Smith Wood Products, Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1939

16 N.L.R.B. 613 (N.L.R.B. 1939)

In the Matter of SMITH WOOD PRODUCTS, INC. and LUMBER AND SAW-
bMILL WORKERS, LOCAL No. 117, INTERNATIONAL WOODWORKERS OF
AMERICA
In the Matter Of SMITH WOOD PRODUCTS, INC. and MEL F. DUNCAN,
J. B. COCHRAN, ERNEST EMBREE, E. M. BRINER, AND GARY ALLEN
ELLISON
Cases Nos . C,-405 and 0-875, respectvvely .Decided October 27, 1939
Wood Working Industry-Interference, Restraint, and Coercion: suggestions to
form unaffiliated organization and warnings against "outsiders" and "agitators" by
officials in plant during working hours-Discriynination: allegations of, dismissed
as to 3 discharged employees, not sustained by evidence; allegations of, dismissed
as to 85 employees denied reinstatement after strike, offer to return not uncon-
ditional ; found as to 2 employees, discharged for union activity-Unit Appro-
priate for Collective Bargaining: employees of Sawmill excepting supervisory offi-
cials, foremen, salesmen, clerical and office employees-Representatives: proof
of choice: testimony and stipulation authorizing intervening union as bargaining
representative ; stipulation controlling in absence of interference and coercion-
Collective Bargaining: charges of failure to bargain collectively with complain-
ing union, dismissed-Reinstatement: ordered as to two discharged employees-
Back Pay: awarded, none accrued during period plant closed because of strike.
Mr. G. L. Patterson and Mr. Patrick H. Walker, for the Board.
Carey, Hart, Spencer d McCulloch, by Mr. Phillip Chipman, of
Portland, Oreg., and Mr. J. B. Beding field, of Marshfield, Oreg., and
Mr. J. Arthur Berg, of Coquille, Oreg., for the respondent.
Mr. Tom Boeke, of Coquille, Oreg., and Mr. L. Presley Gill, of
Seattle, Wash., for Local 2770.
Mr. Ben Anderson, of Portland, Oreg., for Local 117.
Mr.'William F: Gaffey, Jr., of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Lumber and Sawmill Workers, Local
No. 117, International Woodworkers of America, herein called Local
117, the National Labor Relations Board, herein called the Board, by
the Regional Director for the Nineteenth Region (Seattle, Washing-
ton), issued its complaint, dated January 17,1938, against Smith Wood
16 N. L. R. B., No. 65.
613
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Products, Inc., Coquille, Oregon, 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), (3),
and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act.' Copies of the complaint and
accompanying notice of hearing were duly served upon the respondent,
Local 117, and Lumber and Sawmill Workers, Local No. 2770, United
Brotherhood of Carpenters and Joiners of America, herein called
Local 2770.
As to the unfair labor practices the complaint as amended at the
hearing alleged, in substance, (1) that the respondent's employees
engaged in the operation of its sawmill for the production and manu-
facture of fir lumber, cedar lumber, battery separators, and venetian-
blind material, at Coquille, Oregon, herein called the Sawmill, with
the exception of supervisory officials, foremen, salesmen, clerical and
office employees, constitute a unit appropriate for the purpose of col-
lective bargaining; (2) that the respondent refused to bargain collec-
tively with Local 117 at a time when it represented a majority of the
respondent's employees in said appropriate unit and, instead, executed
a contract with Local 2770 which required, as a -condition of employ-
ment, that the the employees in the respondent's Sawmill become mem-
bers of Local 2770; (3) that as a direct result of the respondent's un-
fair labor practices in its Plywood plant,2 87 named employees of the
Sawmill ceased work on or about September 21, 1937, and that subse-
quent to that date the respondent refused and has continued to refuse
to reinstate said employees for the reason that they joined and as-
sisted Local 117 and were not members of Local 2770; and (4) by
such acts and other acts including threats to cease operation of its
Sawmill, the respondent interfered with, restrained, and coerced its
employees in the exercise of their rights as guaranteed in Section 7
of the Act.
