The Cotton Lumber Co.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 602 (N.L.R.B. 1970)

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Cotton Lumber Company and Teamsters Union,
Local 413 , affiliated with the International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America . Case 9-CA-5458
August 27, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
MCCULLOCH AND JENKINS
On May 19, 1970, Trial Examiner Lowell Goerlich
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondent
filed exceptions to the Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations 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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief of
Respondent, and the entire record in the case, and
hereby adopts the findings,' conclusions,' and recom-
mendations of the Trial Examiner, as modified below.
' The Trial Examiner 's findings and conclusions are based , in part,
upon credibility determinations , to which the Respondent has excepted
Respondent also contends that the Trial Examiner was biased and preju-
diced After careful review of the record, we conclude that the Trial
Examiner's credibility findings are not contrary to the clear preponderance
of all relevant evidence Accordingly , we find no basis for disturbing
these findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd
188 F 2d 262 (C A 3) We also find no support in the record for
the charge of bias and prejudice
Respondent has also excepted to the Trial Examiner's finding of lack
of credible proof of a seasonal business decline at Cotton Lumber Even
assuming that a decline existed, we would still find a violation of Sec
8(a)(3) in the circumstances of this case
' In agreeing with the Trial Examiner that Frederick Boss and Charles
Boss were discriminatorily discharged on November 7, 1969, we do
not find it necessary to decide whether Roy Dials, Sr , was a supervisor
within the meaning of the Act , and do not adopt the Trial Examiner's
findings in this regard We would find a violation of Sec 8 (a)(3) in
any event since we are satisfied that given the totality of circumstances
in this case , knowledge of the Boss brothers ' union activities can reasonably
be imputed to Respondent
However, we do not adopt the Trial Examiner 's conclusion that the
Respondent violated Sec 8(a)(1) of the Act by advising an employee
that his name was on the eligibility list and urging him to vote against
the Union in the forthcoming election, or by expressing the view that
the Union would never win an election
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, as modified below,
and orders that Respondent, The Cotton Lumber
Company, Columbus, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, as herein
modified:
1. Delete paragraphs 1(c) and (d) of the Trial
Examiner's Recommended Order and renumber the
remaining paragraphs consecutively.
2. Delete the fifth indented paragraph of the Appen-
dix to the Trial Examiner's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: A charge was filed
by Teamsters Union Local 413, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, on December 19, 1969,
and was served on The Cotton Lumber Company, the
Respondent herein, by registered mail on December 22,
1969 A complaint and notice of hearing was issued on
January 30, 1970, in which it was alleged that the Respond-
ent had violated Section 8(a)(1) of the Act through its
supervisor, Fred Blaine, by telling a newly hired employee
not to have anything to do with the Union and not to
talk to any other employees about the Union, by telling
an employee that the Union would never be voted in
at the Respondent's location, and by telling an employee
that his name was on the eligibility list and that he should
vote against the Union in the forthcoming election. In
the complaint it was further alleged that the Respondent
violated Section 8(a)(3) of the Act by discnminatonly dis-
charging employees Charles P Boss and Frederick G. Boss
on November 7, 1969
The Respondent filed timely answer denying that it had
engaged in or was engaging in any of the unfair labor
practices alleged and specifically pled that "the Respondent
:harges the truth to be that the Regional Director of
Region 9 is assisting the Union in harassing the management
of The Cotton Lumber Company in an effort to carry
out a threat made during a prior case."'
The case came on for hearing on April 1 and 2, 1969,
at Columbus, Ohio. Each party was afforded a full opportu-
nity to be heard , call, examine and cross-examine witnesses,
to argue orally on the record, to submit proposed findings
of fact and conclusions, and to file briefs. All briefs have
been carefully considered by the Trial Examiner.
` The Respondent produced no credible proof in support of this alleged
defense
185 NLRB No. 51
THE COTTON LUMBER COMPANY
Upon the whole record and upon his observation of
the witnesses the Trial Examiner makes the following
FINDINGS OF FACT, CONCLUSIONS AND REASONS
THEREFOR
I THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times material
herein an Ohio corporation engaged in the retail and whole-
sale of lumber and lumber related products at its location
in Columbus, Ohio. During the past 12 months, a representa-
tive period, the Respondent purchased and caused to be
shipped to its Columbus, Ohio, location goods valued in
excess of $50,000 directly from places located outside the
State of Ohio During the same 12-month period Respondent
had total sales of products to customers in excess of
$500,000.
