Leadbetter Logging & Lumber Co.

National Labor Relations Board - Board Decisions

Apr 19, 1950

89 N.L.R.B. 576 (N.L.R.B. 1950)

In the Matter of LEADBETTER LOGGING & LUMBER Co. and INTER-
NATIONAL WOODWORKERS OF AMERICA, LOCAL UNION 11-81, CIO
Case No. 36-CA-47.-Decided April 19, 1950
DECISION
AND
ORDER
On December 29, 1949, Trial Examiner Louis Plost issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and (3) of the Act, and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the. Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board' has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed, with the exceptions hereinafter noted.
The Board has considered the Intermediate Report, the Respondent's
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and qualifications :
1. We find, in agreement with the Trial Examiner, that in viola-
tion of Section 8 (a) (1) and (3) of the Act, the Respondent refused
employment to Robert Irwin Cool on or about September 4, 1948, be-
cause of his previous conduct in vigorously carrying out his duties
as job steward for the Union and in seeking to enforce the terms
of the collective bargaining agreement between the Union and the
Respondent.2
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this proceeding to a three-member panel [Chairman Herzog and
Members Houston and Styles].
2 The Trial Examiner found that in January 1947, an incident occurred in which Cool
refused to follow an order of Foreman Hedrick and ordered Hedrick off the raft. . We do
not agree with the Examiner's conclusion that this incident could not be advanced as a
reason for the Respondent's subsequent refusal to hire Cool because the incident occurred
before the Respondent acquired the Oswego boom, and at a time when the two men were
89 NLRB No. 80.
576
LEA'ABETTER LOGGING & LUMBER CO. 577
2. In the section of the Intermediate Report entitled "The relnedy"
the Trial Examiner found that the Respondent's unlawful conduct
"discloses an intent to defeat self-organization and its objectives and
an attitude of opposition to the purposes of the Act." Accordingly,
the Examiner recommended that the Respondent be ordered to cease
and desist, not only from the unfair labor practices found, but also.
from in any other manner infringing upon the exercise of the em-
ployees' rights guaranteed in Section 7 of the Act.
We are not persuaded, upon this record, that the Respondent has
demonstrated a general intent to defeat self-organization and an
attitude of opposition to the purposes of the Act. We are particularly
mindful in this regard of the Respondent's past amicable relations
with this and other unions 3 and the fact that the Respondent has
been dealing with the Union under a collective bargaining agreement.
Under all the circumstances we believe that the policies of the Act
will be adequately effectuated by ordering the Respondent to cease
and desist from the unfair labor. practices found and from any like
or related conduct.
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, Leadbetter Log-
ging & Lumber Co., Oswego, Oregon, and its officers, agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of
America, Local Union 11-81, CIO, or any other organization of its
employees, by refusing employment to any applicant because of such
applicant's membership in, and activities on behalf of, a labor organ-
ization, or by discriminating in any other manner in regard to hire
and tenure of employment, or any term or condition of employment;
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
not in the Respondent ' s employ. We find , however, upon the basis of the entire record and
particularly in view of Hedrick's failure to discipline Cool and the fact that this incident
occurred almost a year before Cool voluntarily left the Respondent's employ, that the inci-
dent played no part in th(! Respondent ' s determination not to hire Cool in September 1948.
The Trial Examiner 's inadvertent reference at various points in the Intermediate Report
to the discharge of Cool is hereby corrected to refer to the refusal to hire Cool.
3 The Trial Examiner's rejection of the Respondent 's offer of proof to this effect is hereby
reversed.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Robert Irwin Cool immediate and full employment
in the same or substantially equivalent position for which he applied
and which the Respondent refused him on or about September 4, 1948,
without prejudice to his seniority or other rights and privileges;
(b) Make whole Robert Irwin Cool for any loss of wages he may
have suffered by reason of the discrimination against him, by pay-
inent to him of a sum of money equal to that which he normally would
have earned as wages from the date of the discrimination against him
to the date of the Respondent's offer of employment, less his net earn-
ings during said period;
(c) Post at its boom operation at Oswego, Oregon, copies of the
notice attached hereto and marked Appendix A.4 Copies of said
notice, to be furnished by the Regional Director for the Nineteenth
Region, shall, after being duly signed by the Respondent's represent-
ative, be posted by the Respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days in conspicuous
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Nineteenth Region
(Seattle, Washington) in writing, within ten (10) days from the date
of this Order, what steps the Respondent has taken to comply herewith.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL WooD-
WORKERS OF AMERICA, or any other labor organization of our em-
ployees, by refusing employment to any applicant because of his
membership in and activities on behalf of a labor organization,
or by discriminating in any other manner in regard to hire and
tenure of employment, or any term or condition of employment,
except as required by an agreement requiring membership in a
labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
I In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words: "A DECISION AND ORDER ," the words: "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
LEA'DBETTER LOGGING & LUMBER CO. 579'
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights...
guaranteed in Section 7 of the Act.
