
tantamount to a denial of reinstatement of the employee; that the offer of rein-
statement was not made in good faith, and did not comply with the reinstatement
provisions of the Settlement Agreement; and that by so denying Olson reinstate-
Tnent , the Respondent has discriminated against Olson, in violation of Section 8
(a) (3) of the Act, and has interfered with, restrained, and coerced employees
in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating
Section 8 (a) (1) of the statute.
Notwithstanding the Respondent's execution of the Settlement Agreement, by
which it obligated itself to make good Olson's wage losses "suffered as a result of
the discrimination," it now maintains that Olson was discharged on August 17,
1956 because his work was unsatisfactory. Whether the Settlement Agreement
may be treated as an admission by the Respondent that it discriminated against
Olson by discharging him in violation of Section 8 (a) (3) of the Act need not
be decided. As will appear below, there are other factors in the record which
point the way to a resolution of the issue of the legality of Olson's discharge.
Purley Hamilton testified that he decided to discharge Olson a few days before
the dismissal occurred. The following excerpts from Hamilton's testimony contain
a description of the reasons he advances for discharging Olson:
Q. (By Mr. Tillman.) I want to know why you made your decision.-
A. Because he wouldn't do what I told him to. I got rolls there, I got rolls
that goes down, that turn, and there is a starter button that starts them, just
like a car, you start the thing to go ahead and then you stop it to stop it, and
then you got to start the reverse. And all he had to do was jump from this
button to that button and it tears all the chains. Then he is hot headed. He
gets mad and he throws that hook he had against the side of the switchboxes.
And about a couple months before that he broke this great big $400 switch.
That's not the only, the only way' you can, unless you have a burnout. But
this insulation is absolutely broken, it is laying up there right now, and he
broke that. And another thing, I should have fired the sawyer with him.
That's the mistake I made. He would stand over on that there platform, yell
down there at the boom men, and make it miserable for them when he is sup-
posed to be' working. Then he tries to organize the men in the green chain,
to get all organized up against me. And him and this sawyer, two or three
other ones to make them go on daylight saving time so they could go fishing
and so on, and the farmers didn't want me to. 'He is throwing these slabs
underneath the carriage and breaking the cylinder off the carriage, and I was
paying one man tremendous overtime to take care of the carriage.
TRIAL EXAMINER: Those are all the reasons that you fired him for?
The WITNESS: Yes, that's the reasons.
Q. (By Mr. Tillman.) Any other reasons that you can think of that you used
at that time as a basis for firing him?-A. No, I don't think so. There could
have been plenty of them.
TRIAL EXAMINER: I didn't hear you, Sir.
The WITNESS: No.
Eliminating Hamilton's interpolations, the sum of the foregoing testimony is to the
effect that the reasons for Olson's discharge were that: (1) The employee disobeyed
11 Olson testified • "I don't know what he [Hamilton] was going to drag me in court
for, and so I just said I was going to quit, because it didn't look to me like the mill was
going to start, there was no crew there, there was only the four men there I seen "' It
Is evident that Olson did not quit merely because the mill had not yet begun to operate,
but rather that a precipitating factor in his decision was that he had been told that his
paid time would not start until operations began. It may also be noted that Olson's
statement to Hamilton that he was going to quit came hard upon Hamilton's threat to
"drag" him "into court," and it may reasonably be inferred that the threat fed Ols'on's
decision Although Olson did not testify that the toilet requirement was a factor in his
decision, it is not unlikely that it was In that regard, one may note 01cnn's testimony
that "it broke my back" when Hamilton laid down the condition ; and that Olson's re-
action to the condition was to tell Hamilton that he was "no slave to you-or anybody
else and never would be." This was tantamount to a statement that Olson would not
work under such a condition.
J. E. -HAMILTON & SONS, INC. 1483
orders; ( 2) while in a rage, he threw a hook against a switchbox , and thereby broke
a switch; ( 3) Olson wasted working time by yelling at the "boom men," making "it
miserable for them"; (4) he broke equipment ' ( air cylinder brackets, according to
other parts of Hamilton 's testimony ) by throwing slabs of wood under the carriage;
and (5 ) Olson ( as well as "this sawyer ," Soule ) tried to persuade employees to favor
the idea of having the plant "go on daylight saving time." Elaborating on Olson's
alleged disobedience of orders , Hamilton testified that Olson , contrary to instructions,
failed to clean up the vicinity of his work station , and an area "underneath the mill."
Although Hamilton stated in the excerpts from his testimony quoted above that
the discharge decision was based on no other reasons than those he gave there, he
subsequently added another one , and that is that Olson and Soule forced a setter
named Richard Rekdal to quit . ( As stipulated at the hearing , Rekdal quit on August
:8, 1956. ) According to Hamilton , Olson and Soule "kept riding" the setter, and as
a result , Hamilton testified , Rekdal left his job. This , according to the sense of
Hamilton 's testimony , was the precipitating factor in the decision to discharge Olson.
As Hamilton put it: "Then when this here setter quit, I decided that I would have to
let someone go, and he ( Olson) was the first one." In his testimony , Hamilton
praised Rekdal's work , terming him "a dandy, . a crackerjack."
Olson testified , in substance , that at no time during his 18 months of employment
did Hamilton ever express any criticism of his work to him . According to Soule,
whose duty it was to give Olson directions , Hamilton never voiced any complaint to
him about Olson 's work. Soule testified that he had worked with 4 or 5 off bearers
,at the sawmill ; that Olson was "tops" in his work; and that Hamilton told him on a
number of occasions that Olson "was one of the best men in the mill." Soule also
testified that on the Monday following Olson's discharge, he asked Hamilton why
he had discharged Olson, and that Hamilton replied that "there was things going
around this mill" that Soule "didn 't know anything about." Walker also testified that
Hamilton never complained in his presence about Olson 's work.
Olson stated in his testimony that he and other employees , including Soule, did
from time to time go out on a platform at the sawmill and talk to "the boom men"
during working hours, but that this was on the occasions when there was too much
lumber on the green chain , thus necessitating a stoppage in the flow of production,
and therefore of work , at the carriage . Soule testified to the same - effect, as did
Rekdal, whom the General Counsel called as a witness.
Olson conceded that he threw slabs of bark or wood, but he asserted that that was
apart of his duties. He explained that from time to time a piece of bark "would roll
underneath the rolls and hold up a slab," and in that event , he would remove the bark
and throw it on the floor to enable the slab to move along the rollers ; and that if a
big slab "wouldn 't go down the rolls," it was his duty to remove the slab and throw it
, on a conveyor through a hole near his station.
Conceding that a bracket holding an air cylinder in place underneath the carriage
was broken "several times ," Olson ascribed this to accidental causes , stating that "the
way the logs bumped up against the carriage . . . naturally everything would get
loose," and that "a slab might stick up and hit" the cylinder . Soule testified that the
-air cylinder would break from time to time because a "big knot" on a log as it was
being processed on the carriage "would hit the air cylinder." Soule also stated that
Hamilton never told him that Olson was responsible for the breakage . Walker,
:whose duty it was to repair the brackets holding the cylinders , and who did so on a
number of occasions , testified that the last time he repaired a bracket prior to Olson's
dismissal was about 2 or 3 months before the discharge ; that it broke at that time
-because it was not "properly braced"; that he (Walker ) was responsible for that
because he had not used enough welding material to brace the bracket when he had
repaired it about a week or two earlier ; that he did not attribute the breakage to
'Olson ; and that Hamilton had never told him that Olson was responsible for it.
Olson in effect denied that he ever purposely threw the hook he uses in his work.
He stated in that regard that on one occasion during the winter preceding his dis-
charge, he slipped because the area underneath his feet was wet, and the hook acci-
dentally flew out of his hand "and hit below the switchboxes."
Olson also denied that Hamilton ever told him that cleaning "underneath the mill"
was a part of his duties . According to Olson, he did such cleaning on occasion upon
instructions from Soule whom he regarded as his "boss ," and in one instance while
the mill was shut down when Hamilton gave him a choice of taking his vacation
then or performing cleaning work in an area "way away from where we worked."
'Olson also stated that when he was hired , Hamilton told him to keep the area of his
'work station clean . Thereafter , according to Olson , he "usually cleaned up around
.where I stood , because if I didn't I would be up to the ceiling in sawdust and bark and
wet sawdust , and I had to have good footing there because if anything did go wrong
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I wanted to be able to get out of there." Such cleaning, Olson testified, was usually
done by him "once in the morning and once in the afternoon."
Describing Rekdal as his "best friend" and stating that Rekdal had recently secured
a job for him and was instructing him in his duties, Olson denied that he ever "rode
Rekdal. This testimony is supported by that of Rekdal, who stated that he and Olson
went to school together; that their relations are "excellent," and had always been so;
that neither Olson nor Soule ever "rode" him; that neither Olson nor Soule had any-
thing to do with his quitting the Respondent's employ; and that, entertaining the
belief, because of something he had heard, that Hamilton was planning to replace
him, he had quit to take advantage of a job opportunity elsewhere.
Purley Hamilton was the only witness who, testified to alleged shortcomings in
Olson's performance as an employee. Thus any finding that Olson's performance
was deficient and that he was discharged for the reasons Hamilton advances must
rest upon Hamilton's testimony alone. His testimony, however, does not lead to such
a conclusion, for, as will appear below, it reflects evasiveness (often manifested by
unresponsive answers) and self-contradiction in marked degree.
These characteristics are apparent in the following excerpts (with emphasis sup-
plied) from Hamilton's testimony on the subject of Olson's cleaning duties:
Q. (By Mr. Tillman.) Who else was supposed to help clean up under the
mill?-A. He [Olson] was about the only one right underneath the mill.
Q. You testified that sometime or other you had informed him or instructed
him that was part of his job. When did you do that9-A. When I hire a man
I try to tell him what to do.
Q. To get back to my original question, do you recall any time speaking to,
him telling him to get down there under the mill and do some clean-up work?-
A. Yes.
Q. When do you first recall, telling him that?-A. The last time-
TRIAL EXAMINER (Interrupting): Let's speak about the first time.
The WITNESS: Ask the question again.
Q. (By Mr. Tillman.) The first time that you recall.-A. He was one of
them I told pretty often. I mean,you would have to tell him everything. Some
do it without being told and some don't. About three months.