Thereafter the respondent filed its answer admitting the allegations
of the complaint with respect to interstate commerce and the appro-
priate bargaining unit and denying that it had engaged in any unfair
labor practices. By way of affirmative defense, the answer averred
that at all times mentioned in the complaint Local 2770 maintained
an organization in which, according to the respondent's best infor-
mation, a majority of its sawmill employees were members; that on
August 30, 1937, and prior thereto a majority of the respondent's
sawmill employees were members of or otherwise affiliated with, Local
2770; and that neither on August 30, 1937, nor' at any time prior
thereto did Local 117 represent a majority of the respondent's
employees in the appropriate unit.
1 Case No. C-405 Is predicated upon this complaint.
2 The respondent operates a plywood plant which is located adjacent to the Sawmill.
SMITH WOOD PRODUCTS, INCORPORATED 615
Pursuant to notice duly served upon the respondent, Local 117, and
Local 2770, a hearing was held at Coquille, Oregon, on February 4
and 5,1938 3 before Mapes Davidson, the Trial Examiner duly desig-
nated by the Board. At the beginning of the hearing Local 2770
filed a motion to intervene, which was granted by the Trial Ex-
aminer 4 The Board, the respondent, and Local • 2770, were repre-
sented by counsel, participated in the hearing, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues. During the course,-of
the hearing counsel for the Board, without objection, moved to amend
paragraph 12 of the complaint by adding the names of four addi-
tional employees whose work ceased on or about September 21, 1937,
and who at all times subsequent to that date, have been refused em-
ployment. The respondent moved to dismiss the complaint as to Fred
McNair and W. S. Newton for the reason that they had been rein-
stated. Counsel for the Board concurred in this motion. The re-
spondent also moved to amend the answer for the purpose of
clarifying the use of the term "rivermen." All of the above motions
were granted. These rulings of the Trial Examiner are hereby af-
firmed. At. the. close of. the Board's case,, counsel for. the: Board moved
to amend the complaint to conform to the proof and to consolidate
the record in this case and the record made in a previous proceeding
involving alleged unfair labor practices in the respondent's Plywood
plant 5 in so far as the evidence in one is applicable to the issues in
the other. The Trial Examiner reserved ruling on this motion. The
motion to conform the pleadings to the proof is hereby granted. The
motion to consolidate the records is hereby denied .6' During the
course of the hearing the Trial Examiner made rulings on other
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are ,hereby; affirmed.
Pursuant to Article II, Section 37, of National Labor Relations
Board Rules and Regulations-Series 1, as amended, the Board
issued its Order dated February 15, 1938, transferring to and con-
tinning before it this proceeding for action pursuant to Article II,
Section 38, of said Rules and Regulations.
3 Pursuant to the respondent ' s motion the Regional Director postponed the hearing from
January 26 to February 7. Notice of postponement was duly served upon the respondent.
The hearing date was advanced to February 4 by consent of all the parties.
4 Although the Trial Examiner granted the request of counsel for Local 2770 to file an
answer at' a.later date , such answer does not '• appear in the-record.
5 Matter of Smith Wood Products, Inc. and Plywood and Veneer Workers Local No. 2691,
International Woodworkers of America , 7 N. L. It. B. 950.
6 The testimony of George A. Ulett taken at the hearing involving the Plywood plant was
made a part of this record by stipulation of counsel for the Board , the respondent, and
Local 2770. See Reap. Exb. No. 8, Case No. C-405.
247383-40-vol .. 16--4 0
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon charges, amended charges, and supplemental charges duly
filed by Mel F. Duncan, J. B. Cochran, Ernest Embree, E. M. Briner,
and Gary Allen Ellison, the Board, by the Acting Regional Director
for the Nineteenth Region (Seattle, Washington), issued and duly
served its complaint dated April 13, 1938, against the respondent,
alleging that the respondent had engaged in, and was engaging in
unfair labor practices within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the Act.' As to the unfair labor prac-
tices the complaint as amended at the hearing alleged, in substance,
(1) that on or about July 27, 1936, the respondent discharged Mel F.