AVE WILL offer Robert Irwin Cool immediate and full reinstate-
ment to his former or substantially equivalent position without-
prejudice to any seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of pay suffered as a,
result of the discrimination.
All our employees are free to become or remain members of the,
above -named union or any other labor organization . We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership,
in or activity on behalf of any such labor organization.
LEADBETTER LOGGING & LUMBER CO.,
E'mpl 'oyer:.
Dated ------------------- By -----------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof;
and must not, be altered , defaced, or covered by any other material..
INTERMEDIATE REPORT
Hubert J. Merrick, Esq., for the General Counsel.
Koerner, Young, Swett & McColloch, by H. Stewart Trernaine, Esq., of Portland,.
Oreg., for the Respondent.
George & Babcock, by Win. A:Babcock, Esq., of Portland, Oreg., for the Union>,
STATEMENT OF THE CASE
Upon an amended charge filed April 26, 1948 , by International Woodworkers.
of America , Local Union 11-81, affiliated with the Congress of Industrial Organi-
zations, herein called the Union , the General Counsel of the National Labor
Relations Board, herein called the Board , by the Regional Director for the.
Nineteenth Region ( Seattle , Washington ), issued a complaint dated April 28;.
1949, against Leadbetter Logging & Lumber Co ., of Oswego , Oregon , herein called`
the Respondent , alleging that the Respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 ( a) (1) and (3) and
Section 2 ( 6) and ( 7) of the National Labor Relations Act, 61 Stat . 136, herein,
called the Act. On April 28, 1949, a copy of the complaint , together with a copy
of the charge and a notice of hearing were served upon the Respondent and the.
Union . On October 21, 1948, the original charge had been filed and a copy
thereof served on the Respondent by the Nineteenth Regional Office on November
1, 1948.
With respect to the unfair labor practices the complaint alleged in substance-
that the Respondent had refused and continues to refuse employment to one.
Robert Cool because of his membership in and activities on behalf of the Union,.
in violation of Section 8 (a) (1) and ( 3) of the Act.
On May 6, 1949, the Respondent filed an answer in which it admitted the juris-
diction of the Board , denied that it had engaged in any of the unfair labor Prue-
889227-51-vol. 89--38
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices alleged in the complaint, and averred that it had refused employment to
Robert Cool for cause.
Pursuant to notice, a hearing was held at Portland, Oregon, on October 18 and
:19, 1949, before Louis Plost, the undersigned Trial Examiner, duly designated by
the Chief Trial Examiner. The General Counsel, the Respondent, and the Union
were represented by counsel, who will hereinafter be referred to in the name of
their respective principals. All the parties participated in the hearing and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. The parties were afforded the
opportunity to argue orally on the record but waived the right. At the close of
the hearing the undersigned granted without objection a motion by the General
Counsel to conform all the pleadings to the proof with respect to the spelling of
names, correction of dates, and like variances, not substantive. The undersigned
set November 8 as the final date for all parties to file briefs, proposed findings of
fact, and conclusions of law with the undersigned. Upon joint motion of the
parties, made after the hearing, this date was extended to November 28, and again
on joint motion to December 8, 1949.
A brief has been received from the Respondent. The Respondent likewise filed
proposed findings of fact and conclusions of law.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE 13USINESS OF THE RESPONDENT
The Respondent, Leadbetter Logging & Lumber Co., is an Oregon corporation
which is a subsidiary of the Oregon Pulp and Paper Company which in turn is a
subsidiary of the Columbia River Paper Company. The Respondent has a logging
operation, a sash and door factory, a sawmill, and various reloading operations
in Oregon as well as a boom operation at Oswego, Oregon, which is the only one
of its various operations affected by this proceeding. A boom is an operation at
which logs received by rail are unloaded and placed into a stream and made up
into rafts for towing to their final destination. Although the word "boom" tech-
nically refers only to that part of the operation carried on in the stream, it is
here used to include the entire operation both on shore and in the water. The
Respondent's operation at Oswego is a "commercial boom," meaning that not only
logs belonging to the Respondent are handled there but also logs of various ship-
pers are handled for a fee. The Oswego boom handles annually an average of
60 million board feet of logs valued at $40 per thousand board feet. Approxi-
mately 30 percent of the logs handled by Respondent at its Oswego boom goes to
points outside the State of Oregon.