Q. (By Mr. Tillman.) After that first time how many other times did you
speak to him before he was fired?-A. I imagine quite a few times.
Mr. MAXWELL: How many times?
- The WITNESS: Two or three times.
Q. (By Mr Tillman.) Did you ever tell anyone else to do clean-up
work?-A. Yes.
Q. Who else did you tell to do clean-up work?
A. There was other guys there to do clean-up work, but I didn't have to
tell them.
* * * * * *
TRIAL EXAMINER: Did you ever tell anybody else to clean up underneath the
mill, that's the question?
The WITNESS: If the mill was shut down for any length of time and the
other guys got theirs cleaned up first I would have to go underneath and help.
TRIAL EXAMINER: Did you tell the other ones?
The WITNESS: I imagine I must have told them.
TRIAL EXAMINER: Do you remember that you did?
The WITNESS: I will say yes.
The difficulty of securing responsive answers from Hamilton is quite apparent
in the foregoing excerpts from the record, and, upon my observation of Hamilton,
I believe that his unresponsiveness was not due to any failure to understand
questions put to him, but that it proceeded from a disposition to evade pertinent
inquiry. Equivocation and self-contradiction also appear in Hamilton's shift from
a claim that Olson was "told pretty often" to clean beneath the mill to a statement
by Hamilton that he "imagine[s]" that Olson was so instructed "quite a few times,"
and finally to an assertion that these instructions were given "two or three times" to
Olson who, it may be recalled, worked in the sawmill for about a year and a half.
`A similar pattern of equivocation is reflected in Hamilton's testimony with respect
'to his alleged instructions to other employees to clean beneath the mill. It is un-
necessary to pursue the subject of Olson's cleaning duties further. I credit Olson's
testimony on the subject, find that he was not remiss in his duties in that regard,
J. E. HAMILTON & SONS, INC. 1485
and am persuaded , particularly against the background of other factors to be noted
below , that Olson was not discharged because of any failure to perform his cleaning
duties.
Another implausible feature of Hamilton's testimony is his claim that he dis-
charged Olson because the latter and Soule tried to promote sentiment among
employees in favor of the operation of the plant on daylight saving time. It is
unnecessary to deal here with the question whether a discharge for such a reason
would be an abridgement of the rights guaranteed employees by Section 7 of the
Act, and therefore a violation of Section 8 (a) (1) of the statute , for I do not
believe that the alleged advocacy by Olson of the idea had any connection with
his discharge . In the first place, the record is barren of any evidence that either
Olson or Soule actually ever advocated the idea. Admittedly , neither employee
.proposed its adoption to Hamilton , and it is evident that the latter has no first-hand
knowledge that they advocated it. Hamilton testified that his information that Olson
had done so came from two employees ( who, it may be noted , were not called as
witnesses), and Hamilton admitted that he made no investigation of the matter.
Against that background , the claim that - Olson was discharged for the reason,
among others , that he tried to promote sentiment among employees in favor of
the operation of the plant on daylight saving time takes on a flimsy posture, par-
ticularly when it is borne in mind that , according to the sense of Hamilton 's testi-
mony , he received the information concerning Olson 's advocacy of the• daylight
saving idea some 2 or 3 months before Olson 's discharge . Secondly, the im-
plausibility of the claim becomes evident upon consideration of a sworn written
statement Hamilton gave a representative of the General Counsel on September
18, 1956 , about a month after Olson 's discharge, in the course of an investigation
of the dismissal . Although Hamilton deals at length in the affidavit with his
alleged reasons for discharging Olson , he makes no reference there to any alleged
advocacy by Olson of the daylight saving idea , nor does he advance any claim in
the statement that he discharged Olson for such an activity. I believe, in short, that
Hamilton's testimony on the subject is nothing but an afterthought.
Probably the most illuminating guide to a resolution of the credibility issues
relating to Olson 's discharge is furnished by Hamilton 's testimony on the subject of
Rekdal . Hamilton praised Rekdal as a "dandy" and "crackerjack" in his work, and
stated that the latter was "one fellow I hated to see quit ," and the evident impli-
cation of Hamilton 's testimony relating to Rekdal is that he decided to discharge
Olson because , as a result of the alleged "riding" of Rekdal , he lost the services of a
valued employee . Hamilton 's characterizations of Rekdal are in conflict , however,
with Hamilton 's affidavit of September 18, 1956 , to which previous reference has
been made . In the affidavit , Hamilton states: "The Monday before Reckdahl [sic]
quit , I told Soule that I was going to get rid of his men and get new ones if they
didn't quit the bull shitting and get the lumber through the mill right ." The "men"
referred to were obviously Rekdal and Olson . Later in the affidavit , referring to
Olson, Soule, and Rekdal , Hamilton says: "I think they were fooling me." And
at a subsequent point , he states : "Our new setter is Leroy Houston [meaning
Housden] and I am not going to fire Soule since things are going so well with this
group of three men." The affidavit , which was signed by Hamilton about a month
after Olson 's discharge and some 9 months before the hearing was held, is a
persuasive indication that the expressions of praise for Rekdal , and of regret at
his resignation , voiced by Hamilton in his testimony , are mere afterthoughts.
Significantly , also, Hamilton 's affidavit makes no reference to the claim advanced
in his testimony that Olson and Soule "rode " Rekdal, that the latter quit as a. result,
and that Rekdal 's quitting was a factor in the decision to discharge Olson.
Moreover , that the claim is not entitled to credence becomes evident upon con-
sideration of the course that Hamilton 's, testimony took in developing it. At one
point in his testimony , as noted earlier, Hamilton undertook to set forth all of his
alleged reasons for Olson 's discharge . It is noteworthy that, as in his affidavit, he
made no reference there to the claim under consideration . It emerged for the first
time well after the recital of all of the alleged reasons in response to interrogation as
to the "event" that led to the discharge decision . Much of Hamilton 's reply was
unresponsive , but during its course he spoke of the difficulties of finding a good
setter , praised Rekdal 's work, and finally made the observation that Olson and
Soule "kept riding" Rekdal . -In reply to interrogation as to the source of his knowl-
edge in that regard, Hamilton proceeded to relate that in the spring of 1956 he
encountered Soule ( in the town of Darrington , Washington , according to the sense
of other testimony ); that Soule was under the influence of liquor ; that "along came
this young setter (Rekdal ) and he had a girl with him and he was going to get
married"; and that Soule expressed dislike for Rekdal and stated he was going to
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"lick" him. According to Hamilton, he told Soule not to "jump. on that fellow,"'
and that "there is nothing wrong with the guy." It may be noted that Soule weighs
about 50 pounds less, and is some 4 inches shorter, than Rekdal; but, more to the-
point, both Soule and Rekdal, in substance, denied that they had any difficulties,
or that any threats were voiced, on the occasion in question, and the sense of their-
testimony is that their conversation was amiable. I credit their testimony to that
effect. But even if this credibility finding is put aside, one is still left in the dark
by Hamilton's testimony as to any connection between the Darrington incident, in'
which Olson was not involved, and Olson's discharge some 6 or more months later.
Upon my observation of Hamilton and consideration of the testimony, I am,
persuaded that he reached out for the Darrington incident, and in doing so gave
an untrue account of what passed there between Soule and Rekdal, in order to,
bolster a flimsy claim that Soule and Olson "rode" Rekdal, thereby compelling
Rekdal to quit, and that Olson was discharged for that reason. Significantly, on,
that score, the record is actually barren of any evidence that Olson ever "rode"
Rekdal, and that the latter quit for that reason. Substantially all that Hamilton'
put forward on the subject in his testimony was that he had "heard rumors they
[Olson and Soule] made it so miserable for him [Rekdal] he had to quit." Hamilton,
did not identify the source of the "rumors." The fact is, as is actually established
by undisputed evidence (which the "rumors" to which Hamilton alluded do not
probatively controvert), that Olson and Redkal went to school together and are
friends; that Rekdal recently helped Olson secure a job; that Olson never "rode"
Rekdal and had no connection with Rekdal's decision to quit; and that Rekdal,
believing that Hamilton intended to replace him, quit in order to accept an available-
job with another employer. The evidence leaves me in no doubt, and I find, that
neither Rekdal's resignation nor the "rumors" Hamilton claims he heard in that
connection had anything to do with Hamilton's decision to discharge- Olson.
There is actually no probative evidence that Olson was responsible for the breaking
of a switch. At one point, Hamilton testified that Olson "broke this great big $400'
switch," but subsequently; Hamilton denied that he had given such testimony, in
effect contradicting himself, stating, in that connection, that he "never said Olson
broke the'switch panel," and that he was "not saying" that the employee had-done
so, but that it is "likely" that Olson broke the switch, "because he was the only one
who threw stuff around there." Hamilton conceded that he had not seen Olson throw
a hook against the switch, but asserted, "I got proof that he throwed his irons up in
that switch panel." The "proof," it may be noted, was not produced. At another
point, Hamilton admitted that he "never blamed" Olson for the broken switch,
stating that he "wasn't sure he [Olson] broke it," but that Olson "was the only one
who threw stuff." Hamilton's claim that Olson was responsible for a broken switch,
and that that was one of the reasons for the employee's discharge is not only
attended by self-contradiction but has a nebulous content, as is apparent from the
shift in Hamilton's testimony from a flat assertion that Olson had broken the switch
to a vague claim that he has "proof" that Olson was responsible for the broken
switch. This was not the only occasion when such a shift occurred in Hamilton's
testimony, for, as indicated earlier, he also shifted from flat statements that Olson
had advocated the adoption of daylight saving time at the plant, and had forced
Rekdal to quit, to nebulous claims that he had heard that Olson had engaged in
the conduct in question.
Equivocation, evasiveness, and self-contradiction are present in Hamilton's testi-
mony on the subject of Olson's discharge in such substantial measure that I am,
unable to credit any of the reasons Hamilton advances to justify, the dismissal.
