Polson Logging Co.

National Labor Relations Board - Board Decisions

Apr 20, 1942

40 N.L.R.B. 736 (N.L.R.B. 1942)

In the Matter Of POLSON LOGGING COMPANY and BROTHERHOOD OF
RAILROAD TRAINMEN -
Case No. C-2046.-Decided April 20,19./2
Jurisdiction : logging and sawmill operations.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statement ; inquiries into union
affiliation of employees ; threatened discharge for discussion of union affairs ;
warnings that employer might shut down or alienate its railroad operations
as a consequence of unions' activities
Discrimination: discharges for union activities; failure of employees to observe
and abide by safety rules and regulations held to cloak reason for discharge.
Remedial Orders : reinstatement and back pay awarded.
Mr. Patrick H. Walker, for the Board.
Mr. Robert W. Maxwell, of Seattle, Wash., for the respondent.
Mr. C. W. Stevens, of Portland, Oreg., for the Trainmen.
Mr. Re?,nolds C. Seitz, of"counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF TILE CASE
Upon an amended charge duly filed by the Brotherhood of Rail-
road Trainmen, herein called the Trainmen, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Nineteenth Region (Seattle, Washington), issued its com-
plaint dated June 30, 1941, against 'Polson Logging Company,
Hoquiam, Washington, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint,
accompanied by notice of hearing, were duly served upon the
respondent and the Trainmen.
'The original charge was filed on July 8, 1940, and the amended charge on June 30,
1941.
40 N. L R. B, No. 124.
736
POLSON LOGGING COMPANY 737
The complaint alleged in substance (1) that on or about May 21,
1940,• the respondent discouraged membership in the Trainmen by ^
discharging Dave Lytle, a conductor, and Clayton Reece, a brakeman,
because of their membership in the Trainmen; (2) that the respond-
ent threatened to close down or curtail its railroad operations if its
employees joined. the Trainmen or the Brotherhood of Locomotive
.Firemen and Enginemen, herein called the Firemen, and by other
acts and statements disparaged the Trainmen and Firemen, herein
sometimes collectively called the Brotherhoods, in an attempt to dis-
courage its employees from membership in the Trainmen and Firemen
and to encourage them to join or retain membership in the Inter-
national Wbodworkers of America, an affiliate of the Congress of
Industrial Organizations; herein called the I. W. A.,2 and (3) that by
the foregoing acts the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
On July 11, 1941,-the respondent filed its answer to the complaint,
admitting that it was engaged in commerce within the meaning of
the Act, but denying that it had engaged in the alleged unfair labor
practices. The answer further alleged by way of affirmative defense
that the respondent had discliarged Lytle and Reece because of their
failure to observe and abide by safety rules and regulations.
Pursuant to notice, a hearing was held in Hoquiam, Washington,
on July 28, 29, 30, and 31 and September 12 and 13, 1941, before
Henry J. Kent, the Trial Examiner duly designated by the Chief
Trial Examiner. 'The Board, the respondent, and the Trainmen were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence/bearing on the, issues was afforded all parties. At
the close of the Board's case the respondent moved to strike certain
testimony from the record, and also moved to dismiss the complaint
on the ground that the evidence offered failed to sustain the allega-
tions therein. Rulings were reserved and subsequently denied by
the Trial Examiner in his Intermediate Report. At the close of the
hearing the attorney for the Board moved to conform the complaint
to the proof. The Trial Examiner granted the motion. During the
hearing the Trial Examiner made numerous rulings on other motions
and on objections to the admission of evidence. The Board has re-
viewed the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
On October 14, 1941; the patties filed briefs with the Trial Ex-
aminer. On January 3, 1942, the Trial Examiner issued his Inter-
2 The Firemen and the I W A. were not made parties to these, proceedings Copies of
the complaint were not served upon them and they did not participate in the proceedings.
455771-42-vol 40--47
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, copies of which were duly served upon the parties,
in which he found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
Act. He recommended that the respondent cease and desist from
such unfair labor practices, that it reinstate Lytle and Reece with
back pay, and that it 'take certain other affirmative action in order.