The Respondent concedes that it is engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
International Woodworkers of America, Local Union 11-81, CIO, is a labor
organization admitting employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharge of Robert Irwin Cool
The Respondent acquired the Oswego boom from the Reconstruction Finance
Corporation sometime in February 1947. At the time it took over the operation
LEADBETTER LOGGING & LUMBER CO. 581
the Respondent kept the crew then employed. One of the crew members was
Robert Irwin Cool who had been employed on the boom by its various operators
since 1941. Cool had left the boom at some unspecified time but had been
rehired in 1946 by Roy T. Hedrick, the foreman then in charge and now in
charge of the operation. Cool continued to work at the boom until December
1947, when he voluntarily quit.
There is no dispute that Cool, who has been employed in boom work for more
than 18 years, is entirely competent. Foreman Hedrick testified that Cool could
perform any job on the operation with the possible exception of running the
donkey engine. The Respondent's attorney volunteered the following statement
on the record:
I would like the record to show that the Company is not making any
contention that Mr. Cool was incompetent in the performance of his own
functions as a boom man.
Foreman Hedrick testified that at the time Cool quit in December 1947, he
decided to "refuse to hire Bob Cool" in the event Cool ever applied for reinstate-
ment. Hedrick further testified that he did not communicate this decision to
his superiors.
Sometime in June 1948, according to Cool, and either in July, August, or
September 1,948, according to Hedrick, Cool asked Hedrick for employment
and the latter told him there was no work available.
In September 1948, Hedrick requested the Union, which held a collective
bargaining contract with the Respondent, if it could furnish a boom man for
the Oswego operation. . The Union replied that Cool was available whereupon
Hedrick informed the Union that the Respondent would not employ Cool.
Hedrick then hired an inexperienced man to fill the vacancy for which Cool
had in fact applied and for. which he had been offered by the Union upon the
Respondent's request as to whether the Union could furnish a man for the
Oswego operation.
The above findings are based on the mutually corroborative and credited testi-
mony of witnesses called by both the General Counsel and the Respondent,
including the testimony of Foreman Hedrick and Cool.
The Respondent's answer avers :
Respondent refused employment to Robert Cool in the boom operation
at Oswego, Oregon, on or about September 4, 1948, for the following reasons
only, namely, that during his previous period of employment with Re-
spondent he was insubordinate, left his work without authority, refused
to work or allow work to be done, interfered with the authority of the
foreman, and otherwise performed his duties in an unsatisfactory manner.
Hedrick's testimony was in accord with the Respondent's answer. In re-
sponse to a question by the Respondent's attorney he testified that he refused to
.employ Cool,
For overstepping-insubordination and overstepping his authority as a
job steward.
In February 1947, Cool was elected job steward of the Oswego boom operation
and as such he was charged by the Union with the presentation of grievances
of the employees to the foreman (Hedrick).
In support of the Respondent's contention that Cool was insubordinate and
incompetent Hedrick testified :
Q. On what occasions did you criticize his work as a boom man?
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, I really don't know how to answer that. There was a direct
refusal by him to take orders from me at one time . That was the maim
criticism I had of him.
Q. There was a direct refusal by him to take orders?
A. That is right.
Hedrick testified that on this occasion Cool was working on the raft, placing
logs which were being floated down to form the raft. Hedrick went on the
raft and told Cool to do the work in a different manner which Cool then refused:
to do and ordered Hedrick to leave the raft. Hedrick left and later told the
Union's business agent that he "didn't think that Mr. Cool had authority to.
put me off the raft." However, Hedrick did not file a formal grievance
against Cool, report the matter to his superiors , or discharge or -discipline
Cool therefor.
Cool not only admitted the incident but elaborated on Hedrick's testimony..
He described the manner in which the work was being done and testified that.
when Hedrick undertook to issue orders to him, Cool "let all holds go," thereby
creating a "jam."
