National Plywood, Inc.

National Labor Relations Board - Board Decisions

Jul 25, 1968

172 N.L.R.B. 1285 (N.L.R.B. 1968)

NATIONAL PLYWOOD, INC.
National Plywood, Inc. and International Wood-
workers of America, Local Union No. 3-436,
AFL-CIO. Case 36-CA-1562
July 25, 1968
DECISION AND ORDER
By MEMBERS BROWN , JENKINS, AND ZAGORIA
On June 13, 1967, Trial Examiner Maurice M.
Miller issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision together with sup-
porting briefs. The Respondent filed an answering
brief to the exceptions of the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relaations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent
herewith.
The complaint alleged that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by dis-
charging employee Robert Reed because of his
membership in, and activities on behalf of, the
Union. The Trial Examiner found that Reed was
discharged for insubordination and recommended
dismissal of this allegation of the complaint. The
General Counsel and the Charging Party have ex-
cepted to this finding and recommendation. We
find merit in these exceptions.
On July 24, 1966, while a union organizational
campaign was in progress, Reed signed an
authorization card and proceeded to solicit his fel-
low employees to do likewise. Two days later, on
July 26, Reed on several occasions asked West to
sign an authorization card. On the last occasion,
According to West 's testimony, and contrary to the testimony of Lan-
genberg , West 's complaint to Langenbcrg was restricted to Reed's action in
"pushing" him and no mention whatsoever was made of any profane
epithet, which Reed , according to Langenberg , was alleged to have uttered
to West West defined " pushing " as agitating for a union
1285
which Reed places at midmorning , West demurred,
pointing out that he had been associated with a
union at his prior place of employment and be-
lieved he had been discharged because of such as-
sociation . According to Reed, however, the conver-
sation ended with West agreeing to consider the
matter further. At the end of the day, Reed, whose
testimony is corroborated in this respect by em-
ployee Anderson, unsuccessfully attempted to
make further contact with West in the Respon-
dent's parking lot. Nothing further occurred until
about noon the next day, July 27, when Reed was
discharged by Superintendent Lambright for al-
leged insubordination. West's testimony cor-
roborates Reed's with respect to the solicitations
and the reasons for his reluctance to sign an
authorization card, but places July 27 as the date
when the solicitations occurred. He further testified
that during the midmorning conversation Reed
voiced a mild profane epithet to express his view of
West's reluctance to sign up for the Union.
According to West's testimony, between 12 noon
and 1 p.m. on July 27, he hailed Foreman Langen-
berg, who was then passing by West's work station.
He told Langenberg that if Reed continued "push-
ing" him there would be a fight. Langenberg,
who admits prior knowledge of Reed' s union activi-
ty, informed West that the matter should be re-
ported to Superintendent Lambright who was then
at lunch.' Shortly thereafter, and before Langen-
berg could make contact with Superintendent Lam-
bright, West observed Lambright returning from
lunch, and informed him that he was being
"pushed" by Reed and that if Reed persisted there
might be a fight. The "fight" was apparently to be
begun by West since there is no indication what-
ever in the record that Reed implied or proposed
any physical activity of any kind toward West. The
conversation ended with Lambright informing West
that he would speak to Reed. Immediately
thereafter, Lambright spoke to Reed. It was during
this conversation that Reed was discharged.
Lambright, who admittedly knew of two union
solicitors other than Reed at the time, stated that
following his conversation with West, wherein West
informed Lambright of Reed's solicitation and use
of profanity, he immediately approached Reed.2
According to Lambright's testimony, he accused
Reed of causing trouble in the plant and calling an
unnamed employee " names." Upon receiving a
denial from Reed , he invited him outside the plant
' West testified that his complaint to Lambnght was confined to Reed's
"pushing" and the possibility of a fight resulting therefrom His testimony
with regard to the conversation with Lambright makes no mention of the
alleged profane epithet
172 NLRB No. 141
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to discuss the matter. After again accusing him and
receiving a denial, he accused Reed of lying. Fol-
lowing a 5-10 minute conversation, the contents of
which are not detailed in the record, Reed "blew
his stack" and told Lambright "that he would talk
to anybody he felt like, any time he felt like."
Whereupon, Lambright informed Reed that he was
"terminated." Lambright testified that he
discharged Reed because it came "down to a
question of who's running the mill." Following his
discharge of Reed, Lambright states that he and
Reed then engaged for the first time in a discussion
of the merits of unionization. Lambright places the
end of the conversation as occurring about 1:20
p.m.
Reed testified that on July 27, about 11:45 a.m.,
while on the way to his lunchbreak, he was ap-
proached by Lambright and accused of trying to
promote a union and threatening a fellow employee
with violence for refusing to sign a union card.
When Reed denied the accusation, Lambright in-
formed him that the matter was not closed and that
if he discovered evidence to the contrary "the
work's all going to be over [for Reed]." About 10
minutes later Lambright summoned Reed from the
lunchroom and repeated his accusation. Upon
receiving a further denial from Reed, Lambright
stated that if he caught anyone talking union in the
mill they would be terminated immediately and that
he was going to get to the bottom of the matter.
Lambright then dismissed Reed and told him to go
back to work. When Reed was about 20 feet away,
Lambright called to him and asked him if he
thought the mill needed a union Reed replied that
he was not sure but that the Union had many ad-
vantages which he thereafter enumerated. In
response, Lambright stated that he had found out
what he wanted to know, namely, that Reed was a
strong union man, and that Reed was through.
Reed, whose timecard indicates that he punched
out at 1:26 p.m. July 27, recalls the conversation
with Lambright as terminating about 12.35.
On these facts, the Trial Examiner concluded
that Reed's conduct was "clearly insubordinate,"
and, accordingly, he dismissed the complaint. In so
doing, he emphasized the corroborative testimony
of the Respondent's witnesses with respect to the
exact timing of the discharge and resolved the cru-
cial credibility issues in favor of the Respondent.''
We do not agree.
