The Long-Bell Lumber Co.

National Labor Relations Board - Board Decisions

Aug 19, 1940

26 N.L.R.B. 823 (N.L.R.B. 1940)

In the Matter of THE LONG-BELL LUMBER COMPANY and INTERNA-
TIONAL WOODWORKERS OF AMERICA, LOCAL No. 12
Case No. C-1445.-Decided August 19, 1940
Jurisdiction : lumber products manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: threat to discharge employees who went
on strike, in protest to demotion and discharge of another employee, unless
they returned to work.
Discrimination- discharge of an employee because of his engaging with other
union members in submitting through the Union a collective request for the
adjustment of an employee grievance.
Remedial Orders: reinstatement ordered; back pay ordered to commence within
five days of issuance of order if employer fails or refuses to offer him rein-
statement.
Where employee created the possibility of his employment terminating
because of his refusal to work pending adjustment of a grievance, back
pay was not ordered, since the Board will not presume that had employer
not discriminatorily discharged employee. when it did the employee would
have continued to earn wages.
Mr. John Paul Jennings, for the Board.
Mr. C. E. Lombardi, of Kansas City, Mo., for the respondent.
Mr. Louis S. Penfield, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Woodworkers of America, Local No. 12, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Twentieth Region (San Francisco, Cali-
fornia), issued a complaint dated August 26, 1939, against The Long-
Bell Lumber Company,' Weed, California, herein called the respond-
ent, alleging that the respondent had engaged in'and was engaging
1 In some of the formal papers the name of the respondent is incorrectly stated as " Long Bell Lumber
Company." At the hearing the respondent moved and the Trial Examiner ruled that all papers herein be
amended to show the correct name of the respondent as "The Long -Bell Lumber Company."
26 N. L. R. B., No. 84.
823
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. A copy of the
complaint, accompanied by notice of hearing, was duly served upon
the respondent. and upon the Union.
The complaint alleged in substance, so far as here material, that
the respondent (1) on March 27, 1939, demoted Arthur Oyler, one of
its employees, from his position as tractor driver, and on March 28,
1939, discharged him, because of his membership in and activity on
behalf of the Union, thereby discriminating in regard to the hire and
tenure of employment of said employee and discouraging member-
ship in the Union; (2) during January, February, and March 1939,
and thereafter, urged, persuaded, and warned its employees to re-
frain,, and in various other ways endeavored to prevent them, from
becoming or remaining members of the Union and from engaging in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection; (3) during said months and thereafter by
various acts of intimidation, 'coercion, and persuasion influenced or
attempted to influence its employees not to join or assist the Union;
and (4) by all the foregoing acts, and each of them, interfered with,
restrained, and coerced its employees in the exercise of rights guaran-
teed: by Section 7 of the Act. On September 7, 1939, the respondent
filed an answer denying generally the allegations of unfair labor prac-
tices contained in the complaint. It also filed a motion to make the
complaint more definite and certain in respects therein mentioned.
Pursuant to the notice a hearing was held in Klamath Falls, Oregon,
on September 28 and 29, 1939, before Thomas F. Wilson, the Trial
Examiner duly designated by the Board. The respondent appeared
and was represented by counsel. Full opportunity to be heard, to
examine and cross-examine witnesses, and to produce all evidence
bearing upon the issues was afforded it. At the hearing the respond-
ent, in effect, withdrew its afore-mentioned motion by stating for the
record that it considered the complaint sufficiently definite and cer-
tain. During the course of the hearing the Trial Examiner made
various, rulings on 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.
On December 16, 1939, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon all the parties, in
which he found that the respondent had engaged in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and
(3) and Section 2 (6) and (7) of the Act; and recommended that the
respondent cease and desist from such practices, and that it take
certain affirmative action, including the reinstatement of Oyler with
THE LONG-BELL LUMBER COMPANY 825
back pay, to remedy the situation brought about by the unfair labor
practices which he found. On January 8, 1940, the respondent filed
exceptions to the Intermediate Report and to the record, and re-,
quested oral argument thereon before the Board. ' On January 23,
1940, the respondent submitted to the Board a' brief in support of
its exceptions.