Duncan, J. B. Cochran, Ernest Embree, E. M. Briner, and Gary Allen
Ellison, and has since refused to reinstate said employees for the
reason that they joined and assisted Local 2770; and (2) by the dis-
charge of said employees and its refusal to reinstate them and by
other acts and statements the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. Thereafter, the respondent filed its answer
admitting the allegations of the complaint as to interstate commerce
and denying the commission of the alleged unfair labor practices.
By way of an affirmative defense the answer averred that Cochran,
Briner, and Duncan voluntarily left the respondent's employ on July
27, 1936, and that Embree and Ellison were discharged on that date
for the reason that their work was unsatisfactory.
On April 13, 1938, the Board, pursuant to its Rules and Regula-
tions, issued its Order consolidating for the purpose of hearing Cases
Nos. C-405 and C-875.$
Pursuant to notice duly served upon the respondent, Mel F. Dun-
can, J. B. Cochran, Ernest Embree, E. M. Briner, and Gary Allen
Ellison, a hearing was held at Coquille, Oregon, from April 25 to
April 27, 1938,° inclusive, before J. M. Brown, the Trial Examiner
duly designated by the Board. The Board and the respondent were
represented by counsel, participated in the hearing, and were af-
forded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner granted the Board's motion to conform the pleadings to
the proof made at the close of the Board's case and renewed at the
close of the hearing. The Trial Examiner denied the respondent's
motion to dismiss the complaint made at the close of the hearing.
Those rulings are hereby affirmed. During the course of the hearing
the Trial Examiner made rulings on other motions and on objections
to the admission of evidence. The Board has reviewed the rulings
' Case No. C-875 is predicated upon this complaint.
8 This Order refers to Case No. C-875 as Case No. XIX-C-144.
6 The Acting Regional Director granted the respondent 's motion to extend the answer day
but denied its motion to postpone the hearing.
SMITH WOOD PRODUCTS, INCORPORATED 617
,of the Trial Examiner and finds that no prejudicial errors were com-
..mitted. The rulings are hereby affirmed.
On September 13, 1938, the Board issued its Order which pro-
vided, in substance, that in accordance with National Labor Relations
13oard Rules and Regulations-Series 1, as amended, Case No. C-875
(XIX-C-144) be transferred to and continued before the Board for
action pursuant to Article II, Section 38, of said Rules and Regula-
tions; that no Intermediate Report should be issued by the Trial
Examiner in Cases Nos. C-405 and C-875; that pursuant to Article
II, Section 38 (d), of said Rules and Regulations, Proposed Findings
of Fact, Proposed Conclusions of Law, and Proposed Order should
be issued in Cases Nos. C-405 and C-875; and that the parties herein
should have the right within 10 days from the, receipt of said Pro-
posed Findings of Fact, Proposed Conclusions of Law, and Proposed
Order to file exceptions, to request oral argument before the Board,
and to request permission to file a brief with the Board.