West's testimony was that his complaints to both
Langenberg and Lambright related solely to Reed's
activity in "pushing for the Union" and the possi-
bility of a fight resulting from Reed's continuation
of such activity. They contained no mention of the
profane epithet allegedly uttered by Reed. West
further testified that his complaints were motivated
by his fear of discharge for associating with any
union , and was very specific in pointing this out to
his superiors, allegedly because he believed that he
had been discharged from another job for engaging
in union activity We need not here speculate
whether West was attempting to insulate himself
from any possible displeasure of management
which might flow from the Union's organizing cam-
paign and particularly Reed' s union activity, or was
attempting to curry management 's favor, or both.
Suffice it to say that the alleged profanity was not
reported to either Langenberg or Lambright; there-
fore , it is clear that West did not indicate to either
of them that it was Reed's use of profanity which
could give rise to a possible fight, a possibility we
deem remote in view of the realities of the language
often employed in industrial environments. It is
against these background facts that we evaluate the
testimony of Reed and Lambright regarding the im-
mediate facts and circumstances surrounding
Reed's discharge. We are persuaded that Reed's
testimony that his discharge followed Lambright's
interrogation relating to Reed's union activity is the
only credible version of the events because it is in-
herently consistent with the other credible facts and
the record as a whole.
As we have noted, West did not tell either Lan-
genberg or Lambright that Reed's alleged profanity
would cause him to fight, but as we have also
noted, the conversations were concerned with
Reed's strong union advocacy which West felt
might provoke a fight. Thus, when Lambright ap-
proached Reed and accused him of causing trouble
M1 Inasmuch as the exact time of the discharge-whether before or after
lunch-on which the Trial Examiner largely relies in resolving credibility is
not significant insofar as the substance and flow of the events preceding the
discharge are concerned, it is of little assistance in resolving credibility All
the events happened in the space of about 2 hours between I I a in and I
p in on July 27, except for a preliminary incident which Reed, cor-
roborated by Anderson but denied by West, placed on July 26 The fact
that 4 months after the events took place witnesses from the plant's
management , presumably more conscious of the time during the plant
workday, agreed in placing the events a half hour to an hour later than
Reed did seems to us to afford little support for crediting the remainder of
their testimony as to crucial substantive matters
Moreover, the Trial Examiner's credibility findings were made despite
his own observation that " ( W ]hile a witness , Reed presented a picture of
self-righteous sincerity and quiet determination Nothing worthy of note-
so far as his witness -chair demeanor was concerned- provided this trier of
fact with cogent support for a conclusion that his testimony merits rejec-
tion "
Since the Trial Examiner 's findings clearly are not predicated on the
demeanor of the witnesses while testifying , and since we are convinced that
the clear import of the evidence preponderates against the Trial Ex-
aminer 's findings with regard to the record facts and circumstances sur-
rounding the discharge of Reed , we are impelled to substitute our findings
for those of the Trial Examiner Valley Steel Products Company, I I I NLRB
1338, Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362
(C A 3)
NATIONAL PLYWOOD, INC.
he could only have had reference to Reed's
vigorous union advocacy in the plant. Indeed, the
Trial Examiner found that:
Respondent's superintendent , [Lambright] ...
first sought Reed to probe Farwick West's
complaint that the dry belt puller's pro-union
solicitation had been conducted in some
"overly vigorous" manner likely to generate
conflict
And he further found that Lambright admittedly
did question West concerning his union activities
but exculpated Lambright's invasion of West's
statutorily protected union solicitation because of
his conclusion that the interrogation was related to
provocation and profane disparagement, matters
relating to plant discipline, and did accuse Reed of
lying when he denied it.
According to Lambright, this interrogation was
followed by a 5- to 10-minute conversation before
Reed "blew his stack" and allegedly uttered the in-
subordinate remark, i.e., "he would talk to anybody
he felt like, any time he felt like it" and that "he
didn't agree with the way the Company was ran
[sic]."
These assertions by Reed are hardly pertinent to
criticism by Lambright for using profanity in the
plant, but are plainly responsive to and consistent
with criticism and interrogation by Lambright for,
as Reed testified, "trying to get the union in."
Finally, Lambright's testimony to the effect that
the only mention of the Union occurred after
Reed's discharge during what could be described as
a calm and philosophical conversation as to the
merits of unionization is wholly at odds with our ex-
perience.4 As legions of cases clearly demonstrate,
"knowledgeable spokesmen for management" scru-
pulously avoid discussing the union or an em-
ployee's union activities at the time of discharge
and any conversations occurring thereafter between
management and the discharged employee are nor-
mally confined to the merits of the discharge.
In view of the foregoing, we are impelled to con-
clude contrary to the Trial Examiner that the
Respondent's motivation for the discharge of Reed
was in whole or in substantial part a reflection of its
desire to rid itself of a union activist and that the al-
leged insubordination was a mere pretext to cloak
its illegal activity. Accordingly, the discharge vio-
lated Section 8(a)(1) and (3) of the Act.
' As found by the Trial Examiner. Lambright interrogated Reed concern-
ing his union activities prior to the 5- to 10-minute conversation preceding
the discharge yet he insisted in his testimony that the Union was first men-
tioned after the discharge and did not testify as to the contents of the con-
THE REMEDY
1287
Having found that the Respondent discharged
Robert Reed, on July 27, 1966, in violation of Sec-
tion 8(a)(3) and (1) of the Act, we shall order the
Respondent to cease and desist therefrom, and
require that it take certain affirmative action which
we find necessary to remedy and remove the effects
of this unfair labor practice and to effectuate the
policies of the Act. Accordingly, we shall order that
Reed be offered immediate and full reinstatement
to his former or substantially equivalent job without
prejudice to his seniority or other rights and
privileges and make him whole for any loss of pay
suffered by him by reason of the discrimination
against him, from the date of his discharge on July
27, to the date of the offer of reinstatement. Loss of
pay shall be computed as prescribed in F. W. Wool-
worth Company, 90 NLRB 289, and interest on
such backpay shall be computed at 6 percent per
annum in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716. We shall also order that the
Respondent make available to the Board upon
request payroll and other records in order to
facilitate the checking of the amount of backpay
due.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Robert Reed,
as specified herein, thereby discouraging member-
ship in the Union, the Respondent engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, National Plywood, Inc., Roseburg, Oregon, its
officers, agents, successors, and assigns, shall:
versation preceding the discharge even though Reed who had testified
earlier had given a full narrative account of their conversation which was
replete with numerous references to unions and union activity
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
( a) Discouraging membership in International
Woodworkers of America, Local Union No. 3-436,
AFL-CIO, or in any other labor organization, by
discharging employees, or in any other manner dis-
criminating in regard to hire or tenure of employ-
ment or any term or condition of employment.