Hedrick and Cool were in agreement that this was the only time Hedrick
directly criticized Cool's work during his entire employment at the Oswego
boom operation.
Hedrick further testified that the incident above related occurred in January-
1947 before the Respondent acquired the Oswego boom.
The undersigned credits Hedrick's testimony as corroborated by Cool and.
finds that prior to the time the Respondent acquired the Oswego boom.. CooL
refused to follow an order from Hedrick and ordered Hedrick off the raft on.
which Cool was at work, and further finds that this was the only occasion
on which Hedrick directly criticized Cool's work, and that Hedrick took no dis-
ciplinary action against Cool at the time. However as the record is clear that.
the incident occurred prior to the time the Respondent acquired the Oswego
boom and when the two men were not in the employ of the Respondent, the
undersigned fails to see how the incident can be consistently advanced as a
reason for the failure to hire Cool inasmuch as the Respondent's answer avers
that Cool was refused employment for acts occurring during his previous period
of employment with the Respondent and not as erroneously argued in the Re
-spondent's brief "during his previous period of employmenton the boom."
In support of its refusal to employ Cool because "during his previous period
of employment with.Resporysdent" Cool "refused to work or allow work to be
done" the Respondent relies entirely on two incidents testified to by Hedrick.
Both incidents occurred in July 1947, some 6 months before Cool voluntarily
quit. The first related to Cool's stopping the work on a skid or rollway, here-
inafter referred to as the "skid incident," the second related to the moving of
certain steel.
In the Respondent's Oswego operation logs are received by rail and unloaded
from the cars which are placed on a spur track. The logs when removed from
the cars are placed on timber skids and then rolled into the water where they
are made up into rafts.
With respect to the skid incident, Foreman Hedrick testified :
We had our boom work and our maintenance work, and our boom work
and maintenance work are interchangeable. It is written in our contract
that way. Well, one morning we had work to do on our railway. At that
time we were only able to put in twenty-one loads of logs into our boom.
LEA'DBETTER LOGGING & LUMBER CO. 583
the night before I had called the depot and had them set in twenty-one
freight loads of one brand of logs, which means that you can go ahead and
,dump them. It took us 45 minutes exactly to dump those logs, and I took
one man off the raft and used the two men that were on the hill, and they
.started to work on our rollway, and Cool came up and he told me that
I was working out of turn on this rollway. I thought that he meant that
I was working these same men too often. It was a dirty job, and it was
dirty and dusty. And I told him at that time that I figured that as to the
rest of the crew, as long as their job was finished below, I could have them
come up and help us above. And he said, "By God"-I won't say "By God,"
because I never heard him say "God" in my life, but he says to this effect,
"We are not going on that rollway. We have got too many logs to handle."
And I.said, "What are you going to do between now and 2 o'clock?" And
he said, "We are not working the rollway." All right. And at that he hol-
lered to the engineer to lower a skid that we had in the air-to lower her
down. And I told the engineer to hold on to it, and he did. And I went
in and called our company to find out what was what. That was after the
Leadbetter Company had taken this over. And they told me to drop this
skid back in. And the skid was put back in, and the whole 14 or 15 men
went to the river, ancT-they sat in::the bunkhouse from 9: 15 until 2 o'clock
an the afternoon, before we got another log.
Cool at the time was job steward.
Ed Maher testified that Cool went to. see Hedrick regarding the skid work
at the direction of the raft crew.
Cool gave substantially the same account of the skid incident as did Hed-
rick, and further testified, being corroborated by Maher and LeRoy Saulsbery,
that he was accompanied by another committee man. Both Hedrick and Cool
agree that at least 21, cars of logs had been unloaded and 50 more were expected,
however Cool ,testified that at the time there was an understanding between
the Union and the Respondent that there should be no "bull cooking," meaning
maintenance work, on days when 50 or more cars were to be handled. Hed-
rick admitted that such a policy was instituted because of the skid incident, but
maintained that it was not in existence at the time, and further testified in
effect that lie did not consider the agreement binding as he did not personally
make it.
There is no doubt that during the skid incident Cool was acting as job steward
in behalf of the Union and on the direction of his fellow employees. The under-
signed so finds and further finds on the preponderance of the evidence that Cool
,was accompanied by-another committee member during his talk. with Hedrick.
It is also clear that Hedrick neither discharged nor disciplined Cool because of
the skid incident, nor did he attempt to do so at the time.