On August 4, 1939, the Board, pursuant to Article II, Section 37
(c), of National Labor Relations Board Rules and Regulations-
Series 2, issued Proposed Findings of Fact, Proposed Conclusions
of Law, and Proposed Order, copies of which were duly served upon
the parties. Exceptions thereto were filed by the respondent, Local
2770,9a and E. M. Briner eb The respondent and Local 2770 filed
briefs in support of their exceptions,°O and Local 117 filed a brief in
support of the Proposed Findings of Fact, Proposed Conclusions of
Law, and Proposed Order. Pursuant to notice duly served on the
respondent, Local 2770, and Local 117, a hearing for the purpose of
oral argument was had on October 10, 1939, before the Board, in
Washington, D. C. The respondent appeared by counsel and par-
ticipated in the hearing. The Board has considered the exceptions
of the respondent,9d Local 2770, and E. M. Briner. It has also
considered the briefs in support of the exceptions of the respondent
and Local 2770, and the brief filed by Local 117 in support of the
Proposed Findings of Fact, Proposed Conclusions of Law, and
Proposed Order. The Board hereby sustains those exceptions of
the respondent and Local 2770 to the proposed finding that the 85
employees involved in Case No. C-405 were discriminatorily re-
fused reinstatement. In all- other respects the Board finds said ex-
Local 2770 filed three affidavits in support of its exceptions . It also filed an alterna-
tive motion to reopen the record and affidavits in support thereof. In view of the findings
and conclusions set forth below , it is unnecessary to pass upon the motion.
Bb The respondent filed an answer to Briner ' s exceptions and Briner , in turn , filed a reply
to the respondent's answer.
Bc The respondent ' s brief contained an alternative request to reopen the record, supported
by affidavits attached to the brief . In view of the findings and conclusions set forth below
it is unnecessary to pass upon this request.
Bd Including its additional exception filed at the oral argument.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceptions to be without merit save as they are consistent with the
findings of fact, conclusions of law, and order hereinafter set forth.
The Board likewise finds Briner's exceptions 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
Smith Wood Products, Inc. is a Missouri corporation having its
principal office at Kansas City, Missouri. It operates at Coquille,
Oregon, a plywood plant and a sawmill, the latter consisting of a
cedar mill and fir mill. The only plant of the respondent involved
in this proceeding is the Sawmill.
The respondent owns approximately 300,000,000 feet of standing
timber in Coos County, Oregon. During 1937 the respondent proc-
essed approximately 16,000,000 feet of cedar, 37,000,000 feet of
Douglas fir, and 30,000,000 feet of plywood. The respondent pur-
chased a portion of this timber in the open market and obtained
the balance from its own supply in Coos County. Between 80 and
90 per- cent of its finished products were sold to customers located
outside the State of Oregon. In 1937 the respondent shipped prod-
ucts to purchasers in 43 States and 20 foreign countries.lo
II. THE ORGANIZATIONS INVOLVED
Lumber and Sawmill Workers, Local No. 117, International Wood-
workers of America, is a labor organization affiliated with the Com-
mittee for Industrial Organization. Although it admits to member-
ship employees of employers other than the respondent, its mem-
bership among the respondent's employees is limited to those of the
Sawmill.
Lumber and Sawmill Workers, Local No. 2770, United Brother-
hood of Carpenters and Joiners of America, is a labor organiza-
tion affiliated with the American Federation of Labor. It likewise
admits to membership employees of employers other than the re-
spondent, and its membership among the respondent's employees
is likewise limited to those of the Sawmill.
10 The findings of fact relative to the respondent 's business are based upon the testimony
of George A. Ulett in Matter of Smith Wood Products, Inc. and Plywood and Veneer Work-
ers Local No. 2691 , International Woodworkers of America , 7 N. L. R . B. 950, which was
made a part of the record in Case No. C-405 by stipulation of counsel for all the parties.
See foot note 6, supra.
SMITH WOOD PRODUCTS , INCORPORATED 619
III. TIIE UNFAIR LABOR PRACTICES
A. The chronology of events
Prior to the winter of 1935 there had been no labor organization
among the respondent 's employees . In the latter part of that year
George A. Ulett, the respondent 's vice president , called the employees
.of the Sawmill together, read parts of the Act to them, and suggested
that "with the whole country becoming unionized , it might be well
for them (the respondent 's employees ) to get together and form some
kind of a bargaining agency , so that we ( the respondent ) would be
able to meet with them in accordance with the laws that were being
enacted." Within a short period of time an employees ' representa-
tion plan was established. It does not appear from the record just
how this plan was organized or how it functioned . Thereafter,
United Brotherhood of Carpenters and Joiners of America , herein
called Carpenters and Joiners , granted a charter - dated- March 1936,
to Local 2770 which organization absorbed the membership of the
employees ' representation plan and immediately embarked upon a
membership campaign.