On May 7, 1940, a hearing was held pursuant to notice before the
Board in Washington, D. C., for the purpose of oral argument. ' The
respondent was represented by counsel, presented oral argument and
otherwise participated in the hearing.
The Board has duly considered the exceptions to the Intermediate
Report and to the record and, in so far as they are inconsistent with
the findings, conclusions, 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
I. THE BUSINESS OF THE RESPONDENT
The Long-Bell Lumber Company, the' respondent herein, is a
Missouri corporation, with its principal office in Kansas City, Mis-
souri, and with branch offices, lumber mills, and logging camps in
various States of the United States, including California: It is
engaged in the manufacture, sale, and distribution of lumber and
lumber products.
These proceedings are concerned solely with employees of 'the
respondent of its so-called "Weed Division,"'a division of the respond-
ent's business enterprise. This division comprises lumber mills and
a manufacturing plant at Weed, California, two logging CAMPS,,:
located 40 and 80 miles, respectively, from Weed and known respec-
tively as Tennant and Camp 1, and a logging railroad between these'
camps and the main railroad line. At Weed proper the respondent
mills lumber and various lumber products, which it sells 'and dis-'
tributes. In connection with its milling and manufacturing opera-
tions at Weed the respondent uses logs cut from timber owned by it'
and others, standing about its two logging camps as well as logs
purchased from others cut in California. 'At and near Tennant and
Camp 1, the respondent engages in felling 'timber and cutting it into'
logs. 'These logs 'are transported over the 'logging railroad to the,
main line and thence by common carrier to the respondent' s' mills
and plant at Weed.
In 1937, a typical year in the respondent's operations, the respond-
ent sold and shipped from Weed a total of 3,063 carloads of lumber
and lumber products, valued at approximately $2,993,852, ofwhich,•
1,727 carloads or approximately 65 per cent thereof,, valued at approxi=
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately $1,932,232, were shipped from Weed to points in 36 States of
the United States other than California and to 1 foreign country.
In that same year the respondent purchased and caused to be shipped
from outside California to Weed a quantity of machinery. As
indicated above, all logs used at Weed are cut from timber in
California.
The respondent admits that it is engaged in, and that its operations
directly affect, commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Woodworkers of America, Local No. 12, is a local of
International Woodworkers of America, a labor organization affiliated
with Congress of Industrial Organizations, admitting to membership
employees of the respondent at Tennant and Camp 1 "employed in
and around any operation or employment having to do with the
processing and handling of wood at all stages from the stump to the
finished product." The employees of the respondent who belong to
the Union at Camp 1 are organized into a sublocal of the Union.
III. THE UNFAIR LABOR PRACTICES
A. Background
The respondent employs about 180 persons in logging and related
operations at Tennant and Camp 1. In June 1937 certain of the
employees at Camp 1, who had been members of a labor organization
affiliated with the American Federation of Labor, joined the Union
and thereafter formed a sublocal thereof for employees at the Camp.
By 1939 the Union had enrolled as members a majority of the em-
ployees at Camp 1, but only one or two of the employees at Tennant.
At no time were a majority of the employees at both Camps members
of the Union. The evidence shows that the Union has never requested
the respondent to bargain collectively with it as statutory representa-
tive of employees at either or both camps 2 and never sought to
negotiate a collective labor agreement covering the working conditions
of such employees. At Camp 1 members of the Union conducted
regular sublocal meetings. The sublocal has set up a grievance com-
mittee of four members with authority to present employee grievances
to the respondent for adjustment. Prior to March 27, 1939, this
committee submitted only a few grievances to the respondent for
adjustment and had never sought or obtained any settlement of
consequence.
B. The discriminatory discharge
Arthur Oyler was transferred by the respondent on March 27, 1939,
from his position as one of the regular caterpillar-tractor drivers,
f We do not consider whether employees at Camp 1, in view of the state of unionization , might constitute
an appropriate collective bargaining unit, separate from the employees at Tennant.
THE ' LONG-BELL LUMBER COMPANY 827
commonly called "cat" drivers, at Camp 1, to "choker setting," and
on March 28, 1939, was discharged. He had been employed by the
respondent since January 1937.
