The Stilley Plywood Co., Inc.

National Labor Relations Board - Board Decisions

May 31, 1951

94 N.L.R.B. 932 (N.L.R.B. 1951)

932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By contributing support and assistance to The Horton & Hubbard
Employees Union, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a) (2) 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.
[Recommended Order omitted from publication in this volume.]
THE STILLEY PLYWOOD COMPANY, INC. and INTERNATIONAL BROTHER-
HOOD OF PULP, SULPHITE & PAPER MILL WORKERS OF THE U. S. AND
CANADA, A. F. L. Case No. 10-CA-420. May 31, 1951
Decision and Order
On August 22, 1950, Trial Examiner Isadore Greenberg issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner found that
the Respondent had not engaged in certain other alleged unfair labor
practices and recommended that those allegations of the complaint
be dismissed. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and briefs in support of
their exceptions.
The request of the Respondent for leave to argue the case orally
before the Board is denied because the record in the case and the
briefs submitted by the parties, in our opinion, adequately present
the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following additions and modi-
fications: 1
1. We agree with the Trial Examiner that the Respondent by en-
gaging in the conduct described in the Intermediate Report, including
1 The Intermediate Report contains certain misstatements of fact, none of which affect
the Trial Examiner's or our ultimate conclusions. Accordingly, we make the following
corrections. (1) The Trial Examiner states that the complaint alleges that the Respondent
through its unfair labor practices caused its employees to go on strike on or about April
26, 1948, whereas the allegation of the complaint is that the employees went on strike on or
about August 26, 1948; (2) the Trial Examiner found that "after the election which the
Union won , Nelson told Robinson that Stilley had threatened to `shut his mill down' .. .
whereas we find that this event occurred before the election.
94 NLRB No. 138.
THE STILLEY PLYWOOD COMPANY, INC. 933
surveillance of union meetings, interrogation of its employees con-
cerning their union affiliations, sympathies, and activities, and making
threats and coercive statements to its employees, and generally by its
unremitting coercive campaign to prevent its employees from exercis-
ing their rights under the Act, violated Section 8 (a) (1). However,
contrary to the Trial Examiner, we base no part of our findings upon
Nelson's remark to Robinson, in connection with a request for a loan,
to "go to the damn Union," because this event did not occur within
the 6-month period immediately preceding the filing of the charges
herein. Further, we do not pass upon the exceptions of the General
Counsel which are based upon the Trial Examiner's failure to make
additional findings with respect to activities and conduct of the Re-
spondent constituting violations of Section 8 (a) (1), for the reason
that any additional findings would merely be cumulative and would
not affect our conclusions or order in this case.
2. Although on and after May 10, 1948, the Respondent met with
the Union on many occasions and considered the Union's contract
proposals and submitted counterproposals of its own, we, like the
Trial Examiner, find that the Respondent did not enter into the dis-
cussions with an open and fair mind and with a sincere purpose to
find a basis of agreement touching upon wages, hours, and conditions
of employment. As fully described in the Intermediate Report, the
Respondent's entire course of conduct during the protracted period
of negotiations evidenced an intent on its part to avoid reaching
any agreement with the Union or otherwise discharging its obligation
to bargain collectively in good faith with the representative of its
employees. Particularly indicative of the Respondent's bad faith
in its negotiations with the Union is the fact that after the Union
was certified by the Board the Respondent persisted in its endeavor
to undermine the Union by discriminatorily discharging members of
the Union's negotiating committee and by other conduct, described
in the Intermediate Report, calculated to restrain and coerce its em-
ployees in the exercise of the rights guaranteed them in Section 7.
In addition, we are of the opinion that the following conduct on
the part of the Respondent not only evidences bad-faith bargaining
but also constituted per se violations of Section 8 (a) (5) : (1) The
Respondent's refusal to furnish the union representatives a schedule
of the Respondent's current job classifications and wage rates; (2)
the Respondent's placing into effect a general wage reduction some-
time during December 1948 and January 1949 without advance noti-
fication to or consultation with the Union; and (3) the transaction
by which the Respondent attempted to sever its logging employees
from the bargaining unit certified by the Board and the Respondent's
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to bargain with the Union for such employees . 2 Accordingly,
we find that on May 10, 1948 , and at all times thereafter , the Respond-.
ent has failed to discharge its duty to bargain collectively with the
Union and thereby has violated Section 8 ( a) (5) and ( 1) of the Act.3
3. We agree with the Trial Examiner that the Respondent dis-
criminatorily discharged Aeron Lewis, Norton Allen, and Jethro
Rabon in violation of Section 8 (a) (3) of the Act. With respect
to Lewis and Allen we find, as did the Trial Examiner , that they were
discharged for having actively engaged in union activities and not,
as contended by the Respondent , because it had decided to reduce
the amount of repair work being done in its shop. We rely especially
upon the fact that Allen and Lewis . were discriminatorily selected for
discharge at a, time when less experienced employees with considerably
less seniority, who were doing the same work were retained in the
Respondent 's employ.
4. We agree with the Trial Examiner that the strike called by
the Union on August 26, 1948 , was caused and prolonged by the
Respondent 's unfair labor practices , and that thereafter the striking
employees were entitled to be restored to their former or substantially
equivalent jobs upon application . We also agree with the Trial Ex-
aminer's findings of discrimination and his recommended order affect-
ing the strikers who are alleged in the complaint to have been wrong-
fully denied reinstatement except with respect to the cases discussed
below:
Neal Hunt: We agree with the Trial Examiner insofar as lie found
that the Respondent discriminated against Hunt by offering him a job
on the night shift, although before the strike he had worked only on
the day shift , and thereafter , on October 14, 1948, by rehiring him at
a wage of 5 cents less per hour than his prestrike rate. However, we
disagree with the Trial Examiner that the Respondent further dis-
criminated against Hunt by reason of its failure to recall him to work
after his nondiscriminatory layoff on November 21, 1948.' The fact
that Hunt was not subsequently recalled to work and new employees
were hired after his layoff is insufficient evidence to support a, finding
2 Like the Trial Examiner , we find that Holt is not an independent contractor, that
he is, to all intents and purposes , an employee of the Respondent , and that his ostensible
employees are, within the meaning of the Act, employees of the Respondent
S The Trial Examiner found that the refusal to bargain dated from April 7, 1948, which
falls between March 26 , 1948 , when the Union won a Board -conducted election , and April
12, 1948 , when the Board issued its certification Since the issue herein involves primarily
the Respondent's conduct subsequent to the Union ' s formal certification , we need not pass
upon the question of whether an unlawful refusal to bargain can occur between the dates
of a Board election and the issuance of the certification Because it is clear from the
record in this case that when the Respondent and the Union commenced their negotiations
on May 10 , 1948, the Respondent did not bargain with the Union in good faith , we adopt
May 10 , 1948 , as the date on which the Respondent 's refusal to bargain began.
4 Hunt , together with three other employees , was laid off because of trouble with one
of Respondent ' s pieces of machinery
THE STILLEY PLYWOOD COMPANY, INC. 935
of discrimination, especially in view of the absence of evidence that
Hunt applied for reinstatement after November 21, or that the Re-
spondent promised to recall Hunt when a job became available for him,
or that the Respondent had any particular policy or practice with
respect to recall of employees after layoffs. Nor do we believe that
simply because Hunt is entitled to back pay for the period before No-
ember 21, he is further entitled to reinstatement following his non-
vdiscriminatory layoff. The remedy of reinstatement is designed to
reestablish the relationship between the employee and his employer
which normally would have continued had the employer not engaged
in unfair labor practices, and is not designed to place discriminatees
in any better or superior position than other employees' There is
no causal connection here between the discrimination against Hunt
with respect to his reemployment after the strike at a lower wage than
his prestrike rate and his subsequent nondiscriminatory loss of enn-
ployment. Consequently, we find that an award of back pay for the
period from October 7 to November 21, 1948, without reinstatement,
will remedy the discrimination against Hunt.6
John Williams: We agree with the Trial Examiner that on and
after September 27, 1948, when John Williams applied for reinstate-
ment, the Respondent has failed and refused to reinstate him to his
former or a °substantially equivalent position. In finding that Wil-
liams applied for work on September 27, we rely on his credible testi-
mony that he appeared at the plant that clay and that he applied to
Spires for reinstatement.
IlIeon King: King applied for reinstatement on September 27, 1948,
and was restored to his former job on November 11, 1948. On De-
ceinber 10, 1948, King was laid off because of lack of work. King was
not subsequently recalled by the Respondent nor, after the layoff, did
he apply for reinstatement. Contrary to the Trial Examiner, we find,
for reasons expressed above, that the Respondent did not discriminate
against King after December 10, 1948. However, like the Trial
Examiner, we find that the Respondent failed and refused to reinstate
5It is apparent that the reinstatement of Hunt would in effect impose an obligation
upon the Respondent to recall Hunt after layoff , although the Respondent is under no
such duty with respect to other employees . In the circumstances of this case, directing
the reinstatement of Hunt would give him a right of recall not enjoyed by other employees.
Johns S . Barnes, Corporation , 92 NLRB 589 ; Cen-Tennial Cotton (din Company, 90 NLRB
345. West Coast Growers and Packers , 42 NLRB 814 , Hy grade Food Products Corporation,
35 NLRB 120
6 We regard the case of George E Rabon as different from that of Hunt Ration was
eventually rehired at a lower rate of pay than he had been receiving before the strike
with the understanding that he would be restored to his former rate of pay after 2 weeks
Ration quit his job 5 weeks later when Respondent refused to raise his pay as he had been
promised We agree with the Trial Examiner that the Respondent never reinstated
Ration to his former job or to one substantially equivalent thereto and that the Respondent
is not absolved from its duty to iemedy its discrimination against Ration because Rabon
refused to continue in its employ in a job not substantially equivalent to the one he
held before the strike.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
King to his former or a substantially equivalent job from September
27, 1948, to November 11, 1948, and we shall order the Respondent to
remedy the discrimination suffered by King during this period of
time.
Claude Collins: Collins applied for reinstatement on September 27,
1948. He was reemployed on October 7, 1948, at 5 cents per hour less
than he had been receiving when he went on strike. Three weeks later
his wage was increased to his former rate. On December 10, 1948,
Collins was nondiscriminatorily laid off because of lack of work. He
was rehired on March 19, 1949, at 59 cents per hour, which was 6 cents
less than he had been receiving before the strike. Like the Trial
Examiner, we find that Collins was discriminated against and entitled
to back pay for the period between September 27, 1948, when the first
applied for reinstatement, and the date after his initial reinstatement
when he was restored his prestrike rate of pay. However, contrary to
the Trial Examiner, we find no discrimination against Collins in con-
nection with his recall in March 1949, at the lower rate of pay. The
record shows that sometime between December 1948 and January 1949,
the Respondent had put into effect a general 10-percent wage reduction.
The wage reduction was applied, in general, to all employees and there
is no testimony in the record that the Respondent put such wage re-
duction into effect for discriminatory reasons.7 Thus, there was no
further discrimination against Collins when he was rehired at a rate
of pay which conformed to the Respondent wage pattern at the time.
Bud Allen: After the strike the Respondent restored him to his
former position shortly after he applied therefor. Allen was laid off
on November 20, 1948, and was not subsequently recalled. The Trial
Examiner found that the Respondent's failure to recall Allen after
his layoff in November was discriminatory. However, for the reasons
stated above, we find that this does not constitute sufficient evidence
of discrimination. Accordingly, we will dismiss the complaint as to
Allen.
Charles E. Sherman: Sherman applied for reinstatement on
October 4, 1948. Although before the strike he had been employed
on a day shift, on this occasion he was asked whether he was willing
to accept a job on a night shift, which he refused. We agree with
the Trial Examiner that the offer of night work was not an offer of
substantially equivalent employment and that therefore the Respond-
ent discriminated against him by failing to restore him to his former
or a substantially equivalent job when he applied therefor on October
4, 1948. However, we disagree with the Trial Examiner as to the
7 The complaint does not allege that the wage reduction was a violation of Section 8
(a) (3), nor was the issue litigated at the hearing However , as mentioned above, we
find that the imposition of this wage reduction was a violation of Section 8 (a) (5)
because it was effected without consultation with the Union.
THE STILLEY PLYWOOD COMPANY, INC. 937
length of time that the discrimination against Sherman continued.
We find that in or about March 1949, the Respondent offered Sherman
reemployment at the same or a substantially equivalent job to the one
he had before the strike and the discrimination then ended. That the
job may have been at a lower rate of pay than his prestrike wage does
not affect our decision in this case because such wage conformed to
the Respondent's nondiscriminatory general wage pattern instituted
several months after the strike."
Jesse James Burroughs: We agree with the Trial Examiner that
Burroughs was discriminatorily denied reinstatement on October 5,
1948, when he sought to return to work.9 Burroughs testified that the
first time he was given reemployment after the strike was on July 20,
1949, and at a wage rate of 3 cents per hour less than he had been
receiving before the strike. On the other hand, Spires, the Employer's
superintendent, testified that Burroughs was rehired on October 21,
1948, at the same rate of pay he had been receiving before the strike
and that Burroughs was laid off on November 22, 1948. The Trial
Examiner does not resolve this discrepancy in testimony. Upon the
present record, we cannot resolve the conflict in testimony between
Burroughs and Spires as to whether or not Burroughs had been re-
employed for the period from October 21, 1948, to November 22, 1948.
We shall therefore relegate the resolution of this issue to the compliance
stage of the proceedings in this case. The finding of discrimination
for the purpose of computing back pay shall be determined by ref er-
ring to the following : If Burroughs was reemployed on October 21,
1948, at the same rate of pay as he had been receiving before the
strike, then we find that the discrimination against Burroughs ceased
on that date. If, however, Burroughs was first reemployed on July
20, 1949, then the discrimination against him continued until the latter
datel° In any event, we find that from the period beginning on
October 5, 1948, when Burroughs first applied for reinstatement, until
October 21, 1948, or July 20, 1949, when Burroughs was first re-
employed, the Respondent discriminated against Burroughs in viola-
tion of Section 8 (a) (3) of the Act.
8 Before the strike Sherman was being paid 58 cents per hour. The Trial Examiner
found that Sherman 'nas eventually reemployed on or about July 7, 1949 , at 52 cents
per hour . As mentioned above, sometime between December 1948 and January 1949, the
Respondent instituted a general wage reduction of 10 percent which we do not find was
put into effect for discriminatory reasons Accordingly , because Sherman ' s wage upon
reemployment conformed to the general pattern in effect in the plant at the time, contrary
to the Trial Examiner , we do not find that Sherman ' s reemployment at the lower wage
was discriminatory.
Like the Trial Examiner , we find that the Respondent 's offer of a job on the night
shift was not an offer of a substantially equivalent job because prior to the strike
Burroughs had been employed on the day shift.
"That Burroughs may have been rehired on July 20, 1949 , at 3 cents an hour less
than his prestrike rate is not evidence of any further discrimination against him for this
lower rate conformed to the Respondent 's general wage pattern which, as discussed above,
had been in effect for some 6 months prior to July 20.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Earl J. Sherman: Contrary to the Trial Examiner, we find that the
discrimination against Sherman ceased on July 1, 1949, when he was
reemployed at a rage rate of 52 cents per hour. Although this wage
was 3 cents per hour less than Sherman had been receiving before
the strike, it conformed to the Respondent's wage pattern in existence
at the time of Sherman's reemployment and for the reasons stated
above was not discriminatory. However, we agree with the Trial
Examiner that between October 5, 1948, when Sherman applied first
for reinstatement, and July 1, 1949, when he was reemployecl by the
Respondent, the Respondent discriminated against Sherman in viola-
tion of Section 8 (a) (3) of the Act.