(b) In any other manner interfering with,
restraining, or coercing employee in the exercise of
the rights guaranteed in Section 7 of the Act
2 Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to Robert Reed immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and make
him whole for any loss of earnings , as set forth in
"The Remedy" section above.
(b) Notify the above-named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and make available to the Board or
its agents, all payroll and other records, as set forth
in the "The Remedy" section of this Decision.
(d) Post at its Roseburg, Oregon, plant, copies
of the attached notice marked "Appendix."5 Copies
of said notice, on forms provided by the Regional
Director for Subregion 36, after being duly signed
by the Respondent's representative be posted by it
immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days in
all places where notices to employees are posted.
Reasonable steps shall be taken by Respondent to
insure that notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Subregion
36, in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
MEMBER ZAGORA, dissenting:
For the reasons set forth in the Decision of the
Trial Examiner, I would dismiss the complaint.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order -
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended , we hereby notify you that:
WE WILL NOT discourage membership in In-
ternational Woodworkers of America, Local
Union No . 3-436, AFL-CIO, or in any other
labor organization , by discharging employees,
or in any other manner discriminating in re-
gard to hire or tenure of employment or any
term or condition of employment.
WE WILL NOT in any other manner interfere
with, restrain , or coerce employees in the exer-
cise of the right to self-organization, to form
labor organizations , to join or assist the above-
named or any other labor organization , to bar-
gain collectively through representatives of
their own choosing , and to engage in any other
activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer Robert Reed immediate and
full reinstatement to his former or substantially
equivalent position , without prejudice to his
seniority and other rights and privileges previ-
ously enjoyed , and make him whole for any
loss of pay he may have suffered by reason of
the discrimination against him.
WE WILL notify the above -named employe if
presently serving in the Armed Forces of the
United States , of his rights to full reinstate-
ment, upon application , in accordance with the
Selective Service Act and the Universal Milita-
ry Training and Service Act, as amended, after
discharge from the Armed Force.
All our employees are free to become , or refrain
from becoming, members of the above -named or-
ganization , or any other labor organization.
NATIONAL PLYWOOD, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Subregional
Office, 310 Six Ten Broadway, 610 SW Broadway,
Portland, Oregon 97205, Telephone 226-3431.
NATIONAL PLYWOOD, INC. 1289
TRIAL EXAMINER'S DECISION Il. THE LABOR ORGANIZATION INVOLVED
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: Upon a
charge and amended charge filed August 2 and
September 19, 1966, respectively, and duly served,
the General Counsel of the National Labor Rela-
tions Board caused a complaint and notice of hear-
ing to be issued and served upon National Plywood,
Inc., designated the Respondent within this Deci-
sion . The complaint was issued September 19,
1966; therein, Respondent was charged with unfair
labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended. 61 Stat. 136, 73
Stat. 519. Within Respondent's answer, duly filed,
certain factual matters set forth within the com-
plaint were conceded; Respondent, however, has
denied the commission of any unfair labor practice.
Pursuant to notice, a hearing with respect to the
issues was held at Roseburg, Oregon, on December
1, 1966, before me. The General Counsel, Respon-
dent, and complainant Union were represented by
counsel. Each party was afforded a full opportunity
to be heard, to examine and cross-examine wit-
nesses , and to introduce evidence pertinent to the
issues. Since the hearing's close, a brief has been
received from Respondent's counsel; that brief has
been duly considered.
Upon the entire testimonial record, documentary
evidence received, and my observation of the wit-
ness, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, functioning as an Oregon corpora-
tion, maintains its principal plant, office, and place
of business at Roseburg, Oregon, where it is en-
gaged in the manufacture, sale, and distribution of
plywood. During its fiscal year, last past, Respon-
dent manufactured, sold, and shipped from its
Roseburg, Oregon, plant finished products valued
in excess of $50,000, directly to various out-of-state
points.
Upon the complaint's jurisdictional declarations,
which are conceded, I find that Respondent was,
throughout the period with which this case is con-
cerned, an employer within the meaning of Section
2(2) of the Act, engaged in commerce and business
activities which affect commerce within the mean-
ing of Section 2(6) and (7) of the Act, as amended.
With due regard for those jurisdictional standards
which the Board presently applies-see Siemons
Mailing Service, 122 NLRB 81, and related cases-I
find assertion of the Board's jurisdiction in this case
warranted and necessary to effectuate statutory ob-
jectives.
International Woodworkers of America, Local
Union No. 3-436, AFL-CIO, designated as com-
plainant Union within this Decision , is a labor or-
ganization within the meaning of Section 2(5) of
the Act, as amended , which admits certain of
Respondent's employees to membership.
III. THE UNFAIR LABOR PRACTICES
A. Issues
The questions presented for determination herein
may be simply stated. General Counsel contends
that Respondent's superintendent, Jack Lam-
bright-together with Owen Morehaus, plant
foreman-questioned various employees with re-
gard to their conduct in complainant Union's be-
half, and threatened workers with discharge for
conduct calculated to promote unionization.
Respondent has traversed this contention. Further,
General Counsel contends that Respondent's su-
perintendent discharged a worker, Robert Reed,
because of his membership in complainant Union
and his activity on that organization's behalf.
Respondent claims , contrariwise, that Reed was
dismissed-following a conversation during which
Respondent's superintendent had admonished him
to refrain from soliciting support for complainant
Union with such strenuous zeal that his fellow
workers might feel distressed or resentful-
because Reed had responded with a defiant declara-
tion that he proposed to discuss unionization with
his fellows at whatever time or place he chose.
B. Facts and Conclusions
1. Background
Sometime in July 1966, complainant Union com-
menced an organizational campaign within Respon-
dent's plywood mill. The precise date when the
campaign began has not been specified for the
record. (Testimony proffered by Respondent's su-
perintendent-which has not been contradicted-
would warrant a determination that the campaign
was started some I or 2 weeks before the events
with which this case is directly concerned, when
certain union literature was mailed to various mem-
bers of Respondent's production crew, three
foremen included; I so find.) On Sunday, July 24,
Robert Reed, then serving as a dry belt puller in
Respondent's hire, signed a union designation card.