On the contrary, I am convinced, and find, that Hamilton never voiced any criticism
of Olson's work to the latter prior to the discharge; that, as Soule testified, Hamilton
told him a number of times during the period of Olson's employment, that Olson
.,was one of the best men in the mill"; and that Olson performed his work to
Hamilton's satisfaction.18
In its brief, the Respondent asserts that "it is unequivocally shown by the record"
that Purley Hamilton was unaware of any union activities by Olson prior to the
latter's discharge. The implication of this position is that Olson could not have been
18 Hamilton generalized at one point that "I never say one thing to one man about an-
other man," but apart from that, his testimony contains no specific denial that he told
Soule on a number of occasions that Olson "was one of the best men -in the mill " The
generalization is implausible and I do not credit it. One may note that it conflicts
with Hamilton's affidavit of September 18, 1956, for there he states that shortly before
Rekdal quit, he told Soule that he "was going to get rid of his [Soule's] men" unless
their work improved.
J. E. HAMILTON & SONS, INC . 1487
discharged because of such activities. There is no testimony that Hamilton actually
saw Olson soliciting employees to join the Union, or that anyone told Hamilton
that Olson had engaged in such activities, but the absence of such evidence does not
inevitably lead to acceptance of the Respondent's position. As in other aspects of his
evidence, equivocation runs through Hamilton's testimony on the subject of his
awareness, prior to Olson's discharge, of the Union's interest in organizing . the
employees. At one point, Hamilton stated that he did not "think" that he was aware
in August 1956 that the Union was attempting to organize the employees in the
sawmill. This was followed by a denial that he learned of such attempts "about
that time" (August 1956), although he subsequently testified, in effect that his
first intimation of efforts to organize the employees came with the service of the
charge (on August 21, 1956) relating to Olson's dismissal. Upon observation of
Hamilton when he gave the foregoing testimony, I gathered the impression that
he was disposed to evade commitment to any facts which could lead to an inference
that the Union's interest in organizing the employees was connected with Olson's
discharge, and this impression was heightened when interrogation of Hamilton
centered on the period in which Pugh's conversation with him, described earlier,
took place. Replying to a question whether the conversation occurred before Olson
was discharged, Hamilton testified: "I wouldn't know. It would have to be after."
Then, asked why he thought "it would have to be after," all Hamilton offered was:
"Well, I can't remember whether it was before or after. I think it was after." The
fact is that Pugh called on Hamilton the day before Olson began to solicit employees
to join the Union, and 2 days before Olson's discharge, and I believe that Hamilton's
profession of inability to remember whether Pugh spoke to him "before or after"
the dismissal stemmed not from any lapse of memory but from a disposition not
to commit himself to a fact that might run counter to the Respondent's interest.
In the light of the whole record, I am unable to agree that Hamilton's testimony
"unequivocally" establishes that he was unaware of any union activities by Olson
before the employee was discharged. On the contrary, a total view of the record
leads me to conclude that Olson was discharged because of his union activities.
Ample warrant for that conclusion is found in two basic features of the evidence,
considered in combination. They are (1) the timing of the discharge, particularly
in the light of the credible evidence that Olson performed his work to Hamilton's
satisfaction; and (2) the quality of the testimony Hamilton gave to justify the
dismissal. There is no doubt that Olson was discharged suddenly, and without any
prior warning to him, on the second day of his union activities at the plant. The
coincidence in time is of itself significant,19 but the timing and circumstances of the
discharge take on compelling weight in the light of the fact that the reasons advanced
by Hamilton for Olson's dismissal do not survive scrutiny 20 Indeed, the very circum-
stance that Hamilton claims that his decision to discharge Olson was precipitated by
Rekdal's quitting points unerringly to a concealed motivation for Olson's dismissal,
for if anything is clear in this proceeding it is that Rekdal's quitting had no connection
with the decision to discharge Olson. I can only conclude from the evidence that
Hamilton has concealed the motivation for Olson's dismissal because, the motivation
was unlawful.
Viewing the evidence as a whole, I find that the Respondent discharged Olson
because of the latter's union activities; and that as a result, the Respondent dis-
criminated against Olson in violation of Section 8 (a) (3) of the Act, and interfered
with, restrained, and coerced employees in the exercise of rights guaranteed them
by Section 7 of the Act, thereby violating Section 8 (a) (1) of the statute.21
n See N L. R B. v. Geraldine Novelty Co, Inc, 173 F. 2d'14, 18 (C A. 2)
20 See N. L. R B. v Dent & Russell, Ltd., 207 F. 2d 165, 167 (C A. 9), and cases cited.
21 The conclusion that the motivation for Olson's dismissal was unlawful is not negated
by the fact that Lynn, who engaged in similar union activities at about the same time, was
not discharged Lynn, it may be noted, was employed as a filer, a specialized occupa-
tion in which he received one of the highest wage rates in the plant Purley Hamilton's
testimony itself indicates that filers are not readily available in the vicinity of Stanwood,
for Hamilton testified that on one occasion in November 1956, when Lynn was not avail-
able for work, he telephoned a company in Bellingham, Washington, to inguiie "if they
had an emergency filer." The Bellingham concern supplied a filer to do some work on
some saws on the occasion in question One may not exclude the possibility that Hamil-
ton retained Lynn, while discharging Olson, because of a special need for Lynn's services,
or because he believed that Olson's discharge would sufficiently discourage union activi-
ties in the plant. Be that as it may, Hamilton has not given a straightforward explana-
tion of his motivation for Olson's discharge, and in the absence of such an explanation,
I am unable to accord overriding weight to the fact that he retained Lynn.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The alleged discrimination against Frank Soule
Frank Soule has been employed in sawmills for approximately 30 years, working
in a variety of classifications or, as he put it, "from the head end (head rig) to the
wood shed." During most of the period he worked as a sawyer. He has also been
in business for himself, operating a sawmill in the State of Washington, and another
in•a later period in Canada. While in business for himself, he "sawed, edged, sold
lumber," and employed others in his business. He entered the Respondent's employ
as head sawyer at its sawmill in July 1954, and worked in that capacity until Septem-
ber 21, 1956, when his employment by the Respondent ended under circumstances
to be described below.
Soule was one of the employees whom Olson solicited at the plant to sign an
application for membership in the Union. The head sawyer signed an application,
supplied to him by Olson, on August 16 or 17, 1956, while at lunch in the plant's
lunchroom, and returned the application to Olson. As stated earlier, Pugh interviewed
Soule at a Stanwood hotel a few days after Olson's discharge, apparently on the
evening of the day when the charge in Case No. 19-CA-1382 was filed, and secured
an affidavit from Soule.
With the shutdown of the sawmill on September 21, 1956, for the purpose of
installing a new carriage and gangsaw, the Respondent laid off most of its sawmill
employees, including Soule. On the day of the layoff, Hamilton told Soule, in
substance, that the latter would benefit from the installation of the new carriage
and that it would make his work easier. In November 1956, about the time the
new carriage was installed (and thus apparently toward the end of that month), but
before operations were resumed at the sawmill, Soule came to the plant and spoke
to Purley Hamilton. The latter showed Soule where the new gangsaw had been
installed, and it is evident that the conversation was amicable. During its course,
Soule told Hamilton to telephone him when the Respondent "was ready to start work."
Operations were resumed at the -sawmill on December 4, 1956, but Soule, unlike
other sawmill employees, was not called back to work. Purley Hamilton operated
the head rig from the resumption of operations until the latter part of December
1956, when he hired a head sawyer who had not previously been in the Respondent's
employ. In -February 1957, Soule visited the sawmill on two occasions, and called
at Hamilton's home once, to inquire about reemployment, but Hamilton was
not available.
There is some indication in the evidence that operations at the sawmill were
suspended again at some point prior to March 4, 1957. About a week before that
date, the Respondent inserted an advertisement in the Stanwood newspaper that
operations would resume on March 4. Soule saw the advertisement and called on
Purley Hamilton at the plant with a view to securing employment there. The sum
of the conversation was that Hamilton charged Soule with the theft of tools from
the plant; that Soule denied the charge; that Hamilton said that he had witnesses
that Soule had stolen "all the tools in the mill"; that Hamilton told Soule, "You
bring the tools back, and I will give you your job back"; and that Soule replied,
"Evidently I won't get a job back here because I don't have your tools." With that,
Soule left.
In his testimony, Hamilton advanced a number of reasons why Soule has not
been called back to work. According to Hamilton, the reasons are that: (1) Soule
wags "a wood butcher" (or, in other words, that he wasted timber by not putting
more than one "face" on logs he sawed); (2) he was "an awful hard man on
equipment"; (3) that he "couldn't operate" the new carriage and "was no elec-
trician whatsoever"; (4) he took an electric saw from the plant without permission;
and (5) he " is a pretty dangerous man around other men, he is a pretty fast fellow."
Amplifying the last reason, Hamilton testified that Soule had sawed two logs at
once on the carriage; that this was dangerous because the "dogs" could hold only
one log in place, and the processing of a loose log could result in injury to the
offbearer and setter; and that Soule was a "highballer," or, in other words, that
he operated the equipment so quickly that from time to time the setter did not
have an opportunity to clamp the "dogs" on a log, with the result that the log
was loose -while being processed on the carriage and thus a danger to the' offbearer
and setter. Hamilton also stated that shortly before Rekdal quit, he told Soule
that he "was going to get rid" of the head sawyer. According to Hamilton, he
considered Soule as discharged when operations were suspended at the sawmill on
September 21, 1956.
'Soule denied that he ever operated the head saw and carriage in such a fashion
as to endanger other employees, stating, in that regard, that "that was one thing
I always watched out for carefully." He stated that he processed two logs at once
on the carriage "a time or two"; that he did so to "put more lumber through the
J. E. HAMILTON & SONS, INC. 1489
mill"; that no danger was involved because the logs "were small and even and easy
to hang onto"; that because of the nature of such logs the "dogs" could hold two
in place as well as one; that Hamilton was present on one occasion when two
such logs were processed, and made no comment other than that he had never seen
that done previously. Soule also testified that Hamilton never told him that he was
"wasting lumber." He stated, in substance, that he complied with such instructions
as Hamilton gave him with respect to cutting faces on logs. Soule denied that he
was "hard on the equipment," asserting, in that connection, that "vibration on the
carriage is something terrific," and attributing equipment breakdowns to causes
beyond his control. He also denied that Hamilton ever told him that "changes"
would be made "in the head rig crew."
Olson and Rekdal both testified, in substance, that Soule did not operate the
carriage carelessly. Lynn stated that Hamilton told him a number of times in 1956
that Soule "was one of the best sawyers he ever had." Walker testified that Hamil-
ton remarked to him on several occasions that Soule "was a good sawyer," making
such a statement about a month before the September shutdown. On that occasion,
according to Walker, Hamilton related that a salesman, who had sold saws in Canada
(where Soule had been both employed as a sawyer and in business for himself), had
described Soule as "one of the fastest sawyers that ever sawed up there" (in Canada),
and Hamilton expressed the view to Walker that Soule "was fast and a good sawyer."