During the first 4 or 5 months of its existence , Local 2770 made
numerous unsuccessful attempts to bargain with the respondent.
During this period Ulett made several speeches to the employees dur-
ing working hours, advising them that they "should not allow out-
-siders to come in and make up our minds for us" and that they should
form their own independent organization . On one occasion in the
spring of 1936, R. A. Jeub, the respondent 's assistant manager, advised
the employees "to be very careful about allowing outside organizers,
-or agitators to come in among us."
On the morning of July 27 , 1936, the bargaining committee of
Local 2770 conferred with Ulett, Jeub, and F. S. Emery, the re-
pondent's plant superintendent , seeking recognition of Local 2770.
shortly after the conference began, Ulett stated, "I'll never recognize
any union ," and the conference adjourned . without . further negoti-
ations. In the afternoon of the same day the respondent posted a
notice in its Sawmill announcing that one shift was being temporarily
discontinued and that only those employees named in the notice should
return to work the following day. The 40 or 50 employees laid off
pursuant to this notice included 3 officers of Local 2770. At the same
time 10 other employees , including the 5 who filed charges with the
Board, were discharged.
Local 2770 immediately called a strike and set up a picket line
around the respondent 's plant. The respondent 's Sawmill was com-
pletely shut down until August 17, 1936. During the period of the
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike, the respondent negotiated with a committee of Local 2770 and.
likewise with a committee representing employees who were not.
members of Local 2770. An agreement settling the controversy was.
finally signed by the respondent. Although Local 2770 did not sign
the agreement, it voted acceptance of it at a regular meeting. The.
respondent posted throughout its Sawmill, printed copies of the agree-,
ment which was dated August 12, 1936, and was, by its terms, effective:
for a period of 1 year. When the Sawmill reopened on August 17,,
some of the employees laid off on July 27 were reinstated. By De-
cember 1936 all of those laid off on July 27 had been reinstated. .
During the negotiations which culminated in the August 12 agree-
ment, the respondent refused to reinstate any of the 10 employees,
who were discharged on July 27. The respondent, however, finally
agreed to submit the controversy involving these employees to an
arbitration committee of three members, one of whom was to be-
chosen by Local 2770, the second to be chosen by the respondent, and..
the third to be chosen by the first two. On September 2, 1936, Local
2770 selected one Fester, a local newspaper publisher, to act a.s its.
representative. When the respondent objected to having "outsiders"'
on the arbitration committee, Local 2770 appointed George Loveland,,
who was one of its members. The respondent appointed R. A. Jeub,:
its assistant manager, to represent it on the arbitration committee..
Jeub and Loveland never selected a third member of the arbitration
committee and all attempts at arbitration were finally abandoned.
These 10 discharged employees were never reinstated and on July 10,.
1937, 5 of them filed charges with the Board.11
On June 23, 1937, Local 2770 notified the respondent that it was-
desirous of beginning negotiations for a new agreement in accordance
with the terms of the August 12 agreement, which provided that
negotiations looking toward a new agreement might be started 2
months prior to the expiration of the August 12 agreement. About
the same time Local 2770 submitted a proposed contract to the re-
spondent.
On August 1, 1937, at a regular meeting of Local 2770, its members,
voted to terminate its affiliation with the Carpenters and Joiners and
to return their charter to the national office of that organization..
The meeting. adjourned and reconvened as a meeting of a local union
of International Woodworkers of America,12 herein called I. W. A..
On August 3 the Carpenters and Joiners' charter was returned to
the national office at Indianapolis, Indiana, and on August 8 the
charter of Local 117 was installed.
n These charges resulted in the proceeding in Case No . C-875. The discharges are dis-
cussed in subsection C. infra.