(Reed had then been with Respondent for slightly
more than 1 year. He had started as a green chain
operator.) The next day-on Monday, July 25,
specifically-Reed visited complainant Union's
hall; there he procured a supply of designation
cards for distribution. His testimony would warrant
a determination that he began soliciting designation
'154-196 (1-T.T - 71 - of 2 - to
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card signatures from fellow workers the next day.
So far as the record shows, there were at least two
other designation card distributors; Willis Whelan
and Carl Burr testified herein-without challenge
or contradiction-that they had, themselves, signed
complainant Union's card some time during the
month-dates not specified-and that they had sol-
icited others to sign
Complainant Union's organizational campaign,
subsequently, led to a Board-conducted representa-
tion vote. Though the record, herein, provides no
clue with respect to the precise date when the elec-
tion was held, there is consensus that complainant
Union therein failed to win representative status.
2. Reed's discharge
Meanwhile, on July 27, Robert Reed had been
discharged. The testimony with respect to his ter-
mination -specifically , with regard to Respondent's
precise timing , and with regard to particular cir-
cumstances which supposedly preceded or
precipitated the discharge-reveals sharp conflict.
Since the record 's disparate versions cannot be
readily reconciled, my determination regarding the
challenged dismissal 's propriety must necessarily
rest upon total credence given Reed 's recital, on
the one hand, or total credence for the version
which Respondent's superintendent proffered. For
convenience , their respective testimonial declara-
tions will be separately stated.
a Reed's version
While a witness, Reed proffered a circumstan-
tially detailed recital-presumably relevant from
General Counsel's viewpoint-dealing with various
events within the 48-hour period which had
preceded his discharge. The dry belt puller's
testimony, with respect thereto, may be sum-
marized as follows:
July 26: Reed testified that, some 20 minutes be-
fore the day shift's scheduled 7 o'clock start, he sol-
icited a fellow worker, Farwick West, to sign com-
plainant Union 's designation card; that West
declared his readiness to sign , and concurred with
Reed 's suggestion that he do so during his morning
"break" time or lunch period. Later that morning,
about 8 o'clock-so Reed testified-while returning
to his work station from the mill restroom, he sol-
icited Bud Shortner, West's partner on Respon-
dent's dryer machine; Shortner, however, declared
that he did not think he would sign complainant
Union's card. When 9 o'clock came , Reed, while
leaving the mill for his morning "break" period,
passed West still at work on Respondent's dryer,
the dry belt puller renewed his prior suggestion that
West come with him to Respondent's parking lot
and there sign complainant Union' s designation
card. The dryer machine operator-so Reed
testified-demurred, however, giving his reasons.
There was a brief discussion, following which West
declared , merely, that he would consider the matter
further . When the day shift ended , at 3.40 p.m., ap-
proximately , Reed-who was then discussing com-
plainant Union's campaign with another fellow
worker , Dwight Anderson-saw West getting into
his car Despite Reed 's attempt to hail him, which
he seemingly heard , West drove off without signing
a card.
July 27: With respect to this date-his last on the
job-Reed declared , categorically , that nothing un-
toward happened until his 11 45 lunch " break"
period . Then , so he testified:
I was approached by Nate Langenberg, my
foreman , and Jack Lambright , my superinten-
dent , as I reached [ the] front of the dryer ...
Lambright- said , " I hear you are trying to
promote this Union by getting the ball rolling."
He said that-a certain party-an employee
told him that I had said if he didn 't sign a
Union card , that I was going to break his head
in ... I told Lambright that I wasn 't passing or
receiving any cards within the mill. I told him I
didn 't tell anyone they had either had to or
they didn 't have to sign any Union card . I said I
hadn 't threatened anybody. Lambright said
then , he said , "This isn't over with yet."- "I'll
tell you one thing : If I do find out that you are
trying to get the Union in here , the work's all
going to be over for you right then. That's
going to be it." He said , " What do you think
about that?" . . . I looked at him and I said,
"Okay," and I walked out to take my lunch
break.
Some 10 minutes later-so Reed testified-Su-
perintendent Lambright summoned him from
Respondent 's lunchroom . The two men walked
outside; there, according to Reed 's recital.
He told me that he had talked to this certain
party and he had said that I had threatened
him .... He never named no party at all ... I
said , " Let's go up to this certain party and ask
him," .. "because I haven 't threatened any-
one." . . He said that it was rather funny that
someone would say something like this about
me. I told him I didn 't know . I said, "I sure
haven't threatened a soul " . . . Lambright told
me then ... that "I'll tell you one thing." .. .
" If I catch anyone talking Union in this mill"...
"they're going to be terminated right then." .. .
"That 's going to be it." . "We have a
small mill here and we don't need a Union."
He said that any man was welcome to come
into his office and talk over any disagreement
or squabble that he might have. He told me
then ... " I'm going to get to the bottom of
this," and he said for me to go on and go back
to work ... I turned around and walked off;
and I got maybe 20 feet from him ... and he
said , "Just a minute ." ... " I'll be just as frank
with you as you are with me ." .. " Do you
think this mill needs a Union ) " Well, I told him
that whether a Union would work or not, I ac-
NATIONAL PLYWOOD, INC. 1291
tually didn 't know , but then a Union had him
beat in many ways. And he said , " How is
that?" And I told him of the insurance policy
for one thing ... I also asked him what kind of
retirement benefits he had for a person who
had reached retirement age I said , "You have
none . . . well, the Union has a retirement
pension." And I also discussed the paid holi-
days.... He told me right then .. . "Mister ... I
have found out what I want to know. .. .
You're a strong Union man and what I ad-
vise you to do is to go to your Union and get
you a job in Union shop because you're all
through here ." He said , "That's it."