Charles Hemiingway: After the strike, Hemingway was reemployed
on the night shift at 3 cents per hour more than he had been receiving
before the strike when he was working on the day shift. Hemingway
was nondiscriminatorily laid off in December 1948. Although we
agree with the Trial Examiner that after the strike Hemingway was
not reinstated to his former or a substantially equivalent job, never-
theless, it is clear that he suffered no loss of earnings during this
period. In March 1949, Spires sent word to Hemingway to return
to work. Hemingway did not return to work or make any inquiry
concerning the job being offered him. In these circumstances, we can
not assume that the Respondent sought to offer him a job on the night
shift rather than on the day shift. Therefore, contrary to the Trial
Examiner, we find that because Hemingway, in March 1949, did not
accept the Respondent's offer of employment or even inquire as to
the nature of the job being offered him, that the discrimination against
Hemingway ended at that time. Under all the circumstances, we do
not believe that it would effectuate the purposes of the Act to order
affirmative relief for Hemingway.
J. B. Lee: We agree with the Trial Examiner that the Respondent
condoned Lee's alleged misconduct on the picket line and thereby
waived its right to refuse Lee reinstatement for such reason 11 because
the record shows that when Lee applied for reinstatement after the
strike the Respondent did not advert to this alleged misconduct but
expressed its willingness to reinstate Lee as soon as possible.12 In
reaching this conclusion we do not rely, as does the Trial Examiner in
"Member Reynold takes the view that Lee's alleged misconduct on the picket line, if
established , was of such flagrant character as to bar his reinstatement He would therefore
resolve the conflict in testimony , which the Trial Examiner found to be unnecessary, and
if it were found that Lee had in fact engaged in such misconduct he would not apply
any theory of condonation in this case , but would find that the Respondent was justified
in refusing to reinstate Lee
"The Hoover Company, 90 NLRB 1614 ; And> ews Company/, 87 NLRB 379 , Stewart Die
Casting Corporation v N L R B, 114 r 2d 849 (C A. 7, 1950) , N L R R v Alabama
Marble Co , 185 F ,2d 1022 (C A 5, 1951) , E A Laboiatorses, Inc, 188 F. 2d 885
(C A 2, May 7, 1951).
THE STILLEY PLYWOOD COMPANY, INC. 939
part, upon the fact that the Respondent reemployed other strikers
who participated in this same alleged conduct.
The Trial Examiner did not resolve the conflict in testimony con-
cerning the Respondent's contention that among other reasons for its
refusal to reinstate Lee was that Lee had made threats to employees
during and after the strike. The record reveals only one credible inci-
dent in this respect. This involves the testimony of Dan Butler that
one night three men came to his house and threatened him if he were
to go to work during the strike. Lee denied that he had in any way
threatened Butler. Butler did not identify Lee on the record as one
of the three men who had threatened him. Accordingly, we find no
basis on the record for the Respondent's contention that Lee had made
threats to employees.
The Remedy
Havnig found that the Respondent has engaged in and is engaging
in unfair labor practices in violation of Section 8 (a) (1), (3), and
(5) of the Act, we shall, substantially in accordance with the Trial
Examiner's recommendations, order the Respondent to cease and desist
from its unlawful conduct and to take affirmative action necessary to
effectuate the policies of the Act.
We have found that the Respondent in violation of Section 8 (a)
(3) of the Act discriminated against the following named employees:
Aeron Lewis Jesse James Burroughs
Norton Allen Earl J . Sherman
Jethro Rabon George J. Murray
Neal Hunt George Hunt
John Williams James E. Glover
William Leroy Martin George E. Rabon
Meon King J. B. Lee
Claude Collis Charles Hemingway
Charles E. Sherman
Our usual remedy for such discrimination is to order the reinstate-
ment with back pay of the employees discriminated against in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy." We will apply this remedy in all the above cases ex-
cept with respect to those employees listed below:
Neal Hunt: Because we have found that the discrimination against
Hunt ended on November 21, 1948, we shall direct the Respondent to
remedy its discrimination against Hunt by giving to him back pay for
The period from October 7, 1948, to November 21, 1948.
William Leroy Martin: It has been found that the Respondent of-
fered Martin reinstatement to his former job on April 19, 1949, which
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin refused. We shall therefore direct back pay for Martin for
the period from September 27, 1948, to April 19, 1949.
Meon King: Because we have found that the discrimination against
King terminated on November 11 ,.1948, we shall order the Respondent
to remedy its discrimination against King by giving to him back pay
for the period from September 27, 1948, to November 11, 1948.
Claude Collins: In accordance with our findings that the dis-
crimination against Collins was limited to the period from September
27, 1948, to October 28, 1948, we shall direct Respondent to make him
whole for any loss of pay he suffered during this period of time.
Charles E. Sherman: Because we find that the discrimination
against Sherman ended in March 1949, we shall direct back pay to this
employee for the period from October 4, 1948, to March 1949.
Jesse James Burroughs: In accordance with our findings we shall
direct the Respondent to remedy its discrimination against Burroughs
by giving him back pay for the period from October 5, 1948, until
October 21, 1948, or July 20, 1949, whichever is determined appro-
priate in the compliance stage of this proceeding.
Earl J. Sherman: Pursuant to our findings, back pay for this em-
ployee is limited to the period from October 5, 1948, to July 1, 1949.
George Hunt: For the reasons stated in the Intermediate Report,
the Respondent will be directed to give his employee back pay for the
period from October 5, 1948, to October 20, 1948.
Charles Hemingway: In accordance with our conclusions, discussed
above, we will direct no affirmative relief for Hemingway.
James E. Glover: For the reasons stated in the Intermediate Report
back pay will be directed for the period from October 5, 1948, to
October 14, 1948.
In all other respects we will adopt the remedy recommended by
the Trial Examiner, except that we will order that the complaint
be also dismissed insofar as it alleges that the Respondent committed
unfair labor practices by refusing to reinstate Bud Allen.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, The Stilley Plywood Com-
pany, Inc., Conway, South Carolina, and its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Pulp, Sulphite & Paper Mill Workers of the U. -S. and Canada,
A. F. L., or any other labor organization of its employees, by discharg-
ing or refusing to reinstate any of its employees or by discriminating
THE STILLEY PLYWOOD COMPANY, INC. 941
in any other manner in regard to their hire and tenure of employment
or any term or condition of employment.
(b) Interrogating its employees concerning their union affiliations,
activities, or sympathies, or threatening their employees with re-
prisals or economic loss because of their union affiliations, activities, or
sympathies, or engaging in surveillance of union meetings.
(c) Refusing to bargain collectively with International Brother-
hood of Pulp, Sulphite & Paper Mill Workers of the U. S. and
Canada, A. F. L., as the exclusive bargaining representative of all
production and maintenance employees in the Respondent's plant
and woodland operations, excluding office and clerical workers, sales-
people, technical employees, superintendents, and all other super-
visors as defined in the Act, with respect to rates of pay, wages, hours
of employment, and other conditions of employment.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist International Brotherhood
of Pulp, Sulphite & Paper Mill Workers of the U. S. and Canada,
A. F. L., or any other labor organization, 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, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to the following employees immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges :
Aeron Lewis George J. Murray
Norton Allen George E. Rabon
Jethro Rabon J. B. Lee
John Williams
(b) Make whole the above-listed employees, and Neal Hunt,
William Leroy Martin, Meon King, Claude Collins, Charles E. Sher-
man, Jesse James Burroughs, Earl J. Sherman, George Hunt and
James E. Glover, in the manner set forth in the section hereof entitled
"The Remedy" for any loss of pay they may have suffered as a result
of the Respondent's discrimination against them.
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary to analyze and compute the
942 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amounts of back pay clue and the right of reinstatement under the
terms of this Order.
(d) Upon request,, bargain collectively with International Broth-
erhood of Pulp, Sulphite & Paper Mill Workers of the U. S. and
Canada, A. F. L., as the exclusive bargaining representative of all its
employees in the bargaining unit described herein, with respect to
rates of pay, wages, hours of employment, and other conditions of
employment, and if an understanding is reached, embody such under-
standing in a signed agreement.
(e) Post at its Conway, South Carolina, plant, copies of the notice
attached hereto and marked Appendix A." Copies of said notice, to
be furnished by the Regional Director for the Tenth Region, shall,
after being signed by the Respondent's representative, be posted by
the Respondent and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges that the Respondent violated the Act by discharging Jack
Rush and causing his arrest; by discharging John Woodle; by dis-
continuing its on-the-job training program for veterans; by discrim-
inatorily imposing onerous working conditions upon its employees
(except with respect to Jethro Rabon) ; and by refusing after the
strike to reinstate Acie Faulk, Jr., Earnest Graham, Moses Sherman,
Willie J. McCray, and Bud Allen.
MEMBER STYLES took no part in the consideration of the above De-
cision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our, employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist INTERNATIONAL
i' In the event this Order is enforced by a deciee of it United States Court of Appeals,
there shall be inserted in the notice before the words , "A Decision and Order ," the words,
"A Decree of the United States Court of Appeals Enforcing."
THE STILLEY PLYWOOD COMPANY, INC. 943
BROTIIERHOOD OF PULP, SULPHITE & PAPER MILL WORKERS OF THE
U. S. AND CANADA, A. F. L., or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL NOT discourage membership in INTP.RNATIONAL
BROTHERHOOD OF PULP, SULPHITE & PAPER MILL WORKERS OF TIB
U. S. AND CANADA, A. F. L., or any other labor organization of
our employees, by discriminating in any manner with regard
to their hire and tenure of employment, or any term or condition
of employment.
WWTE WILL OFFER to the following-named employees immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination against them :
Aeron Lewis George J. Murray
Norton Allen George E. Rabon
Jethro Rabon J. B. Lee
John Williams
WE WILL MAKE WHOLE the follownlg- named employees for any
loss of pay suffered as a result of the discrimination against them :
Neal Hunt Jesse James Burroughs
William Leroy Martin Earl J . Sherman
Meon King George Hunt
Claude Collins James E. Glover
Charles E . Sherman
WE WILL BARGAIN collectively, upon request , with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of
pay, wages , hours of employment , and other conditions of em-
ployment, and if an understanding is reached , embody such
understailcling in a signed agreement . The bargaining unit is:
All production and maintenance employees in our plant
and woodland operations , excluding office and clerical work-
ers, salespeople , technical employees , superintendents, and
all other supervisors as defined in the Act.
All our employees are free to become, remain , or refrain from be-
coming, members of the above -named union or any other labor or-
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganization except to the extent that this right may be affected by an
agreement in conformity with Section 8 ( a) (3) of the Act.
THE STILLEY PLYWOOD COMPANY, INC.,
Employer.
By -----------------------------------------
(Representative) (Title)
Dated- -------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Mr. Mospan C. Stanford,, for the General Counsel.
McCutcheon & Suggs, by lth. John B McCutcheon, of Conway, S. C., for the
Respondent.
Messrs. Raymond Fogle and Milton Bever, of Georgetown, S. C., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed by International Brotherhood of Pulp,
Sulphite & Paper Mill Workers of the U. S & Canada, A. F. L., herein
called the Union, the General Counsel of the National Labor Relations Board,
herein respectively called the General Counsel and the Board, by the Regional
Director of the Board for the Tenth Region ( Atlanta, Georgia ), issued his
complaint , dated March 30, 1949, against The Stilley Plywood Company , Inc., of
Conway , South Carolina , herein called the Respondent , alleging that the Re-
spondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 ( a) (1), (3), and ( 5) and Section 2
(6) and ( 7) of the National Labor Relations Act, as amended , 61 Stat. 136,
herein called the Act Copies of the second amended charge, complaint, and
notice of hearing thereon were duly served on the Respondent and the Union.
With respect to unfair labor practices , the complaint alleges in substance that
the Respondent:
1. On or about April 7, 1948 , and at all times thereafter, refused to bargain
collectively with the Union, the duly designated representative of its employees
in an appropriate unit;
2. Discharged four named employees ,' and has since refused to reinstate them,
because of their affiliation with and activities on behalf of the Union ;
3. Through its unfair labor practices as above alleged , caused its employees
to go on strike on or about April 26, 1948 , which strike was thereafter prolonged
by the unfair labor practices of the Respondent ;
4 Refused to reinstate 19 of its striking employees on various dates between
September 26, 1948, and October 5 , 1948, and has since refused to reinstate
them, although they applied for reinstatement to their former or substantially
equivalent positions ;
5 Since on or about March 20, 1948, has interfered with, restrained, and
coerced its employees in the exercise of their rights under the Act, by: (a)
urging , persuading, threatening, and warning its employees to refrain from join-
ing or assisting the Union ; ( b) interrogating its employees concerning their
1 The employees above referred to, and the dates on which they were allegedly discharged,
are listed in the complaint as follows • Norton Allen, June 4, 1948; Aeron J. Lewis, June 4,
1948; Jack Rush, April 13, 1948; Jethro Rabon, June 9, 1948.
THE STILLEY PLYWOOD COMPANY, INC . 945
union membership and activities; (c) keeping under surveillance the union
meetings and activities of its employees; (d) causing the arrest of one of its
employees because of his union activities and membership.
In its answer, duly filed, the Respondent denies that it has refused to bargain
collectively with the Union ; that it discharged Jethro Ration on or about June 9,
1948, and thereafter refused to reinstate him ; that its termination of the em-
ployment of Norton Allen, Aeron J Lewis, and Jack Rush was discriminatory ;
that the strike of its employees was caused or prolonged by any unfair labor
practices on its part; that it discriminatorily refused to reinstate any of its
striking employees upon their application ; or that it has committed any of the
other unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held on various days between June 14 and
August 20, 1949, at Conway, South Carolina, before the undersigned Trial Exam-
iner, duly designated by the Chief Trial Examiner After the hearing was duly
closed on August 20, 1949, counsel for the Respondent filed a motion with the
Trial Examiner, dated October 18, 1949, to reopen the hearing for the purpose
of taking additional testimony from the witness, Lloyd Todd The motion was
supported by an affidavit setting forth that after the close of the hearing this
witness had voluntarily admitted to counsel for the Respondent that his testi-
mony given at the hearing had been incorrect. Upon consideration of the afore-
said motion, and of the memorandum in opposition thereto submitted by the
General Counsel, the motion was granted, and the hearing ordered reopened on
February 1949, at Conway, South Carolina. Pursuant to such order, the
hearing was reconvened at the aforesaid time and place, and additional testi-
mony was taken from Todd. The Respondent and the General Counsel were
represented by counsel, and the Union by two of its international representa-
tives at the original hearing ; the parties were similarly represented at the
reopened hearing, except that only one of the Union's representatives appeared
on the latter occasion. All parties were afforded full opportunity, both during
the original hearing and the reopened one, to be heard, to examine and cross-
examine witnesses. and to introduce evidence hearing on the issues.