to effectuate the policies of the Act. Thereafter, the respondent filed
exceptions to the Intermediate Report, and submitted a brief in
support of the exceptions. Pursuant to notice duly served on the
parties, a hearing for the purpose of oral argument was held before
the Board in Washington, D. C., on February 17, 1942. The re-
spondent and the Trainmen were, represented by counsel and
participated in the argument. -
The Board has considered the respondent's exceptions to the Inter-
mediate Report and its brief and, insofar as the exceptions are incon-
sistent with the findings of fact, conclusions of law, and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Poison Logging Company is a Washington corporation. Its prin-
cipal office is in Hoquiam, Washington, and it is engaged in logging
and sawmill operations in the vicinity of that town. During the year
1939 the respondent produced approximately 98,000,000 board feet
of logs, about 64,000,000 board feet of which were processed into
lumber in its own sawmill. The balance of the logs was sold to
other sawmills operated in the State of Washington. Of the lumber
processed in the respondent's sawmill, approximately 90 percent was
sold and transported in interstate commerce. There has been no
substantial change in the respondent's operations since 1939. In
connection with and as part of its logging operations, the respondent
operates a railroad system for the transportation of logs from the
woods to tidewater. The trains run over approximately 45 miles of
track. The respondent employs approximately 500 men in its logging
operations, approximately 33 of whom are engaged in the operation
of the respondent's railroad equipment. The respondent concedes
that it is engaged in commerce within the meaning of the Act.
H. THE ORGANIZATION INVOLVED
Brotherhood of Railroad Trainmen is a labor organization admit-
ting to membership employees of the respondent. - - '
POLSON LOGGING COMPANY 739
III. THE UNFAIR LABOR PRACTICES
A. Background of labor organizations and labor relations
In 1935 many of the respondent's employees became members of
United Brotherhood of Carpenters and Joiners of America, affiliated
with the American Federation of Labor, and continued as members
in this organization until 1937 when they shifted their affiliation to
the I. W. A., an affiliate of the Congress of Industrial Organizations.
The respondent since 1937 has been bargaining with the I. W. A.
as the sole collective bargaining agency for all its employees except
superintendents, foremen, timekeepers, bullbuckers, civil engineers,
check scalers, and office employees.
In February 1940 some of the respondent's railroad workers wished
to join the Trainmen or the Firemen and requested Dave Lytle, a
head brakeman and old time Brotherhood member, to assist them.
Lytle wrote to the secretary of Lodge 403 of the Trainmen at Tacoma,
Washington, secured a number of application blanks, and distributed
the applications to the employees engaged in railroad operations.
Lytle spent much of his spare time during March and April of 1940
in organizing the men and it appears that before May 1, 1940,'sub-
stantially all the railroad employees had joined either the Trainmen
or the Firemen.'
B. Interference, restraint, and coercion
During the period when Lytle was engaged in promoting the
organization of the railroad employees into the Trainmen and the
Firemen, Bennett, Ellingson, assistant superintendent of the respon-
dent, made remarks to employees which 'indicated the respondent's
opposition to their' organization in those unions.
Wood, a locomotive engineer, was approached by Ellingson on
or about May 1, while his train was waiting on a siding. According
to Wood, the following conversation took place: Ellingson asked
how the locomotive was working. Wood replied that it *us working
satisfactorily. Thereupon Ellingson stated, in substance, that there
was considerable repair work needed on the engine; that the respond-
ent had intended to put it into the shop for overhauling together
with other engines needing repairs, but that since "Brotherhood'
S On July 8, 1940, the Trainmen and the Firemen filed separate Petitions alleging that
questions affecting commerce concerning the representation of employees of the respondent
herein had arisen and requested an investigation. The cases were consolidated and a^
bearing held. On April 24, 1941, the Board issued its Decision and Order in which it
found that the units contended for by the Trainmen and the Firemen and Engineers were
inappropriate, and dismissed the petitions of the two Brotherhood unions. See-Matter of
Poison Logging Company and, Brotherhood of Railroad Trainmen and Poison Logging'
Company and Brotherhood of Locomotive Firemen and Enginemen, 31 N L R B. 328.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trouble" was apparently developing, the respondent had decided not
to make engine repairs, and might decide to close donvn operations.
Wood replied that he did not think there would be any trouble, be-
cause the men did not want any. Ellingson, nevertheless, remarked
that, Groves 4 had brought on the trouble and was a trouble maker.