12 This local later became known as Local 117.
SMITH WOOD PRODUCTS, INCORPORATED 621
On August 11 a committee of Local 117 informed Ulett of their new
affiliations and requested the respondent to negotiate a contract..
Ulett expressed doubt as to whether or not Local 117 represented'a
majority of the respondent's employees in its Sawmill, and stated.
that he would like to see their application cards. On August 16,.
Local 117 submitted to Ulett the application cards signed by em-
ployees in the Sawmill together with a proposed contract.
Meanwhile, about August 8, Perry Ashcraft and three or four other
employees had started a movement to reorganize Local 2770. Upon
their request one Moody, a representative of Carpenters and Joiners,,
came to Coquille to assist them. Moody and Ashcraft drafted a
petition which was circulated about the Sawmill by several em-
ployees. Those employees who signed the petition signified thereby'
their desire to reorganize Local 2770 and thereby designated Local
2770 as their collective bargaining representative. On August 16 the'
employees seeking to reorganize Local 2770 held their first organiza-
tional meeting at the Tribune Building in Coquille. The meeting was-
called by Ashcraft and presided over by Moody, who appointed a tem-
porary bargaining committee which was instructed to begin negotia-
.tions with the respondent. On August 26 this group held its second
meeting in the Circuit Court room at which time they elected officers.
and ratified the selection of the bargaining committee which had
been appointed at the August 16 meeting. On August 30, 1937; Ulett.
signed a "union shop" contract with Local 2770.13
B. Conclusions with respect to interference, restraint, and coercion; '
Ulett admits that in the latter part of 1935 he called the employees,
together, read parts of the Act to them, and discussed the formation
of an employees' association. He also testified that Jeub secured a
copy of the bylaws of an employees' association which had been.
organized in a nearby plant and gave it to the respondent's em-
ployees to assist them in setting up their organization. During the-
organization of Local 2770, Ulett, on several occasions, called the-
employees together and warned them against "outsiders" and "agi-
tators." On at least one occasion Jeub sounded a similar warning-
against "outside" organizations. The conclusion is inescapable that.
such activity on the part of the two highest ranking officials of the
respondent was calculated to encourage the formation of an organi-
zation subservient to the respondent and to defeat the desire of the
respondent's employees for an effective organization of their own
is The events surrounding the negotiations of this contract are discussed in subsection D,
infra.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choosing. The fact that the respondent failed to accomplish its
purpose does not make such activity any the less violative of the Act.
We find that the respondent, by the acts above set forth, has in-
terfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
C. The discharges
All of the five employees discussed below were discharged on
July 27, 1936. The respondent claims that they were in no way,
affected by the lay-off of the 40 or 50 employees of the Sawmill,
which took place on the same day. The respondent's answer sets up
separate affirmative defenses to the allegations that these five em-
ployees were discriminatorily discharged. They must, therefore, be
considered individually.
J. B. Cochran, who had worked for the respondent about 4 months,
was engaged in construction work on a fir mill at the respondent's,
Sawmill. In its answer the respondent claims that Cochran volun-
tarily left his employment on July 27 and was not reinstated on
August 17, 1936, when the Sawmill resumed operation, because the
work in which Cochran had been engaged was discontinued.
Cochran testified, however, that on July 27 when he was about
to leave the plant, he discovered that his time card was not in the
rack and that when he stepped outside the office, Ralph Taylor, his
foreman, handed him his pay check and stated that he was sorry
but orders to discharge Cochran had "come from headquarters."
This statement was not denied by Taylor who admitted that he gave
Cochran his check although he could not recall the exact date. We
find that Cochran did not voluntarily leave his employment and that
his employment ceased as a result of his discharge on July 27.