At the opening of the original hearing, a motion by counsel for the Respondent
to make the complaint more definite and certain was granted in par t, in response
to which further particulars as to certain allegations of the complaint were
furnished to the Respondent by the General Counsel. Motions by the General
Counsel to require the Respondent to set forth certain of its defenses with par-
ticularity instead of allowing it to rest on the general denials contained in its
answer, were denied A motion by the General Counsel, also made at the outset
of the hearing, to amend paragraph 15 of the complaint by adding the name of
G. W McDowell to the list of the Respondent's supervisors therein alleged to have
engaged in unfair labor practices, was granted without objection. During the
course of the hearing the General Counsel moved to amend paragraph 8 of the
complaint by adding the name of John D. Woodle to the list of employees therein
alleged to have been discriminatorily discharged Upon the introduction into
evidence of an amended charge, adding Woodle's name to those alleged to have
been discriminatorily discharged, this motion was granted, and a second amended
complaint was accordingly made part of the record. An answer thereto was
thereafter dilly filed by the Respondent.
The parties were afforded opportunity after the hearing to submit briefs and
proposed findings of fact and conclusions of law to the Trial Examiner Briefs
were received from counsel for the Respondent and the General Counsel.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
953S 41-52-vol 94-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, The Stilley Plywood Company, Inc., is a South Carolina
corporation, with its principal office and place of business at Conway, South
Carolina, where it is engaged in the manufacture, sale, and distribution of ply-
wood and lumber. In the course of its business operations during the 12-month
period preceding the hearing, which period was concededly fairly representative
of the entire time herein mateiial, the Respondent purchased raw materials con-
sisting principally of logs and chemicals, valued at $103,915.49, approximately
50 percent of which was shipped to its Conway, South Carolina, plant from
points outside the State of South Carolina. During the same representative
period the Respondent produced at the Conway plant, finished plywood and
lumber valued at approximately $636,000, approximately 90 percent of which
was sold and shipped to customers outside the State of South Carolina.
The Respondent concedes and I find that it is engaged in interstate commerce
within the meaning of the Act.
II THE ORGANIZATION INVOLVED
International Brotherhood of Pulp, Sulphite & Paper Mill Workers of the U. S.
& Canada, A. F. L., is a labor organization admitting to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background events
The Union began to organize the approximately 300 production and mainte-
nance workers employed by the Respondent in about April 1947.
After prelimilary organizational efforts had proceeded for some time, about
60 of the Respondent's interested employees met with 2 representatives of the
Union on or about July 2, 1947, in a hall near the home of employee William
Beaty. The 2 union representatives mentioned were International Represen-
tative Milton Bever and Woodrow Vause, then employed by the Union to assist
in organizing the lumber and logging industry in that vicinity.
Bever and Vause, accompanied by one or two of the Respondent' s employees,
drove to the July 2 meeting in Bever's automobile. During this ride they were
followed at least part of the way by a "jeep" containing two men who turned
out to be Tommie Roberts, a mechanic employed by the Respondent, and Arnett
Singleton, a foreman in the Respondent's plant. The jeep followed Bever's car
into the road leading to Beaty's home, and stopped immediately behind it when
it came to a standstill at the house. Bever thereupon walked back to the jeep,
intioduced himself to its occupants, who in turn identified themselves, and
pointed out that they were violating the National Labor Relations Act by coming
to the site of the union meeting since their presence, especially that of Foreman
Singleton, "might intimidate some of the employees." Roberts and Singleton
then left, and the union meeting was held as scheduled.
The next morning, employees Mack Miller and William Beaty, who were
present at the scene of the above-described incident, as well as employee Charles
Hemingway and a number of other eniplovees who had attended the union meet-
ing, were summarily discharged by the Respondent without any reason being
given them for this action. Later in the day-, some of these discharged employees,
including Miller, Beaty, and Hemingway, were sought out by Superintendent
DeWitt Spires, were told to return to their jobs the next workday, and were
THE STILLEY PLYWOOD COMPANY, INC . 947
promised pay for the day they had lost from work. During his conversations
with Beaty and Hemingway, Spires cautioned them not to tell anyone that they
had been discharged, and remarked to Beaty that he should have "known better
than to be fooling up with the damn Union." After his reinstatement, Heming-
way was interrogated by Foreman Singleton as to when and where the Union
held its meetings.
Also on or, about July 3, 1947, Johnnie Martin, employed by the Respondent
as a clerk in its company store, was discharged by Store Manager Cox. When
Martin, who was related by marriage to Union Representative Vause, asked
Cox why he was being discharged, Cox replied, "On account of the Union."
Martin thereupon went to the Respondent's president, W. A. Stilley, Jr., and
protested his discharge, saying that he knew nothing about the activities of
the Union. Stilley answered that since Martin's "brother-in-law [was] raising
all this hell here he, [Stilley] figured [Martin] knew something about it."
Although Stilley promised to "talk to Mr. Cox" about Martin's discharge, Martin
heard no more about it and he was not reinstated to his job?
Likewise, soon after the union activities started, the Respondent, through
its supervisors, began to interrogate its employees about their union sympathies,
affiliations, and activities, and made threats to discharge any employee who
joined the Union and to take other reprisals against the employees if they
organized. For example, during June 1947, Foreman F. B. Fowler, Sr, stated to
a group of employees, including Clarence Hewitt, that anybody could join the
Union if they wanted to, but "if they do they'd be laid off." During July 1947,
Foreman G. W. Causey told employee Gussie Collins that he had "orders from
the big boss to fire all that joined the Union " Very shortly after the Union's
meeting on July 2, 1947, Foreman Arnett Singleton asked employee William
Leroy Martin whether he was a member of the Union, and during the same
period inquired of employee John Woodle what he thought of the Union.
Sometime around July 10, 1947, the Respondent's superintendent of logging,
Andrew Nelson, asked employee Jack Rush, who was active in recruiting mem-
bers for the Union, what he thought of the Union, and told him that he had
2 The findings of fact above made with respect to the July 2 meeting of the Union,
Foreman Singleton's presence there, the discharge on the next day of a group of the
Respondent's employees who had attended the meeting, and their subsequent reinstatement,
are based on the undenied, credited testimony of Miller, Beaty , and Hemingway, which
was received without objection The Respondent has advanced no explanation as to
these events The findings with respect to the discharge of Martin are based on the
latter's credited testimony. The Respondent objected to this testimony on the ground
that no connection had been established between the store in which Martin was employed
and the Respondent In addition, Manager Cox of the store testified that Martin had
not been discharged, but quit his employment after Cox communicated to him President
Stilley's suspicion that Martin had disclosed company records, which were kept in the
store, to the union representative, Vause The record shows that both Martin and Cox
were paid by the Respondent for their services in the store; that Cox turned all store
receipts over to the Respondent ; that the Respondent's employees had deducted from
their pay amounts charged against them for purchases made on credit at the store ; and
that President Stilley of the Respondent gave instructions to Store Manager Cox as to
the employment status of Martin There is thus no doubt, and I find, that the Respondent
effectively controlled Martin's employment status in the store, if it did not formally own
the establishment As to the conflict between the testimony of Martin and Cox regarding
the termination of the former's employment, Martin impiessed me as the more credible
witness and I credit his version of the events In an affidavit made part of the record,
President Stilley averred that when Martin discussed his discharge with Stilley, lie
(Stilley), being busy at the time, told Martin that if he had not shown company, payrolls
to Vause, he should "go on back to work and forget the matter," and that Stilley would
see Martin later. Instead, the affidavit goes on, Martin "left the store " I credit Martin's
version of his conversation with Stilley
948 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
orders from President Stilley to discharge all the employees who joined it. When
Rush denied any connection with the Union, Nelson asked whether he knew
any employees who had joined. During August 1947, Foreman Graham Holt
asked a group of employees including Rush whether any of them had affiliated
with the Union, and when they all denied having done so, told them, "If you join
the Union that won't hurt ivIr. Stilley. He would contract his logging job out
anyway." Still later, in about October of the same year, Superintendent Nelson
told Rush that he had heard that Rush was soliciting the employees on behalf of
the Union, and that he had better stop-if he did not, he would lose his job
During the month of December 1947, Rush applied to Nelson for a loan of money,
for Christmas expenses. Again Nelson inquired whether Rush had joined the
Union, and told him that President Stilley had threatened to "shut down the
damn mill" before "he would let the Union come in." Nelson also said that if the
employees affiliated with the Union they "couldn't borrow no more money out
of the office." In the early part of 1948 Rush accompanied Union Representa-
tive Vause on a trip to a nearby logging operation of the Respondent at Currie,
North Carolina, where he assisted Vause in recruiting a number of the em-
ployees into the organization. About a week later, Rush requested a $7 loan
from Superintendent Nelson, who said, "Jack, I'll tell you who you could get
that money from-Mr. Vause." Later the same day, when Rush renewed his
request for a loan, Nelson questioned him as to his union activities in company
with Vause. Rush asserted that he had driven Vause to Currie only because
he had been paid to do so, and denied having clone anything on behalf of the
Union. A short time later, Nelson brought Rush the money he had sought to
borrow. During the summer of 1947, a short time after the Union initiated its
campaign, Superintendent Nelson asked employee Dora Robinson what he thought
about the Union, and told him that employees who affiliated with it were not "go-
ing to get anything (but would be) paying something for nothing." In about
September 1947, Nelson interrogated Robinson about Jack Rush's activities on
behalf of the Union.'
The events described in this section occurred during a period of time prior to
that covered by the complaint. Consequently, no findings of unfair labor prac-
tices will be made with respect to them. However, the Respondent's conduct
in relation to these events is indicative of its attitude towards the organizational
activities of its employees and towards the Union herein involved. The afore-
said conduct is therefore summarized for the purpose of shedding such tight as
it does upon the activities of the Respondent which do fall within the allegations
of the complaint. Cf. N. L. R. B. v. May Dept, Stoles Co., 154 F. 2d 533 (C A 8),
entorcing May Dept Stores Co., 59 NLRB 976, certiorari denied, 329 U. S. 725;
N. L R. B. v. Link Belt Co, 311 U. S. 584, 588; Marlin Rockwell Coi p v. N. L. R. B.,
133 F 2d 258, 259-60 (C. A 2) ; N. L. R B. v. National Seal Corp., 127 F. 2d 776,
778 (C. A. 2) ; N L. R B. v. Trojan Powder Co., 135 F. 2d 337, 338 (C A 3), cer-
tiorari denied 320 U. S. 768; N. L. R. B. v. Eclipse Moulded Products Co., 126 F.
2d 576, 579 (C. A. 7).
3 The above findings are based on the credited testimony of Gussie Collins, Jack Rush,
Clarence Hewitt, William Martin, Zora Robinson, and John Woodle. Nelson denied having
made any of the antiunion statements attributed to him by Rush and Robinson Holt and
Fouler testified that they (lid not recall making the statements attributed to them
Employees Chestnut and Rhodes who, according to Hewitt, were in the group to which
Fowler made the ahove-mentioned threat, testified respectively that they (lid not recall
Fowler making the iemark, and that they did not to "their knowledge" ever hear him
make it Foremen Singleton and Causey did not testify
THE STILLEY PLYWOOD COMPANY, INC. 949
B. Interference , restraint , and coercion,
1. Surveillance of union meetings
On April 2, 1948, the Union held a meeting of,the Respondent's employees on
the lawn'of the Horry County Courthouse in Conway, at which the speaker was
International Representative Bever. Admittedly in attendance at this meeting,
mingling with the employees, were Foremen Lee Gale and Arnett Singleton.
During the meeting, Gale asked Bever whether the Union would pay the employ-
ees their wages in the event of a strike.'
On the occasion of a subsequent meeting of the Union held on April 28, 1948,
Foreman F. B Fowler, Sr, admittedly drove by the meeting hall twice within a
short period of time, going in the same direction each time. One witness for the
General Counsel, Union Representative Fogle, testified that during one of these
trips, Fowler's car stopped for a time behind a truck which was discharging em-
ployees entering the meeting Another witness for the General Counsel, Norton
Allen, who also observed Fowler's car on this occasion, testified that he did not
see the automobile come to a stop. Fowler testified that he had passed the site
of the union meeting twice that clay because he drove his family to inspect a
new housing development which lay in that direction, then started back alo=ig
the same road to visit his son, and finally retraced his route because part of the
road proved to be too rough. While the matter is not free of some doubt, I am
persuaded that the General Counsel has failed to sustain the burden of proving
that Fowler's presence near the union meeting on this occasion was for the pur-
pose of keeping it under surveillance. In view of the conflict between the testi-
mony of Fogle and Allen with respect to the, question whether Fowler's car
stopped near the meeting hall, and Fowler's testimony as to the legitimate pur-
pose of his presence in the vicinity, I shall not make any unfair labor practice
findings based on this incident.
The attendance of Foreman Gale and Singleton at the meeting of the Union
on April 2, 1948, was clearly in violation of the act. Such surveillance by an
employer of the union activities of his employees has consistently been held
by the Board and by the courts to constitute a prohibited form of interference
with the employees in the exercise of their rights under the Act ' The Respond-
ent's disregard for the right of its employees to be free from surveillance by
° 13ased on the undenied, credited testimony of Norton Allen and Jack Rush. A number
of witnesses for the General Counsel testified that they saw Superintendent Dewitt Spires
drive away from the courthouse in his car shortly after the meeting started It was
also shown by the testimony of other witnesses that although the Union had made arrange-
ments with the county authorities to hold its meeting on this occasion in the courthouse
itself, the building was locked at the scheduled time of the meeting, and the crowd was
addressed on the lawn in front of the courthouse. The General Counsel apparently seeks
to have the inference drawn that the Respondent was responsible for the mysterious
last-minute unavailability of the courthouse. Spires denied that he was present near the
meeting on the night in question. It is clear from his testimony, and that of Probate
Judge Blanton of Horry County, that Spires and Judge Blanton drive automobiles nearly
identical in appearance, and that the Judge did drive away from the courthouse on the
night in question at about the time that Spires is alleged to have done so. I conclude
that the witnesses who testified that they saw Spires so drive away were mistaken, and
that in the darkness they confused Judge Blanton with Spires. I am of the opinion, also,
that the record establishes no more than a mere suspicion that the Respondent was
responsible for the unexplained ithdraoo al of the use of the courthouse trom the Union.
I shall, consequently, make no findings of unfair labor practices in connection with the
aforesaid two events
5 See E. A. Laboratories , Inc., 88 NLRB 673, and cases cited in footnote 9, thereof.
950 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
their employer in the conduct of their legitimate concerted activities is par-
ticularly flagrant here in view of the fact that Foreman Singleton on a previous
occasion engaged in the same kind of surveillance, and was warned by a union
representative that his presence at the union meeting was calculated to intimi-
date the employees, and constituted an unfair labor practice.' I conclude and
find that by the aforesaid conduct of Gale and Singleton, the Respondent inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1) thereof.
2. Interrogation and coercive statements by the Respondent's supervisors
On March 26, 1948, the Board conducted an election among the Respondent's
employees to determine whether or not they wished to be represented in collective
bargaining by the Union A short time before the election, superintendent of
logging, Nelson, during the course of a conversation about the Union with his
subordinate, employee Zora Robinson, told Robinson that President Stilleyy "said
he wasn't going to have those men around telling him what to do because he
knows what his men are worth and what they ought to be getting . . . ; before
he'd do that, if it did pass, he was going to turn his logs over to contractors."
During the same conversation, Nelson questioned Robinson about the union ac-
tivity of employee Jack Rush in connection with Rush's trip to Currie in company
with Union Representative Vause. After the election, which the Union won,
Nelson told Robinson that Stilley had threatened to "shut his mill down" before
"he'd have those sons of bitches walking around with the white shirts and collars
and ties on and tell him what to do and how to pay his men." After the election
also, Robinson requested Nelson for a loan of money to help him pay expenses
occasioned by the illness of his wife.' Nelson told Robinson to "go to the damn
Union" for a loan.