With respect to the other occasion on which Cool is alleged to have "refused
to work or allow work to be done" Hedrick testified :
And in this other instance, other than the rollway, we had some steel or
railroad iron to move, and I had taken two men to move it, and at that time,
and the only time that Cool was ever accompanied by a committee man, he
,was accompanied at that time by a committee man-by one man.
Q. Will you tell us what that incident was?
A. I had two men working on that steel and Cool and this other man came
nip and started to saunter around-messing around-and I walked over to
them and told them that I expected them to do the work that was left down.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the river to be done , and that these two men were going to pull up the steel
and take care of it. And right away there was an argument started, and he
says, "Well, if you are going to shoot off your big mouth , we just won't do,
it." So those two men still stayed there working , and this committee man
and Cool went back . And I sent the men back off the job . I told them not
to shove their necks out so that they would have any trouble with the Local..
And that work was stopped at that time.
Cool did not deny Hedrick's testimony.
Ed Maher testified that at the time employees were called from the raft to move
the steel "the men went into an awful long conversation about that because it
was not boom work and it was ruining their caulked shoes, " and they instructed
Cool "to stop it."
Caulked shoes are a type of safety shoe worn by men who work on floating
timber. Maher testified that a pair of these shoes cost "around thirty bucks."
Hedrick further testified :
Q. (By Mr. Tremaine) Now, was this steel work part of the maintenance
work done by the crew?
A. Well, I don't know. I really don't know whether it would be considered
maintenance work or not. It was on Company property and they were work-
ing on Company time.
The undersigned credits the testimony of Hedrick, Cool, and Maher with, respect
to the incident regarding the moving of the steel as related above and finds that
Cool was acting as job steward when he made the protest and that Hedrick
knew this to be so. In crediting Hedrick the undersigned, however, does not
credit that portion of Hedrick's testimony to the effect that only at the time of the
protest regarding the moving of the steel did Cool come accompanied by another
employee or committee member.
Hedrick further testified that during the same general period as the above-
related occurrence Cool on one occasion left the job for "an hour and a half" ;
that upon his return Cool told him first that it was "none of his damn business"
where he had been and then stated that he had been to see the Union's business
agent ; that following this explanation Cool then protested Hedrick's assignment
of two men to move a private boathouse, as being work outside the union con-
tract and a violation of the State's insurance laws.
Hedrick admitted that,while Cool had been absent he had put the men on this
job which "was a separate job from that of the Leadbetter Company."
Cool did not deny leaving the job, and testified that he protested the work as
being outside the Union's contract.
There is mutually corroborative testimony relating to one grievance meeting.
on a matter of seniority during which according to Cool's testimony he and
Hedrick engaged in "quite a heated discussion." Both the protest regarding the
moving of the boathouse and the seniority matter were within Cool's province
as job steward. Hedrick did not discipline Cool for leaving the job without au-
thority nor did he file a grievance with the Union because of it, although he hall
the right to do so.
Hedrick and Cool are in agreement that with the exception of the above-related
• occurrences there were no disputes, complaints, protests, grievances, or any differ-
ences between the two men which were-not caused by Hedrick's "pike pole push-
ing," meaning Hedrick voluntarily performing labor in the rafting of logs during
the boom operation.
LEADBETTER LOGGING & LUMBER CO. 585
The contract between the Respondent and the Union prohibits performance of
actual labor by the foreman and it is not disputed that Cool as job steward was
charged with the duty of enforcing this clause of the contract.
Hedrick admitted that he "pushed a pike pole" and that all job stewards pre-
vious to, following, and including Cool stopped him when they observed him
working contrary to the contract.
He further testified that when he was stopped by the job steward the crew
itself did not quit work because :
There was not too much of an argument on that because I knew that I was
violating our contract, and I would argue with them a little bit, maybe, but
it didn't do me a hell of a lot of good.
Cool testified that Hedrick's "pike pole pushing" was the cause of most of
the grievances and that when he observed Hedrick so violating the contract,
Well, I would go up and I would simply tell him that I thought that he
was violating the contract. Sometimes I would not go that far; I just
would walk up the boom and he would see me coming, and he would lay
the pole down and go up the hill.