In substance denying that he had taken any tools from the plant without permis-
sion, Soule testified that he borrowed a skill saw from the plant in the summer of
1956, with Purley Hamilton's knowledge and consent, for use in constructing a house
for himself; that in the month of September 1956,'after the shutdown of the sawmill,
the Respondent's bookkeeper telephoned him and asked him to return the saw;
that he told the bookkeeper that he would do so on the following Monday; and
that before that day arrived, one of the Respondent's employees, Roy Carlson, came
to his home and "said he was taking a drive and thought he'd pick the saw up";
and that the saw was thereupon turned over to Carlson. There is no dispute in the
evidence that Carlson called for the saw at Soule's home in the course of a trip
or drive he was taking, both Soule and Hamilton testifying to that effect, nor is there
any question that Carlson delivered the tool to the plant.22
The justifications advanced by Purley Hamilton for not calling Soule back to
work are, in my judgment, no more credible than those Hamilton put forward to
explain Olson's discharge. The reasons for that conclusion follow:
1. Much of Hamilton's claims regarding Soule's work are little more than
generalizations unsupported by the testimony of any witness other than Hamilton.
One such generalization is that Soule was "an awful hard man on equipment."
Its plausibility may be measured not only by the evidence of Soule's experience,
but by the fact that Hamilton never spoke to Soule about the matter during the
period of more than 2 years that Soule was employed at the Respondent's sawmill.
Hamilton, whom the Respondent's own brief describes as "a nervous, high strung
individual," does not impress me as the type of person who would stand by, without
so much as a word of admonition, if an employee under his supervision did not
handle equipment properly. Particularly in the light of Soule's many years of
experience, and against the background of the many deficiencies in Hamilton's
testimony, some of which have been described earlier, I am persuaded that Ham-
ilton's claim that Soule was "an awful hard man on equipment " is no more than an
afterthought.
2. Hamilton's testimony to the effect that Soule operated the carriage carelessly
is also little more than a generalization , with the earmarks of an afterthought.
Actually, Hamilton described only one specific occasion when Soule allegedly put
the carriage in motion before the setter had an opportunity to clamp the "dogs" on
the log, and that , according to Hamilton , occurred in the spring of 1956, when
22 The bookkeeper, Baird L Cabe, testified that he telephoned Soule's home on October
10, 1956, to inquire if Soule had the saw, and spoke to Soule's wife, and not to Soule
According to Cabe, Soule's wife told him that Soule had the saw. Hamilton testified that
the telephone call was made about the beginning of November , and that he then told
Carlson to call at Soule's home for the saw in the course of a trip that Carlson was
scheduled to make. The conflicts in the testimony as to whether the bookkeeper spoke
to Soule or his wife, and concerning the month in which Carlson called for the saw, need
not be resolved , since a resolution of these subsidiary issues would not affect the results
in this proceeding . An important point to bear in mind is that when Cabe telephoned
Soule's home to inquire about the saw, there was no concealment , whether by Soule or
his wife, that the saw was in Soule's possession.
483142-59-vol. 120-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Housden worked at the carriage as the setter. The Respondent called neither
Housden nor any other employee to testify as to the manner in which Soule
operated the carriage. However, the General Counsel called Rekdal, who worked as
a setter with Soule for about 4 or 5 months, and who would obviously be concerned
if Soule operated the equipment in his charge carelessly, and Rekdal testified that
Soule did not operate the carriage in such a manner as to endanger him, and that
he "wouldn't have sat there" had Soule done so. Olson, who worked as the offbearer
with Soule for about a year and a half, also testified in similar vein. Moreover, the
testimony of Soule, Olson, and Rekdal on the subject under consideration is given
corroborative weight by the absence of any evidence that any offbearer or setter
ever complained that he was exposed to unnecessary danger or risk by the manner
in which Soule operated the carriage. Significantly, also, Hamilton admittedly
never mentioned to Soule that the latter "was operating too fast without enough
regard to the other men around the equipment." This of itself is a persuasive
indication that Hamilton had no concern, during the period of Soule's employment,
about the manner in which the head sawyer operated the carriage. Nor do I believe
that Hamilton was as concerned, as he professed to be in his testimony, with the
fact that Soule processed two logs at once. The sense of Soule's testimony is that
he did this relatively rarely, and there is no reason to doubt that such was the case,
for Hamilton testified that he saw Soule saw two logs simultaneously on only one
occasion. I credit Soule's testimony on the subject, including his version of his
conversation with Hamilton regarding the matter. In sum, the weight of the
evidence persuades me, and I find, that Soule operated the carriage with due regard
for the safety of others, and that Hamilton's claim to the contrary is no more
than an afterthought.
3. There are substantial indications in the record that Hamilton's claims that he
considered Soule as having been discharged at the time of the September shutdown
of the sawmill, and that Soule sawed logs in such a fashion that he wasted timber,
are also afterthoughts. In support of its contention that Soule's work was deficient,
the Respondent adduced evidence pertaining to what is referred to in the testimony
as its "overrun," which is defined in the record as "the excess of lumber obtained
over and above the given footage (or scale) of the log sawed." The sense of the
evidence is that overrun is computed in terms of percentages on the basis of the
quantity of lumber that can be produced from logs. According to Hamilton,
sawmills normally expect an overrun of at least 18 percent. The Respondent's
bookkeeper, Baird L. Cabe, testified that for the first 5 months of 1956, the Company's
overrun "averaged between 12 and 14 percent," and amounted to 14.4 percent for
all of 1956; that early in June of that year he told Purley Hamilton that because
of the "lack of sufficient overrun," the Respondent was "sustaining an abnormal
operating loss"; and that in August 1956, he told Hamilton that the Company was
"still losing money," stating on that occasion "that our overrun still wasn't anywhere
near normal." Cabe also testified that the Respondent's overrun for the first 5
months of 1957 was 18 8 percent; that shutdowns of the sawmill would not affect
the percentages he gave; and that the logs processed in 1956 were larger "in board
footage" by "an average of 40 to 50 feet" than those processed in 1957. According
to Cabe, the size of logs would "affect the overrun figure."
The net implication of the Respondent's evidence on the subject of its overrun is
that Soule's sawing was so inefficient that it resulted in a lower overrun in 1956
than the Respondent had a right to expect; and that the increased overrun in 1957,
following Soule's termination as head sawyer, proves that his performance was
deficient. One may note that there is some inconsistency in the Respondent's
evidence on the subject of the effect of size of logs on overrun. Contrary to Cabe's
testimony, Hamilton testified at one point that there would be no effect, but he
subsequently stated that "you wouldn't get as much overrun . out of a small one
[log] as a large one." Be that as it may, for reasons set forth below, I am uncon-
vinced that the 1956 overrun figures had any connection with the Respondent's
failure to reemploy Soule, or that he was discharged, as Hamilton's testimony in
effect would have it.
Although Hamilton testified that "the first man in the mill responsible [for
overrun] is the head sawyer," he also stated that "the first man to get responsible
[sic] for overrun in the sawmill is the filer, because he has to have them saws in
first class shape, and the second man would be the head sawyer, and the third
man would be the edger, and the fourth man would be the trimmer, and the gangsaw,
his overrun would depend on how good a man he was." In other words, putting
aside the self-contradiction in Hamilton's testimony on the subject of which employee
has primary responsibility for the extent of a sawmill's overrun, it is evident that the
work of a substantial number of employees could have had an effect upon the
Respondent's 1956 and 1957 overrun. In that connection, it is noteworthy that
J. E. HAMILTON & SONS , INC. 1491
Hamilton admittedly said nothing about Soule to Cabe on the occasions in June
and August 1956 when, according to the bookkeeper, he spoke to Hamilton about
the Respondent's overrun, and it is especially significant that Hamilton concededly
did not talk to Soule about the overrun following Cabe's report in June 1956. This
would indicate, it seems to me, that Hamilton did not impute any blame to Soule
for the overrun reported to him, for I think it implausible that Hamilton would
not take prompt steps to call any responsibility by Soule for a deficient overrun
to the latter's attention, particularly if, as Cabe claims, he reported to Hamilton
in June 1956 that the Respondent was "sustaining an abnormal operating loss .. .
due to the lack of sufficient overrun."
Nor am I able to accept Hamilton's claim that he told Soule that he "was going
to get rid" of Soule, for the claim is enmeshed in self-contradiction. Hamilton
described two occasions when he allegedly made such a statement to Soule. The
first, according to Hamilton, was when Housden was employed as the setter, prior
to Rekdal's employment in that capacity. (Housden, it may be noted, also worked
as the setter after Rekdal quit.) The sense of Hamilton's testimony is that he told
Soule on that occasion that he would discharge -Soule, Olson, and Housden if their
work did not improve. According to Hamilton, on a subsequent occasion, "just
before" Rekdal quit, he told Soule that he "was going to get rid of him" (Soule).
It may be noted, for future reference, that in connection with this last testimony,
Hamilton made a point of stating, in effect, that on the later occasion he expressed
no intention of discharging Rekdal,23 and it will be recalled that Hamilton praised
Rekdal as a "dandy".and "crackerjack" in his work. Hamilton's testimony that he
told Soule that he "was going to get rid of him," and his disclaimer that he entertained
such an idea with respect to Rekdal, are in conflict in a number of material respects
with Hamilton's affidavit of September 18, 1956. In the first place, according to
the affidavit, shortly before Rekdal quit, Hamilton told Soule that he "was going
to get rid of his (Soule's) men" (Olson and Rekdal) if their work did not improve.