This conversation , so Reed purportedly recalled,
took , place at 11 : 55 a.m . or 12 noon . Thereafter,
both men continued discuss unionism generally
until 12 : 20 p.m . or 12:25 p.m., for some 20 or 25
minutes; their conversation terminated - so Reed
testified-with Lambright 's repeated statement that
he (Reed ) was discharged . The dry belt puller,
therefore , proceeded to his work station , gathered
his personal possessions , and proceeded to leave
the mill. While doing so, he was purportedly told by
a fellow worker that , following their first 11:45 a.m.
talk with him , Langenberg and Superintendent
Lambright had been seen in vigorous conversation
with Farwick West , still at his dryer post . Motivated
by this report , Reed , while in Respondent's
lunchroom to collect his dinner bucket, sought out
West and asked him whether he had told Superin-
tendent Lambright that the fry belt puller had
threatened him; according to Reed , West declared
that he had told "no one" about threats . ( While a
witness , Reed guessed that these final mill conver-
sations with fellow workers had taken place some
10 minutes after his talk with Superintendent Lam-
bright , this would place them at 12:35 o 'clock, ap-
proximately .) The dischargee then , presumably,
clocked out and left the plant. He testified that he
reached home by 1 o'clock . The next day, he
returned for his final check.
b. West 's recital
Summoned as Respondent 's witness , Farwick
West provided significantly divergent testimony re-
garding his several conversations with Reed about
signing complainant Union 's designation card.
First : West dated all of his conversations with the
dry belt puller on July 27 ; he recalled no July 26
solicitation . Second: He recalled Reed 's first sol-
icitation , shortly before 7 o'clock , while both men
were walking toward Respondent 's timeclock. Ac-
cording to West , no promise was given beyond his
promise to consider the matter. Shortly before 9
o'clock-just before West 's morning "break"
period-Reed came by to ask whether he had made
up his mind yet ; West 's reply, so he testified, was
negative . Third West recalled a later conversation.
Just before his lunch period-which , so the dryer
machine operator testified , was time for 11 o'clock,
or "just a little" later , that particular day- Reed
once more asked him, while he was at work
whether he had made up his mind . West replied,
definitively , that he did not wish to sign complai-
nant Union 's card . Thereupon , so West testified,
Reed queried his reasons . When they were stated
Reed disparaged them , purportedly voicing a
profane epithet to express his view of West's
reluctance . This dryer machine operator, so he
testified, was so greatly angered that he was struck
speechless . Upon this note, their conversation ter-
minated.
Some time later- during a period not specified
for the record, but presumably between 12 noon
and 1 o 'clock-West hailed Foreman Langenberg
walking nearby . He reported his last conversation
with Reed; declared that " if something didn't
straighten up one way or another " both he and
Reed would be discharged ; further declared that he
had opinions of his own ( regarding unionization)
and did not feel that Reed should "push" him; and
finally stated that , should Reed keep "pushing"
him, the latter might " push " him right into a fight.
Langenberg declared his view that the matter
should be reported to Superintendent Lambright,
but noted that the latter was then lunching.
Shortly after 1 o 'clock , West-himself-observed
Lambright , returned from lunch , walking through
the mill . He related his prior conversations with
Reed and Foreman Langenberg ; Lambright, who
did not seem familiar with the matter in question-
so West testified-said that he would talk with
Respondent's dry belt puller.
c. Superintendent Lambright 's version
While a witness, Superintendent Lambright sub-
stantially corroborated West 's testimony. He
declared that , following his 1 p . m. return from
lunch , he had been hailed - while walking through
the mill-by the dryer machine operator . Further,
Lambright testified that West, seemingly quite
agitated , had then described Reed 's prior efforts to
persuade him to sign complainant Union 's card,
and had further reported Reed's claimed profanity.
West further declared-so Respondent 's superin-
tendent noted- that , should Reed return, there
would be a fight ; and that he (West ) did not wish to
lose his job because of such a controversy . Shortly
after this conversation was terminated-at 1:10
p.m. approximately-Lambright observed Reed
near Respondent's dryer . His testimony regarding
subsequent developments reads as follows:
Well, I stopped him and ... I said, "There's a
fellow here that says you 've been causing trou-
ble, or something to that effect-that you had
been calling him names ." And I asked him
about it ... He denied this. And I talked to
him for a little bit more . He said , " I hadn't
been calling anybody names," and I says,
"Well, I think we had better go outside and get
the thing straightened out." I took him out of
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the mill. I got him outside and I talked to him.
He's got a quick temper. I knew that. I re-
minded him . . I says, "It seems awful funny
to me, Bob, that we got a fellow here that will
pinpoint you out and for no reason at all, if
you're not causing trouble in the mill-if
you're not down there calling him names."
And I talked to him ... He denied it ... I told
him I didn't believe him outright. I said, "I
think you're lying to me," and we talked for
about 5 or 10 minutes and then he blew his
stack and he told me that he would talk to any-
body he felt like, any time he felt like. He said
he didn't agree with the way the Company was
ran. And I told him at that point , I said, "Be-
fore you say any more, you're terminated." .. .
Well, the one reason I terminated him, that he
told me that he would do anything he wanted
to any time he wanted to. I think this come
down to a question of who's running the mill.
Reed, who was-so Lambright testified-quite
angry, blurted that "all of these mills" would be or-
ganized , whether Respondent's superintendent
liked it or not. Lambright, then, declared that he
respected Reed's belief in unionization, but did not
think Respondent's mill needed one So far as Lam-
bright's testimony shows, this was the note upon
which their conversation terminated. Respondent's
superintendent timed his final conversation with
Reed at approximately 1.10 p.m.; according to his
recollection, their limited postdischarge exchange
did not take long.
d. Review and conclusions
While a witness , Reed presented a picture of self-
righteous sincerity and quiet determination.
Nothing worthy of note- so far as his witness-chair
demeanor was concerned- provided this trier of fact
with cogent support for a conclusion that his
testimony merits rejection . Nevertheless , Reed's
narrative-when reviewed with due regard for
whatever clues to credibility the record, considered
in totality , may provide- fails to persuade.
First: Reference should be made to Reed's
testimony that his several conversations with Far-
wick West took place the day before his discharge.