Following Hedrick's refusal to employ Cool, the Union, in accordance with
its contract, filed a formal grievance. At the final meeting on the grievance at
which both Hedrick and Cool were present, the Union was represented by its
district secretary, Garrison, its business agent, George Willett, and the job com-
mittee of the Re*pondent's employees. The Respondent was represented by
Martin S. Sullivan, its industrial relations manager, and Walter J. Kerry, the
supervisor of all its transportation including the Oswego boom operation. The
Respondent admitted, however, that Hedrick was in direct charge of the Oswego
boom under Kerry but argues in its brief that it was not shown that "any one
in the Company other than Hedrick had any anti-union bias." The undersigned
finds no merit in the argument and finds further that Hedrick bound the Re-
spondent. Industrial Relations Manager Sullivan testified that. he had never
heard of Cool until the calling of this final grievance meeting; had not heard
of the "pike pole" complaints until it was disclosed in the testimony at the instant
hearing; had never heard of the skid incident nor the steel moving incident;
and had never had any complaints regarding Cool or his work.
Kerry testified that he had not. heard of Cool's ordering Hedrick off the raft,
but had heard of the skid incident and of the steel incident "just recently" ; and
further that he did not know that Cool had been refused employment until the
grievance meeting on the refusal was arranged.
Employee Ed Maher testified:
I was at all three meetings, one with the foreman [Hedrick] and then
with the superintendent, and then with the job committee.
Maher testified that at the initial meeting (with Hedrick alone) Hedrick
"said that he [Cool] was an incompetent man" and also stated that Cool was a
"trouble maker."
Maher further testified :
Q. Now what reason, if any, did he give at the subsequent meetings for
not hiring Cool?
A. Well, he didn't come right out and. give any exact reason, only that
he said that either he or Bob . . . [Cool] well, that the two of them could
not stay on the same job.
•586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Willett, the Union's business agent, testified that he attended the final
grievance meeting and that :
A. The result was that we went through the case again, and at that time
we went into the competency of Mr. Cool a little more, and the foreman
qualified his statement by stating that he thought that Cool was competent
all right, but he would not do hi's work. And we took the position that he
was entitled to the job, and the Company-Mr. Sullivan, that is, took the
position that the Company would hire whoever they saw fit. And when we
were not satisfied with the decision why he suggested that if we didn't like
it we could file charges.
Hedrick testified that at the time he refused to employ Cool lie gave no reason
;to the Union; that by "incompetent," he meant that although Cool could perform
his work, lie had not done so "on our particular job" ; and admitted that at the
grievance meeting he had stated "That either one of us had to step out of it .. .
• either one or the other."
There can be no doubt that the differences arising between Hedrick, the
-Respondent's direct representative on the Oswego operation, and Cool were
bottomed on the latter's office of job steward for the Union. The possible ex-
ception would be Cool's action on the raft at the time Hedrick gave him an order
which Cool refused to accept and then ordered Hedrick off the raft. However, as
'this incident occurred before the Respondent acquired the Oswego boom, the
undersigned is persuaded and finds that the "raft incident" did not enter into
,Cool's discharge.
Hedrick testified :
Q. (By Mr. Merrick) Well you do not have anything personal against Mr.
Cool, do you?
A. No.
Q. In other words, the troubles you have arose out of the job itself, (lid
they not?
A. That is right.
-Hedrick further testified:
Q. On any other occasion after that time [the "raft incident"] when you
had a disagreement with him it was the result of some objection that he
was making with respect to the practice that was being followed in the
work, is that correct?
A. That is right.
Q. And during all of that time he was the job steward?
A. Well, I don't know about the. first-time. At the time when he ordered
me off the raft I do not think that he was job steward, but he was job
steward when he stopped the work.
Q. And you knew that he was job steward?
A. I knew that he was job steward.
It is apparent that Cool took his duties as job steward quite seriously. Maher
• described Cool as "a very militant man as job steward, and he would give it
-and take it."
Hedrick testified that Cool "never met as a job steward should function"
and that "he never presented a grievance before he stopped the operation."
However, with the exception of the skid incident and the steel moving incident
the record shows no stoppage of work by Cool's action unless it was the stopping
of work by Hedrick when the latter was "pushing a pike pole" in violation of
LEADBETTER LOGGING & LUMBER CO. 587
the Union's contract. Hedrick never sought to discipline or discharge Cool and
his differences with Cool as well as Cool's very existence were unknown to the
personnel manager directly over Hedrick.