Wood then said that he did not think that Groves had "brought up
anything more than anyone else," that they were all dissatisfied with
representation by the C. I. 0., and had made up their minds to go
into the Brotherhood. John Harlan, a locomotive fireman, testified
that in April 1940, Ellingson told him that "C. B. Groves was leading
us astray" and that shortly thereafter, while on Harlan's locomotive,
Ellingson told Harlan that the Northern Pacific was going to take
over the Poison railroad operations. Nels Hill, a brakeman, testified
that he was present during a conversation between Ellingson and
Frank Landi, a section foreman, in April or May 1940, on which
occasion Ellingson told Landi that there were two unions in
existence 'among the employees and that they were fighting one
another and that some day they would all "be going down the
road."' Tony Plesha, a member of the railroad construction gang,
testified that during April or May 1940 Ellingson approached Plesha
and Bert Fenton, an engineer, and asked them if they belonged to one
of the Brotherhood unions, that Plesha replied that they did, where-
upon Ellingson asked them what they were going to do when the
Northern Pacific took over the respondent's railroad. Dave Lytle
testified that in April 1940 while he was working on a gravel train,
Ellingson asked him if the 'railroad men were joining the Brother-
hoods. °
Ellingson denied that he had made the aforesaid statements or
inquiries, but admitted that he had held conversations with the
persons above-mentioned on the occasions specified. Landi was also
called as a witness by the respondent and testified that he did not
recall that Ellingson made the statements to him which Hill claimed
to have .overheard. We find, however, as did the Trial Examiner,
who heard the testimony and observed the witnesses, that the testi-
mony given by Wood, Harlan, Hill, Plesha, and Lytle is credible
and true and that remarks were made by Ellingson substantially as
set forth above.
C. B. Groves, the brakeman previously mentioned, testified that
while he was working at the respondent's Camp 6 in April 1940, Vic'
Lehman, the camp foreman, called him aside one day and, in sub-
stance, stated that since he had been Groves' friend for a long time he -
was warning Groves to be careful about discussing Brotherhood affairs
i C , B Groves was a brakeman and a member of the Trainmen.
POLSON LOGGING COMPANY 741
as somebody was going to be discharged and it might be Groves.
Lehman did not testify. No showing was made that the respondent
was unable to produce him as a witness. We find, as did the Trial
Examiner, that the incident occurred as related by Groves.
Assistant Superintendent Ellingson's inquiries into the union affili-
ation of employees,5 his warnings that the respondent might shut
down or alienate its railroad operations as a consequence of the
Brotherhoods' activities," and his disparagement of Groves for activ-
ity on behalf of the Brotherhoods,' and Camp Foreman Lehman's
warning to Groves that discharge might be the penalty for discussion
of Brotherhood affairs," all tended to discourage the respondent's em-
ployees from membership in the Brotherhoods, for they indicated the
respondent's opposition to such membership.
We find, as did the Trial Examiner, that by the statements of
Ellingson and Lehman, above described, the respondent interefered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
C. The discriminatory discharges
The complaint alleged that the respondent discharged and refused
to reinstate Dave Lytle, a conductor, and Clayton Reece, a brakeman,
on or about May 21, 1940, and thereafter refused to reinstate them
because of their membership in and activities on behalf of the Train-
men, and because they refused to remain or become members of the
I. All. A. The respondent's answer admitted that Lytle and Reece
were discharged at or about the time alleged, denied that the termi-
nations were based on union membership or activities, and alleged
that the discharges were made for failure to observe and abide by
safety'rules and regulations.
Dave Lytle was first employed by the respondent in the fall of
1934. He started to work as a second brakeman and after 3 weeks
was promoted to a job as first brakeman. In railroad practice the
duties of a first brakeman are similar to those of a conductor. The
first brakeman receives train orders from the dispatchers and trans-
Inits the orders to the other employees on the train. In the fall of
1938 Lytle quit and was off duty for several weeks until Bill Gordon,
e See Matter of TV W Rushton and Mrc Main Rushton , doing business as The Rushton
Company and/or The Atlanta Playthings Company and United Paper, Novelty and Toy
Workers International Union, 33 N L. R B 954
9 See Matter of The Times-Picayune Publishing Company and International Typographi-
cal Union, Unaliatcd, 32 N. L R B 387
i See analogous situation in Matter of Sigmund Fi eisznger, doing business under the
name and stifle of North River Yarn Dyers and Textile Workers Organizing Committee,
10 N L. R B. 1043.
8 See Matter of Colton and Colman, doing business as Kiddie Kover Mfg Co. and
Amalgatated Clothing Workers of America, 6 N. L R. B 355, enforced in 105 F. (2d)
179 (C. C. A. 6).
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then the respondent's trainmaster, came to his home and requested
him to return to, work. Lytle did return and continued in his em-
ployment with the respondent until he was discharged on May 21, 1940.
Prior to his discharge he was chairman of the general committee of
the Trainmen.
Clayton Reece was first employed as a second brakeman in 1928.
'He was injured in 1930 and did not return to work for the respondent
until 1933. After 2 months in the respondent's employ in 1933, he
quit. He was rehired in May 1939 and remained continuously em-
ployed by the respondent until he was discharged on May 21, 1940.