Oyler was the most prominent and active union member among the
respondent's employees. At the time of his discharge and for more
than 1 year previous he was chairman of the sublocal at Camp 1,
chairman of its grievance committee, and union shop steward. Func-
tioning of the sublocal centered about him. We have no doubt, and
we find, that the respondent and its supervisors at the two camps were
well acquainted with Oyler's leadership and activities in the Union.
About a month and a half prior to Oyler's discharge the respondent
assigned two employees, one Victor Caster and one Robert Caster, to
work as "cat" drivers at Camp 1, the same camp where Oyler, as above
mentioned, was employed. The two Casters were old employees and
had been working with the respondent's logging contingent known as
Unit 2, which operated out of Tennant. At the hearing evidence was
introduced by the respondent to the effect that the assignment of the
Casters to Camp 1 was in pursuance of promises made them in 1935
that if the operations of Unit 2 ceased, as was the case when their
assignment occurred, they would be given employment at Camp 1.
The Casters worked at Camp 1 until on or about April 9, 1939, when
Unit 2 resumed operations and then returned to their former jobs.
The assignment of the Casters to Camp 1 occasioned no need for
displacement of any of the regular "cat" drivers until February 27,
1939, when one of the drivers who had been on leave of absence
returned to work. At that time the foreman of the camp, one
Kirstein, transferred the regular "cat" driver, with least experience,
to setting chokers, a job paying considerably less than caterpillar
driving. On March 27, 1939, the need for displacement again arose
with the return of one of the Casters who had been absent from work
for about 2 weeks because of illness. Foreman Kirstein again selected
the driver with least experience, this time Oyler, for transfer to choker
setting, and directed the assistant foreman to notify Oyler of his
transfer.
We are satisfied from the evidence presented, and we find, that the
respondent did not through its supervisors demote Oyler because of
his membership in or activity on behalf of the Union, as alleged in
the complaint.
At the beginning of work on March 27, 1939, Oyler was directed by
the assistant foreman to set chokers. No explanation of the demotion
was given him. Oyler indicated to the assistant foreman that he
would not work at choker setting "right now," and upon the assistant
foreman replying "0. K.," returned to the main camp to obtain an
explanation of the transfer from Foreman Kirstein. Kirstein was
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
away from, the camp for the day, and Oyler remained there awaiting
his return: • That night Oyler visited Foreman Kirstein at Kirstein's
cabin and asked the reason for his transfer. Kirstein stated that the
,assignment of the Casters to-Camp 1 had made unnecessary one of the
`.`cat" drivers, and, in consequence, that Oyler had been transferred
to choker setting. , After ' some discussion Oyler informed Kirstein
of a union meeting of the camp employees then being held in one of
the cabins for the purpose of considering Oyler's grievance respecting
his,demotion, and` stated that the employees desired to know whether
the. respondent intended to reinstate him to his former position.
Kirstein made no reply, and Oyler departed for the union meeting.
At the meeting the Union decided to make a collective request of the
respondent for Oyler's reinstatement within 2 days, and in the event
,the respondent failed or refused to reinstate Oyler, to call a strike
at the camp. The union grievance committee, including Oyler,
then visited Kirstein in his cabin, told him of the position of the Union,
and communicated its request for Oyler's reinstatement. Kirstein
,declined to make an immediate reply. He said that he would confer
with the committee the following evening after he had communicated
with his superior, Superintendent Hawkins, about the matter. On
,the following morning, March 28, Kirstein discharged Oyler, giving
as the reason therefor Oyler's refusal to work at an assigned task.
At a conference that evening attended by the union grievance com-
mittee,- Kirstein and Hawkins, Kirstein adhered to his refusal to
restore Oyler to tractor driving. The next morning, March 29, about
20 employees at Camp 1 went,on strike in protest against the respond-
,ent's demotion and discharge of Oyler.