On the afternoon of the election, Foreman Graham Holt inquired of employee
Jack Rush which way he had voted. Rush assured Holt that he had not voted
for the Union' Thereupon Holt confided in Rush that Superintendent Nelson
had instructed him to discharge Rush when Nelson learned of Rush's trip to
Currie with Vause, but that Holt had convinced Nelson that Rush was innocent
of any intent to aid the Union and had not known "what he was doing."
On the Monday following the election, Nelson asked Rush whether he had
voted for the Union, which Rush again denied. Nelson then asked how many
of the "boys" (presumably referring to the logging crew) had done so, and
added that in his opinion if he had been able "to get out here," most of "[his]
boys would [not] have voted for the Union."' Nelson also commented that
e See p. 946 , supra.
4 The record reveals that the Respondent made it a practice to extend loans without
interest to its employees to tide them over emergencies In fact, in a notice circulated
to its employees immediately preceding the election , the Respondent , as part of the
antiunion argument therein contained , called the attention of the employees to its record
of beneficence in this respect . In his brief , the General Counsel points to the aforesaid
notice as embodying a threat on the part of the Respondent to withdraw this privilege
from the employees if the Union won the election . As I read the notice standing alone,
I perceive no such threat in its language . The antiunion arguments addressed to the
employees in the document itself seem to me to amount to no more than an exercise by
the Respondent of its right of free speech . Therefore , the distribution thereof to the
employees is not found to constitute an unfair labor practice.
I It will be recalled that Rush , although active on behalf of the Union, had consistently
clenied this when questioned by the " Respondent ' s supervisors , and that when specifically
interrogated about his having driven Union Representative Vause to Currie, protested
that he had done so only because he had been paid for this service.
6 Nelson was ill at the time the election was held.
THE STILLEY PLYWOOD COMPANY, INC. 951
although the Union had won the election, "Mr. Stilley said he'd just be damned
if he was going to be governed by a union," and that the logging operations
would be let out to contractors, causing the employees to lose their jobs.
Soon afterwards, Foreman Holt similarly questioned a group of the logging
employees, including Jack and Walter Rush, about which of them had joined
the Union, and threatened that if they insisted on being represented by the Union,
the employees would lose their jobs, since the Respondent would contract out
its logging operations. Also during the period shortly after the election, the
same threatening statement was made to several members of the logging crew,
including Walter Rush, by still another of the Respondent's supervisors, Foreman
G. W. McDowell.
Approximately 6 or 7 months after the election Foreman Arnett Singleton
asked employee Richard O. Singleton whether he had joined the Union. The
employee said that he had, A clay before the election Foreman Singleton asked
Employee John Williams what he thought of the Union and when Williams
answered that "it would be a good thing," Singleton stated that "it would go
hard for the Company if the hands" voted for the Union.
On the morning of the election, Foreman Graham Holt asked employee J. B.
Lee what he thought of the Union, and during the latter part of April 1948, about
3 or 4 days after Lee joined the Union, Foreman Arnett Singleton asked him
why Lee had not informed Singleton that lie had joined the organization. On
several occasions thereafter Singleton inquired of Lee "how the Union was getting
along."
Employee Willie James McCray, a subordinate of Foreman Arnett Singleton,
was told by Singleton shortly after the election that President Stilley had
threatened that "all who would join the Union would catch hell." During the
same period Foreman G. W. Causey inquired of McCray whether he had joined
the Union, and soon after the election Superintendent Spires asked him whether
he had voted for the Union.
The day before the election, during a conversation between employee Archie
Roberts and Foreman Singleton about the Union, Roberts made the statement
that he intended to have nothing to do with the organization since he had once
been discharged from a job because he had erroneously been suspected of being
connected with a union. To this Singleton replied, "Well, I'll tell you not to
be in it, because if you do, you'll sure get . . . fired."
On either the day before the election or the day it was held, Foreman Kennerly
Ward spoke to a group of the Respondent's employees, including Cullie Hulln,
about the election, and threatened that if they voted for the Union, "it would
be too bad for" them.
Employee Acie Faulk, Sr., about 2 weeks before the election, was approached
by Superintendent Spires, who qubstioned him as to his attitude toward the
Union. During the conversation, Spires remarked that "he hated for [the em-
ployees] to hurt themselves," and that if the employees did "get into" the Union,
they would lose some of the privileges which the Respondent had customarily
extended to them. Spires further called Faulk's attention to the system, of
"Blue Cross" hospitalization insurance then in effect covering the Respondent's
employees, and for which the employes were required to pay, and promised that
if the employees voted against the Union, they would thereafter receive such
insurance from the Respondent free of charge. About a week later, Foreman
Kennerly Ward called together a group of the employees, including Faulk, ques-
tioned them as to "how [they] felt about" the Union, and told them that "There's
nothing to it." When one of the employees expressed the opinion that the Union
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was "all right ," Ward stated that "if you go ahead and mess with this union,
you're going to hurt yourselves. Whenever you get in a jam, like getting in
jail . . . and in the hospital and things ; and getting favors out of the company,
you won't be able to get them any more."
A "couple of months" after the election, Foreman Arnett Singleton asked
employee Meon King "how the Union was coming along," and said that "if the
Union came in he [Singleton] was afraid a hell of a lot of [the employees] would
lose [their] jobs." 'O
For the sake of brevity the foregoing instances of interrogation and coercive
antiunion statements on the part of the Respondent's supervisors have been
summarized in fragmentary form. This may give rise to the erroneous impres-
sion that they constituted merely a disconnected series of events having little
or no relation to the real attitude of the Respondent towards the organizational
efforts of its employees. Indeed, Superintendent Spires testified that "shortly
after the Union started at the mill," probably in July 1947, the Respondent's
foremen were called together and instructed "not to interfere with any of the
union members in their effort to organize," not to discuss the Union with the
employees, and to "stay away from" the Union In addition, there is in evidence
a mimeographed notice distributed by the Respondent to its employees imme-
diately preceding the election, in which, in addition to making various arguments
against the Union, the Respondent stated that it would abide by the results of
the election, and that "it makes no difference to us if you are a member of the
union or if you are not a union member as long as your work is satisfactory
and you wish to work for this company and we are in a position to offer work,
your job will be secure." Despite these protestations, however, the record as a
whole makes it clear, and I find, that as soon as the Union's organizational
activities became apparent among the Respondent's employees, the Respondent
engaged in an unremitting coercive campaign to prevent its employees from
exercising their rights under the Act. Thus, the Union's first meeting was kept
under surveillance by Foreman Arnett Singleton, and the next day a group of
employees who had attended the meeting was discharged. After Johnnie Martin
was discharged on the same day, President Stilley himself told him that he
suspected that Maitin "knew something about" the union activities being carried
on by Martin's brother-in-law. Also from the very beginning of the Union's
activities, the Respondent's supervisors engaged in widespread interrogation of
the employees about the Union, spying on another of its meetings , and making
threats of further punitive action against those employees who supported it.
30 The above findings are based on the credited testimony of Zora Robinson , Jack and
Walter Rush, Richard O. Singleton, John Williams, J B. Lee, Willie James McCray, Archie
Roberts, Cullie Hullin, Acie Faulk , Sr, and Meon King Foreman Graham Holt testified
that he did not recall making the statements attributed to him by Jack and Walter Rush
and Zora Robinson , and denied having told Jack Rush that lie had orders from Super-
intendent Nelson to discharge Rush Holt admitted that he asked some employees
"once in a while about how the Union was doing or how it was coming on, something like
that " Nelson denied having made the various antiunion statements above attributed
to him, and testified that lie had never even discussed the Union with any employee except
when he was "directly asked" for his personal opinion on the subject Superintendent
Spires testified that he did not recall asking McCray or any other employee how he had
voted in the election . He did not deny the other statements attributed to him above.
Foremen McDowell, Singleton, Causey, and Ward did not testify I have carefully
considered but have not discussed in this Report a number of matters dealt with in the
record, either b yevidence adduced by the General Counsel or by counsel for the Respondent,
In such cases no specific findings are made with respect thereto because the matters are
considered immaterial , or the evidence with respect to them is either not credited or for
some other reason is not considered of probative value.
THE STILLEY PLYWOOD COMPANY, INC . 953
Significantly enough, this campaign of intimidation (lid not cease even after the
Union won the election, but was continued, with the active participation therein
of the Respondent's supervisory hierarchy, from Superintendent Spires down.
It is thus plain that if any instructions were ever given to the Respondent's
supervisors to respect the legal rights of the employees, they were pro forma, as
were the professions contained in the notice distributed before the election. The
instructions, if any, given to the supervisors were never brought to the attention
of the employees, and the continuous, open course of conduct of the Respondent's
highest officials and supervisors, which both preceded and followed the isolated
declarations in the notice, necessarily belied that announcement of the Respond-
ent's intention to obey the mandates of the Act.
On the basis of the record as a whole, I conclude and find that by the follow-
ing enumerated acts the Respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7 of the Act,
in violation of Section 8 (a) (1) thereof:
(a) Superintendent Nelson's statement to Robinson that President Stilley
had threatened to turn the Respondent's logging operations over to a contractor
if the Union won the election ;
(b) Nelson's interrogation of Robinson about Jack Rush's activity on behalf
of the Union ;
(c) Nelson's statement to Robinson that Stilley had threatened to shut the
mill down before he would allow the Union to "tell him what to do and how to
pay his men";
(d) Nelson's remark to Robinson to "go to the damn Union," in response to
Robinson's request for a loan ;
(e) Foreman Holt's interrogation of Jack Rush as to how the latter had voted
in the election ;
(f) Holt's statement to Jack Rush that Superintendent Nelson had ordered
Rush discharged when Nelson learned of Rush's assistance to Union Representa-
tive V ause ;
(g) Nelson's interrogation of Jack Rush as to whether he had voted for the
Union, and how many of the other employees had done so;
(h) Nelson's statement to Jack Rush that despite the Union's victory in the
election, President Stilley had threatened to refuse to be "governed by a union,"
and that the logging operations would be contracted out, causing the employees
to lose their jobs;
(i) Holt's interrogation of a group of employees as to which of them had
joined the Union, and his threat that if they insisted on being represented
by the Union they would lose their jobs;
(j) Foreman McDowell's similar threat to a group of employees ;
(k) Foreman Arnett Singleton's questioning of employee Richard O. Single-
ton as to whether he had joined the Union ;
(1) Foreman Singleton's questioning of employee John Williams as to what
the latter thought of the Union ;
(m) Holt's interrogation of J. B Lee as to what Lee thought of the Union;
(n) Foreman Singleton's questions of J. B. Lee as to why Lee had not informed
him of having joined the Union, and subsequently as to "how the Union was
getting along" ;
(0) Foreman Singleton's statement to employee McCray that Stilley had
threatened that all the employees who joined the Union would "catch hell";
(p) Foreman Causey's inquiry of McCray as to whether he had joined the
Union ;
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(q) Superintendent Spires' question to McCray whether McCray had voted
for the Union ;
(r) Foreman Singleton's statement to employee Roberts that he would "sure
get . . . fired" if he joined the Union ;
(s) Foreman Ward's threat to a group of employees that it "would be too
bad for" them if they voted for the Union ;
(t) Superintendent Spires' questioning of Acie Faulk, Sr., about the latter's
attitude towards the Union ; Spires' threat that if the employees "got into"
the Union they would lose some of their privileges; and Spires' promise that
the Respondent would give the employees free insurance if they voted against
the Union ;
(u) Foreman Ward's questioning of ft group of employees as to how they
felt about the Union, and Ward's threat that if they "messed with the Union"
the Respondent would withdraw some of the privileges enjoyed by the em-
ployees ;
(v) Foreman Singleton's questioning of Meon King as to "how the Union
was coming along," and his threat that "if the Union came in," he was afraid
that many of the employees would lose their jobs.
3. Alleged discriminatory changes in working conditions
The complaint alleges that the Respondent imposed "onerous and discrimina-
tory working conditions [ upon its employees ] as a means of retaliation and
discrimination because the Union won" the election to which reference has here-
tofore been made. In support of this allegation , employees Gussie Collins, Rosa
Dunn, and Richard O. Singleton testified that after the Board election held in
March 1948, the kilns in the Respondent's drying department were so "speeded
up" that much of the plywood put through the said kilns came out "green," or
incompletely dried, necessitating a repetition of the drying operation in many
cases. In contrast to this, these witnesses testified, the drying operations were
conducted at a more leisurely pace during the period preceding the election, and
in a manner more suited to the thickness and density of the particular type of
plywood being processed , so that redrying of a given piece of wood was only
infrequently necessary . In addition , according to the aforesaid testimony, the
Respondent instituted two new rules after the election, which imposed more
onerous conditions of work on the employees. One of the rules required the
employees in the drying department to sweep the floor during such periods as
they were not occupied at the kilns, whereas before the election the floor had
been kept clean by a sweeper employed to perform that duty . Before the election,
also, employees had been allowed to leave their post to go to a rest room by simply
informing the "floorman ," Richard O . Singleton, and by having him replace them
at their post while they attended to their needs . After the election , employees
were not allowed this privilege , but were required to inform Foreman Dusen-
berry, and then to wait until Dusenberry arranged for some other employee to
replace them , with the result that at times employees were kept at their posts
for as long as an hour and a half awaiting relief.
On cross -examination , Richard O . Singleton admitted that the Respondent had
always instructed the employees in the drying room to speed up the kilns so as
to "get as much out of" them as possible , and that this policy was in effect both
before and after the election . With respect to the relief of employees to enable
them to go to the rest room, he admitted that a rule requiring the foreman's
permission for an employee to leave his post for that purpose had been enforced
for some years preceding the election , then had been relaxed in practice for some
time before the election , only to be enforced again thereafter . In connection
THE STILLEY PLYWOOD COMPANY, INC .- 955,
with the sweeping of floors, this witness admitted on cross-examination that
there had always been brooms in the drying department, with which the em-
ployees were required to keep the floors clean , and that there was not "much
difference" in this practice before and after the election , except that the em-
ployees were "pushed a little harder" after the election by being required to
sweep more often.
Superintendent Spires and employee Hanley Singleton of the drying depart-
ment testified for the Respondent that both before and after the election the
Respondent did not separate the dark from the light wood, which required
different lengths of time to dry, before processing them.in the kilns, with the
result that the dark strips of wood frequently came out of the kilns still wet,
and that such strips would have to be sent through the kilns a second time.
They explained that about 3 months before the hearing, this system was changed,
and the wood was separated before being dried, so that more uniform results
could be achieved. They testified also that there was no difference in the speeds
at which the kilns were operated with reference to the periods before and after
the election. These witnesses also testified that the rules as to the relief of
employees and the sweeping of floors were unchanged after the election.
On the record as a whole, I am not satisfied that the General Counsel has
,established by a preponderance of the evidence that the Respondent discriminar
torily instituted more onerous conditions of work in the drying department
after the election in order to retaliate against the employees for having desig-
nated the Union as their collective bargaining representative. I am convinced
that the employees who testified to this effect were honestly under the impres-
sion that they were being punished for the Union's election victory, and indeed,
the circumstances established by the record give rise to such a suspicion. I am
not willing, however, to base unfair labor practice findings merely on suspicion,
and shall, consequently, recommend that the complaint be dismissed in this
respect.
In support of the aforesaid allegation of the complaint, the General Counsel
also adduced testimony from Ned Dewitt that on an occasion shortly after the
election, his foreman, Lee Gale, instructed him to scatter sand on a road on the
Respondent's premises, accompanying such instructions with the remark, "You
are working for [Union Representative] Bever now." Employee Archie Rob-
erts corroborated- Dewitt's testimony with respect to the foregoing remark.