His recitals in this respect , clearly, conflict with
West 's recollection . For various reasons, however,
West's version would seem to be more worthy of
credence . To begin with, Reed 's testimony- calcu-
lated to fix July 26 as the date of their several
talks- stands without corroboration. (The
testimony of Dwight Anderson , which seemingly
corroborates Reed 's recollection that he tried to
hail West in Respondent 's parking lot-following
the conclusion of the mill's July 26 day shift-can
hardly be considered supportive of the dry belt pul-
ler's testimony that West 's failure to respond im-
plied or suggested his rejection of prior solicita-
tions True, Anderson did charge Reed with park-
ing-lot profanity , following hard upon West's depar-
ture, such a reaction- assuming , arguendo , that it
did take place-could conceivably provide some in-
ferential support for a conclusion that West had,
somehow, previously rejected the solicitation of
complainant Union 's protagonist . Such a conclu-
sion, however, cannot really be considered
required.) West's varied recollections, however,
stand buttressed with persuasive collateral support
Respondent 's superintendent and Foreman Langen-
berg, both, testified that West-when he related his
supposed July 27 conversations with the dry belt
puller-displayed considerable agitation. Common
sense suggests that such a reaction would be most
likely displayed immediately following some disturb-
ing development ; had West 's sensibilities been vio-
lated some 24 hours previously, he would hardly
have been likely to nurture or preserve his purpor-
tedly lively sense of outrage for a full day before
bringing a complaint to superiors.
Second: Reed's own narrative, clearly, warrants a
determination that Superintendent Lambright's
determination to speak with him derived some fel-
low worker's complaint regarding his purportedly
aggressive tactics in complainant Union's behalf.
Within this context, his further testimony-calcu-
lated to convey the thought that Respondent's su
perintendent was, rather, concerned , generally
about complainant Union's organizational cam
paign-seems too broadly stated Taken by anc
large, it struck me as contrived.
Third: The dry belt puller's testimony, considerec
at face value, would necessarily dictate a conclu
sion that Respondent 's superintendent hac
discharged him because he (Lambright) considerec
him a strong union man, further, that Lambright.
indeed, had flatly declared this belief to have
motivated his (Reed's) termination. Within his
brief, Respondent's counsel notes-with respect to
this contention-that General Manager Standley
testified, without contraJiction, regarding his prior
direction to Superintendent Lambright forbidding
discrimination against the firm's workers because of
their union sympathies. Further, counsel refers to
testimony-proffered and received without chal-
lenge-which suggests that Respondent 's foremen
had previously been instructed not to express
opinions with reference to unionization . With mat-
ters in this posture, Respondent 's counsel argues
that:
It is beyond credulity that an experienced em-
ployer representative who knew enough to in-
struct his foremen not to express opinions to
the men with reference to union activities
would have placed himself in such a position
[categorically declaring a statutorily-
proscribed reason for some discharge] ... The
[Trial Examiner ] can take judicial notice that
this employer has had previous experience with
the National Labor Relations Board and its
rules by virtue of the Board's decision in 36--
RC-1433, July 29, 1959. Lambright was em-
ployed at this plant prior to the date of said
NATIONAL PLYWOOD, INC. 1293
decision and the subsequent election. Obvi-
ously Mr. Lambright knew that such a
discharge would have been illegal and yet he is
supposed, according to Reed, to have clearly
stated union activity as the reason . It is too pat
to accept.
Counsel 's line of argument , though hardly conclu-
sive with respect to the matter now under con-
sideration , cannot be dismissed as specious.
Knowledgeable spokesman for management, par-
ticularly those with Superintendent Lambright's
conceded background, would hardly be likely-
within a conversational context revealing no par-
ticular stress or conflict- to profess openly their
reliance upon clearly discriminatory motives when
effectuating discharges ; testimony with a tendency
to suggest that they "gave the show away " during a
terminal conversation should certainly be taken,
therefore , with the proverbial grain of salt.
Fourth : Reed 's recollection , regarding the timing
of his discharge , lacks testimonial corroboration; to
the contrary , it conflicts with the completely
coherent, mutually corroborative, testimony of Far-
wick West , Foreman Langenberg , Superintendent
Lambright, and Respondent's president. (Thus, as
Respondent 's counsel notes , credence for Reed's
uncorroborated version would require a concurrent
determination that these four company witnesses
were mutually mistaken , or conspiratorially menda-
cious .) Summarized , the dry belt puller's
testimony-should it be credited-would dictate a
factual conclusion that Superintendent Lambright
himself began the conversation which finally led to
his (Reed's) discharge at 11:45 approximately; that,
following a short period while Reed was at lunch,
Respondent 's superintendent later resumed their
talk at 11 : 55 or 12 noon; that this conversation
continued until 12 : 25 thereafter; that Reed, while
leaving Respondent 's mill, had a lunchroom con-
versation with West at 12:35 p . m.; and that he
reached his home some 25 minutes later. Respon-
dent 's coordinated presentation , however, would
warrant sharply divergent factual conclusions, re-
garding the relevant time sequence . Thus, West
placed his last conversation with Reed just before
his (West 's) lunchbreak ; later , he designated the
time of their last talk somewhat more precisely,
stating that it had taken place at approximately 1 1
o'clock. He placed his complaint to Foreman Lan-
benberg sometime later . ( This Langenberg substan-
tially corroborated. West, so he recalled, had
spoken with him at 12:30 p.m. approximately. The
foreman recalled that Superintendent Lambright
was then at lunch , and that West had been so in-
formed . Langenberg 's testimony regarding the time
when West complained , thus, coordinates with the
testimony which Superintendent Lambright and
President Standley provided ; their mutually cor-
roborative recitals reveal that they customarily
lunch together between 12 noon and 1 o'clock.)
West and Lambright both testified , consistently
with this time schedule , that their conversation
took place shortly after 1 o'clock ; their mutual
recollections stand supported by Foreman Langen-
berg , who declared that he had seen Respondent's
superintendent-presumably as the result of his
conversation with West previously noted- speaking
with Reed between 1 and 1:15 o'clock . Lambright's
testimony , placing his final conversation with Reed
at 1:10 approximately , thus reflects consistency
with the testimony proffered by Farwick West and
Respondent 's foreman . Lambright recalled his ter-
minal conversation with Reed as lasting some 5-10
minutes; this would place its conclusion somewhere
between 1 . 15 and 1 : 20 o'clock . ( The temporal
sense which Respondent 's superintendent dis-
played , regarding this conversation 's duration,
seems, within my view , much more sound than
Reed 's. Lambright summarized a conversation
which-so he testified- lasted some 5-10 minutes,
Reed recalled their talk as lasting some 20-25
minutes. The dischargee 's recollection regarding
their discussion 's substance , however , hardly sug-
gests such a lengthy talk . The logic of probability,
therefore , would seem to dictate a conclusion that
the conversation now under consideration was rela-
tively short .) For reasons which I propose to discuss
further within this decision , Respondent 's coherent,
mutually consistent presentation seems more
worthy of credence than Reed 's sole recollection.