• Immediately upon learning of the strike Foreman Kirstein as-
sembled the striking employees in the commissary building at the
camp and spoke' to them. While there is some variation in the versions
given at the hearing as to what Kirstein said, the evidence shows, and
we find, that Kirstein told the employees that Oyler had been trans-
ferred because of the promise Kristein had made, and carried out, to
provide the Casters with work at Camp 1 in the event their own opera-
tions shut down; that he considered his discharge of Oyler proper
under the "Wagner Act"; that the striking employees had no right
under the Wagner Act to strike, because they had not obtained a
collective labor agreement from the respondent; and that if they did
not return to work immediately they would be discharged. All the
striking employees, except one, resumed work immediately, and the
one who did not was discharged.'
The Trial Examiner in his Intermediate Report found and concluded
that the true reason of Oyler's discharge on March 28 was not his
$ The original charge herein set forth the discharge of this employee , and alleged it to be a violation of
Section 8 (1) and (3) of the Act . However, this alleged unfair labor practice was omitted from the amended
charge later filed herein.
THE KONG-BELL LUMBER' COMPANY 829
refusal to perform an assigned task; that "Oyler was discharged because
he was engaged in union activities and in concerted conduct for mutual
aid' and protection in' attempting to secure the adjustment of a legiti-
mate union grievance." We agree with the finding and conclusion of
the Trial Examiner. Although Kirstein testified that on the afternoon
of 'March 27, after learning of Oyler's refusal to work, he decided to
discharge Oyler therefor, we are satisfied, and find, that Kirstein did
not reach his decision until after his meeting with the union grievance
committee on-the night of March 27. Kirstein indicated no intention
to discharge Oyler either at the meeting with Oyler on March 27, or
at th'e' meeting, with the union grievance committee which followed.
Had Oyler's refusal to work pending an adjustment of his grievance
been of sufficient moment to warrant his discharge, we have no doubt
that Foreman Kirstein; in the exercise of his authority in the matter,
would have so notified Oyler and the committee. This Kirstein did
not ` do,' and consistent therewith at the meeting with the union com-
mittee, reserved the adjustment of Oyler's grievance for a further con-
ference to be had 'with the union committee the following night after
he; Kirstein, had-consulted with his superior. Kirstein's subsequent
decision 'to' depart from this procedure for handling the grievance
through negotiation with the union grievance committee, and, instead,
to'discharge Oyler forthwith, shows that Kirstein became resolved to
use the Oyler incident as an occasion for discouraging resort. by the
camp employees to the Union and to concerted activity as means for
obtaining the adjustment of employee grievances. This determina-
tion is reflected in Kirstein's conduct on March 28 when the employees
went on strike. We are not persuaded that Kirstein actually believed,
as he then, told the employees, that they had no right to strike in the
absence of an existing collective labor agreement with. the respondent.
His threat to discharge those-who went on strike was a manifestation
of his opposition to concerted or union activity as a method for ad-
justing employee grievances. Such threat, in itself, contravened
Section 8 (1) of the,Act, for it interfered with, restrained, and coerced
the employees in the exercise of their right to engage in concerted
activity for the purpose of collective bargaining and other mutual aid
and protection.4_ Oyler, because of his leadership and prominence in
the ,Union,; typified the desires of the respondent's employees for a
labor organization to advance their employee interests. As already
stated, prior to March '27 the Union had neither sought nor obtained
4 While the respondent, could have replaced its striking employees with other employees, and not violated
the Act, it could not discharge them or refuse them reinstatement, so long as their positions were available,
merely because they had done on'strike. N. L. R: By. Mackay Radio ,& Telegraph Co , 304 U. S 333, rev'g
92 F (2d) 761 (C C A 9), and enf'g Matter of Mbfackay Radio & Telegraph Company, a Corporation and
American Radio Telegraph ists ' Association, San Francisco Local No 8, 1 N L R B 201. Cf. N. L. R. B v.
Lightner Publishing Co 113 F (2d) 621, (C. C. A 7); enf'g as mod. Matter of Lightner Publishing Corporation
of Illinois and Chicago Printing Pressmen's Union No. 8, Chicago Typographical Union No 16, 12 N. L. R. B.