Dewitt testified further that the scattering of sand on the road took place for
about 2 days while the road was being repaired, and that he had not previously
been required to do such work in addition to his other duties.
Without detailing all of the evidence on this point, but calling attention to
Dewitt's testimony on cross-examination, as well as to the testimony of the
Respondent's witness, J. C. Fairwell, I am persuaded that the work assignment
in question arose out of a bona'lde necessity to repair damage to the Respond-
ent's road which had been caused by a flood, and was not "made work" impro-
vised by the Respondent merely to impose hardship on its employees. In view
of the general background of the Respondent's coercive antiunion campaign, it
is easy to understand how Dewitt would have interpreted his foreman's re-
mark" as indicating that the extra work assignment was motivated by anti-
union considerations. In this respect the statement was undoubtedly ill advised,
and might even reasonably be construed as being coercive in effect. How-
ever, since I am persuaded that the work assignment itself was not dis-
criminatory , I am disposed to view the incidental remark of, Foreman Gale as
111 credit Dewitt's and Roberts' testimony that Gale made the quoted remark.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constituting too trivial an incident to merit the making of unfair labor practices
based thereon.
4. George E Ration, and the termination of the Respondent's "tin-the-job" training
program for veterans; the discharge of Claudia Hardwick
The General Counsel contends in his brief that, in violation of Section 8 (a)
(1) of the Act, "George Ration, active union member, was cut off the G. I.
training program by the Respondent, who never notified him to that effect."
In support of the above contention, the General Counsel adduced testimony
by George E. Rabon to the following effect : Rabon commenced work for the
Respondent in January 1947, under an arrangement with the Veterans Admin-
istration whereby he was to receive 55 cents per hour from the Respondent, in
addition to on-the-job ti aining, was to attend school two nights a week, and was
to receive a stipend from the Government of $ 70 per month.
The record shows that Rabon joined the Union in April of 1948, and was active
on its behalf. After entering the Respondent's employ, he received two suc-
cessive wage increases, bringing his hourly rate of pay to 65 cents.
During August 1948 Ration was notified by his night-school teacher that the
Respondent's on-the-job training program for veterans had been discontinued.
The Respondent had not, previous to this, notified Ration of the termination of the
program. Subsequently, in a letter dated August 20, 1948, the Veterans Ad-
ministration officially notified Rabon that since he "had interrupted [his] train-
ing, effective 6-30-48," he would be required to refund to the Government the $70
subsistence allowance paid to him for the month of July 1948 Rabon continued
in the Respondent's employ thereafter until about August 26, 1948, when a
strike occurred.
Superintendent Dewitt Spires testified that the Respondent had about 20 or 25
employees who were veterans on its on-the-job training program, that "it got
to be too much trouble," and that on some unspecified date he, on behalf of
the Respondent, notified the Veterans Administration that he wished to dis-
continue the entire program. Sometime later, according to Spires, after the
employees themselves had been so notified, he received word from the Veterans
Administration that the Respondent's request to discontinue the program had
been granted.
Although the Respondent did not explain its somewhat unbusinesslike proce-
dure in cutting off the veterans' program summarily without notifying the
employees concerned, I am not persuaded that the General Counsel has sustained
the burden of establishing that this action was undertaken for discriminatory
reasons within the meaning of the Act. It may well be that, as Spires testified,
the Respondent found the training program too burdensome, and that this
entirely legitimate reason motivated its action in relation thereto. While the
action was taken summarily, within a few months after the Union's victory at
the polls, it would again be substituting suspicion for proof to find that these
circumstances establish that the Respondent terminated the program to punish
its employees for voting for the Union. I shall not so find.
In the same section of his brief, the General Counsel contends that "Claudia
Hardwick was summarily discharged when the Respondent discovered she was
signing up employees in the Union." The evidence in support of this contention
shows that Hardwick was discharged in July of 1947, long before the period
covered by the complaint. In addition, Hardwick's testimony as to the Respond-
ent's motivation for her discharge is challenged by that of employee Lewis B. Todd
and that of Superintendent Spires. Since in any event no findings of unfair labor
practices could be predicated upon the discharge of Hardwick, and the circum-
stances thereof could only be considered for background purposes in view of
THE STILLEY PLYWOOD COMPANY, INC . 957
the fact that the discharge antedated the period covered by the complaint, I
do not believe any useful purpose would be served by resolving the conflicting
testimony and making findings of fact with respect thereto, especially since the
record sufficiently shows the Respondent's attitude towards the concerted ac-
tivities of its employees
C. The refusal to bargain
1. The appropriate unit ; representation by the Union of a majority therein
On March 1, 1948, after the usual proceedings, the Board issued a Decision
and Direction of Election," in which it found that all production and maintenance
employees in the Respondent's plant and woodland operations, excluding office and
clerical workers, salespeople, technical employees, superintendents, and all other
supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
On March 26, 1948, pursuant to said Direction of Election, an election by secret
ballot was conducted under the supervision of the Regional Director of the
Board for the Tenth Region, among the employees in the above-described bar-
gaining unit. The tally of ballots showed that of the approximately 283 eligible
voters, 273 cast valid votes, of which 155 were for the Union, and 118 against.
No objections were filed by any of the parties within the time provided therefor,
and, on,^pril 12, 1948, the Board certified the Union as the exclusive representa-
tive for the purposes of collective bargaining, of the employees in the unit here-
inabove described.
The Respondent concedes in its answer to the complaint that the collective
bargaining unit of its employees found to be appropriate by the Board constituted
a unit appropriate for the purposes of collective bargaining at the time of the
Board's determination of that question, but contends that there after (in May
1948), it discontinued its woodland operations and hence no longer had any
production or maintenance employees in such operations. That contention is
hereinafter rejected. In any event, the issues arising out of the allegation of
the complaint that the Respondent has refused to bargain with the Union in
violation of the Act do not hinge upon any dispute as to the appropriateness of
the unit sought to be bargained for by the Union, but upon the factual question
whether the Respondent actually bargained with the Union in good faith and
sincerely sought to reach an agreement with it, as it contends it did. I find
that at. all times material herein, the above-described unit constituted, and now
constitutes, a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
I further find that on March 26, 1948, and at all times thereafter, the Union
was, and now is, the exclusive representative of all the employees in the above-
described appropriate unit for the purposes of collective bargaining with respect
to rates of pay, wages, hours, and other conditions of employment.
2. Sequence of events with respect to the Union's attempt to bargain with the
Respondent
The first attempt made by the Union to confer with the Respondent was on
July 12, 1947, when International Representative Bever of the Union"wrote to.
President Stilley, informing him that the Union had initiated an organizational
campaign among the Respondent's employees, calling attention to the discharge
12 The Shiley Plywood Co., Inc, 76 NLRB 456.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of "ten of [the Respondent's] employees because of their Union activities,""
and requesting a conference to "discuss this matter thoroughly." In a letter
dated July 14, President Stilley replied in part:
Do you want to talk about the alleged charge that we discharged employ-
ees for Union activities? Do you wish to discuss the matter of organizing
our employees? Or both? If you wish. to discuss the matter of organizing
our employees and are prepared to submit proof that you have organized
them, I will be glad to discuss this matter with you Unless you can or will
submit proof of this, I see nothing to discuss.
As to the alleged charge of discharging employees for Union Activities,
when I receive the facts from you and you receive my reply, you can then
decide if any further discussion will be necessary.
'On July 21, 1947, Bever again wrote to Stilley, stating that the Union had been
designated as their collective bargaining representative by a majority of the
Respondent's employees, and requesting an "informal conference with (Stilley)
at (his) earliest convenience in order that we may arrange a conference to enter
into contract negotiations." In reply to the foregoing, Stilley advised Bever in
a letter dated July 25, to "take whatever steps are necessary to hold an election
in this matter as provided by the National Labor Relations Act. We do not
intend to bargain with your union or any other union until they have been
certified as the bargaining agent as provided by law." f?
In further correspondence among the Respondent, the Union, and the Board's
Regional Office, the Respondent refused to meet with the Union or to agree to a
cross-check of the Union's authorization cards against the Respondent's payroll,
or to a consent election, as a means of checking on the Union's claimed majority
status, and stated that it did not believe that an election was either `-necessary
or in order," but that if an election by secret ballot were ordered by the Board,
it would "of course abide by the decision."
Thereafter, as has been set forth above, the Board, pursuant to the Union's
petition, conducted an election among the Respondent's employees on March
26, 1948, which the Union won. On April 7, 1948, 5 days before the Board issued
its certification of the Union as the collective bargaining representative of the
employees, Bever telephoned to Stilley and requested a conference for the pur-
pose of collective bargaining. On the same day Stilley telegraphed a reply, stat-
ing that the Respondent's attorney would communicate with Bever, and re-
questing that in the future all communications from the Union on this sub-
ject be addressed to the attorney. Also the same day, Bever wrote to the
Respondent's attorney, asking that a conference be scheduled to discuss "certain
changes in recent job assignments" among the employees, the discharge of two
of the Respondent's employees, and to "set a date to start contract negotiation."
On April 8, 1948, the Respondent's attorney wrote to Bever reiterating the
request that the Union communicate only with him, stating that the Respondent
had not yet received official notification from the Board that the Union was
-certified, and promising to communicate further with the Union concerning
a conference when such notice was received.
On April 19, 1948, the Respondent's attorney, Mr. John B. McCutcheon, wrote
to Bever, informed him that the Board's certification of the Union had been re-
ceived, and asked him to suggest a date for the proposed conference between
representatives of the Union and the Respondent. Bever promptly got in touch
with McCutcheon, suggested a date for a conference which proved to be in-
13 The discharges above referred to are those involving a group of employees who
attended the Union' s first meeting on July 2, 1947 . This incident has been described in
a foregoing section of this Report.
THE STILLEY PLYWOOD COMPANY, INC. 959
convenient for the latter, and after further discussions, a bargaining conference
was finally arranged for May 10, at which the Union promised to submit a
written proposed contract.
On May 10, 1948, representatives of the Union and the Respondent met in
McCutcheon's office. The Union submitted a proposed contract including the
following provisions:
(a) Recognition of the Union as the sole collective bargaining representative
of the Respondent's employees in the unit found appropriate by the Board.
(b) The maintenance of union-shop conditions of employment by the Re-
spondent, this provision being conditioned upon ratification by an election as
provided by the Act.
(c) A grievance procedure providing for participation by the Union, and
culminating in arbitration of grievances not settled in the earlier stages of
the outlined procedure.
(d) A no-strike agreement.
(e) Seniority to govern promotions, layoffs, and transfers.
(f) Overtime pay at time and a half for more than 8 hours work in any day,
or more than 40 hours during any week.
(g) Paid vacations of 1 week for all employes with a minimum of 1 year
in the Respondent's employ, and 2 weeks for those with at least 3 years in the
Respondent's employ.
(h) All jobs to be classified, and a rate of pay established for each job.
Some discussion followed the submission of the Union's proposed contract,
following which the Union requested that a date be set for the next conference.
Attorney McCutcheon asked that the date be left open and that the Union get
in touch with him later to determine when it would suit his convenience to
meet again.' After several telephone calls from Union Representative Bever,
the second bargaining conference was scheduled for May 25.
At the May 25 meeting, McCutcheon on behalf of the Respondent, presented
a written counterproposal to the Union's proposed contract. This counter-
proposal differed from the Union's proffered contract in the following respects.
(a) It provided for recognition of "Conway Local 639" of the Union, instead
of the International Union itself, which had appeared on the ballot, and had
been certified by the Board, as the collective bargaining representative of the
employees.
(b) The unit of employees for which the union local was to be recognized
as bargaining representative was qualified by the phrase, "insofar as these opera-
tions are continued by the Company," and by the further provision that the
agreement be not deemed to apply to temporary or provisional employees,,or to
those with less than, 3 months' consecutive service in the Respondent's employ;
(c) The omission of any form of union security.
(d) Inclusion of a so-called grievance procedure making no provision for
representation of the aggrieved employee by the Union, and providing simply
that the aggrieved employee could carry his complaint successively to his fore-
man, the plant superintendent, and to the Respondent's president, whose decision
would be final.
(e) The no-strike agreement contained in the Union's proposal broadened
so as to include provision for a penalty to be paid by the International Union
to the Respondent. of $10 per striking employee, as well as all actual damages
caused the Respondent. in the event the employees engaged in an unauthorized
strike.,
(f) Seniority to govern promotions, layoffs, and transfers "wherever prac-
ticable".
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Overtime pav provided only for time worked in excess of 40 hours
per week, deleting the Union's proposal for payment of overtime for any hours
In excess of 8 in any given day 14
( h) Omission in toto of any provisions for paid vacations.
(i) Omission of any reference to a wage scale. (The Respondent's counter-
proposal did contain a heading entitled "Wages," under which appeased the
words, "See sheet attached " No sheet was attached )
During discussion of the respondent's aforesaid counterproposal, Bever al-
luded to the grievance procedure therein outlined, pointed out that it made
no provision for participation by the Union in the adjustment of grievances,
and protested that in effect it left the disposition of grievances entirely
in the control of the Respondent, making "no change in the present condition."
To this McCutcheon replied that "the present condition was satisfactory and
they didn't intend to make any change." 's Bever also protested that while the
Respondent was apparently unwilling to recognize the International Union
as the bargaining representative, it appeared to be quite willing to recognize
it when it came to pioviding for a penalty for unauthorized sti ekes , he also
pointed out that the Union could hardly have any control over strikes not
authorized by it, and argued against the penalty clause on that basis Mc-
Cutcheon contended that the Respondent ought to have some guarantee against
strikes and that only the International Union would be financially capable of
reimbursing the Respondent for damage caused by a strike. The union rep-
resentatives called attention to a reference made in the Respondent's pro-
posal to "Company rules and regulations,"" and requested that they be fur-
nished with a copy of those rules and regulations To this McCutcheon
replied that the Respondent's rules had been widely distributed among the
employees. So far as appears in the record, the Respondent never furnished
the Union with a copy of its rules and regulations. With references to wages,
the union representative called attention to the fact that no sheet containing
any reference to wage rates was attached to the Respondent's proposed con-
tract, and requested that they be furnished a copy of the Respondent's job
classifications and wage rates They indicated that they would request some
wage increase, but insisted that they had to have data as to the 1;tespondent's
present wage rates to make an "intelligent request" McCutcheon replied that
the Respondent employed mostly unskilled labor which it shifted from job
to job, that it did not have any job classifications or schedule of wage rates,
but paid on the basis of a "man rate," that the Union did not need such data
for purposes of collective bargaining, and that in any event, the only purpose
to be served by furnishing the Union with such payroll data would be to
enable the Union to create dissension among the employees . When the union
representatives raised the issue of a union-security clause in the contract,
McCutcheon indicated that such a provision was out of the question.
At the next bargaining meeting, held on May 31, 1948, discussion was con-
tinued on the basis of the Union's proposed contract and the Respondent's
counterpropsal . The Union's proposals with respect to paid vacations and pay
for certain designated holidays were rejected by the Respondent on the basis
74 It is to be noted that the Respondent was required by the Wage and Hour Law to pay
overtime for hours ssorked in 1 week in excess of 40, but not for hours worked in 1 day
in excess of 8
's Based on Bever ' s undenied , credited testimony Where not specifically otherwise
noted , my findings of fact with respect to the bargaining negotiations are based on
undenied evidence
11 This reference is to be found in section 4 (a) of the document
THE STILLEY PLYWOOD COMPANY, INC. 961
that it could not afford to grant any of the Union's demands which would result
in increased expense to the Respondent. The Union reiterated its demand for
a copy of the Respondent's payroll to show existing wage rates, and again the
Respondent refused to furnish it such data.