In this connection , note should be taken of the fact
that his testimony-dealing with temporal mat-
ters-presumptively reflects several flaws. Most ob-
viously, conclusions consistent with Reed 's recol-
lection would first require my rejection of clear-cut
testimony-proffered , without contradiction or
challenge, by three company witnesses - that Lam-
bright and Standley customarily lunched together
between 12 noon and 1 o'clock . Further , Reed's
narrative contradicts West 's specification-which
General Counsel never challenged - regarding his
July 27 luncheon schedule. West placed his final
conversation with Reed-during which the latter,
so he testified , characterized him in profane
terms-at a time "just before [ his] lunchtime"
which , on the date in question, was "just a little"
after 11 o'clock , or right on the hour . While a wit-
ness, however, Reed mentioned a conversation with
West in Respondent 's lunchroom , following his
discharge. So far as the record shows, West would
not have been lunching between 12 :25 and 12 35
o'clock; nor does the record warrant a determina-
tion that he would then be having a scheduled
break
Fifth: Reed 's testimony-with respect to precise-
ly when he was discharged-cannot be reconciled
with his July 27 timecard record ; Lambright's
recollection-with respect to this matter-clearly
comports , however , with this " real" documenta-
tion. Reed 's timecard shows that he punched out at
1:26 o'clock . ( Though the dischargee, while a wit-
ness, refused to concede that the document
proffered for his consideration was really his
timecard , General Counsel did not challenge its
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authenticity nor protest its receipt for the record;
with due regard , then , for the complete record
herein , I am satisfied that the card in question was
Reed 's.) The card , further , reflects a computation
showing that Reed worked 6 - 1/2 hours . While a
witness , he conceded that he had been paid for
such a stint , and that 6-1/2 hours ' pay would have
been appropriate for a period which had begun at 7
a.m., his starting time , and which had terminated at
1:26 p.m.
Sixth : Reed 's narrative , taken at face value,
would seemingly call for a conclusion that-
throughout his several conversations with West
specifically-he remained calm, never lost his
temper , never disparaged West in profane terms.
Further , Reed contended , consistently , that-when
discharged-he voiced no protest , that he kept his
temper ; but that he discussed unionization 's merits,
calmly and dispassionately " for quite a length of
time thereafter" with Respondent 's superintendent.
Within the record 's total context , however , the dry
belt puller-despite his sober , restrained demeanor
while a witness- stands revealed as high spirited,
strongly determined in his views , with a somewhat
volatile temperament . Item : While in Respondent's
employ , Reed had concededly participated in horse-
play; when taxed therewith subsequently, by his
victim , the dry belt puller-so the record shows-
had displayed marked resentment . ( Counsel for
complainant Union sought to establish , for the
present record , that horseplay such as Reed's was
both nonhazardous and common in lumber mills.
Such exculpatory contentions however , miss the
point . No suggestion has been made that Reed was
discharged , herein , because of horseplay , rather, his
prior reaction when charged with such conduct is
cited Counsel for Respondent suggests that, when
Lambright taxed him with supposedly disruptive
and hyperaggressive solicitation in complainant
Union 's behalf , he responded with comparable
resentment .) Item : Reed first denied that he had
sworn at Farwick West during their midmorning
July 27 conversation. Subsequently, however, he
testified that profanity was "very common" among
Respondent 's workers , that he , himself, had some-
times used profanity , that the particular profane
epithet which he supposedly had directed to West
was "not shocking " to lumber workmen generally;
and, finally , that he "may have said something"
comparable to the profanity with which he had
been charged , but that " if [he] did" he does not
now recall such language . Item • Subsequent to his
termination at Respondent 's mill, Reed secured
work at Roseburg Lumber Company , while a wit-
ness he conceded that-during his employment
there-when a jitney driver said "pull that damn
cart in" to him , he (Reed ) had been so provoked
that he had walked over and hit the jitney driver on
the back of the head with his fist These testimonial
tidbits , taken together , provide strong support,
within my view , for a conclusion that Reed did, in-
deed , disparage West in profane terms-and that,
when taxed therewith by Respondent 's superinten-
dent , he was sufficiently provoked to proffer a
deliberately defiant response.
Seventh : Reed 's testimony with respect to Su-
perintendent Lambright 's declared position-dur-
ing their final conversation- lacks consistency and
strains credulity . Thus , he testified that Respon-
'dent 's superintendent started their first conversa-
tion with a forthright declaration that he had heard
Reed was " trying to promote " complainant Union's
campaign . ( Reed , however , conceded-within his
very next sentence- that Lambright had then
referred to Reed 's reported reliance upon threats,
in connection with union solicitations .) Following
Reed 's denial , previously noted , Respondent's su-
perintendent-according to the dry belt puller-
said , despite his previous categorical statement of
belief, that , " if' he found the dry belt puller to be
complainant Union 's protagonist , he (Reed) would
be terminated . Some 10 minutes later-when their
conversation resumed , supposedly following a con-
sultation between West and Respondent 's superin-
tendent- the latter , so Reed testified , repeated his
threat that " if' he caught anyone " talking Union in
this mill " they would be dismissed . This portion of
their conversation , supposedly , terminated with
Lambright 's statement that he was "going to get at
the bottom of this" followed by a direction that
Reed resume work . According to the dry belt
puller , Lambright 's decision to dismiss him came
only when Respondent 's superintendent
discovered- following a second renewal of their
conversation- that he was a strong union man. The
dry belt puller 's testimony fails to explain , however,
why Superintendent Lambright would have waited
so long to conclude that Reed was prounion. Sup-
posedly , Lambright had "heard " of Reed 's solicita-
tion in complainant Union 's behalf, before their
first July 27 contact . Assuming , arguendo, that
Lambright may have , thereafter , recognized Reed's
denials and proposed to make some further inquiry,
the dry belt puller 's testimony further shows that,
10 minutes later, the superintendent declared that
his prior impression had been confirmed . With mat-
ters in this posture , Reed 's testimony that Lam-
bright continued to threaten a discharge in condi-
tional terms, and that his final discharge decision
was made following a contrived renewal of their
conversation , makes no sense.