Prior to his discharge he was secretary of the general committee of
the Trainmen. •
On or about May 16, 1940, Lytle called at the respondent's office
at Hoquiam and asked F. A. Polson,9 commonly called Arnold
Polson, to set a date for a negotiating conference between the re-
spondent and a committee representing the Trainmen and Firemen.
Poison said that he would see the committee on Saturday, May 18,
1940. On May 18, Dave Lytle, Clayton Reece, Sam Key, and Law-
rence Brant 10 appeared, as representatives of the Brotherhoods and
Arnold Poison, A. N. Poison, commonly called Alec Poison, and
Bennett Ellingson, were present as representatives of management.
The Brotherhoods' committee presented a proposed form of agree-
ment covering the respondent's employees engaged in railroad oper-
ations, together with a covering letter stating that a majority of
the conductors and brakemen, and of the engineers and firemen had
designated the Trainmen and Firemen, respectively, to represent
them for collective bargaining purposes and requesting that the re-
spondent sign the agreement tendered. Arnold Poison was spokes-
man for the respondent and Dave Lytle the spokesman for the com-
mittee. Polson read the proposed agreement. He then stated that
before giving the question further consideration he wanted to consult
with counsel, that the I. W. A. had been bargaining on behalf of
all of the respondent's' employees, and that Key and Brant had
previously appeared before him as members of I. W. A. committees.
Polson further stated that the respondent was not operating a rail-
road but was engaged in the logging business and that he thought
one union in the business better than two since if there were two
unions, jurisdictional disputes were likely to arise.h1 At the con-
F A Poison , A N. Poison , and Bennett Ellingson , respectively, occupied positions
as general manager, superintendent , and assistant superintendent in the respondent's
business
io Lytle and Reece represented the Trainmen and Key and Brant the Firemen.
The complaint alleged that these statements of Arnold Poison on May 18, 1940,
-discouraged membership in the Brotherhoods and encouraged membership in the I. W. A.
We agree with the Trial Examiner, however, that inasmuch as the remarks were
made to a union negotiating committee , and merely expressed the respondent 's reasoned
preference for dealing with one, rather than two unions , they should not be viewed
POLSON LOGGING COMPANY ' 743
elusion of the conference, Lytle requested ', written reply to the above
letter.
On May 29, 1940, the respondent replied and stated that the re-
spondent had entered into agreements with Local No. 2,j. W. 'A.,
covering all the employees, for a number of years, and still recognized
the I. W. A. as the exclusive bargaining agency for all its employees.
Following the conference on Saturday, May 18, 1940, Lytle and
Reece worked on May 20 and 21, 1940. After quitting work on
May 21 they both went into the trainmaster's office to look at the
call board and ascertain what their work assignments were for the
following day. A black cross had been marked' against both of
their names on the Board, and no work assignments for the following
day were designated. They asked the trainmaster, Groseclose, what
runs they were to take on May 22, 1941. Groseclose replied, 'To-
morrow is your day off," and further said, "You are not going to
work any more until you see Bennett Ellingson." They asked
Groseclose why they were being laid off. He replied that Ellingson
had said it was for failure to flag the Axford Prairie-crossing. -
Lytle attempted to get in touch with Ellingson at the respondent's
camps during May 22, but was not successful. In the evening of
the same day he called Ellingson at his home, and Ellingson said,
"I can't see you today, I will see you Saturday." On Saturday Lytle
met Ellingson at the Poison office in Hoquiam and asked why he had
been laid off. Ellingson stated, "For not flagging the Axford Prairie
crossing." Lytle replied, "It has never been flagged," and further
said, "You can't flag that' crossing without stopping the train and
going ahead to flag it." Whereupon Ellingson said, "You don't
have to stop. I want you to flag it from the point of the car."
Lytle also asked whether Ellingson was laying Reece off and Elling
son said he was, and for the same reason. Lytle then asked whether
he was to be discharged. Ellingson said that he would let Lytle
know on Mondai7, as he had to, consult Arnold Polson first.
Reece did not talk with Ellingson in reference to his discharge,
but called Groseclose on May 22, 1940, and was told by Groseclose
that there would be no work for him for the rest of the week.
Reece again called Groseclose on Sunday, May 26, and Groseclose
again stated that there was no work for him whereupon Reece re-
quested Groseclose to call him when he was needed. On or about
June 15, 1940, Reece called at the respondent's office in Hoquiam to
inquire about his status and was handed a separation report. The
as coercive within the meaning of Section 8 (1) of the Act We find the statements
material, however, as further evidence of the respondent's opposition to the Brother-
hoods (See Section III B , supra). As such they have bearing upon the discharges
which followed.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason stated in the report for the separation was, "violatiomof safety
rules and/or unsafe operation." A similar separation notice was
delivered to Lytle on or about June 15, 1940. Neither employee
has been reinstated.