This is quite different from a threat to discharge Soule "just before" Rekdal quit,
which Hamilton in effect imputes to himself in his testimony. Secondly, as pre-
viously pointed out, the affidavit portrays Rekdal as anything but a "dandy" and
"crackerjack" in his work, for there Hamilton in effect quotes himself as threatening
to discharge Rekdal unless his work improved. Thirdly, Hamilton would have it in
his testimony that Rekdal was a better setter than Housden; yet in the affidavit, after
describing his alleged statement to Soule that he "was going to get rid" of Rekdal
and Olson if their work did not improve, Hamilton states: "Our new setter is Leroy
Houston [meaning Housden] and I am not going to fire Soule since things are going
well with this group of three men" (meaning Soule, Housden, and Walker who
succeeded Olson as the offbearer). One may also contrast this statement with
Hamilton's claim to the effect that Soule was discharged, rather than temporarily
laid off, when the September shutdown occurred, only 3 days after the affidavit was
made. It will be observed that the affidavit and Hamilton's testimony take opposed
courses on the subject of Rekdal and Housden. The reason for this is apparent. In
his testimony, Hamilton praised Rekdal to implement his claim that Rekdal's quitting
precipitated the decision to discharge Olson. Having committed himself to such
a position, Hamilton could not consistently adhere to the statement in the affidavit
to the effect that he had told Soule, shortly before Rekdal quit, that he "was going
to get rid" of Rekdal if the latter's work did not improve. What Hamilton did in
his testimony, I am persuaded, was to mould the relevant part of the affidavit into a
claim that Housden, and not Rekdal, was the setter involved in the alleged statement
to Soule, and to couple that with a claim that the statement was made in an earlier
period than that set forth in the affidavit, and that what he (Hamilton) said on that
occasion was that he "was going to get rid" of Soule, Olson, and Housden. In short,
I am convinced, upon a comparison of Hamilton's affidavit with his testimony,
that he tailored one or the other, or both, to suit what he conceived to be his interest
of the moment.
Another matter worth noting is that Hamilton hedged on his testimony that he
told Soule that he "was going to get rid" of the head sawyer. After he gave that
testimony, he was asked why he made the statement in question to Soule, and he
replied, "I didn't exactly say get rid of him, I told him I was going to get electric
set works [a new carriage] and saw myself." This, too, is entangled in self-contra-
diction, for having already testified that he told Soule "just before" Rekdal quit that
he "was going to get rid" of Soule, Hamilton not only altered the terms of his alleged
statement to Soule, but testified that the statement that he would saw himself, upon
acquisition of a new carriage, was made to Soule about 3 or 4 months before the
23 Hamilton testified, "Then this last time, I wasn't wanting to get rid of this last set-
ter, this Rekdal."
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September shutdown (or, in other words, a substantial period, and not "just before,"
Rekdal quit); and that he "imagine[s]" that he also made a statement to the same
effect about 3 or 4 weeks before the September shutdown (or, in other words, some
weeks after Rekdal quit). It is also noteworthy that Soule came to the sawmill in
November, shortly before operations resumed there, and told Hamilton to call him
when "he [Hamilton] was ready to start work." I think it reasonable to conclude
that Soule made this statement because he assumed that he would operate the new
carriage, and unlikely that he would make such an assumption if Hamilton had
previously stated that he would operate the new equipment himself. In short, Hamil-
ton's testimony to the effect that he told Soule that the latter would be terminated,
and that he considered Soule as having been discharged at the time of the September
shutdown, is attended by so much self-contradiction that I am unable to place any
reliance on it. On the contrary, there is good reason to conclude that as of the time
of the shutdown, Hamilton intended to call Soule back to work, upon the resumption
of operations at the sawmill, for Hamilton told Soule on the date of the general
layoff that the latter would find the new carriage better and easier to operate.
In sum, I find that, as Soule testified, Hamilton did not at any time tell him that
"changes" would be made "in the head rig crew"; that Hamilton did not tell Soule
that he "was going to get rid of him"; that Hamilton did not tell Soule that he would
operate the new carriage himself; that Hamilton did not, at the time of the shutdown,
consider Soule as having been discharged; that Soule was laid off on September 21,
1956, because of the shutdown of the sawmill, and for no other reason; that any
report by Cabe about the overrun had no connection with the termination of Soule's
employment or the Respondent' s omission to call him back to work; that, as Lynn
and Walker in effect testified, Hamilton praised Soule's work on a number of occa-
sions; that Hamilton did so about a month before the September shutdown; and that
Soule performed his work to Hamilton's satisfaction 24
4. Hamilton's claim that Soule took a saw from the plant without permission is
not entitled to credence for a number of reasons. In the first place, it may be noted
that when the Respondent's bookkeeper telephoned Soule's home to inquire about
the saw, there was no concealment of the fact that Soule had the saw in his posses-
sion . This would tend to negate a conclusion that Soule had taken the saw by stealth,
as the sense of Hamilton's testimony would have it. Secondly, Hamilton's evidence
on the subject reflects an evasive pattern. Initially, he characterized the source of
his information that Soule had the saw as "the grapevine." This is a common expres-
sion and I should attach no significance to it, except that Hamilton impressed me as
predisposed to the use of vague words and phrases to express tenuous and unsup-
ported claims. One may recall, in that connection, his allusions to "rumors" that
Olson and Soule "rode" Rekdal and forced the latter to quit, and the unproduced
"proof" that Olson broke a switch. Be that as it may, it took repeated questions to
secure information from Hamilton as to the nature of "the grapevine." Asked to
state how he had determined the whereabouts of the saw "through the grapevine,"
Hamilton shed no light upon the matter, stating merely, "Someone told me." Then,
in reply to a question as to who that was, he stated, "Well, a man told me," thus
revealing nothing more of substance than he had previously. Finally, after the ques-
tion was repeated, he testified, "The first man that told me was, let's see, who was
that, Leo Fontaine was one." According to Hamilton, he received this information
"about the first of November." At a subsequent point, he testified that after the saw
was returned, "Oley Thomson [an employee] said he saw Soule carrying one of them
saws underneath his coat out to his car."
The tenor of Hamilton's testimony as to the nature of "the grapevine" heightened
my impression that he used the phrase to invest Soule's possession of the saw with a
climate of stealth and not because anyone told Hamilton that Soule had taken a saw
from the plant. One may bear in mind in that connection that the Respondent called
neither Fontaine nor Thomson as a witness , nor did it explain its failure to do so.
Thirdly, the nature of the conversation Soule had with Hamilton on the occasion
of the former's visit to the plant in November 1956 tends to negate Hamilton 's claim
to the effect that Soule misconducted himself by taking the saw. I have no doubt
that Soule's visit took place a substantial number of weeks after Cabe telephoned
Soule 's home regarding the saw, and after the saw was returned, and I think it note-
worthy that the conversation on the occasion of Soule's visit appears to have been
amicable . Certainly, it is clear that Hamilton said nothing about the subject of
24 Hamilton 's testimony contains no direct denial that be expressed praise for Soule's
work to Lynn and Walker , unless one regards as such a denial Hamilton's generalization
that "I never say one thing to one man about another man ." For reasons previously in-
dicated , I regard that claim as implausible , and do not credit it.
J. E. HAMILTON & SONS, INC. 1493
Soule's taking any tool without permission; and that Hamilton offered no dissent
from Soule's suggestion that the former telephone him when the sawmill was ready
to resume operations. It seems to me that if Hamilton harbored any grievance re-
garding the saw, as one would be led to believe by his testimony, the conversation
would have taken a substantially different course. Be that as it may, Hamilton gave
so large a volume of evasive, implausible, and self-contradictory testimony in this
proceeding that one would be unwarranted in basing any findings on his unsupported
allusions to "the grapevine," and on what he claims Fontaine and Thomson told him.
In sum, I credit Soule's denial that he took any tools from the plant without permis-
sion, and find that he borrowed the skill saw with Hamilton's knowledge and consent.
What is more, I am convinced that the accusation of theft Hamilton levelled
against Soule on the occasion, in March 1957, when Soule came to the plant seeking
work, was no more than a pretext to fend off Soule's request for reemployment.
If Hamilton actually -believed that Soule had stolen tools from the plant, I think it
unlikely that he would tell Soule, as he did, that he would reemploy Soule if the
latter brought "the tools back." Soule, it may be noted in passing, appears to have
recognized the accusation as a pretext, for he replied to the offer with the statement,
"Evidently, I won't get a job back here because I don't have your tools," and then
left the plant.
5. One may assume, as Hamilton in effect testified, that the new carriage had sub-
stantially more electrical features than the old, but his claim that Soule was not re-
employed because, according to Hamilton, he was incapable of operating the new
carriage and was "no electrician whatsoever" does not weather an examination of the
whole record. Hamilton as much as admitted that he actually has no knowledge
that Soule was incapable of operating the new carriage, for when asked how he knew
that Soule could not do so, Hamilton testified, "Well, I couldn't find out whether he
could operate the carriage, he never had a chance to operate it." Moreover, although
generalizing that Soule "couldn't fix nothing around there," and "didn't know what
was going on there," Hamilton admitted that he "wouldn't know" whether Soule had
any ability as an electrician, and, at a subsequent point, conceded that he had never
discussed Soule's knowledge of electrical work with the head sawyer or with anybody
else. Basically, the same pattern of self-serving generalization runs through Hamil-
ton's testimony on the subject of Soule's capacity to handle the new carriage as
through much of the other reasons Hamilton puts forward for not reemploying Soule.
The numerous shortcomings in Hamilton's testimony, including his disposition to
put together a medley of afterthoughts to justify his antecedent conduct, provide
strong reasons for rejecting his claim that Soule was not reemployed because of his
alleged incapacity to operate the new carriage, and one is particularly guided to such
a conclusion by the many years of experience that Soule has indisputably had as a
sawyer in a variety of sawmill enterprises, including his own, and by the credible
evidence that Hamilton held Soule's work in high regard during the period that the
latter was in the Respondent's employ. Another noteworthy matter is that on the
two occasions, once in November 1956, and the other time in March 1957, when
Soule inquired of Hamilton concerning reemployment in the sawmill, Hamilton said
nothing about the subject of Soule's competency to operate the new carriage or his
capacity to perform such electrical maintenance work as the equipment might require.
I am persuaded, in short, that the claim that Soule was not reemployed because he
"couldn't operate" the new carriage and "was no electrician whatsoever" is, like the
other reasons advanced for not reemploying Soule, an afterthought.