On June 3 another conference was held, at which the Respondent submitted
a second counterproposal That document differed from its first counterproposal
in the following respects :
(a) It recognized the International Union instead of the local union as the bar-
gaining representative of the employees.
(b) It defined temporary and probationary employees, who were not to be
considered part of the unit represented by the Union, as those who had less
than 2 (instead of 3) months' service with the Respondent.
(c) The grievance procedure was changed so as to permit the presence of a
representative of the Local Union during the adjustment of grievances, and a
provision for arbitration of unresolved disputes was added
(d) A provision was added for the payment of 2 hours "call time" to employees
called out and reporting for work but who were not put to work
(e) A provision was added for free meals at the expense of the Respondent
for employees required to continue on duty beyond their regular shift.
At the Jime 3 meeting, also, the union representatives again raised the ques-
tion of wage rates, calling attention to the fact that the Respondent's second
counterproposal still referred to an "attached sheet" concerning wages, when,
in fact, no such sheet was attached Again the demand was put forward by
the Union for a schedule of the Respondent's current wage rates This demand
was again refused by Attorney McCutcheon, with the remark that the only rea-
son the Union wanted such data was to cause dissension in the plant. Bever
thereupon stated that if the Union were not furnished with information upon
which to base its wage demands, it would be compelled to request a general wage
increase of 30 cents per hoar, since the only information in its possession was
to the effect that the Respondent's base hourly rate was under union standards
to that extent. According to Bever's undenied testimony, which I credit, this
meeting was terminated after some further discussion by the Respondent's rep-
resentatives, who, after accusing the Union's representatives of being unduly
repetitious, walked out of the meeting room.
On June 4, 194$, the Respondent discharged employees Norton Allen and
Aeron Lewis, both of whom were members of the Union's negotiating committee,
Lewis being chairman thereof. The question of their discharge was raised by
the union representatives at the next bargaining conference, held on June 7.
McCutcheon justified their discharge on the ground that the Respondent had
discontinued its woodlands ( logging ) operations , having "contracted out" those
operations, resulting in abolition of the jobs theretofore performed by these two
employees. After some discussion of the contract proposals, it was agreed that
the Union would, at the next meeting, submit a modified proposed contract
On June 15 the parties met again and discussed the Union's second proposed
contract , which was submitted on this occasion . This proposal embodied a•
number of changes reflecting tentative agreement on minor points which'had
been reached at previous meetings . The Union still requested the inclusion of a
union-security clause and raised this subject at the meeting, whereupon Mc-
Cutcheon summarily stated that union-security was "out " When the Union
again objected to the inclusion of a clause requiring the Union to indemnify the
Respondent in the event of an unauthorized strike, McCutcheon insisted that such
a clause be included. With respect to pay for overtime work and paid holidays
053341-52-vol 94-62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and vacations, the Respondent remained adamant in its position that it could
not afford any such provisions other than the one already imposed by law (i. e.,
time and a half for all hours in excess of 40 worked in a given week). The sub-
ject of wages again remained unresolved, with the Respondent continuing to
refuse to furnish the Union with data as to the wage scales then in effect. Accord-
ing to the credited testimony of McCutcheon and Spires, who, represented the
Respondent at this meeting, they offered on this occasion to include a clause in
the contract providing for a minimum hourly wage of 50 cents, 5 cents per hour
lower than the minimum hourly rate then in effect among the Respondent's
employees;' to maintain the current wage scales "as Ion., as they were able to
do so," and to reopen the question of wages in 6 months.
On June 25, the date of the next meeting, the Respondent presented its third
counterproposal. After some discussion of the Union's objections to this pro-
posal, the Respondent's representative, Attorney McCutcheon, informed the
Union that the proposed contract submitted by the Respondent on this occasion
constituted its "final offer," and that the Respondent "could go no further." Also
handed to the union representatives at this meeting was a separate sheet of
paper embodying the proposal concerning wages which had been advanced orally
by the Respondent at the previous conference In its aforesaid "final offer," in-
cluding the offer as to wages, the Respondent made the following proposals :
(a) To recognize the Union as bargaining representative of the employees in
the unit defined by the Board, but with the following qualifications : " insofar as
these operations are continued by the Company," and "provided, further, how-
ever, that this agreement shall not apply to temporary or probationary employees
or employees who have less than forty-five (45) days consecutive service from
the date of hiring or rehiring".
(b) A grievance procedure permitting the aggrieved employee to "have pres-
ent with him" a representative of "the Local Union" during the latter stages of
the procedure, and providing for arbitration of disputes unresolved by the pre-
ceding steps.
(c) A seniority clause providing that promotions, transfers, and layoffs would
be governed by seniority "wherever practicable," and provided that "in Manage-
ment's judgment the capability and efficiency of the employees are relatively
equal".
(d) Pay for overtime work restricted to the already legally imposed require-
ment of payment at time and a half for all hours in excess of 40 worked in a
single week.
(e) Minimum "call time" of 2 hours pay for employees called out and report-
ing to work, but not put to work
(f) A meal to be provided by the Respondent for all employees required to
work beyond their normal shift.
(g) The Respondent to provide a bulletin board for union notices.
(h) The penalty provision with respect to unauthorized strikes was omitted.
(i) The Respondent would agree to maintain a minimum wage of 50 cents
per hour, to maintain "present hourly rates for so long as the Company finds
that it is able to maintain such rates under existing circumstances," and the
wage question was to be reopened in 6 months.
Following the above-described meeting, the Union invoked the aid of the De-
partment of Labor of South Carolina to attempt to get the parties together on
an agreement. The Federal Conciliation Service was also requested to use it^•
19 At that time, apparently, the lowest hourly wage in effect in the Respondent's plant
was 55 cents per hour when questioned about this at the hearing bi' the General Counsel,
Superintendent Spires testified that be could recall no lower rata than 55 cents per hour
in effect at that time.
THE STILLEY PLYWOOD COMPANY, INC. 963
good offices. With the help of conciliators representing these agencies, a meet-
ing was arranged for July 15, 1948, at which the two conciliators, and repre-
sentatives of the Union and the Respondent were present.
In order to ascertain the areas of agreement and disagreement between the
parties, one of the conciliators asked them to indicate which provisions of the
Respondent's "final offer" were acceptable to both the Union and the Respondent.
Following this, at the suggestion of the conciliators, the representatives of the
Union and the Respondent retired to separate rooms, with the conciliators, or
one of them, moving back and forth between the parties, attempting to achieve
an agreement. During some part of the conference, whether before or after
the parties separated is not clear from the record, the Union again raised the
issue of wages, and demanded that it be furnished a copy of the Respondent's
current job classifications and wage rates. Attorney McCutcheon admittedly
reiterated the Respondent's position as to this demand, which he had previously
taken with the Union, refusing the request, and repeating his accusation that
the Union's motive for the request was "not for the purpose of enabling them
intelligently to negotiate as to wages, but was desired by the Union for the
purpose of creating dissatisfaction and the like among employees. . .." 18 At this
point, according to witnesses for the General Counsel, one of the conciliators in-
formed McCutcheon that the Respondent was under a legal obligation to furnish
the Union with such information, whereupon McCutcheon replied that he would
furnish it when he had to. This testimony is denied by witnesses for the Re-
spondent. I do not deem it necessary to resolve this conflict in the testimony,
for whether or not one of the conciliators made such a statement, it is clear that
the Respondent was under a legal obligation, under the Act, to furnish the
Union with the requested data, so that it, as the duly designated bargaining
representative of the Respondent's employees, could intelligently negotiate on
the question of wage rates and job classifieations.18 And whether or not Mc-
Cutcheon answered the conciliator's statement as he is alleged to have done, it
is sufficiently clear from the record, including McCutcheon's own testimony, that
he had consistently refused to furnish the Union with the data it sought, and
had no intention of furnishing it. After further discussion among the partici-
pants in this conference, the union representatives were finally informed by the
conciliators that the Respondent had made its "final offer," and unless the Union
saw fit to accept it, further discussion would appear to be useless. Before the
parties left, however, some discussion took place with respect to a subsequent
-conference, with International Representative Fogle to represent the Union, and
President Stilley to attend as one of the Respondent's negotiators.20
Following the above-described meeting with the conciliators, Fogle telephoned
to McCutcheon on or about July 22, and asked about the proposed meeting, but
was informed by McCutcheon that lie (McCutcheon) was awaiting word from one
18 The above quotation is from Attorney AreCutcheon's sworn affidavit, describing the
conference, which was received in evidence without objection
19Cf Dixie Mfg Co, Ine, 79 NLRB 645, 658, Vanette Hosiery Mills, 80 NLRB 1116,
1128 ; J. H Allison ct Co , 70 NLRB 377, 378; Aluminum Ore Co v N L R B , 131 F,
2d 485 (C. A 7). Quite inconsistent with the Respondent's protestations herein that it
had no such thing as job classifications in its plant, is the fact that on August 15, 1947,
In connection with the Board's processing of the preceding representation proceeding,
Attorney McCutcheon mailed to the Board's Regional Office a complete list of the
Respondent's employees, together with the job classification of each employee. The
aforesaid list, on the Respondent's stationery, is headed, "Job classification." -
"The Union had suggested that perhaps the Respondent would be willing to make some
concessions going further than its "final offer" if Piesident Stilley personally attended a
negotiating meeting Since Stilley had indicated some antipathy to Bever. it was suggested
that conditions would be moie favorable for agieement if Fogle, instead of Bever,
Teprosented the Union when Stilley was present
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the conciliators as to when the conciliator could attend such a conference.
Fogle again got in touch with McCutcheon on July 26, and was told that due to
conflicting engagements of the conciliators , the meeting would be arranged for
sometime after August 2.21 According to a carbon copy of a letter to MCCutcheon
from one of the conciliators , dated August 2, 1948, which copy was received by
Union Representative Bever, the said conciliator was at that time awaiting word
from McCutcheon as to when it would be possible for Stilley to attend a con-
ference.
During the "first part of August," the Respondent's employees attended a
meeting of the Union at which a report was made to them of the status of the
negotiations, following which the employees voted to go out on strike. However,
Bever explained to them that there was some possibility of a meeting being
arranged with Fogle and President Stilley in attendance, and that there had
been some indications that if Fogle, instead of Bever, conducted the negotiations
for the Union, agreement might be reached. Strike action, though voted, was
then withheld for the time being,22
Following the aforesaid events, Fogle made another telephone call to Mc-
Cutcheon on August 23, 1948, asking whether there was any possibility of getting
together for further contract negotiations. MCCutcheon answered that the
Respondent's position was unchanged, and that if the Union's position was simi-
larly unchanged, he could see no further use for a conference. On August 25,
Fogle again called McCutcheon, asked whether the position of the Respondent
was still the same, and again requested-a conference. To this McCutcheon replied_
that "we had offered all that we could at the time" and that unless the Union
was willing to make further concessions no useful purpose would be served by
another meeting."
On August 25, 1948, the employees voted to go out on strike the next morning.
The events surrounding the strike are dealt with in a following section of this.
Report.
On September 21, 1948, the Union wrote to Attorney McCutcheon as follows :
[The Union] has today advised its members to end their strike against
the Stilley Plywood Company and to present themselves for re-employment
in the Company's plant.
It is hoped that your client will offer reemployment on their regular jobs
to those workers who report for work.
Our International Union sincerely trusts that a mutually acceptable
agreement may be reached between the Stilley Plywood Company and our-
selves at the earliest possible time.
On September 25, 1948, MCCutcheon acknowledged receipt of the above letter
and assured the Union that "this matter is receiving our attention."
On November 24, 1948, Bever, in a letter to President Stilley, complained of
the way the Respondent's representatives had conducted the negotiations with
the Union, and concluded with the words, "Mr. Stilley, the Union is willing
and ready to meet with your Company to negotiate in good faith all questions
at issue with the intent of reaching written Labor Agreement whenever you
indicate to the Union that you are willing to do the same."
On December 14, 1948, Fogle telegraphed to. McCutcheon a request for the
resumption of contract negotiations, with the added request that President Stilley
be present at such negotiations. At McCutcheon's telephoned request in response
21 The above findings as to the attempts to arrange the proposed meeting are based on,
the testimony of McCutcheon.
21 Based on Fogle's and Bever ' s testimony.
23 Based on a reconciliation of the testimony of Fogle and McCutcheon, and on
McCutcheon's affidavit with respect to these events , which is in evidence.
THE STILLEY PLYWOOD COMPANY, INC. 965
thereto, Fogle came to the former's office on December 17, and after some dis-
cussion McCutcheon promised to arrange a conference, with Stilley present, and
to notify Fogle of the date thereof. On December 24, 1948, McCutcheon informed
Fogle by letter that since Stilley was to be absent from the city on business for
some time, it would be necessary to postpone the proposed conference until some
time in January 2
On January 12, 1949, Bever again wrote directly to Stilley, detailing the Union's
attempts to resume bargaining, protesting the fact that the Respondent had
effected a 10-percent reduction of wages in its plant without "going through the
process of negotiating with the Certified Bargaining Agent," and asking for a
bargaining conference "at the earliest date possible." In connection with Bever's
protest in his aforesaid letter, against the Respondent's unilaterial institution
of a 10 percent wage cut in its plant, a comparison of the Respondent's payrolls
for the periods from December 9 to December 15, 1948, and from December 30,
1948, to January 5, 1949, reveals that a general reduction in the hourly wage
rates paid to its employees was put into effect at some time between the aforesaid
two periods. Although in some cases the reduction of hourly wage rates
amounted to less than 10 percent and in other cases the reduction was greater
than that, and despite the fact that the wage rates of a few of the employees
were not reduced, the record does disclose, and I find, that a general reduction
in wages of about 10 percent was put into effect by the Respondent during the
period indicated. I also find, in accordance with Bever's credited, undenied
testimony, that the Union was not notified or consulted about the said wage re-
duction by the Respondent prior to the time that it was put into effect.
On January 20, 1949, McCutcheon replied to the above letter, writing that he
would inform Fogle when a conference could be arranged with Stilley. This was
followed by a letter from McCutcheon to Fogle, dated January 31, 1949, to the
effect that "Mr. Stilley still spends the bulk of his time out of town," but that
a conference could be arranged for February 11 or 12, with Stilley present,
provided, however, that Fogle, and not Bever, would attend as the Union's
representative.
A meeting with Stilley, McCutcheon, Fogle, and two other union representa-
tives present was finally held on February 12, 1949. At this meeting, Stilley
argued that unfavorable economic conditions had very adversely affected his
business, and according to Fogle's testimony, which I credit, stated that the
Respondent probably could not continue to operate its plant even under the
conditions proposed in the Respondent's third counterproposal (hitherto also
referred to as its "final offer"), and would probably have to "make some amend-
ments" thereto." After some discussion with respect to the grievance pro-
cedure in the proposed contract, the union-security provision, and the Union's
demand for the current job classifications and wage scales, the conference ended
with the understanding that another would follow.