At all times material herein the Respondent is and has
been an employer as defined in Section 2(2) of the Act
engaged in commerce and in operations affecting commerce
as defined in Section 2(6) and (7) of the Act, respectively.
iI THE LABOR ORGANIZATION INVOLVED
Teamsters Union, Local 413, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein referred to as the Union, is
and has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
THE FACTS
At all times mentioned herein the Union was engaged
in an organizational campaign which culminated in an
election on November 25, 1969. Several weeks before the
election, on November 7, 1969, General Foreman Frederick
E. Blaine laid off Charles P Boss and Frederick G Boss,
twin brothers The General Counsel claims that these layoffs
were in fact discriminatory discharges and in violation
of Section 8(a)(3) of the Act At the time the Respondent
employed around 30 employees.
Charles P Boss and Frederick G. Boss were hired by
General Foreman Blaine in August and September 1969,
respectively.
Charles responded by telephone to a newspaper advertise-
ment which appeared in the Columbus Dispatch, a newspa-
per of general circulation in Columbus, Ohio, on August
19, 1969. The advertisement also appeared on August 20,
21, 22, 23, 24, and 25, 1969 The advertisement read:
"TRUCK DRIVERS WANTED Retail Lumber Yard.
Good pay Call 237-6395 " Later in the day Charles appeared
at the Respondent's premises and was interviewed by Gener-
al Foreman Blaine. He was hired for a full-time job' as
' General Foreman Blaine testified that he told the Boss brothers
that "we had plenty of work at the time "
603
a truckdriver at $2 50 an hour. Charles was an experienced
truckdriver and possessed a chauffeur's license
During the interview Blaine asked Charles whether he
was at that time affiliated with a union. Charles answered
in the negative although he held a withdrawal from Local
25, affiliated with the Bricklayers. Blaine further said, among
other things, "They are talking about a union in here.
Tell them you don't want anything to do with it and
just be on your way."' Charles commenced work the next
day.
During Charles' tenure with the Respondent he engaged
in union activities and frequently talked to employees regard-
ing the Union while loading trucks During the period
he attended three or four union meetings His brother
also attended union meetings . On one occasion Charles
was asked by Supervisor Robert Johnson whether he knew
Bob Sayre, a union partisan. Charles denied that he knew
Sayre although he had attended the same school as Sayre.
Sayre was a former employee of The Cotton Lumber Compa-
ny who was working for the Blaine Lumber Company.
He had mentioned the Bosses ' names at a union meeting
and had commented that they were favorable to the Union
Some time in September Blaine informed Charles that
he was on the eligibility list. He told Charles "to vote
no for the union and not to have anything to do with
it." An election was pending at the time but it was later
postponed
In the latter part of September Charles appeared at
the dispatch office to drop off lumber delivery slips In
the presence of employee Jerry Taylor, Blaine pointed at
Charles and said, "Don't you ever think that you will
ever see a union in Cotton Lumber. It'll be a cold day
in hell before you see a union in Cotton Lumber. Now,
just get out of here."4
Prior to this incident Charles had expressed his opinion
at a union meeting that the Union was "a very good
thing" and that he would vote for it. Approximately 12
employees attended the meeting.
On November 7, 1969, Charles' brother told him that
they were being laid off for lack of work. Charles inquired
of Supervisor Robert Johnson whether it was true that
they were being laid off. Johnson answered affirmatively
and said, "We are laying you and your brother off due
to lack of work. Keep in touch and when things pick
up we will hire you back."
Thereafter Charles contacted General Foreman Blaine
for reemployment several times Blaine informed Charles
that the Respondent was "not doing any hiring at the
time." Charles was told to "keep in touch." The last
telephone call was placed sometime in the latter part of
January (after the charge herein had been filed) at which
time Blaine reported the Respondent was "not hiring."
On the day of the election (Charles voted under challenge)
Charles was standing in the voting line along with employee
' Blaine denied that he had made these remarks or had ever said
anything to Charles about the Union For the reasons hereinafter noted
his denials are not credited.