An assessment of the Respondent's motivation for not reemploying Soule must
take into account the fact that the reasons advanced by Hamilton do not stand up
under scrutiny. They are all afterthoughts, and this bespeaks not only a concealed
motivation but an unlawful one. Hamilton's conduct on December 4, 1956, when
Olson reported for work at the sawmill, furnishes a guide to the real motivation for
the Respondent's omission to call Soule back to work upon the resumption of opera-
tions at the sawmill on that date. It will be recalled that Hamilton was in an angry
mood when he spoke to Olson on that occasion; that he produced a slip of paper and
read off a list of names, including Soule's, stating that he "knew who had made out
the affidavits" against him, thus in effect saying that Soule and others had given
affidavits relating to Olson's discharge; and that he demanded that Olson tell him
who else had given such affidavits.25 Hamilton's conduct on that occasion, including
25 I believe it probable that the information that Soule had given such an affidavit came
to Hamilton's attention at some point between the date of Soule's visit to the plant in
November and December 4. In that connection, one may note again that the conversation
between Soule and Hamilton on the occasion of the former's visit in November appears to
have been amicable, and that Hamilton offered no dissent when Soule told Hamilton
to telephone him when the sawmill was ready for the resumption of operations.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the threats he voiced, and the onerous conditions he established for Olson's reemploy-
ment, amply warrant a conclusion that he was preoccupied with the subject of the
identity of those who had given affidavits bearing on Olson's discharge, and that he
was in a mood to take reprisals against individuals who had done so.
The fact that the evidence does not establish, as will appear, that the Respondent
discriminated against Walker, who was also on the list of names read to Olson by
Hamilton, and that there is no evidence (or claim, for that matter) that the Respond-
ent has discriminated against Fontaine, Housden, and Thomson (whose names were
also read to Olson), does not decisively negate an inference that the Respondent has
discriminated against Soule because Hamilton came into possession of information
that Soule had given an affidavit bearing on Olson's discharge. In another connec-
tion, Hamilton asserted that "in my town it is impossible to hire men," and it is not
inconceivable that he would discriminate against one employee and not against an-
other, depending upon his assumptions regarding his ability to find a replacement.
Hamilton, it is well to bear in mind, was able to operate the head rig himself, and, in
fact, did so for several weeks following the resumption of operations at the sawmill.
A total view of the record leads me to the conclusion, and I find, that the Respond-
ent omitted to call Soule back to work upon resumption of the operation of the saw-
mill on December 4, 1956, and has since denied him employment there, because
Hamilton believed that Soule had given an affidavit bearing on Olson's discharge, and
the charge filed in connection therewith. It matters not whether the belief was that
Soule had given the affidavit to a representative of the General Counsel, or whether
Hamilton believed that the affidavit had been given to Pugh (or to anyone else, for
that matter), for a denial of employment based on either belief would be unlawful,
since the natural tendency of such conduct would be to discourage membership in the
Union. In sum, I find that by failing to call Soule back to work upon the resumption
of operations at the sawmill on December 4, 1956, and by denying him employment
since, the Respondent has discriminated against Soule in violation of Section 8 (a)
(3) of the Act, and has interfered with, restrained, and coerced employees in the
exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section
8 (a) (1) of the statute.26
The General Counsel maintains that by denying Soule reemployment, the Respond-
ent also violated Section 8 (a) (4) of the Act which forbids an employer "to discharge
or otherwise discriminate against an employe because he has filed charges or given
testimony under this Act." No brief has been filed by the General Counsel, nor
has any oral argument been submitted by him, demonstrating in what respect the
discrimination against Soule is within the reach of Section 8 (a) (4), but, judging
by the allegations of the complaint, the General Counsel appears to equate an affidavit
such as Soule gave Pugh with "testimony under this Act." I find no merit in the
position, and shall recommend below that so much of the complaint be dismissed as
alleges that the Respondent discriminated against Soule in violation of Section
8 (a) (4).27
D. The alleged discrimination against Richard Walker
Walker entered the Respondent's employ in March 1952, working successively
in a number of jobs, including those of truckdriver, carpenter's helper, millwright's
assistant, millwright, and offbearer.28 The sawmill was built after Walker entered
26 The complaint contains a separate allegation to the effect that the Respondent unlaw-
fully discriminated against Soule by not employing him during the period of the shut-
down "to assist" in the installation of the new carriage and gangsaw. Disposition of
this contention will be made at a later point in conjunction with the resolution of a
similar claim affecting Lynn and Walker.
27 It may be noted that there is no evidence that Soule gave the General Counsel an
affidavit in the course of the latter's investigation of the charge relating to Olson's dis-
missal I have no doubt that Hamilton acquired information from some source, which
he did not reveal in his testimony, that Soule had given an affidavit bearing on Olson's
discharge and the charge filed in connection therewith, but whether the information was
to the effect that the affidavit had been given to the General Counsel, or that it was the
one given to Pugh, cannot be determined from the evidence. In the posture of the record,
I see no reason to deal with the question whether discrimination against an employee
because he has given the General Counsel an affidavit or other statement dealing with
the allegations of a charge or of a complaint is within the reach of Section 8 (a) (4)
21 The record reflects some question whether the Respondent maintains the classification
of millwright The question is an unimportant tangent, since there is no doubt that
Walker performed a millwright's duties such as the maintenance and repair of machinery
and other equipment
J. E. HAMILTON & SONS, INC . 1495
the Respondent 's employ, and , together with another employee, Walker assisted
Purley Hamilton in the construction of the mill, the three doing most of the work
involved . Walker became the sawmill 's millwright in May or June 1955 , receiving
an increase at the time , and worked in that capacity until Olson 's discharge . During
that period, Walker 's work was not confined to millwright tasks. Occasionally, he
substituted , apparently for brief periods, for the setter and offbearer . Shortly after
Olson 's dismissal , Hamilton assigned Walker to the job of offbearer , and, except for
a brief interruption , Walker worked in that capacity until the shutdown on September
21, 1956 , when he, like most of the sawmill employees , was laid off . At the time
he was laid off, Hamilton told him and Housden that the "mill would be down for
a couple of weeks," and that he would let them know "when it would start again."
Walker's rate of pay at the time of the shutdown was $1 . 97 an hour.
While employed as the sawmill millwright , Walker worked overtime from time
to time, usually in the evenings and on Saturdays . The Respondent 's records indicate
that in most pay periods in 1956, while Walker served as the millwright, he worked
more overtime than any other sawmill employee. Between the time he became the
offbearer and the date of the shutdown , about a month later , according to the
Respondent 's records , he worked some overtime in each pay period , except the last,
but it was substantially less than his overtime in most pay periods in 1956, while
employed as the millwright.
Walker signed an application for membership in the Union , in the plant lunch-
room, upon Olson's solicitation , on the first day in which Olson solicited such mem-
berships . As stated earlier, Walker was interviewed by Pugh a few days after
Olson 's dismissal , and signed an affidavit , upon Pugh's initiative , bearing on Olson's
discharge and the charge filed in connection therewith . About a week after Olson's
discharge , Walker also gave an affidavit to an investigator on the staff of the General
Counsel in the course of the investigation of the charge relating to Olson's dismissal.
Upon resumption of the sawmill 's operations on December 4, 1956, the Respondent
did not offer Walker reemployment An individual named Lund, who had been
employed in the sawmill prior to the shutdown ( in a capacity which the evidence
does not establish ) was called back to work on December 26, 1956, and assumed
the offbearer 's duties. (The record does not establish which employee, if any, served
as the offbearer between December 4 and December 26.) Lund was still employed
as the off bearer at the time of the hearing in this proceeding.
Early in March 1957 , Walker saw the Respondent 's newspaper advertisement, to
which previous reference has been made , and he telephoned Hamilton , inquiring
whether the advertisement "meant that I was to come back to work." Hamilton
replied in the affirmative , and told Walker to come to the sawmill . Walker reported
for work on March 4, 1957, and when he did so, Hamilton told him that the sawmill
was not "going to have a millwright any more," that he would spend his first day
at offbearing work, and that his rate of pay would be $1.74 an hour. Walker worked
only 1 day in the job of offbearer , serving as a substitute for the regular offbearer,
and thereafter his principal work was "on the upper green chain , stripping lumber
and helping ." After his reemployment he worked overtime on only one occasion.
Walker quit toward the end of April 1957 to accept a job in Alaska, anticipating
that he would work there until the following September . Before Walker left, he told
Hamilton that he expected to be away until September , and Hamilton said that he
would be reemployed , upon his return , if a job were available.
According to the complaint , the General Counsel contends that the Respondent
withheld overtime work from Walker, and reemployed him in March 1957 at a
lower rate of pay than he had previously received , because of Walker's "membership
in or activities on behalf of the Union ," or because he had "given affidavits in support
of the charge filed" in connection with Olson's dismissal.
On the overtime issue, two basic facts stand out , and these are (1 ) that the amount
of overtime Walker worked declined sharply immediately after the pay period ending
July 21, 1956 ( while Walker was still serving as the sawmill 's millwright ), and (2)
that the decline took place a number of weeks before any union activities took place
in the plant , and thus prior to the time Walker signed an application for membership
in the Union 29 These factors of themselves go far to negate the General Counsel's
claim regarding Walker's overtime . Moreover , testimony by Hamilton plausibly
indicates the reason why Walker 's overtime declined materially after some point in
July 1956. According to Hamilton 's undisputed testimony , the Respondent made
changes in the sawmill , completing them in July , which resulted in the elimination
of equipment known as a "wood saw." This, as well as other equipment alterations,
ss Walker worked 39 i,- hours of overtime in the 2 -week pay period ending July 21, 1956;
14 hours in the period ending August 4; and 15, 41/2, and 91 hours , respectively, in the
remaining pay periods in which he worked overtime before the September shutdown.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamilton testified in effect, reduced the maintenance and repair tasks in the sawmill.
According to Hamilton, also, he assigned Walker to the job of offbearer, after Olson's
discharge, because Walker had been taking care of whatever repairs were required
for the carriage, "so he might as well be right there [as offbearer] and help repair
it." Another noteworthy matter is that, as Walker testified, there would be no
occasion for an offbearer to work overtime, and it is thus of no significance that the
decline in Walker's overtime, which began while he was primarily engaged in mill-
wright's work, continued after he replaced Olson as offbearer.30 In short, the evi-
dence will not support a finding that overtime work was withheld from Walker because
of discriminatory motives.31
As to the other contention regarding Walker, mentioned above, it is important to
note that the complaint does not allege an unlawful failure to reemploy Walker
upon resumption of operations at the sawmill in December 1956. In the absence
of such a claim, there is no reason to deal with the question whether the assignment
of the job of offbearer to Lund, rather than to Walker, after operations resumed
in December 1956, was discriminatory, or whether the omission to reemploy Walker
at any time prior to March 4, 1957, was rooted in unlawful motives 32 The relevant
issue presented is whether, as the complaint puts it, "the Respondent recalled Richard
Walker (on March 4, 1957), but instead of assigning him to his former job, dis-
criminatorily assigned him to the job of offbearer at a lower rate of pay than his
former job had paid."