On March 22, 1949, Fogle came to McCutcheon's office where they had a short
discussion concerning the same three subjects. McCutcheon informed Fogle
u Fogle testified that he never received the letter of December 24
21 As has been found, the Respondent effectuated a 10 percent reduction in the wages
paid its employees on or about January 1, 1949 According to McCutcheon's testimony
with respect to the February 12 meeting, Stilley "indicated that what had been offered
was the best he could offer at that particular time." This would seem to mean that Stilley
was still adhering to the Respondent's "final order" which had been proposed at the
conference of June 25, 1948, which provided for the then current wage scales to be kept
in effect. However, as it is clear from McCutcbeon's later testimony, Stilley was at the
February 12 meeting, proposing that the Union agree to a contract providing for wages at
the level in effect after the 10 percent reduction had been made by the Respondent in
January 1949.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent could not "make any change in the membership clause,
i.e , that it still refused to accept a union-security clause, that he would consider
making some change in the grievance procedure contained in the Respondent's
last proposal, and that he (McCutcheon) would get in touch with Fogle again.
Subsequently a meeting between McCutcheon, Fogle, and two other union
representatives was held on April 2, 1949. McCutcheon suggested that he would
submit a fourth proposed contract on behalf of the Respondent, embodying some
concessions on the grievance procedure,2° if the Union would agree to a contract
providing for the continuance in effect of the Respondent's current wage scales.
He still refused to furnish the Union with any job classifications, but offered to
embody the wage rates in effect on that date (April 2) in a contract if the Union
would agree to accept such a contract. Fogle agreed to submit such a proposed
contract to the employees, but suggested that if the Respondent would rescind the-
wage cuts of January 1949 and embody the wage scales as they were before the
cuts, in the proposed contract, he "would have a better chance of selling it to the
workers."
The Union never received any fourth proposed contract from the Respondent,
and no further negotiations were had
3. Concluding findings with respect to the Respondent's refusal to bargain
In his brief, counsel for the Respondent points to the long drawn-out series of'
meetings between the Union and the Respondent, to the "proposals and counter
proposals" submitted by the Respondent, and contends that these circumstances-
"clearly establish the fact that the Company [in good faith] attempted to reach
an agreement with the Union." The General Counsel contends that "although
the Respondent went through the forms and motions of collective bargaining,
there was always a persistent effort on its part to' avoid bargaining in good
faith." -
Although meeting and discussing and submitting proposals are the forms of
conduct which usually invest the process of collective bargaining, they are
doomed to sterility when gone through by one or both of the parties merely to es-
tablish, outwardly, conformance with the requirements of the law. The statutory
obligation to bargain contemplates more than such empty gestures. It imposes
"a duty on both sides, though difficult of legal, enforcement, to enter into dis-
cussion with an open and fair mind, and a sincere purpose to find a basis of
agreement touching wages and hours and conditions of labor. . . ." 27 This
duty, I am convinced from the record as a whole, the Respondent failed to ful-
fill. That the Respondent at no time had a sincere desire to reach an agreement
with the Union, even though it met with it and put forward contract proposals,
is a conclusion based not on any of the specific acts of the Respondent , stand-
ing alone, which I discuss below, but upon' the totality of the Respondent's
conduct.
Very significant of the Respondent's attitude towards the right of its em-
ployees to be represented by a collective bargaining representative, was its
reaction to the Union's first appearance on the scene The Union's initial
organizational efforts were greeted by an immediate counter-campaign, on the
26
The Respondent had up to then insisted that the final stage of the grievance procedure,
arbitration , be conducted before an arbitrator to be designated by a local State Judge.
The Union had demanded that the arbitrator be selected by either the American Arbitration
Association or the U. S. Conciliation Service. At the April 2 meeting , according to
Fogle 's credited testimony , McCutcheon remarked that the resident State circuit Judge in
Conway, whom he knew, had retired, that he did not know the new judge, and that he
was willing to consider having the arbitrator designated by someone else, perhaps a
Board of Arbitration then being established by the University of South Carolina, or the
Director of the State Labor Department.
27 Globe Cotton Mills v. N L. R. B., 103 F. 2d 91, 94 (C. A 5).
THE STILLEY PLYWOOD COMPANY, INC. 967
part of the Respondent's supervisors, involving the use of threats, interroga-
tion, surveillance of the Union's first meeting, and the discharge on the next
day of a group of employees who had attended that meeting, as well as of an
employee whose relationship through marriage to a union organizer was held
up to him by the Respondent, on the occasion of his discharge, as a basis for
the termination of his employment.
The unfair labor practices directed by the Respondent against the Union
continued thereafter, at first unsuccessfully attempting to prevent the Union
from gaining a foothold among the employees, later seeking to intimidate them
from voting for it in the election, and, even after the Union had been duly
established as collective bargaining representative of the employees, seeking to
undermine its status as such. The attitude towards collective bargaining thus
displayed by the Respondent is incompatible with its protestations that it
bargained with the Union in good faith, and honestly endeavored to reach an
understanding with it."
Similarly indicative of the Respondent's bad faith in its relations with the
Union were its arbitrary rejections of the Union's claims of majority status and
requests for bargaining conferences. On July 21, 1947, as has been detailed
above, the Union wrote to the Respondent, stated that it had been designated
as their representative by a majority of the employees, and requested a bar-
gaining conference. Without stating any doubt at this time as to the Union's
asserted majority status, or demanding proof of the Union's claim, the Re-
spondent rejected the request and declared that it would not bargain with the
Union until it had been certified by the Board. Although the Union then offered
to prove its claim of a majority by either a card check or a consent election,
the Respondent rejected both of these expeditious methods of ascertaining the
truth or falsity of the Union's claim, and insisted that it would not bargain with
the Union until after the latter petitioned for an election and obtained certifica-
tion by the Board?"
Ultimately, after the Union had thus been forced to resort to the time-consum-
ing procedure of petitioning the Board to investigate its claim that it was en-
titled to the status of collective bargaining agent of the Respondent's employees,
that claim was vindicated in the Board-ordered election on March 26, 1948, some
8 months after the Union had first asked the Respondent to bargain with it and
asserted that it had been designated by a majority of the employees as their
bargaining representative . On April 7, 1948, after the time within which to file
objections to the election had expired without any such objections being filed,
the Union again requested the Respondent to enter into negotiations with it.
This request was refused on the hypertechnical ground that the Board's certi-
fication of the Union had not yet been received.
29 J W. Woodruff, Sr., doing business as Atlanta Broadcasting Co., 90 NLRB 808.
29 This appears both in a letter written by Attorney McCutcheon to the Regional Office
of the Board on August 4, 1947, and in the sworn statement of President Stilley, made
part of the record herein by stipulation. In McCutcheon's aforesaid letter explaining
the Respondent's rejection of the two methods of proof of majority offered by the
Union, the statements are made that "it is the reasoned opinion of [the Respondent] that
[the Union] does not represent a substantial portion of its employees," and that "such
membership among our employees as has been secured was done through coercive activities
and practices " At no time, either in the letter, during the representation proceeding
preceding the election , or after the election , or in the instant complaint proceeding, has
the Respondent come forward with any proof that the Union had obtained its majority
by coercive means. In the light of all the circumstances, therefore, the Respondent's
statements above quoted must be deemed to be without any basis in fact, and its asserted
doubt as to the Union 's majority status to have been advanced in bad faith-especially
since the Union's offers to submit its claims to reasonable methods of verification were
rejected by the Respondent.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When an employer, actuated by such bona fide considerations as confronta-
tion by conflicting claims of rival unions, or a genuine dispute as to the ap-
propriateness of the unit sought to be represented by a union, or a good faith
doubt as to a union's majority, rejects a union's demand for recognition, and
requires it to be certified by the Board as a prerequisite to bargaining, a refusal
to bargain in good faith may of course not be imputed to him. But, where the
employer's insistence on such certification is motivated by "a rejection of the
collective bargaining principle, or by a desire to gain time within which to
undermine the union," he thereby unlawfully refuses to bargain 3° In this case,
the conclusion is inescapable that the Respondent's refusals to bargain with the
Union until after it had been certified by the Board were motivated by the last-
stated considerations. The Respondent has never advanced any valid reason
for the refusals of the Union's requests to bargain, and indeed, the record reveals
no basis therefor consistent with good faith on the Respondent's part. It af-
firmatively appears from the record that at the times material herein the charg-
ing Union was the only labor organization claiming to represent the Respond-
ent's employees. At the time the Union's demands for bargaining were first
presented to the Respondent, there was no disagreement between them as to
the unit of employees to be represented by the Union ; in fact, the Respondent
never raised any question as to the appropriate unit as a basis for its insistence
.that the Union be certified as a prerequisite of bargaining. ' Even at the hearing
on the Union's representation petition, which was held on November 24, 1947,
the Respondent readily agreed to the appropriateness of the unit defined in the
Union's petition, except for proposing a minor change therefrom, namely, that
temporary or probationary employees be excluded.31 That the Respondent had no
basis for any good faith doubt as to the Union's majority status has already
been indicated. That its asserted doubts were disingenuous is further shown
by its unwillingness to risk a test of the Union's claim by a card check or even
a consent election, as was suggested to it. These suggestions as to methods of
verifying the Union's status constituted a "reasonable offer for solution of the
question of majority, if the Respondent had been genuinely troubled by it." as
As the Board said in the case of Rockwood Stove Works, 63 NLRB 1297, 1325:
. . . where a labor organization represents a majority of employees
in an appropriate unit, and advises the employer of that fact and makes
a reasonable offer of proof of the said majority, the employer, unless there
are extenuating circumstances such as claims by a rival union, may not
lawfully withhold recognition and refuse to bargain on the grounds that
the said labor organization has not been formally certified by the Board.
The insincerity of the Respondent' s position is underscored by its rejection of
the Union's bargaining demand even after the election established the Union's
majority status. The Respondent's refusal to bargain then, despite its failure
to hie objections to the election, and its insistence on waiting until the formal
document of certification was received from the Board, can be explained only
by its desire to cause further delay in order to afford itself more time in which
to break down the Union's majority through its unfair labor practices. I so
conclude and find. This attitude on the part of the Respondent must, of course,
be kept in mind in assessing the good faith of the Respondent during the period
when it finally acceded to the Union's repeated requests to meet with it for the
purpose of collective bargaining.
S° Joy Silk Mills, Inc., 85 NLRB 1263, citing Artcraft Hosiery Co, 78 NLRB 333.
31 This appears from the official transcript of the above hearing, of which I take judicial
notice.
32 Houston and North Texas Motor Freight, 88 NLRB 1462.
THE STILLEY PLYWOOD COMPANY, INC. 969 ,
During the period following the Union's certification by the Board, and while
the Respondent was ostensibly negotiating with the Union , the Respondent uni-
laterally put into effect several changes in respect to such matters as the rates
of pay of its employees , a general layoff of employees , and the cessation of log-
ging operations on its ' part ( real or pretended ), with the result that the Union,
which by this time had established beyond question its status as exclusive bar-
gaining representatives of the employees , was confronted , in each case, with a
fait accompli with respect to matters about which the Respondent was legally
obligated to bargain with it before taking action . Thus, as has been found, the
Respondent during the period between December 15, 1948, and January 5, 1949,
put into effect a general reduction of about 10 percent in the hourly rates of pay
of its employees. The Union was never notified of the impending wage cut by
the Respondent, and first learned about it from the employees whose wages had
been cut 38 The Respondent also acted in a unilateral manner when it put into
effect a layoff affecting a large number of its employees in December 1948,8a and
when it contracted out its logging operations on or about May 1, 19483° It is
settled law that an employer is obligated to notify the collective bargaining rep-
resentative of his employees of any such contemplated changes in the wages or
working conditions of his employees before putting the changes into effect, in
order to afford the bargaining representative an opportunity to discuss with the
employer such questions, e. g., as whether or not the changes (if adverse to the
employees) can be avoided, the manner in which the changes should be effected,
and the principles to govern a return, if any, to the former conditions of employ-
ment. It follows that, when a duly designated bargaining agent is in the picture,
unilateral action by the employer in regard to such changes is in derogation of
the bargaining agent's status as such, and violates an "essential principle of col-
lective bargaining." 38 The Respondent's flagrant and repeated violations n of
this essential principle likewise illustrate its fundamental attitude of opposition
to, and its consistent attempts to evade, its obligation to bargain in good faith
with the Union.
The Respondent's consistent refusals to furnish the Union, at its request, with
a list of the job classifications and hourly ware scales currently in ettect in its
plant, in order to enable the Union intelligently to formulate its wage demands,
"Based on the credited , undenied testimony of Bever. It does appear that during
the negotiations the Respondent several times mentioned generally that economic conditions
were bad and that it might have to lay off or cut the wages of employees , but nowhere
does the record show that the Respondent ever notified the Union that it was going to
effect the specific changes above referred to, at the times it did , prior to taking s ch
action . In other words , the Respondent never gave the Union an opportunity to bar fin
with it in advance concerning any of these changes
M That such a general layoff took place is shown by the Respondent's payroll records,
and by the testimony of Superintendent Spires and Attorney McCutcheon
3° Although , as has been found , the Respondent 's supervisors had made many threats
to employees that the logging operations would be contracted out if the employees adl Bred
to the Union , the first time that the Union itself was notified that this step had been
taken was during the meeting on May 25, 1948 , when the Union's negotiating committee
raised the issue. ( Based on the testimony of McCutcheon and Spires ) As is undisputed,
the logging operation was turned over to an alleged contractor on or about May 1, 1948
The Union was never told in advance that this step was about to be taken . ( Based on
the credited , undenied testimony of Bever.)
36 May Department Stores v N L R. B , 326 U. S 376, 384 See also : Rome Products
Co, 77 NLRB 1217, 1219-1220 , Hagy , Harrington and Marsh, 74 NLRB 1455 , 1468-1471;
J H Allison f Company, 70 NLRB 377 ; C Pappas Co , Inc, 82 NLRB 984; Crompton
Highland Mills, 70 NLRB 206 , sustained , 69 S. Ct 960 ; General Motors Corp . 81 NLRB
779, Bergen wPoant Iron Works, 79 NLRB 1073, Franklyn Ho§iery Mills , Inc., 83 NLRB 276.
34 The General Counsel points to other examples of unilateral action on the part of
the Respondent , which I see no point in treating because that would result only in
overburdening with cumulative matter an already long Report.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were, as I have discussed above, illegal, and *constitute an additional example of
the bad faith revealed by the Respondent during the negotiations.
The contract proposals put forward,by the Respondent during its discussions
with the Union, when considered together with the other circumstances herein
discussed, convince me that its underlying purpose was to maintain a pretense
of bargaining while at the same time making- certain that its proposals would
be unacceptable to the Union. The heart of every, collective bargaining contract
is its provisions as to wages ; this is the "bread and butter" clause, of utmost
concern to the employees. Not only did the Respondent refuse to give the Union,
information as to the wages then being paid ; ' its proposals throughout the
discussions never amounted to more than a scarcely concealed demand that it
(the Respondent) retain unilateral control over the wages paid to its employees.
'Thus, the Respondent's first "counter-proposal" contained only a blank space
under the heading of "Wages," as did its second proposed contract. Its third
proposed contract, put forward by it as its "final offer," was accompanied by
an offer to maintain a minimum wage of 50 cents per hour (the minimum wage
then in effect being, so far as now appears in the record, 55 cents per hour),
and to maintain "the present hourly rates for so long as the Company finds that
it is able to maintain such rates under existing circumstances." In other words,
while refusing to put itself on record with the Union as to what its current wage
rates were, it asked the Union to accept an agreement that the Respondent
would keep them in effect until it felt impelled to lower them to a minimum of
50 cents per hour. The point need hardly be labored that such a "final offer"
would inevitably be refused by the Union. This is particularly true since the
Respondent did not temper its aforesaid wage proposal by offering any con-
,cessions (except the few minor ones hereinafter discussed) with respect to any
of the other matters at issue between the parties. It should also be noted here
that even the "final offer" as to wages above mentioned was in effect withdrawn
by the Respondent when the Union sought to resume bargaining with it after the
strike, and was replaced by a proposal that if the Union would agree to accept
the wage rates prevailing after the general wage cut unilaterally imposed by the
Respondent in January 1949, the Respondent would incorporate such wage rates
,in a contract.