That Hedrick expected Cool to promptly exercise his authority as job steward
and that Hedrick resented this is apparent from the testimony of employee LeRoy
Saulsbery, who testified :
. . . One incident conies to mind. We were putting in a pipe up there
that the bulldozer had broken. Mr. Hedrick asked me to go over and help,
him, and so I did. And he says, "I suppose Bob [Cool] will come up here--
now and try to stop its from doing this work. If he does, he is going to get
fired, if he does not watch out."
Hedrick admitted making this statement.
On no occasion did Hedrick protest Cool's way of handling grievances to the
Union as he had a right to do. Apparently Cool always carried his point.
B. The Respondent's proposed findings of fact and proposed conclusions of law
The Respondent, together with his brief, filed proposed findings of fact in
which it proposed that the Trial Examiner find, (1) that the Union is a labor-
organization admitting to membership employees of the Respondent, and (2)-
made a recital of evidence and drew certain conclusions therefrom.
The undersigned accepts proposal (1) and as to proposal (21) the undersigned..
accepts so much thereof as is not inconsistent with the findings of fact and
ultimate conclusions of this Report; otherwise the same is rejected.
The Respondent filed certain conclusions of law numbered 1 to 4, inclusive..
The undersigned accepts proposal number 1 and rejects all others.
C. Concluding findings on the discharge of Robert Irwin Cool
The provision of Section 8 (a) (3) of the Act which forbids discrimination•^
in regard to hire includes the prohibition to refuse to hire an applicant because
of union activity or affiliation, of course under proper circumstances an employer
may decline to employ a union applicant but in the event that such refusal be-
comes the basis for a charge under the Act the test must be whether the
applicant was rejected for reasons other than union membership or activity..
This does not mean that the burden is on the employer to disprove the charge ;
quite the contrary, the burden is on the General Counsel. In the instant matter'
the undersigned is persuaded by all the evidence considered as a whole that the-
Respondent, through Hedrick, refused employment to Cool not because he was
insubordinate, left his work without authority, refused to work or allow work
to be done, interfered with the authority of the foreman, and otherwise per--
formed his duties in an unsatisfactory manner during his previous period of
employment with the Respondent, but that all the above-cited causes for Cool's
discharge were not the real reason therefor but a mere pretext, the real reason,
being that Cool vigorously carried out his duties as job steward for the Union
and sought to enforce those terms of the collective bargaining contract between
the Respondent and the Union. The undersigned therefore finds that the Re-
spondent refused employment to Robert Irwin Cool on or about September 4,•
1948, because of his membership in and activities on behalf of the Union in
violation of Section 8 (a) (3) of"the Act, and by so discriminating in regard
to his hire and tenure of employment the Respondent has discouraged member-
ship in a labor organization and interfered with, restrained, and coerced its;
employees in the exercise of rights guaranteed in Section 7 of the Act.
•588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I,
=above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and such of them as have been found to
constitute unfair labor practices, 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 it
-will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire
and tenure of employment of Robert Irwin Cool by refusing him employment
on or about September 4, 1948, it will be recommended that the Respondent, in
order to effectuate the policies of the Act, offer him employment in the position
to which he applied without prejudice to seniority or any other rights or privi-
leges, and make him whole for any loss he may have suffered by reason of the
Respondent's discrimination against him by payment to him of k subs of money
equal to that which he would have earned from September 4, 1948, the date of
the 'Respondent's refusal to employ him, to the date of the Respondent's offer
of employment, less his net earnings during said period.'
Upon the entire record, the undersigned infers and finds that the Respondent's
illegal action, mentioned above, discloses an intent to defeat self-organization
and its objects, and an attitude of opposition to the purposes of the Act. Be-
cause of the Respondent's unlawful conduct and the underlying purposes mani-
fested thereby, the undersigned is convinced that the unfair labor practices found
.are persuasively related to the other unfair labor practices proscribed by the
Act, and that danger of commission in the future of any or all of the unfair labor
practices defined in the Act is to be anticipated from the Respondent's conduct
in the past. The preventive purposes of the Act will be thwarted unless the
recommendations are coextensive with the threat' In order, therefore, to make
effective the interdependent guarantees of Section 7, to prevent recurrence of
unfair labor practices, and thereby minimize industrial strife which burdens and
obstructs commerce, and thus effectuate the policies of the Act, the undersigned
will recommend that the Respondent cease and desist, not only from the unfair
labor practices herein found, but also from in any other manner interfering
-with, restraining, or coercing its employees in the exercise of the rights guaran-
teed -in Section 7 of the Act,, and take certain ' aflirinative action 'designed to
,effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
:in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Leadbetter Logging & Lumber Co., Oswego, Oregon, is engaged in commerce
-within the meaning of Section 2 ( 6) and ( 7) of the Act.