1255; N. L. R. B. v Good Coal Co, 110 F. (2d) 501 (C. C A 6), enf'g Matter of The Good Coal Company and
United Mine Workers of America, District 19, 12 N. L. R. B. 136.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the respondent any concession of consequence. Its request for
the adjustment of Oyler's grievance, supplemented by its proposal to
engage in concerted activity to obtain a satisfactory adjustment
thereof, constituted the first serious test of the attitude and position
of the respondent toward union activity and toward concerted activity
of its employees in the promotion of their employee interests. We
are satisfied that had Kirstein not decided to use the Oyler incident
for discouraging utilization of the offices of the Union to ameliorate
working conditions, he would not have discharged Oyler pending 'the
conference with the union grievance committee which had been set
for the night of March 28. As a result of the Oyler incident member-
ship of the camp employees in the Union declined appreciably.
We find that the respondent, through Kirstein, discharged Arthur
Oyler on March 28, 1939, because of his membership in and activity
on behalf of the Union, particularly, his engaging with other union
members in submitting through the Union to the respondent a col-
lective request for the adjustment of an employee grievance, and his
engaging with such employees in other union and concerted activity
in connection therewith, the respondent thereby discriminating in re-
gard to the hire and tenure of employment of said Arthur Oyler and
discouraging membership in the Union; that by said discharge, and
by its afore-mentioned threat, through Kirstein, to discharge the strik-
ing employees, the respondent interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the
Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
between the States and foreign countries, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
We have found that the respondent discharged Arthur Oyler on
March 28, 1939, for the purpose of discouraging its employees from
resorting to the Union and engaging in concerted activity as a means
for adjusting grievances or otherwise advancing their employee in-
terests. We think it necessary in order to effectuate the policies of
the Act that Oyler be offered reinstatement by the respondent to the
same position which he occupied at the time of his discharge. At that
time the respondent had made available to Oyler, and transferred him
to, a position at choker setting. Accordingly Oyler is entitled to be
THE LONG-BELL LUMBER COMPANY 831
restored to such position or to one substantially equivalent thereto,
and we shall so order. We also shall direct that the reinstatement
to be offered to Oyler shall be without prejudice to his seniority and
other rights and privileges. However, nothing in our order shall be
construed as precluding the respondent from offering to Oylerreinstate-
ment to his former position as a caterpillar tractor driver, and such
offer shall be deemed a compliance with the order. Since his discharge
Oyler has worked as a choker setter for another employer. However,
employment at choker setting with this employer affords no work
during the winter months, as does employment as a choker setter
with the respondent, and the wages there received for choker setting
are less than those paid by the respondent.
The Trial Examiner in his Intermediate Report recommended that
the respondent be directed, in further effectuation of the policies of
the Act, to pay Oyler a sum of money equal to the wages he would
have earned, less certain deductions, had he remained in the respond-
ent's employ from and after March 28, 1939. We are of the opinion
that such a direction is unwarranted. At the time of the discharge
Oyler sought reassignment to tractor driving, and took the stand that
pending the contemplated disposition by the respondent with the
Union of his grievance in the matter he 'would refrain from working
at his new job. What might have resulted thereafter in so far as
Oyler's status as an employee is concerned, had the respondent not
determined, for anti-union reasons, to discharge him, but proceeded
with its attempt to resolve the issue, is entirely conjectural. There
is no presumption, in view of Oyler's own attitude and stand respect-
ing his reassignment to caterpillar tractor driving, that the issue which
he raised would have been determined finally by his continuing in the
respondent's employ as a tractor driver, or even as a choker setter.
Resolution of that issue might have resulted in the termination of his
employment by the respondent, or perhaps through his own action.
Under the particular circumstances of this case, in which the em-
ployee himself created the possibility of his employment terminating
because of a refusal to work pending adjustment of a grievance, we
shall not presume that had the employer not discriminatorily dis-
charged the employee when it did, the employee would have con-
tinued to earn wages for which he now may be compensated. Accord-
ingly, we shall not direct that any amount be paid Oyler as back pay
for the period since March 28, 1939. However, we shall make pro-
vision for compensation in the event the respondent should fail or
refuse to offer Oyler reinstatement in accordance with our order.