At the hearing the respondent did not press its claim that Cochran-
had voluntarily left his employment but, instead, took the position
that Cochran was discharged because the construction.work in which
he had been engaged was completed. The testimony of Ulett and
Taylor to this effect is weakened, however, by Taylor's admission
that construction work on the respondent's Plywood plant continued
until November 1937 and that some of the construction employees
were eventually placed in the production departments of the plant.
There is no claim that Cochran's work was unsatisfactory. Indeed,
just 3 days before his discharge, Cochran was promoted to a position
of strawboss over four other employees and was given a wage in-
crease of 60 cents per day. Had the respondent considered it neces-
sary to discharge Cochran because his work was completed, it is
riot likely that it would have promoted him and given him a wage
increase just 3 days before the discharge. In view of this promotion
SMITH WOOD PRODUCTS, INCORPORATED 623
and the, admissions of Taylor outlined above, the respondent's ex-
planation of Cochran's discharge is not convincing.
. When Cochran: applied for^reinstatement on August 17; Ulett told
him that he was a new man and that there was no work for him.
During the latter part of August 1936, in a letter addressed to
Joseph Campbell, then president of Local 2770, Ulett stated his rea-
sons for refusing to reinstate the 10 nien who were discharged on
July 27. This letter is not in evidence, but Campbell testified as
to its contents. Campbell's testimony with respect to the contents
of the letter was not denied and we find it to be true. The letter
stated that Cochran was discharged because he was a new man, that
his work was completed,. and that he was "an. agitator or a
troublemaker."
Cochran joined Local 2770 shortly after his employment with the
respondent commenced. He was a member of the committee which
conferred with representatives of the respondent on July 27 seeking
recognition of Local 2770 and he became the voluntary spokesman
for that committee when A. J. Nussell, its chairman, manifested a
reluctance to speak. Such activity by Cochran on the very day o£
his discharge makes particularly significant Ulett's statement in his
letter to Local 2770 that Cochran was discharged because he was "an
agitator or troublemaker."
We find that the respondent by discharging Cochran and refusing
to reinstate him because of his membership in and activity on behalf
of Local 2770, has discriminated in regard to his hire 'and tenure of
employment thereby discouraging. membership in a -labor ;lrer
manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition 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, and to engage in con-
certed activities for the purpose of collective bargaining, or other
mutual aid or protection. ,
2. Take the, following affirmative -action which the Board finds
Will t effectuate the policies of the Act :
(a), Offer to Mel Duncan immediate and full reinstatement to his
former position, without prejudice to his seniority or other rights
and privileges;
SMITH WOOD PRODUCTS, INCORPORATED 635
(b) Offer.to J. B. Cochran immediate and full reinstatement to a
position substantially equivalent to his former position, without
prejudice to his seniority or other rights and privileges;
(c) Make whole J. B. Cochran and Mel Duncan for any loss of
earnings they may have suffered by reason of their discharge by
payment to each of them of a sum equal to that which he normally
would have earned during the period from the date of his discharge
to the date of the offer of reinstatement, less his net earnings during
said period, provided, however, that the respondent. shall deduct from
the amount otherwise due them any monies received by said em-
ployees during said period for work performed on Federal, State,
county, municipal or other work-relief projects, and pay over the
amount so deducted to the proper fiscal agency of the Federal; State,
county, municipal, or other government or governments which sup-
plied the funds for said work-relief projects;
(d) Immediately post and keep posted for a period of at least
sixty (60) consecutive days notices. in conspicuous places throughout.
its plant, stating that the respondent will cease and desist in the
manner set forth in 1 (a) and (b) and that it will take the affirma-
tive action set forth in 2 (a), (b), and (c) of this Order;
(e) Notify the Regional Director for the Nineteenth Region in
writing within ten (10) days of the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. C-875, in
so far as it relates to E. M. Briner, Gary Allen Ellison, and Ernest
Embree be, and it hereby is, dismissed.
AND IT IS FURTHER ORDERED that the complaint in Case No. C-405,
be, and it hereby is, dismissed.