The reference to Walker's "former job" is not clear. If it means the job of mill-
wright, it is well to bear in mind that Walker did not hold that position at the time
of the September shutdown, and had not held it for about a month prior thereto;
and that there is no allegation or claim that Walker's transfer from the millwright's
position to the job of offbearer was based upon unlawful motives. In other words,
the evidence will not support a finding that the Respondent discriminated against
Walker by not reemploying him as a millwright when he was "recalled" on March
4, 1957.33
If by "former job" is meant that of offbearer, one is confronted with the fact that,
judging by the allegations of the complaint, there is no claim that that position was
unlawfully withheld from Walker between the time Olson left the plant on December
4, 1956, and March 4, 1957, when Walker was reemployed, nor any contention
that the assignment of Lund, rather than Walker, to the offbearer's position consti-
tuted unlawful discrimination against Walker. It may be that the offbearer's job
was unlawfully withheld from Walker in December 1956, when the Respondent
assigned Lund to that position, but in the posture of the complaint, it would be
inappropriate to make any finding that such discrimination occurred, irrespective of
the evidence of Hamilton's attitude toward employees who had given affidavits
bearing on Olson's discharge. In other words, the boundaries of the complaint
80 Walker did work overtime after he replaced Olson, but it seems likely that this in-
volved repairs on the carriage or other equipment.
si The General Counsel's position is not aided by the fact that the Respondent's payroll
records show that two employees, Matson and Roberts, continued to work substantial
amounts of overtime after Walker's volume of overtime began to decline markedly.
Matson and Roberts, it may be noted, worked many overtime hours in the period before
the marked decline in Walker's overtime began, and there is no substantial basis in the
record for a finding that the Respondent discriminatorily withheld overtime tasks from
Walker and assigned them, instead, to Matson and Roberts
32 As 'indicated in a prior footnote, the complaint alleges that the Respondent unlawfully
discriminated against Walker by not employing him during the shutdown period to assist
in the installation of the new carriage and gangsaw. Disposition will be made of this
claim, as well as a similar contention affecting Lynn and Soule, in a subsequent section
dealing with the allegations of discrimination against Lynn
as That conclusion is not altered by Walker's testimony to the effect that two employees,
Matson (Madsen in the Respondent's payroll records) and Roberts, performed whatever
repair and maintenance tasks that were required after Walker returned to work in the
sawmill. There is no evidence as to the volume of such work, nor that either Matson or
Roberts received a higher rate of pay than Walker. Walker testified that after his re-
employment, there was no one at the sawmill who "was called a millwright," and for all
that appears, the millwright tasks performed by Matson and Roberts were not of signifi-
cant proportions. Moreover, there are indications in the evidence that the volume of repair
and maintenance work in the sawmill diminished in 1956 as equipment changes were made
during the course of the year
J. E. HAMILTON & SONS , INC. 1497
preclude a finding that the assignment of the offbearer 's job to Lund was improper
as an act of discrimination against Walker, and that being the case, it would be
an absurdity, it seems, to me, to reach what would be in effect a holding that Walker
was entitled to the offbearer's job some months after it had been filled. Another
matter to note is that, in a substantial sense, contrary to the allegations of the
complaint, Walker was not reemployed in the job of offbearer "at a lower rate of
pay than his former job had paid." Actually, as Walker in effect testified, he was
assigned to the offbearer's work for only 1 day, as a temporary substitute for Lund,
and his real job was on the green chain. .There is no evidence that $1.74 an hour is
not the Respondent's regular rate for the work Walker performed on the green chain.
That being the case, and as the relevant allegations of the complaint preclude a
finding that the offbearer's job was improperly filled by the assignment of that work
in December 1956 to Lund, instead of Walker, and since the offbearer's position was
filled at the time of Walker's reemployment, the record will not support a finding
that the Respondent unlawfully discriminated against Walker, upon his reemploy-
ment, either as a result of his assignment to work on the green chain, or by the
payment to him of a lower hourly rate than the one he had previously received.
For the reasons stated above, I shall recommend that so much of the complaint
be dismissed as alleges that the Respondent violated Section 8 ( a) (1), 8 (a) (3)
and (4) of the Act by denying overtime work to Walker, and by the type of
work given him, and by the rate paid him, upon, and during the period of, his
reemployment.
E. The alleged discrimination against Harry Lynn
Lynn entered the Respondent's employ in September 1955 as a filer. His func-
tion was, as he put it, to " [k]eep up all the saws in the mill," or , in other words,
to maintain and repair the saws used in the Respondent 's operations . Lynn's work
was not confined to the sawmill , since he also looked after the saws in the resaw
plant.
Lynn was among the employees laid off on September 21, 1956, when operations
were suspended at the sawmill , but Purley Hamilton made arrangements with him
to work 1 day a week on the saws in the resaw plant. No particular day was
specified, but Lynn came to the plant each Saturday after the shutdown, over a
period of some 6 or 7 weeks and filed saws in the resaw plant, doing so for the
last time on Saturday, November 10. On the following Monday or Tuesday,
Hamilton learned that no bandsaws were available for use in the resaw plant, and
he drove to Lynn's home, but found no one there. Upon his return to the plant,
he endeavored , but was unable, to do the necessary filing himself. He then
telephoned "a saw works" in Bellingham to secure its services in filing a handsaw.
The upshot of the call was that the Bellingham firm sent a filer to the Respondent's
plant on November 13, and he put a bandsaw in shape for use in the resaw plant.
On Friday, November 16, Hamilton hired a filer named Woods. The sense of
Hamilton 's testimony in that connection is that Woods did not work full time-as a
filer prior to the resumption of operations at the sawmill in December, but that he
also did other work, receiving two different rates of pay, depending on which work
he did.
On Thursday, November 15, Lynn secured a job as a filer with a Seattle firm.
His new position did not require him to work on Saturday, and, as had been his
custom since the shutdown of the Respondent's sawmill, he came to the Respondent's
premises on Saturday, November 17, for the purpose of working on saws for the
iesaw plant. Purley Hamilton spoke to him before he started work. In substance,
Hamilton said that he had been to Lynn's home earlier in the week because the
Respondent "was out of saws," that he had found no one at home, and that he had
hired another filer. Lynn replied that he "guess[ed] that was it," or, in other words
that he understood that he had been terminated, and he then secured his tools
from the filing room at the plant, and left the premises.34
As stated earlier, in August 1956, Hamilton in effect forbade Lynn to distribute
union literature in the plant, coupling the prohibition with an intimation that Lynn
would be subjected to reprisal or discipline if he did not desist, and there is thus
no doubt that Hamilton was aware, at least as of the time of the prohibition, that
Lynn was actively engaged in efforts, to organize employees at the Respondent's
-14 Lynn and Hamilton differ somewhat in their respective versions of the conversation,
but not substantially. Findings concerning the conversation are based upon a composite
of both versions.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant. The fact that Hamilton did not discharge Lynn sooner than he did is not
of itself decisive of the issue of discrunination against Lynn, for Hamilton himself
testified that "it is impossible to hire men" in Stanwood, and it is not inconceivable
that Hamilton deferred a discriminatory discharge of Lynn until he had a replace-
ment available. However, the fact that Lynn was not discharged upon, or soon after,
Hamilton's discovery of his active interest in unionization of the employees, but
was, on the contrary, retained for part-time work for a substantial period after
the September shutdown, should be taken into account in evaluating Hamilton's
motivation for Lynn's termination. Put in other words, unlike the timing of Olson's
dismissal, that of Lynn's termination not ' only does not support a finding of dis-
crimination, but runs counter to such a conclusion. Another factor distinguishing
Lynn's case from that of Olson is that Hamilton's testimony explaining Lynn's
termination, unlike the reasons put forward to justify Olson's discharge, is not of
such a character as to impel a conclusion that the Respondent is concealing an
unlawful motivation. Whether Lynn was remiss in maintaining the saws for the
resaw plant, as Hamilton's testimony implies, or whether such was not the case,
there is no reason to doubt that the Respondent, as Hamilton testified, had need for
some filing work during the week following Lynn's last day of such work. Hamilton's
testimony in that regard is supported by a representative of the Bellingham firm,
who came to the Respondent's plant and made arrangements for the filing required.
One may reasonably conclude from the evidence that Hamilton, having need for
handsaws on the occasion in question, and having been unable to locate Lynn at a
time when he was needed, decided to hire another filer when one became' available.
The fact that Hamilton did not make any effort, in addition to the one he made, to
locate Lynn before hiring a replacement is not necessarily symptomatic of an un-
lawful motivation. One can with at least equal justification say that Hamilton's
conduct in that connection was a matter of business judgment. In sum, the evidence
will not support a finding that the Respondent had an unlawful motivation for termi-
nating Lynn's services and hiring a replacement for him.
One aspect of the complaint remains for disposition, and that is the General
Counsel's contention that the Respondent discriminated against Lynn, Soule, and
Walker by not employing them "to assist" in the installation of the new carriage
and gangsaw.
The new carriage was built in Seattle and not by the Respondent itself. It was
installed in the plant toward the end of November 1956. Actually, as Hamilton
testified in effect, little work had to be done in the plant on the old and new carriages
in connection with the task of installation. The primary work involved on the
Respondent's premises was the removal of a "side of the mill" (presumably a wooden
wall) to provide space for the removal of the old carriage from the sawmill, and
the installation of the new one. The "side of the mill" was removed by a carpenter
named F. L. Hodges who was engaged for that purpose. He had previously done
some work for the Respondent (in the summer of 1956) and had been "released"
upon its completion. After removal of the "side of the mill," the old carriage was
"rolled" out, and, subsequently, the new carriage was brought from Seattle and
"wheeled" into place. As Hamilton testified, without dispute, "all you had to do
was set it [the new carriage] to the track and connect it up."