2. International Woodworkers of America , Local Union 11-81, CIO, is a labor
,organization , within the meaning of Section 2 ( 5) of the Act.
' Crossett Lumber Co ., 8 NLRB 440.
=',N. L. R. B. v. Express Publishing Co., 312 U. S. 426.
LEADBETTER LOGGING & LUMBER CO. 589
3. By discriminating with regard to the hire and tenure of employment of
Robert Irwin Cool, thereby discouraging membership in a labor organization,
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 its employees in the exercise
,of the rights guaranteed in Section 7 of the Act, Respondent has engaged in 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
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that Leadbetter
Logging & Lumber Co. (Oswego, Oregon), its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of America,
Local Union 11-81, CIO, or any other labor organization of its employees, by
refusing employment to any applicant because of such applicant's membership
in and activities on behalf of a labor organization or by discriminating in any
other manner in regard to hire and tenure of employment, or any term or condi-
tion of employment;
(b) In any other manner, interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist International Woodworkers Union of America, Local
Union 11-81, CIO, or.any other labor organization, 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, or to refrain
from any or all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Robert Irwin Cool full employment in the position for which he
applied and which the Respondent refused him on or about September 4, 1948.
(b) Make whole Robert Irwin Cool for any loss of wages he may have
suffered by reason of the discrimination against him in the manner described
in the section above entitled "The remedy" ;
(c) Post at its boom operation at Oswego, Oregon, copies of the notice at-
tached hereto and marked Appendix A. Copies of said notice, to be furnished
by the Regional Director for the Nineteenth Region, shall, after being duly signed
by Respondent's representative, be posted by Respondent immediately upon re-
ceipt thereof, and maintained by it for sixty (60) consecutive days in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Ninteenth Region (Seattle, Wash-
ington), in writing within twenty (20) days from the date of receipt of this
Intermediate Report what steps it has taken to comply therewith.
It is further recommended that unless on or before twenty (20) days from
receipt of this Intermediate Report Respondent notifies the said Regional Direc-
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for in writing that it will comply with the foregoing recommendations, the.
National Labor Relations Board issue an order requiring: Respondent to take-
the aforesaid action.
As provided in Section 203.46 of the Rules and Regulations of the National.
Labor Relations Board any party may, within twenty (20) days from the date-
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25,. D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record' or proceeding
(including rulings upon all motions or objections) as he relies upon; together-
with the original and six copies of a brief in support thereof'; and any party
may, within the same period, file an original and six copies of a brief in support-
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and' briefs shalh
designate by precise citation the portions of the record relied` upon and shall:
be legibly printed or mimeographed, and if mimeographed shall` be, double spaced.:
Proof of service on the other parties of all papers filed with the Board; shall be'
promptly made as required by Section 203.85. As further provided in said Sec-
tion 203.46 should any party desire permission to argue orally before the Board',.
request therefor must be made in writing to the Board within ten (10) days
from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid`
Rules and Regulations, the findings, conclusions, recommendations, and recom
mended order herein contained shall, as provided in Section: 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived: for all,
purposes.
Dated at Washington, D. C. this 29th day of December 1949..
Locals PLOST,
Trial Examiner...
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 in any manner interfere with, restrain , or coerce our em
ployees in the exercise of their'right to self-organization , to form labor-
organizations , to join or assist INTERNATIONAL WOODWORKERS OF AMERIO-A,
LOCAL UNION 11-81, CIO, or any other labor organization , to bargain collec-
tively through representatives of their own choosing , and to engage in con-
certed activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all of such activities , except to
the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment , as authorized
in Section 8 (a) (3) of the Act.
AVE WILL offer Robert Irwin Cool immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed, and make him whole for
any loss of pay suffered as a result of the discrimination.
LEA1DBETTER LOGGING & LUMBER CO. 591
All our -employees are_:free to become or- remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
-hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
-organization.
LEADBETTER LOGGING & LUMBER CO.,
Employer.
By ------------------------------------
(Representative ) ( Title)
Dated---------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.