' Taylor testified that he heard Blaine say to Charles , "It'll be a
cold day in hell before there will be a union in Cotton Lumber Company "
Blaine denied making this statement His denial is not credited.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bud Fletcher General Foreman Blaine was standing about
10 feet away and called "Bud, Bud." Charles turned toward
Blaine and observed Blaine shaking his head "no "
When Frederick G Boss was hired as a truckdriver
in September 1969 he was told by Blaine that "it was
permanent work here " Frederick possessed a chauffeur's
license, a requirement for operating a truck. During his
job tenure Frederick discussed the Union with other employ-
ees, truckdrivers, loaders, and boxcar men. Frederick also
talked with Supervisor Ray Dials.' Frederick told Dials
that everyone would benefit with the Union, that he and
his brother had been in the Union before, and that he
was strong for it. On the day after the union meeting
in which Bob Sayre had mentioned the Boss twins' union
affection Dials said to Frederick, "Is it true you guys
like a union? Do you and your brother feel strong on
a union?" Frederick replied, "As far as I am concerned
you can't beat it."
Frederick had attended several union meetings before
he was laid off.
On November 7, 1969, Frederick was in the yard loading
his truck. He had been assigned to go out the next morning,
Saturday At quitting time he went into the dispatch office
to receive his paycheck. Blaine handed Frederick his check
and his brother's check and said, "Here, Ted [sic], here
is your check and your brother's. Emerson' wants me
to cut down on drivers since things are slow and there
is a lack of work here. He' wants me to cut down to
10 drivers and he wants me to let you and your brother
go since you were the last two drivers."6
After his layoff Frederick contacted Blaine seeking reem-
ployment. He said that he "did sort of beg " Blaine told
him things were slow and there was nothing for him.
Frederick's last call was in the latter part of December
at which time he advised Frederick, "There is nothing
here" and then "rudely hung up the phone."
After the Bosses were laid off, Fred Beavers, Tom Miller,
and George Young were hired as truckdrivers in December
1969, February 1970, and March 1970, respectively Millard
Shamblin, a soldier on leave, also worked as a truckdriver
2 or 3 weeks in December 1969.
The parties stipulated that the Trial Examiner could take judicial
notice of the transcript in Cotton Lumber Company , Arlington Lumber
Co, and Blaine Lumber Co , Case 9-CA-5296 ( 182 NLRB No 43)
and draw such conclusions therefrom as might be material to this proceed-
ing Accordingly the Trial Examiner finds that Ray Dials was employed
10 years by the Respondent and filled Supervisor Johnson's position
when Supervisor Johnson was acting for General Foreman Blaine and
during the remainder of the time he worked as a loader and rank-
and-file employee Dials was engaged in Johnson's work about one-
third of the hours he was employed In agreement with my brother
Foley, who wrote the decision in Case 9-CA-5296, it is found that
Dials is a supervisor within the meeting of the Act
In Case 9-CA-5296 ( 182 NLRB No 43) Emerson is referred to
as William E Blaine, Sr All the stock in the Respondent is owned
by William E Blaine, Sr, and William E Blaine , Jr, his son
Blaine testified that he conferred with no one with regard to the
layoff of the Boss brothers , it was his sole decision He further testified
that his decision to lay off the Boss brothers was reached possibly
the day before
Credited evidence indicates that the Bosses were not the "last two
drivers " After Charles was hired Doug Baisden was hired as a boxcar
man and was later transferred to truck driving after Frederick was hired
as a truckdriver Baisden was not seen at union meetings
Blaine admitted that the Boss brothers "as a rule did
a pretty good fob " Blaine also admitted that he had received
approximately four telephone calls from the Boss brothers
in which they asked for work and, although at least one
call was received from the Boss brothers in December,
he hired truckdriver Fred Beavers and during the same
month returned Millard Shamblin to truck driving work.
The Boss brothers were told the "work had not picked
up at that time."