We shall also order the respondent to cease and desist from the
unfair labor practices in which we have found it to have engaged, and
to perform certain other affirmative action which we think necessary
to remedy the situation.
832 DECISIONS OF NATIONAL , LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following: , i
CONCLUSIONS OF LAW
1. International Woodworkers of America , Local No. 12 , 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 employment
of Arthur Oyler and thereby discouraging membership in Interna-
tional Woodworkers of America , Local No. 12, the - respondent: has
engaged in and is engaging in unfair labor practices , within the
meaning of Section 8 (3) of the Act.
3. By interfering with, restraining , and coercing its employees in
the exercise of 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.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7), of
the Act.
ORDER
Upon the basis of the above findings of fact, and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, The Long-Bell Lumber, Company, Weed, California, and
its officers , agents, successors , and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in International Woodworkers of
America, Local No. 12, or in any other labor' ' organization of its
employees, by discriminating in regard to hire or tenure of employ-
ment or any term or condition of employment because of membership
in or activity on behalf of any such labor organization , or because of
concerted activity for the purpose of collective bargaining or other
mutual aid or protection , including the presentation of employee
grievances for adjustment through such labor organization;
(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 concerted
activities for the purpose of collective bargaining or other mutual aid
or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Arthur Oyler immediate and full reinstatement to a
position as choker setter at Camp 1 or to a, position substantially
equivalent thereto, without prejudice to his seniority and other tights11
and privileges;
THE LONG-BELL LUMBER COMPANY 833
(b) Make whole Arthur Oyler for any loss of pay he will have
suffered by reason of a failure of or refusal by the respondent following
issuance of this'Order to offer him reinstatement in accordance with
paragraph 2 (a) above, by payment to him of a sum of money equal to,
that which he normally would have earned as wages, had he been rein-
stated, during the period from five (5) days after the date of this
Order to the date he is offered such reinstatement, less his net earnings
during such period; deducting, however, from the amount thus to
become payable to him, monies received by him during such period for
work performed upon Federal, State, county, municipal, or other work-
relief projects, and pay over the amounts so deducted to the apTiro-
priate fiscal agency of the Federal, State, county, municipal, or other
government or governments which supplied the funds for said work-
relief projects;
(c) Immediately post and keep posted for a period of at least sixty
(60) consecutive days from the date of posting, in conspicuous places
in and about its plant and offices at Weed, California, and its logging
camps known as Camp 1 and Tennant, in California, notices stating:
(1) that the respondent will not engage in the conduct from which it
is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order;
(2) that the respondent will take the affirmative action set forth in
paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's
employees are free to become or remain members of International
Woodworkers of America, Local No. 12, or of any other labor organiza-
tion, and that the respondent will not discriminate against any em-
ployee because of membership or activity in such organization, includ-
ing the presentation of employee grievances through such organization
to the respondent for adjustment;
(d) Notify the Regional Director for the Twentieth Region, in writ-
ing, within ten (10) days from the date of this Order what -steps the
respondent has taken to comply therewith.
MR. WM. M. LEISERSON, dissenting:
I agree with the majority in dismissing that part of the complaint
which alleged that Oyler was demoted because of his membership in or
activities in behalf of the Union. Oyler refused to obey orders and
did not perform the task to which he was assigned. So far as the record
shows he still refuses to accept this work.
5 By "net earnings" is meant earnings less expenses , such as for transportation , room, and board , incurred
by the employee in connection with 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 1tiatter 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 are not considered as
earnings , but as provided in the Order , are deducted from the sum due the employee and the amount thereof
paid over to the appropriate fiscal agency of the Federal , State, county , municipal , or other government or
governments which supplied the funds for said work -relief project.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The strike and the resulting difficulties were brought about by
the Union's mistaken insistence that the employer had illegally
demoted Oyler. Since the Board finds that the respondent did not
demote Oyler on account of his union membership or union activities,
I am of the opinion that the entire complaint should be dismissed.
To reinstate an employee to the job to which he was assigned by the
employer and at which he refuses to work in violation of orders seems
to me a strange kind of remedial action.