Concerning the events immediately preceding the discharges Elling-
son testified without contradiction as follows: On the morning of
May 21 he left Railroad Camp.,of the respondent at about 5 a. in.,
drove westward, and soon caught up with the respondent's engine
Number 18, on which" Lytle and Reece were working as brakemen
and assistant brakemen, respectively. Ellingson followed the train
to Axford Prairie crossing, where the railroad crosses the Olympic
State highway of Washington, a well-paved but only moderately busy
artery. There he stopped and noted that the engineer blew his
whistle as usual when approaching the crossing, but that neither
brakeman was out on the platform of the "crummy" car 12 which
was the only car being pushed in front of the engine. Ellingson
also observed that the :door of the "dog house" which was situated
on the end of the "crummy" nearest the engine was closed. After
he observed the conduct of the brakemen he returned to Railroad
Camp and made a notation against the names of Lytle and Reece
on the call board and told Trainlnaster Groseclose not to put them
back to work until he, ' Ellingson, had talked with them. Later in
the day Ellingson discussed the incident with Alec Poison and
about'? o'clock that same night reported the incident to Arnold Pol-
son. A few days later Ellingson and Arnold and Alec Poison further
discussed the incident at the respondent's Railroad Camp and decided
to discharge Lytle and' Reece for failing to come out of the "dog
house" and ride on the front of the "crummyy"car to signal or flag
the engineer across the Axford Prairie crossing.
The respondent claims that it discharged Lytle and Reece because
they violated an existing rule. It contends that it is a rule that
whenever, as in the situation here involved, only the "crummy" car
is pushed in front of the engine the head, brakeman or his assistant
must go to the front end' of the "crummy" when the train approaches
a crossing, and signal the engineer either to proceed or to stop.
Witnesses for the respondent testified in substance that this rule
came into effect in 1934,13 and marked a departure from a former
rule which required the engineer to stop at all crossings, and the
brakeman to get down on the ground and flag him across the inter-
11 The "crummy" car is a flatcar having an enclosed shanty, commonly called a
"dog house," constructed on one end The "dog house" serves the purpose usually
served by a caboose operated in connection with railroad freight trains It has windows in
the front (the side nearest the forward end of the "crummy" car) and at the sides
and a sliding door in the rear: The side windowpanes are fixed in sliding panels and
may be opened or closed
"The new rule allegedly did not go into effect at crossings No 3 and No 4 until
1937 or 1938. Axford Prairie is crossing No 1.
POLSON LOGGING COMPANY 745
section, that the change was occasioned by a new practice of making
up most trains so that instead of pushing many cars, the engine
pushed only the "crummy" car in front 'of it, and that the old rule
is still in effect in those comparatively rare instances, when more
than the "crummy" is pushed in front of the engine. The record is in
sharp conflict as to the existence or nonexistence of the alleged rule.
Alec and Arnold Poison, Ellingson, and Groseclose 14 all testified
that following the above-discussed changes in operation, they had
given oral instructions pertaining to safety measures to the railroad
employees individually and that in these instructions the railroad
employees were told -that one of the brakemen should stand out on
the front end of the "crummy" car when it only was being pushed
ahead of the engine, to signal the engineer to slow down on ap-
proaching a crossing, and thereafter to signal the engineer to proceed
across if the highway was clear.15 Kalis Heck, presently a shop-
helper but formerly a brakeman, who was called as a witness by the
respondent, corroborated this testimony of the Polsons, Ellingson,
and Groseclose, testifying that while working as a brakeman he had
been apprised of the rule in question by them, and their superiors.
It was also stipulated that during the latter part of 1937 and early
in 1938, after three highway accidents had occurred near crossings,
the Aetna Casualty Company, the respondent's insurer, sent Charles
Young to check and report to it on the rspondent's operations, and
that if Young were called as a witness he would testify that he was
informed by the respondent's safety engineer that the respondent
had instructed trainmen to flag crossings, that he made spot checks at
highway crossings 16 during the latter part of 1937 and early part of
1938, and that these checks disclosed that the highway crossings were
being flagged. Ellingson testified that when Lytle had been laid off on
May 21, he admitted to him that he had been in the wrong for not
flagging.
It Groseclose , who had formerly been a brakeman , was promoted to the trainmaster's
job in 1939 He was under the immediate supervision of Ellingson , the assistant super-
intendent , and supervised train movements.