As to why the Boss brothers were laid off Blaine testified,
"In the wintertime it gets pretty bad and our season slacks
off. They were the last two that we hired, so that's the
reason I let them go " Blaine said that "it slacked down";
however, he was indefinite and evasive in credibly explaining
the source of his information that the Respondent's business
was slacking down 9
Blaine admitted that truckdrivers Tom Miller and George
Young were also hired, respectively, in February 1970
and March 1970. Blaine explained that he did not recall
the Boss brothers in that he "assumed they had gone
to work or something, not hearing from them for three
months." He further explained, "I didn't have any telephone
numbers or anything. At the time they went to work
I was out of application blanks and the only thing I
had was W-2 forms on the two boys. If they would have
given me their telephone numbers and addresses or anything
at all and our work picked up, I would be glad to call
them But I had no way-I didn't have the time to go
chasing around the country looking for the boys "10
Blaine offered these answers to the following questions
Q Now, how was it brought to your attention that there was
a great enough falloff in business between September , when you
hired the last Boss and November 7th when you discharged them
both')
How was it brought to your attention that there was so much
of a falloff of business that it was necessary for you to lay off
the two employees9
A Well, every load of lumber that goes out of the yard comes
through my desk to me We have about six men that are writing
tickets constantly from telephone calls or from contracts
The contractor calls and says , " I want this building, this house,"
or whatever it is That also goes through me And when I have
piles of tickets to be delivered, I am busy
But when they trickle down to where I have three or four at
a time, it's a job to keep the men busy And I got to let somebody
go If that is the trend , I mean weatherwise , and everything concerned
Q Yes You laid two men off, you predicted that you wouldn't
need them?
A That's correct
Q What did you base that prediction on
A I can see I didn ' t have the merchandise to send out but I
have also had work there for the different men on these jobs,
building apartment buildings mostly , and they have finished one
phase, maybe They don't have the other phase in a spot where
they can demand labor
So I notice there is going to be several weeks or maybe a month
before that project will go, if they have the weather
Q How do you find these things out9 Do the salesmen tell you?
A They are talking to them all the time on the phone
Q How do you get that information)
A I am right there
Q You hear the salesmen talking?
A Well, they tell me
° Charles Boss credibly testified that when he was employed Blaine
gave him a card to fill out on which he entered his name, telephone
number, address , and who to contact in case of emergency , and since
(cont'd)
THE COTTON LUMBER COMPANY
Blaine also explained, "I hadn't heard from the Boss
boys in 3 months and of course, then I learned that they
had made some kind of charges against Cotton Lumber "
Although Blaine asserted he did not have the Boss brothers'
addresses he made no attempt to get their addresses when
he laid them off, nor did he attempt to reach the Boss
brothers when he hired additional truckdrivers.
Generally the Respondent during slack periods laid off
boxcar employees rather than truckdrivers. As explained
by Supervisor Dials to Charles C. Boss "they usually put
the truckdrivers in the boxcars to unload the boxcars so
at least you will make a 40-hour week "
CONCLUSIONS AND REASONS THEREFOR
First: Credibility is a strong factor in ascertaining whether
the Respondent is guilty as charged Frederick E. Blaine's
credibility thus must be examined as well as that of other
witnesses While sometimes it is difficult to find where
the truth lies, here it appears self-evident. Blaine's attitude,
demeanor, and comportment betrayed a less than skillful
attempt to accommodate the position advanced by his
employer." Blaine's instincts were to tell the truth and
no doubt he was an ingenuous man unaccustomed to dissem-
ble However, the fact that this was his character rendered
more obvious his shading of the truth, for he was a poor
dissembler Not given to lying, a lie appeared to stick
in his throat
On the other hand the Boss brothers were forthright
and honest in their answers.
Thus where Blaine's testimony conflicts with other wit-
nesses it is discredited.
Second: The General Counsel has alleged On or about
the dates indicated below, Respondent interfered with,
restrained, and coerced employees at its Columbus, Ohio,
location in the exercise of the rights guaranteed in Section
7 of the Act by the conduct of the said Fred Blame-
(a) On or about August 19, 1969, in telling a newly
hired employee not to have anything to do with the Union
and not to talk to any other employees about it.
such time he had received by mail his W-2 forms and that of his
brother in envelopes bearing the words "Cotton Lumber Company,"
addressed to 122 Johnstown Road, the address on the card referred
to above A telephone number, 471-0356 is listed for the same address
in the telephone book
" Blaine testified
Q Do you sometimes call back employees who you laid off?
A Yes, sure Why wouldn't I, if they had been good employees?
Q. What about the two Boss brothers , did they appear to be
good employees?
A. They drove trucks
Q What about their work record while they were with you, good
or bad?