With due regard for the record , considered in
totality , Reed 's purported recollection-with
respect to the timing and circumstances of his
discharge-must , therefore , be rejected . Respon-
dent 's superintendent , I find, first sought Reed to
probe Farwick West's complaint that the dry belt
puller 's prounion solicitation had been conducted
in some "overly vigorous" manner likely to
generate conflict . When Lambright , thereafter,
finally rejected his denials- telling him , in so many
words, that he considered him a liar-the dry belt
puller , I find , defiantly declared , consistently with
his prior behavior when similarly challenged, that
NATIONAL PLYWOOD, INC. 1295
he would "talk to anybody he felt like" whenever
he felt like doing so. Such a challenging declaration
of purpose did more than reveal Reed's purported
intention to transcend statutorily guaranteed rights;
within context, his remark was clearly insubor-
dinate And Lambright's testimony that the dry belt
puller was, for this reason, promptly terminated
merits credence
1 Claimed interference, restraint, and coercion
Regarding the balance of General Counsel's
presentation, summary disposition seems war-
ranted. Within his complaint, General Counsel has
charged Respondent, inter alia , with interference,
restraint , and coercion, through " interrogating em-
ployees" with regard to their union activities.
Record support for this contention, however, will
be found solely within Reed's testimony, which I
have rejected. True, Superintendent Lambright's
testimonial recital does reveal that he did
"question " the dry belt puller. Upon the record,
however, determination would seem to be war-
ranted that Lambright 's questions , with due regard
for their context, cannot legitimately be considered
reasonably calculated to interfere with, restrain, or
coerce workers in their exercise of rights statutorily
guaranteed . They derived, clearly, from the desire
of Respondent's superintendent to probe a com-
plaint that Reed's statutorily protected union sol-
icitations were, really, being conducted provoca-
tively, since he was relying upon threats or profane
disparagement reasonably likely to disrupt plant
discipline. So motivated, I find, Lambright's
questions were privileged.
With respect to the remainder of General Coun-
sel's case, three witnesses were presented. Their
testimony-taken by and large-will not sustain his
complaint's charges The first witness, Willis
Whelan, testified-during direct examination-that
Foreman Morehaus had told him anyone caught
passing out union designation cards would be
discharged. When cross-examined, however,
Whelan promptly conceded that Morehaus might
have said anyone passing out cards "on company
time " would be terminated. General Counsel's
second witness, Carl Burr, declared during direct
examination -that Foreman Morehaus had told
him, following a query about Reed's discharge, that
"anyone caught passing out cards will be
discharged." During cross-examination, however,
this witness-like his predecessor-significantly
qualified his testimony; he conceded, flatly, that
Morehaus had limited his threat of possible
discharge to those distributing cards on company
time. General Counsel's third witness, Dwight An-
derson, reported, merely, that-following a brief
conversation which he and Reed had had while
they were returning to their work stations after
their morning "break" was concluded-Foreman
Morehaus had told him "this talk has got to stop."
Subsequently-so the witness testified in direct ex-
amination -he (Anderson) had followed Morehaus
out of the mill to ask him what he meant; Morehaus
had, reportedly, replied that "talking while you are
supposed to be working" would have to stop.
(Emphasis supplied.) Nothing else-so Anderson
declared-was said by Respondent's foreman.
(With matters in this posture, General Counsel
sought to refresh Anderson's recollection-regard-
ing the substance of his conversations with Respon-
dent's foreman-showing him, for this purpose, the
sworn statement which he (Anderson) had previ-
ously given. The witness conceded that he had
given the statement. He specifically repudiated its
contents, however, contending-for various stated
reasons-that his present recollection, with respect
to most matters dealt with therein, was better than
his purported past recollection recorded. The state-
ment-made part of the record subject to reserva-
tions-does contain material which could, con-
ceivably, sustain a determination , inter alia, that
Foreman Morehaus had, really, questioned Ander-
son with respect to Reed' s union activities. Pur-
suant to well-established decisional doctrine, how-
ever, General Counsel must-upon this record-be
considered precluded from any reliance upon An-
derson 's statement as substantive proof regarding
the matters therein discussed. N.L.R.B. v. Quest-
Shon Mark Brassiere Co., Inc., 185 F.2d 285 (C A.
2); Local 776, I.A. & S.E. (Film Editors), 124
NLRB 842, enfd. as modified 303 F.2d 513 (C.A.
9). Rationally, such a rule of limitation may be
open to serious question. See III Wigmore,
Evidence, §1018 (3d ed.); "The Turncoat Witness:
Previous Statements as Substantive Evidence," 25
Texas Law Review 573 (June 1947). There can be
no doubt, however, regarding the rule's continued
viability.) None of this testimony, clearly, reflects a
threat of discharge, for solicitation in complainant
Union's behalf, which would merit Board proscrip-
tion. As Respondent's counsel notes , this Board
has, for many years, taken the position that "work-
ing time is for work" so that-barring special cir-
cumstances not here present- union solicitation by
workers on company time may properly be forbid-
den. This principle has been judicially approved
N.L R.B v Babcock & Wilcox Co., 351 U S 105. So
far as the record shows, Foreman Morehaus did
nothing more than warn Respondent's workers of
possible disciplinary action, should they waste their
working time with union solicitation or discussions
Such warnings present no statutory violation, and
provide no justification for Board sanctions.
CONCLUSIONS OF LAW
1. Respondent, National Plywood, Inc , is an em-
ployer within the meaning of Section 2(2) of the
Act, engaged in commerce and business activities
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, as amended.
2. International Woodworkers of America, Local
Union No. 3-436, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act,
as amended , which admits employees of Respon-
dent to membership.
3. General Counsel has not , herein , produced re-
liable, probative , or substantial evidence sufficient
to justify a determination that Respondent did en-
gage, or that it presently continues to engage, in un-
fair labor practices affecting commerce, within the
meaning of Section 8(a)(1) or (3) of the Act, as
amended.
RECOMMENDED ORDER
Upon these findings of fact, and conclusions of
law, and upon the entire record in this case, my
recommendation is that the Board, pursuant to Sec-
tion 10(c) of the National Labor Relations Act, as
amended, dismiss the present complaint in its en-
tirety.