''Arnold Poison further testified that he had left copies of the State of Washington
Loggers Safety Standards in the tramnrasters shed in Railroad Camp and had posted a
notice ordering all the railroad employees to take a copy There is conflict in the record
as to whether these booklets were actually made available . The majority of the trainmen
who testified said that they never saw such notice or a copy In any event the only
applicable section is one which provides that "unless equipped with air, no equipment
shall be pushed ahead of the locomotive, unless a brakeman is on head car in constant view
of the engineer " An air line ran through the "crummy" here involved Because it
could only be operated from the front end, the respondent claims that the rule required
the brakeman to be out on the front of the "crummy " On its face the quoted rule is in-
applicable to the instant situation. Hence we need not resolve the conflict in testimony as
to whether or not it as in force among the respondent 's employees
io We assume that Young would testify that he checked the Axford Prairie as well as all
the other crossings . At the Axford Prairie crossing in 1937-38 it was necessary only
to do the kind of flagging applicable to situations in which the "crummy" alone was pushed
in front of the engine
746 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the other hand, Dave Lytle, who is a head brakeman, denied
that he had been instructed-by any supervisor, to flag the engineer,
from the front end of the' "crummy" car while proceeding over a
crossing and further testified That, on occasional runs when he acted
as a second brakeman his head brakeman had never flagged the
Axford Prairie crossing, or ordered him to do so. Lytle on cross-
examination qualified the above testimony by admitting that he had
flagged crossings No. 3 and No. 4 (No. 4 being presently known
as No: 5) during night runs, on instructions from Alec Polson. Paul
Pauley, head brakeman for about 2i/2 years testified that until after
Lytle and Reece Were discharged he was never instructed to ride
out on the platform of the "crummy" car when it was being pushed
ahead of the engine. Pauley admitted, however,' that he usually
stepped outside the "dog house" while running over crossings as he
had had previous railroad experience before working for the respond-
ent and thought he should do so. Nels Hill, a brakeman since 1912,
testified that neither of the Polsons, Ellingson, nor Groseclose had
informed him of any rules or regulations concerning train operations
prior to Lytle's discharge. Hill admitted on cross-examination that
in 1937 he had been riding out on the front, car of a train and flagged
the engineer to stop the train at a crossing. , He stated, however,
that on that occasion there was another car or cars ahead of the
"crummy" car and he was on the head car, rather than on the
"crummy." C. C. Groves, testified that he had never received any
instructions 17 to flag the Axford Prairie crossing unless they were
pushing empties ahead of the engine, until after Lytle and Reece
were discharged. Groves further testified that he never flagged his
engineer at crossings unless he saw a car coming along the highway,
when he would go out on the "crummy" to see if the engineer saw
it also, and if the engineer apparently observed it he did not signal
him. Clayton Reece also testified that he had never been instructed
by any supervisor that one of the brakemen was required to ride out
on the front end of the "crummy" car to flag or signal the engineer
at crossings. _
Key, Wood, Wicklund, and Corrigan, - all engineers on the - re-
spondent's railroad, testified in substance that they had been instructed
to slow down and- blow the locomotive whistle 'frequently before
reaching the crossings; that they were not instructed to look to the
brakeman for operating signals at crossings, but that they together
with their firemen watched the crossings and used their own judgment
as to whether to stop or proceed. Key further testified that some-
17 Groves had admitted in a previous representation proceeding before the Board
(Matter of Poison Logging Company and Ozette Railway Company and Brotherhood of
Railroad Trainmen, 31 N. L R. B 328) that the respondent had certain unwritten
rules which governed the conduct of employees.
POLSON LOGGING COMPANY 747
times `the brakemen on his train stood out on the platform of the
"crummy" car while passing over crossings and at other times they
remained in- the "dog house." Corrigan,, the engineer on the train
on which Lytle,-and Reece were brakemen at the time they were
discharged, testified that while the head brakemen on his trains
usually stepped out of the "dog house" while passing over, crossings,
he could not say that all of them did.
. The Trial Examiner in the Intermediate Report found that while it
may have been a general practice among a number of the employees
to flag crossings at such times as the "crummy" was the only, car
being pushed ahead of the engine, there was a wide difference in under-
standing among them as to whether this practice was required -in
strict compliance with any safety rules or was left more to individual
judgment. He stated that he was not convinced that the alleged rule
had been communicated to all the employees, and found that it had not
been communicated to Lytle or Reece. Under all the circumstances,
including the practice of some of the employees (among whom were
witnesses who denied the rule's existence) of complying with the
alleged terms of the rule, and the hazardous nature of the situation
to which the rule was supposed to apply, we find that there was a
rule requiring a brakeman to be on the front end of the "crummy"
when it alone 'was being pushed by the engine, and to signal the
engineer either to stop or proceed when the train approached the
Axford Prairie crossing. We find further, that in view of the nature
and length of their employment Lytle and Reece were chargeable with
knowledge of the rule, whether or not they were in fact directly
apprised of its existence by a superior.