MR THOMPSON Give him a clue
MR RECTOR- That's his problem Do you know? Tell us
THE WITNESS I am just holding still on this one for just a
moment Excuse me, sir
Q. (By Trial Examiner) You may take whatever time you need
to frame your answers, Mr Blaine as all witnesses may
A I have had some complaints on their work , but as a rule
they did a pretty good job
It would seem from the foregoing responses of Blaine that he was weighing
what answer would best suit his employer Finding no clue, he did
what was his natural inclination , he told the truth
605
(b) Sometime in early October 1969, the exact date
being unknown to the Regional Director, in telling an
employee that the Union would never be voted in at the
respondent's location
(c) Sometime in mid-October 1969, the exact date being
unknown to the Regional Director, in telling an employee
that his name was on the election eligibility list and that
he should vote against the Union in the forthcoming election
The Trial Examiner finds that these allegations are well
taken and that they are supported by a preponderance
of the testimony and the record as a whole
Third.- The General Counsel contends that the layoffs
of the Boss brothers were in fact discriminatory discharges.
Not so claims the Respondent and fixes the reason for
the layoffs as low seniority and lack of work.12
"Management can discharge for good cause or bad cause,
or nq cause at all. It has, as the master of its own business
affairs, complete freedom with but one specific definite
qualification. It may not discharge when the real motivating
purpose is to do that which Section 8(a)(3) forbids " Portable
Electric Tools, Inc. v N.L.R.B., 309 F 2d 423, 426 (C.A
7). See also N.L.R.B. v Little Rock Downtowner, Inc.,
341 F.2d 1020, 1021 (C.A 8). However the "mere existence
of valid ground for a discharge is no defense to a charge'
that the discharge was unlawful, unless the discharge was
predicated solely on those grounds, and not by a desire
to discourage union activity " N.L.R.B. v Symons Manufac-
turing Co., 328 F.2d 835, 837 (C.A 7) "A justifiable
ground for dismissal is no defense if it is a pretext and
not the moving cause." N L R B v. Solo Cup Co., 237 F.2d
521, 525 (C.A 8) "the `real motive' of the employer
in an alleged 8(a)(3) violation is decisive " N.L R.B.
v Brown Food Store, 380 US. 278, 287. "It is the `true
purpose' or `real motive' in hiring or firing that constitutes
the test." Local 357, International Brotherhood of Teamsters
[Los Angeles-Seattle Motor Express] v N L R.B, 365
U.S. 667, 675.
"Section 8(a)(3) prohibits discrimination in regard to
tenure or other conditions of employment to discourage
union membership. . . . It has long been established that
a finding of violation under this section will normally
turn on the employer's motivation." American Ship Building
C o v N..L.R.B, 380 U S 300,311
The question is " `not whether there existed a valid
ground for discharge, but whether the stated ground was the
real one' J P Stevens and Co v N.L R B , 38 F 2d 292,
300 (2d Cir. 1967)", N L R B v. Ulbrich Stainless Steels,
Inc , 393 F.2d 871, 872 (C A 2). Moreover it is taught that
"[t]he Board is not compelled to accept the employer's
statement when there is reasonable cause for believing that
the ground put forward by the employer was not the true
one, and that the real reason was the employer's
dissatisfaction with the employee's union activity." The
Great Atlantic and Pacific Tea Co v. N L R.B., 354 F 2d
707, 709 (C.A 5).
" The Respondent asserts that the layoffs were the result of the
seasonal nature of the respondent's business if the seasonal nature were
assumed, such fact would hold sparse probative value since it was not
credibly shown that the alleged seasonal nature of the Respondent's
business was considered at all in effecting the layoffs of the Boss brothers
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner does not believe that the ground
put forward by Respondent Cotton Lumber Company for
the Boss brothers' layoffs was the true one. First, Blaine
was not a credible witness; second, the reason given for
the layoffs was false for neither were the Boss brothers
the last two truckdrivers hired" nor was there credible
proof that the alleged slacking off of business was a control-
ling factor; and third, whereas Blaine claimed sole responsi-
bility for the layoffs, credited testimony establishes that
the layoffs were directed by William Emerson Blaine, Sr
Support for a finding of unlawful motivation "is augmented
[when] the explanation of the discharge offered by the
Respondent [does] not stand up under scrutiny" N.L R B.
v. Bird Machine Company, 161 F.2d 589, 592 (CA. 1).