The installation of the new gangsaw entailed the antecedent removal of much
debris and the pouring of some concrete, and required that the old saw be torn
down "in pieces," and that the roof of the sawmill be "raised . up a little" above
the area of the saw. The work on the roof, Hamilton testified without contradic-
tion, "just" involved the cutting of "some rafters ." In addition , some chains were
installed to permit transfer of various timber products from "outside . .. the mill"
directly to the gangsaw, thus eliminating any necessity for the processing or handling
of such products at the head rig. Four employees, Matson, Thomson, Roberts, and
Fontaine, participated in various aspects of the work involved. Matson and Roberts
worked throughout the shutdown period. Fontaine and Roberts had been laid off
when operation of the sawmill was suspended, but were called back to work on
October 1, 1956. Thomson performed the cleaning work and "put in the concrete,"
and was apparently assisted by Matson and Roberts in the latter task (as Hamilton
intimated in his testimony). Fontaine did whatever work was required on the
roof, and appears to have had primary responsibility for the task of removing the
old gangsaw, and of installing the new one and the chains . He was assisted by
Roberts in various phases of the work.
The evidence does not support the claim under consideration. Although I have
no doubt that by December 4, 1956, Hamilton had information that Soule and
J. E. HAMILTON & SONS, INC. 1499
Walker had given affidavits relating to the charge filed in connection with Olson's
dismissal, it is not established that Hamilton had such information at the time the
work related to the installation of the new carriage and gangsaw was performed,
nor that he was aware at that time of any other union activity by either Soule
or Walker. In fact, the circumstance that Hamilton and Soule had an amicable
conversation toward the end of November, about the time the new carriage was
installed, and that on-that occasion Hamilton offered no dissent to Soule's suggestion
that Hamilton telephone him when the sawmill was ready for the resumption of
operations, would tend to suggest that Hamilton had not as yet learned that Soule
had given the affidavit. To be sure, Hamilton knew prior to the September shutdown
that Lynn had engaged in union activity in the plant, but the fact that Lynn was
retained to do some filing on a part-time basis during most of the shutdown period
runs counter to a conclusion that the Respondent discriminatorily denied him an
opportunity "to assist" in the installation of the new carriage and gangsaw.
It is not clear whether the General Counsel contends that there is anything
significant in the retention of Matson and Thomson throughout the shutdown period,
but whether he does or not, I am unable to see any sinister motive behind the fact
that these employees were retained rather than Lynn, Soule, and Walker. It is
undisputed that Matson's principal job is to haul rough lumber between various of
the Respondent's facilities, that he did such work during the shutdown period, and
that prior thereto, as a secondary duty, he performed miscellaneous repair jobs.
Against that background, I can see nothing unnatural in his retention. This is
also true of Thomson who, it is undisputed, has worked for the Respondent longer
than any other employee and, in Hamilton's word, is "the main cleanup guy" in
the vicinity of the green chain where he is regularly employed. Nor am I able to
perceive any overriding significance in the fact that Hamilton employed Hodges,
rather than Lynn, Soule, or Walker, to perform the carpentry work involved in the
replacement of the old carriage. Hodges had only a few months earlier similarly
done some work for the Respondent on a temporary basis. This, it seems to me,
adds weight to a conclusion that his temporary employment during the shutdown
period was the product of a business judgment rather than of a discriminatory
purpose. Similarly, the fact that Fontaine and Roberts, rather than Lynn, Soule, and
Walker, were called back to work in connection with the gangsaw replacement does
not point to a discriminatory motive. Fontaine, it may be noted, is regularly em-
ployed as the sawmill's gang sawyer, and one may reasonably assume that he has
special knowledge of the equipment he is required to operate. Nor can I see any
significance in the fact that he, rather than any other individual, "cut some rafters"
in the roof in connection with the installation of the new gangsaw. As for Roberts,
it is not established that there was anything unnatural in the fact that he, rather
than Lynn, Soule, or Walker, was assigned to assist Fontaine. In short, the record
will not support a finding that the Respondent had an unlawful motivation for not
employing Lynn, Soule, and Walker in connection with the installation of the new
carriage and gangsaw.
For the reasons stated above, I shall recommend the dismissal of so much of the
complaint as alleges that the Respondent violated Section 8 (a) (1), (3 ), and (4)
of the Act by discharging Lynn, and by not employing Lynn, Soule, and Walker
during the shutdown period "to assist" in the installation of the new carriage and
gangsaw.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor, disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8 (a) (1) and ( 3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act . As the evidence does not establish that the Respondent engaged in other
unfair labor practices alleged in the complaint , I shall recommend that the relevant
allegations of the complaint be dismissed.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The discharge of Robert Olson and the denial of reemployment to Frank Soule,
as found above, strike at the heart of rights guaranteed employees by Section 7 of
the Act.35 The rights involved are closely related to others guaranteed by Section
7. In view of the nature of the unfair labor practices found above, there is reasonable
ground to anticipate that the Respondent will infringe upon such other rights in
the future unless appropriately restrained. Therefore, in order to make effective
the interdependent guarantees of Section 7, I shall recommend an order below which
will in effect require the Respondent to refrain in the future from abridging any of
the rights guaranteed employees by said Section 7.36
Having found that the Respondent discharged Robert Olson on August 17, 1956,
and has since failed and refused to reinstate him, in violation of Section 8 (a) (1)
and (3) of the Act, and that, in violation of these sections it failed and refused to
reemploy Frank Soule on December 4, 1956, and has since denied the said Frank
Soule such reemployment, I shall recommend that the Respondent offer each of
these employees immediate and full reinstatement to his former, or a substantially
equivalent, position,37 without prejudice to his seniority and other rights and
privileges, and that the Respondent make each of them whole for any loss of pay
he may have suffered by reason of the discrimination against him, by payment to
him of a sum of money equal to the amount of wages he would have earned, but
for such discrimination, between the date when such discrimination began and the
date of a proper offer of reinstatement to him as aforesaid. I shall also recommend
that loss of pay for each of the two employees named above be computed on the
basis of each separate quarter, or portion thereof, during the period from the date
the discrimination against such employee began to the date of the said proper offer
of reinstatement; that the periods begin with the respective first days of January,
April, July, and October; that loss of pay be determined by deducting from a sum
equal to that which each of the said employees normally would have earned in each
such quarter, or portion thereof, his net earnings ,38 if any, in other employment
during that period; that the earnings in one quarter have no effect upon the back
pay due any employee for any other quarter; and that the Respondent preserve and
make available to the National Labor Relations Board, or its agents, upon request,
for examination and copying, certain records described in the "Recommendations."
Upon the basis of the foregoing findings of fact, and the entire record of this
proceeding, I make the following conclusions of law:
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material to this proceeding, an
employer within the meaning of Section 2 (2) of the Act.
2. The Union is, and has been at all times material to this proceeding, a labor
organization within the meaning of Section 2 (5) of the Act.
3. By discriminatorily discharging Robert Olson, and thereafter failing and re-
fusing to reinstate him, and by failing and refusing to reemploy Frank Soule, as
found above, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the Respondent
has engaged, and is engaging, in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor 'practices are unfair labor practices affecting com-
merce within the meaning of Sections 2 (6) and (7) of the Act.
6. The evidence does not establish that the Respondent discriminated in any
manner against Richard Walker and Harry Lynn, in violation of Section 8 (a) (1),
m See N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C. A. 4).
ea See May Department Stores v N. L. R. B., 326 U. S. 376; Bethlehem Steel Company v.
N L R. B., 120 F. 2d 641 (C.A,D C.).
17 In accordance with the Board's past interpretation, the expression "former, or a sub-
stantially equivalent, position" is intended to mean "former position wherever possible,
but if such position is no longer in existence, then to a substantially equivalent position."
See The Chase National Bank of the Ozty of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
&' See Crossett Lumber Company, 8 NLRB 440, for an applicable construction of the
term "net earnings."
J. E. HAMILTON & SONS, INC. -1501-
(3) and (4) of the Act; that its discrimination against Frank Soule violated Section
8 (a) (4); that it discriminated against Frank Soule, in violation of Section 8 (a) (1),
(3) and (4), by not employing Frank Soule to assist in the installation of the new
carriage and gangsaw; and that it violated Section 8 (a) (1) by promulgating and
enforcing a rule forbidding union organizers to enter its plant, and as a result of
any conduct or statements by its employee, Roy Carlson, as alleged in the complaint.
[Recommendations omitted from publication.]
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, we hereby notify our employees that:
WE WILL NOT discourage membership of our employees in International
Woodworkers of America, AFL-CIO, or in any other labor organization, by
discriminatorily discharging or failing or refusing to employ or reemploy any
employee, or in any other manner discriminating against him in regard to
his hire, tenure of employment, or any other term or condition of employment,
except as authorized by Section 8 (a) (3) of the National Labor Relations Act.
WE WILL NOT engage in surveillance of any union activities of our employees,
including any gathering or meeting of our employees involving or relating to
such activities.
WE WILL NOT prohibit our employees from distributing or receiving litera-
ture or any other document or paper involving or pertaining to unionization
or any labor organization, or from engaging in any other union activities, on
our premises, or elsewhere, during any period when such employees are not
required to be at work.
WE WILL NOT threaten such employees with discharge, reprisal, or discipline
because of such distribution or receipt of such literature, document or paper,
or because they have engaged in or are engaging in such other union activities.
WE WILL NOT demand, request, or otherwise seek, information from any
employee regarding the identity or name of any employee who has given any
information or statement, whether written or oral, pertaining to a charge filed
with the National Labor Relations Board, nor will we in any way threaten
any employee with reprisal or other consequences if he fails or refuses to
furnish such information.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of the right to self-organization, to form, join, or assist
any labor organization, to join or assist International Woodworkers of America,
AFL-CIO, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, and to refrain from any or all of such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the National Labor Relations Act.
WE WILL offer to Robert Olson and Frank Soule immediate and full rein-
statement to their respective former, or substantially equivalent, positions,
without prejudice to their seniority and other rights and privileges, and make
each of them whole for any loss of pay he may have suffered as a result of
the discrimination against him.
All of our employees are free to become, remain, or refrain from becoming or
remaining, members of any labor organization, except to the extent that this right
may be affected by an agreement in conformity with Section 8 (a) (3) of the
National Labor Relations Act.
I. E. HAMILTON & SONS, INC.,
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.