It remains to be determined whether the respondent discharged
Lytle and Reece for their undenied failure to observe the requirements
of the rule in question, or for their union activities.18
We consider first the seriousness of the infraction in the circum-
stances in which it occurred. The evidence is that the respondent's
engine was traveling at a speed of about 8 miles an hour as it ap-
proached the crossing in question and that the engineer had a suffi-
cient view of the highway to have enabled him to stop the train had
it become necessary to do so. Moreover, Lytle and Reece, in the dog
house, had a good view of the highway from its windows and could
have signaled the engineer if necessity had arisen. On the whole, the
two men appear to have violated the letter, rather than the spirit of
the safety regulation in question. We conclude that these circum-
1e We are not concerned with the manner and extent to which employers maintain
discipline and whether penalties imposed for infractions of rules - are reasonable. We
must consider , however, whether the respondent herein exacted the severe penalty of
discharge, not to maintain observance of its rules but to cloak a discharge for union
activity.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances were apparent to Ellingson when he observed the violation
of the rule. Further, Corrigan, the engineer, testified that he kept
an independent lookout. 'This information, too, was available to
Ellingson had he seen fit to inquire of Corrigan. With due regard
for considerations of public safety, we are of the opinion that the
offense of which Lytle and Reece were guilty was one which would
normally have been condoned, or passed with a reprimand or minor
penalty. This is especially so inasmuch as the two men had seen
considerable service with the respondent and had never before been
reprimanded for failure to observe safety rules," and inasmuch as
Alec Polson and Ellingson admitted that no other employee had ever
been laid off or discharged for violation of the rule in question. We
are unable to assume that the incident in question was the first
breach of that rule which had been observed by the respondent's
officials.
Under the circumstances the manner in which the discharges were
effected contributes to our conviction that the men were accorded
special treatment. The respondent neither confronted nor interro-
gated them concerning their behavior, and afforded them no oppor-
tunity to explain or defend. It failed, moreover, to consult Corrigan,
the engineer, concerning the incident.
Aspects of Ellingson's behavior on the morning of May 21, when
the violation occurred, and in his later handling of the matter, also
support the inference that Lytle and Reece were subjected to treat-
ment such as the respondent would not normally have accorded
employees caught in a similar dereliction of duty. Ellingson's testi-
mony was that on that morning he had started on a trip involving
ordinary business operations; that he never went out for the specific
purpose of checking on the conduct of employees; but that when he
traveled from camp to camp in the usual course of business he made
it a point to observe the conduct of the men operating the trains.
Ellingson specifically denied that he had gone out for the purpose
of trailing Lytle and Reece. All this testimony, however, is incon-
sistent with Ellingson's action in abandoning his trip and returning
to Railroad Camp, immediately upon his observation of the infrac-
tion, for the purpose of arranging that the two men should be laid
off. In this connection we note that Lytle testified that shortly
after the lay-off Ellingson told him that "Mr." Polson has instructed
Ellingson to observe the Axford Prairie crossing on- the morning
19 Ellingson testified that in April 1940 he had reprimanded Lytle for being careless about
flagging crossings ^ Groseclose testified that about two weeks before Lytle was discharged,
Lytle told him that he had been reprimanded by Ellingson for not flagging crossings Lytle
denied that he had been so reprimanded and further denied'that he ever told Groseclose
that he had been It appears and we find that the Incident which gave rise to the alleged
reprimand concerned , not Lytle's failure to flag a crossing, but his responsibility in'tbe
matter of a "runaway engine "
POLSON LOGGING COMPANY 749
of the 21st. Upon the entire record, including the respondent's
attitude of opposition to the organization of its railroad employees
in the Trainmen, and Ellingson's quick return to the Railroad Camp
after noting the failure to flag, we believe Lytle.20 We find that
Ellingson made the statement attributed to him, and find that he
had been, instructed by one of the Polsons to watch the Axford
Prairie crossing, on the morning of May 21, 1940. On the entire
record we further find that pursuant to those instructions Ellingson,
contrary to his testimony, trailed the train to the crossing,for the
specific purpose of noting whether or not the two brakemen would
observe the safety rule in question.