It is further observed, "If one can show that every other
alternative except the fact sought to be proven is not
true, you indirectly prove the fact is true By excluding
every other reasonable hypothesis that fact is left standing
above as proved." N.L.R.B. v. Melrose Processing Co., 351
F 2d 693, 698 (C.A. 8). The Trial Examiner is of the
opinion that Blaine was concealing the real reason for
the Boss brothers' layoffs.
The Trial Examiner is convinced that "the moving cause"
or "real motive" of the Respondent in laying off the Boss
brothers was to discourage membership in a labor organiza-
tion and to interfere with employees' "right to self-organiza-
tion and to form, join or assist labor organizations " Control-
ling factors among others in this regard are: (1) The union
animus of the employer as disclosed in Blaine's commission
of unfair labor practices '° (2) The employer's knowledge
of the Boss brothers ' union affection 15 (3) Blaine's failure
to call back the Boss brothers although he admitted that
"as a rule . . . they did a pretty good job" and that
he had in the past called back "good employees "16 (4)
Blaine's weak and unconvincing explanation as to his source
of knowledge of the employer's loss of business anticipated
at the time he laid off the Boss brothers. (5) Blaine's
weak and unconvincing explanation as to what occurred
between September when he hired the last Boss brother
and November when he laid off both brothers which caused
him to make such decision. (6) The Respondent's failure
to return the Boss brothers to work although Supervisor
Johnson had said "when things pick up we will hire you
back." (7) Frederick G. Boss' abrupt layoff on Friday,
although he had been assigned to operate his truck on
Saturday and on Friday had been loading his truck for
" When it was called to Blaine's attention that the Boss brothers
were not the last two truckdrivers hired ( Baisden had been hired after
Charles) Blaine explained , "Kind of funny, when you can't tell two
boys apart, it gets a little bit confusing at times "
" See also Cotton Lumber Co, 182 NLRB No 43
" The credited record discloses Supervisor Dials' knowledge of the
Boss brothers' union sympathy Additionally the Trial Examiner finds
that by reason of the employer' s small complement of employees the
employer's knowledge of the Boss brothers' union affection may be
inferred Weise Plow Welding Co., Inc, 123 NLRB 616, Quest-Shon
Mark Brassiere Co, Inc, 80 NLRB 1149, 1150, enfd 185 F2d 285
(CA 2), Angwe/l Curtain Company, Inc v NLR.B, 192 F 2d 899,
903 (C A 7), NLR B v Joseph Antell, Inc, 385 F 2d 880 (C A 1)
6 On this subject Blaine testified.
Q. Do you sometimes call back employees who you laid off?
A Yes, some Why wouldn't I, if they had been good employees
that purpose. (8) The employer's employment of a new
truckdriver in December while at the time Blaine was
telling the Bosses that "work had not picked up at that
time."" (9) Blaine's failure to try to locate the Boss brothers
when he hired new truckdrivers. (10) Blaine's failure to
follow the usual practice of transferrring truckdrivers to
boxcar work during slack periods. (11) Blaine's incredible
assertion that had the Boss brothers given him "their tele-
phone numbers and addresses or anything at all and our
work picked up [he] would [have been] glad to call them"
when such information was available to him. (12) The
employer's layoffs of union partisans, the Boss brothers,
and the retention of employee Baisden who was not seen
at union meetings and was junior in length of service
to Charles suggest disparate treatment between union and
nonunion employees."
The Respondent's actions as reflected by the record were
unreasonable and unnatural. Accordingly, the Trial Examin-
er concludes and finds that by the layoffs of the Boss
brothers on November 7, 1969, Respondent discriminated
against them in violation of Section 8(a)(3) and (1) of
the Act.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of the Act
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will
effectuate the purposes of the Act for jurisdiction to be
exercised herein.
3. By interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed them by Section
7 of the Act Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
4 By unlawfully separating Charles C Boss and Frederick
G. Boss from employment on November 7, 1969, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
5 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
IV. THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
17 When, as in this case, an employer fails to recall employees laid
off during a union organizational campaign, but hires new employees
telling the laid off employees that "work had not picked up," the employer
reveals a pretextual reason for the layoffs The Lion Knitting Mills
Company, 160 NLRB 801, 811, Welcome-American Fertilizer Co, 169
NLRB No 55
'" In Russell-Newman Manufacturing Co, Inc. v NLR.B, 407 F 2d
247 (C A 5), decided February 3, 1969, the court said, "When there
is unjustified disparate treatment between represented and unrepresented
employees designed to induce the former to abandon their union Section
8(a)(3) has been violated "
THE COTTON LUMBER COMPANY
It having been found that the Respondent unlawfully
terminated the employment of Charles C. Boss and Freder-
ick G Boss, it is recommended that the Respondent, in
accordance with the Board policy," offer them immediate
and full reinstatement to their former or substantially equiva-
lent positions and without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings they may have suffered as a result of
the discrimination against them by payment to them of
a sum of money equal to the amount they would have
earned from the date of their discriminatory separation
from employment to the date of an offer of reinstatement,
less net earnings during said period to be computed on
a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289, and shall
include interest at the rate of 6 percent per annum to
be computed in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716.20
RECOMMENDED ORDER21
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case,
it is recommended that the Respondent, The Cotton Lumber
Company, its officers, agents, successors , and assigns , shall-
1. Cease and desist from
(a) Discouraging membership in the Teamsters Union,
Local 413, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by discriminatori-
ly discharging any of its employees or discriminating in
any other manner, in respect to their hire or tenure of
employment or any term or condition of employment
(b) Telling newly hired employees not to have anything
to do with the Union and not to talk to any other employees
about it.
(c) Telling employees that the Union would never be
voted in at the Respondent's plant
(d) Telling employees that their names were on the
eligibility list and that they should vote against the Union
in a forthcoming election.
(e) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right
to self-organization, to form labor organizations, to join
or assist Teamsters Union, local 413, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor
organization, to bargain collectively through representatives
See TheRushton Company, 158 NLRB 1730, fn 2
° The Respondent has moved to reopen the record and admit in
evidence Respondent's Exhibit 6 which is composed of letters addressed
to the Boss brothers of like content, to wit "You are hereby offered
reinstatement to your former position at the Cotton Lumber Co Please
report immediately " In that the admission of the exhibit would not
alter the decision herein and in that the exhibit may be reoffered in
the compliance stage of this proceeding , the motion is denied
" In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , recommendations , and Recommended Order
herein shall as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings , conclusions, and
order , and all objections thereto shall be deemed waived for all purposes
607
of their own choosing, and to engage in concerted activities
for the purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any or all
such activities
2. Take the following affirmative action which will effectu-
ate the policies of the Act:
(a) Offer Charles C. Boss and Frederick G Boss immedi-
ate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority
or other rights and privileges and make them whole for
any loss of pay that they may have suffered by reason
of the Respondent's discrimination against them, in
accordance with the recommendations set forth in the section
of this Decision entitled "The Recommended Remedy "
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms
of this Recommended Order.
(c) Notify any of the aforementioned persons if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(d) Post at its Columbus, Ohio, plant copies of the
attached notice marked "Appendix."22 Copies of said notice,
on forms provided by the Regional Director for Region
9, after being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.27
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act, other
than those found in this Decision.
" In the event that the Board 's Order is enforced by a Judgment
of a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
" In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
A Trial Examiner for the National Labor Relations Board
has found that we laid off Charles C. Boss and Frederick
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G Boss because they were for the Union and that this
violated the law.
The Act gives all employees these rights-
To organize themselves
To form, join, or help unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things
We were also ordered to assure our employees that.
WE WILL give these employees back their jobs,
seniority, and backpay which they lost because we
laid them off.
WE WILL NOT lay off any employees for the same
reason for which the Trial Examiner found that we
laid off the above-named employees.
WE WILL NOT lay off, fire, or punish you or treat
you differently in any way because you joined a union
or favor a union
WE WILL NOT tell our newly hired employees not
to have anything to do with the Union and not to
talk to any other employees about it
WE WILL NOT tell our employees that the Union
will never be voted in at the plant or inform employees
that their names are on an eligibility list and they
should vote against the union
WE WILL notify the above -named employees if pres-
ently serving in the Armed Forces of the United States
of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amend-
ed, after discharge from the Armed Forces.
All of you are free to become or remain or refrain
from becoming or remaining members of any labor organiza-
tion
Dated By
THE COTTON LUMBER
COMPANY
(Employer)
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Room
2407, Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686