Explanation for the unusually severe treatment thus accorded
Lytle and Reece, we are convinced, lies in the respondent's resentment
of their activity in behalf of the Trainmen. We have noted that
in the weeks preceding the negotiating conference of May 18, super-
visory officials expressed the respondent's opposition to the Brother-
hoods.21 At that conference, too, Arnold Polson clearly reiterated
that opposition. Lytle was a leader in the organization of the
Brotherhoods, and Reece, though somewhat less active, was closely
associated 'in- such' activity-with Lytle'. Both were officers and both
were members of the negotiating committee at the May 18 conference.
Their discharges, under the unusual circumstances which we have
outlined, followed that conference by 3 days. '
We find, as did the Trial Examiner, that by discharging and re-
fusing to reinstate Lytle and Reece, the respondent has discriminated
in regard to their hire and tenure of employment, thereby discourag-,
ing membership in the'Union, and that by such action the respondent
has interfered with, restrained, and coerced its employees in the exer-
cise of, the rights,guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent, set forth in Section III above, oc-
curring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and susbtantial relation to
trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the, respondent has engaged in unfair labor
practices we shall order the respondent to cease and desist therefrom,
20 Neither Poison denied having given the alleged instruction . We consider . Ellingson's
denial that he had gone out for the purpose of trailing Lytle and Reece as - a denial of
Lytle's testimony, but we do not credit it.
u Section III B, sups a
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to take certain'affirmative action designed to effectuate the policies
of the Act.
We have found that the respondent, by discharging and refusing
to reinstate Dave Lytle and Clayton Reece, discriminated in regard to
their hire and tenure of employment. We shall, therefore, order the
respondent to offer each of them immediate and full reinstatement to
his former or a' substantially equivalent position without prejudice
to his seniority or other rights and privileges, and to make each of
them whole for any loss of pay he- may have suffered by reason of
the respondent's discrimination against him, by payment to him of
a sum of money equal to the amount which he would normally have
earned as wages from May 21, 1940, the date of the discharge, to the
'date of the respondent's offer of reinstatement, less his net earnings 22
during said period.
- Since the respondent's acts of discrimination "go to the very heart
of the Act," 23 and since, as we have found, the respondent also en-
gaged in other unfair labor practices, we shall require the respondent
to cease and desist from interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed in the Act by dis-
crimination, ,or in any other manner.24
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW -
1. Brotherhood of Railroad Trainmen is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Dave Lytle and Clayton Reece, and thereby, discouraging
membership in the Brotherhood of Railroad Trainmen, the respond-'
ent has engaged in and is engaging in unfair labor practices, within
the meaning df Section 8 (3) of the Act.
3. By' interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in_ and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
21 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection « ith obtaining work and working elsewhere
than for the respondent, which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking employment elsewhere See Matter of
Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. B 440 Monies received for
work performed upon Federal , State , county, municipal , or other work -relief projects shall
be considered as earnings See Republic steel corporation v. N L. R: B. 311 U. S. 7.
2', See N. L R B. v Entwistle Manufacturing Company, 120 F. (2d) 532.
11 Cf. N. L.- R. B. v. Empress Publishing Co., 312 U. S 426
POLSON LOGGING COMPANY' ,751
4. The aforesaid unfair labor practices are unfair labor practices,
affecting commercewithin the meaning of Section 2 (6) and (7.)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions' of
law and upon the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the respondent, Poison Logging
Company, its officers, agents, successors, and assigns, shall :
1. Cease and desist from
"(a) Discouraging membership in the Brotherhood of Railroad
Trainmen, or any other labor organization of its employees, by dis-
charging, laying off, or refusing to reinstate any of its employees,
or in' any other manner discriminating in regard to their hire or
tenure of employment or any terms or conditions of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in concerted activ-
ities for the purposes of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Dave Lytle and Clayton Reece, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights or privileges;
(b) Make whole the said Dave Lytle and Clayton Reece for any
loss of earnings resulting from the respondent's discrimination against
them by payment to each of them of a sum of money equal to that
which he would normally have earned as wages from May 21, 1940,
to the date of the respondent's offer of reinstatement, less his net
earnings during said period;
(c) Immediately post notices in conspicuous places throughout its
lumber camps in the vicinity of Hoquiam, Washington, and maintain
such notices for a period of at least sixty (60) consecutive days
stating: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraph 1 (a) and (b)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraph 2 (a) and (b) of this Order; and (3) that the
respondent's employees are free to become or remain members of the
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Railroad Trainmen and that the respondent will not
discriminate against any employee because of membership in or
activities on behalf of that organization;
- (d) Notify the Regional Director for the Nineteenth Region in
writing within ten (10) days from the receipt of this Order what
steps the respondent has taken to comply herewith.
i