As we have seen, the Union's proposed contract contained a provision for a
union shop, subject to validation by an election among the employees. The
Respondent never yielded from its initial rejection of any provision for a union-
security clause."
The Union's demands for premium pay for overtime, specified paid holidays,
38 At one point the Respondent suggested that the Union had or could get such informa-
tion from the employees. This suggestion was obviously calculated not only to put the
Union to as much trouble as possible, but also to insure the fact that the Union would
-neve4 be sure that it possessed complete and accurate data as to the prevailing wage rates
among the Respondent's employees.
'*I do not find, as the General Counsel urges, that the Respondent's repeated rejections
of the Union's demand for a union-security clause amounted in itself to a refusal to
bargain on the subject. McCutcheon testified that while he adamantly refused to accept a
provision for union security, he did several times explain the Respondent's reasons for
rejecting such a proposal. Since the Respondent was of course under no duty to accede
to this demand, I am not prepared to find that its rejection thereof constituted, per se,
'a refusal to bargain. My discussion of the Respondent's reactions to the various demands
made by the Union is, as I have indicated, directed to the issue of whether or not the
various counterproposals made by the Respondent establish that it was making efforts
in good faith to achieve an agreement with the Union.
THE STILLEY PLYWOOD COMPANY, INC. 971
and paid vacations were likewise rejected in toto by the Respondent throughout
the discussions.90
The Respondent 's ostensible granting of the Union ' s demand that seniority
govern layoffs, promotions, and transfers of employees was hedged about with
so many qualifications, even in the Respondent's "final offer," that virtually
complete unilateral control over these matters was left in the hands of the
Respondent.
Not until the submission of its "final offer" did the Respondent omit from its
contract proposals the provision, up to then demanded by it that the Union subject
itself to liability for the payment to the Respondent of a penalty, in addition to
indemnification for damages , in the event the employees engaged in an un-
authorized strike. The Respondent's insistence on the inclusion of such an unrea-
sonably drastic union-liability clause" in two of its three counterproposals is
.an additional reflection of the bad faith in which it negotiated with the Union."
It might be argued that the omission of this clause from the Respondent's third
counterproposal was an, earnest of its good faith and its willingness to make
concessions. I am persuaded that in the context of the record as a whole, with
its preponderance of evidence of bad faith on the part of the Respondent, the
ultimate withdrawal by the Respondent of its demand for the unreasonable
pinion-liability clause is not inconsistent with the conclusion that, while main-
taining the pretense of bargaining with the Union, it had no genuine intention
,of attempting to reach an agreement•with it.
I reach a similar conclusion with respect to the other concessions made by
the Respondent to the Union. Thus, I have considered the fact that the
Respondent, by the time it submitted its "final offer," had agreed to a grievance
procedure permitting the aggrieved employee to "have present with him" a
representative of the local Union during the latter stages of the procedure, and
providing for arbitration of disputes unresolved by the preceding steps;" had
agreed to pay employees 2 hours "call time" when requiring them to report
for work but not putting them to work; had agreed to furnish a meal for any
employee required to remain at work beyond the regular shift, and had agreed
,to furnish the Union with a bulletin board at the plant for the posting of union
notices. On the record as a whole I look upon these concessions as "surface
indicia of bargaining [which] were nullified by the Respondent's manifest deter-
4o The only proposal accepted by the Respondent with respect to premium pay for-
overtime , was to agree to pay time and a half for all hours in excess of 40 worked in any
given week-a requirement - which was in any event imposed on it by the Wage and
Hour Law.
41 The liability clause demanded by the Respondent would require the Union to pay
the Respondent the sum of $ 10 per day for each member of the Union engaging in an
unauthorized strike against the Respondent ; in addition to reimbursement for "any actual
damages done to the Company 's property or business as a result of such unauthorized
strike " This clause, by its terms , subjects the Union to unlimited liability for damage
caused by a strike , without regard to whether or not such damage results from the acts
of members of the Union . In addition to payment of damages , a heavy penalty is provided
for Such a drastic clause bears no reasonable relationship to the legitimate purpose of
assuring union responsibility and good faith in the observation of the no-strike clause
in the proposed contract.
42 Cf. Tower Hosiery Malts , Inc, 81 NLRB 658, 660, 661.
41 Although the Respondent finally agreed to a provision for arbitration , it insisted
until April 2, 1949 , that the arbitrator be selected from a list designated by the State
circuit judge resident in the town where the Respondent ' s plant is located. On that date
Attorney McCutcheon indicated that the resident judge whom he had had in,mind was by
then retired , that he did not know the new judge , and would therefore be willing to
consider using the panels of arbitrators of the University of South Carolina or the
State Labor Department.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mination to deprive the Union of any voice in determining such major issues as-
wage rates and working conditions." "
I have above adverted to the Respondent's contention that on or about May 1,.
1948, it ceased doing its own logging and instead entered into an arrangement
with an independent contractor for the performance of these operations. The-
Respondent explains the discharge of some employees (whose cases are herein-
after discussed) by the fact that when the logging operations were contracted
out, a number of jobs were thereby abolished. It also points to the change-over
to contracting the logging as the reason why, during its negotiations with the
Union, the Respondent insisted on modifying the unit theretofore defined as
appropriate by the Board. The General Counsel contends that the ostensible
contracting arrangement entered into by the Respondent in May 1948 was a
"sham and subterfuge" and was motivated by the Respondent's desire to sever
the logging employees from the bargaining unit, and therefore was in itself a
violation of Section 8 (a) (5) of the Act.
The facts pertaining to this issue are, in sum, as follows :
The Respondent had always had its logging operations performed for it by
contractors until April of 1945. In that month, finding that the contractors
could not keep it supplied with sufficient logs, the Respondent began to do
most of its own logging. In addition to this, the Respondent continued to
obtain some logs from contractors, and to purchase such suitable logs as were
available from outside sources.
Apparently the principal contractor who did the logging for the Respondent
prior to 1945 was Proctor Graham, who employed Graham Holt as a foreman
to supervise his logging crews. When, in April 1945, the Respondent took over
the logging operations, Proctor Graham, the former contractor, went into the
Respondent's employ as its superintendent of logging, his foreman, Graham
Holt, continued in the same capacity as an employee of the Respondent, and
his rank-and-file workers also went directly into the Respondent's employ. In
October of 1945 W. A. Nelson replaced the former contractor as the Respond-
ent's supervisor of logging.
When union activities began among the Respondent's employees during the
summer of 1947, the Respondent's supervisors, as I have found above, made
numerous threats to employees that the Respondent would again contract out
its logging, causing the employees to lose their jobs, if the Union were
44 Tower Hosiery Mills, lite, 81 NLRB 658, 662. As to the Respondent's attitude
towards preserving its unilateral control over working conditions, the following facts are
pertinent• In its contract proposals, as has been heretofore mentioned, the Respondent
refers to its rules and regulations When the Union requested that it be given a copy
thereof, the Respondent refused the request with the remark that copies had been
distributed among the employees It appears, however, from the testimony of Hanley
Singleton, formerly employed by the Respondent as a foreman, that copies of the
Respondent's rules and regulations were distributed only to the foremen, and that in
1946. So far as appears, no copy of the rules and regulations was ever given the Union
The Union's first proposed contract contained a paragraph headed "Discharge for Cause,"
defining the grounds upon which employees could be subjected to discharge as a matter
of discipline. In its second proposal, the Union substituted for this a paragraph agreeing
that the Respondent's rules would be attached to the contract and made a part thereof,
and that all employees would be required to abide by them. The Respondent adamantly
adhered to its demand for a clause reserving to itself "all of the rights, powers, and
authority customarily exercised by Management, including but not limited to, the right
to hire, to lay off, to reassign, to discharge, or to otherwise discipline employees for cause,
except insofar as such rights and power and authority are specifically surrendered or
abridged by the expressed provisions of this Agreement." The Respondent thus maintained
the position to the end that it reserved to itself the right to discipline employees for
breaches of Its rules and regulations, without ever being willing to make such rules and
regulations a matter of record Obviously, this was tantamount to a demand that it
retain its arbitrary powers as to such matters as discipline and discharge.
THE STILLEY PLYWOOD COMPANY, INC. 973
-designated as their collective bargaining representative. The Respondent takes
the position in this proceeding, however, that its contracting out of the logging
in 1948 was motivated by considerations totally unconnected with the Union,
and that, indeed, when it took over the logging operations from the contractor
in 1945, it was not with the "intention or plan to continue doing [its own]
logging on a permanent basis.' 41
According to the affidavit of President Stilley and the testimony of Graham
Holt, W. A. Nelson, and F. B. Fowler, the matter of the Respondent's again
contracting out its logging operations was frequently discussed, even before
the advent of the Union, and the Respondent always had the intention of doing
so as soon as conditions became propitious. As early as 1946, counsel for the
Respondent contends in his brief, the Respondent began to contract out more
and more of its logging, and in early 1947, "began cutting down on the number
of trucks operated," as "steps towards returning to contracting. . . Yet
as late as November 24, 1947, at the Board hearing conducted as part of the
representation proceeding, the Respondent gave no indication that at that
time it was contemplating relinquishing its woodland, or logging, operations
and turning them over to independent contractors. The hearing officer at that
hearing asked counsel for the Respondent whether he would stipulate to the
appropriateness of a unit composed of "all employees of the Company, plant
and woodlands," with certain exceptions, such as supervisors and clerks. Attor-
ney McCutcheon, in reply to this, merely proposed that probationary or
temporary employees be added to the list of exceptions "s At another point
in the hearing, the hearing officer asked President Stilley whether in his opinion
the bargaining unit should "include the woodlands as well as the plant opera-
tions," and Stilley replied in the affirmative."i Still later, the hearing officer
asked whether the Respondent anticipated either opening up a new operation
which would add a substantial number of new employees, or "shutting down
part of its operations which would decrease by a substantial amount the
number of employees " Attorney McCutcheon answered that aside from fluctua-
tions in employment which might be caused by such factors as weather con-
ditions, no such changes were contemplated. Finally, when asked even more
specifically whether the Respondent had any definite plan to shut down any
of its operations, President Stilley replied, "Not unless we have to.,, 98
In April of 1948, as «e have seen, the Union was certified as the collective
bargaining representative of the employees and continued to press its demands
for contract negotiations with the Respondent. The first meeting between the
parties was scheduled for, and held, on May 10, 1948. On or about May 1, 1948,
Grahain Holt, according to his testimony, ceased being the Respondent's foreman
of logging and became an independent contractor, the Respondent's logging em-
ployees thereupon became Holt's employees ; and, according to other testimony
offered by the Respondent, it thereupon ceased its logging operations and turned
the bulk of them over to Graham Holt to be performed by him as an independent
contractor At the second bargaining discussion between the Respondent and
the Union, held on May 25, 1948, the Respondent submitted its first written
counterproposal, in which was incorporated a recognition clause modifying the
unit found appropriate by the Board by adding the words "insofar as these
operations are continued by the Company " At that meeting, according to Attor-
ney McCutcheon, the question was asked by the union representatives why that
i-u Affidavit of Piesident Stilley, p 2.
"G Transcript of heairng in Case No 10-13-2805, p, 9
44 Transcript, p 13 It is plain from the record herein that the terms "logging opera-
tions" and "woodland operations" are used interchangeably by the parties.
48 Transcript, pp 23-25
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phrase was added to the description of the bargaining unit, in reply to which the
Respondent's contention that it had discontinued the logging operations, and had
contracted them out, was discussed for the first time with the Union.
Two issues arise from the foregoing : "B
1. Was the Respondent's change-over to contracting out the logging, whether
real or pretended, motivated by a desire to sever the logging employees from the
bargaining unit represented by the Union?
2. Did the aforesaid change-over actually result in establishing Graham Holt
as an independent contractor, and consequently, in transforming the Respondent's
logging employees into employees of Holt within the meaning of the Act?
The Respondent's contentions that it ceased doing its own logging purely for
bona fide business reasons, and that it had had this move under contemplation
for some time before the advent of the Union, do not withstand scrutiny. The
testimony offered in support of these contentions is generally to the following
effect : The Respondent was forced to take over the logging from contractors in
the first place because the contractors upon whom it had depended, until 1945,
to do its logging, being "small operators," were unable, because of wartime con-
ditions, to obtain necessary equipment, repair parts, and labor, and thus were
handicapped in supplying the Respondent's logging requirements. As soon as
these conditions improved, according to the Respondent, it reverted to having
the logging done by an independent contractor, namely, Graham Holt. Yet the
record establishes that Holt was, at the time the logging operations were allegedly
turned over to him, and that he still is, almost completely dependent upon the
Respondent for the procurement of every factor necessary to enable him to per-
form the job of logging.
As to a labor force, when Holt allegedly took over the logging as a contractor
he also took over the Respondent's logging employees almost ra to to, at the same
rate of pay they were then being paid.
With respect to equipment, the Respondent also largely supplied Holt's needs.
Thus, when Holt became a contractor, he "owned" one log truck, one labor truck,
and one pickup truck. But these, as is shown by President Stilley's affidavit,
were sold to him at the time by the Respondent on credit, and secured by a chattel
mortgage. These trucks, according to Stilley, were paid for in "due course."
They are, however, still registered in the Respondent's name, carry the Re-
spondent's license plates, and are covered by insurance taken out in the Re-
spondent's name through its brokers 60 This is done, according to Stilley, to
enable Holt to secure a lower rate on insurance by taking advantage of the
Respondent's "fleet coverage." Holt testified that he reimburses the Respondent
for the cost of the insurance. Holt also purchased three chain saws for use in
the contracting, two of them from the Respondent 51 Thus, with the exception
of one saw, all of the equipment supposedly owned by Holt and used by him as
a contractor was secured from the Respondent, the bulk of it on credit.
The heavy equipment used in the logging operations has never even nominally
been owned by Holt. Thus, under Holt's arrangement with the Respondent,
the Respondent supplies him with all the tractors, skidders, and loaders used
in the logging. And, until January 1949, according to Holt and Stilley, the
"D The Respondent's action in actually or ostensibly contracting out its logging operations
without first notifying the Union of its intention to do so, was, as has been found above,
such a unilateral change in woiking conditions, in derogation of the Union's status as
collective bargaining representative, as to evidence the Respondent's had faith in its
relations with the Union
6° Based on the testimony of Holt, and Stilley's affidavit
61 According to the testimony of the witness Woodle, which I credit Holt's saws con
tinned to be filed in the Respondent's plant, by the Respondent's saw filer, after Holt
r11-11-- l -- - J lnii^p"rd^nt ca^trn to
THE STILLEY PLYWOOD COMPANY, INC. 975
Respondent even furnished the parts and maintenance for this heavy equipment.
After that date, they testified, the arrangement was changed to require Holt
to maintain the heavy equipment, though, as is undisputed, the rates paid to
Holt for the logs delivered by him to the Respondent remained the same Since
the arrangement was changed so as to require Holt to maintain the Respondent's
logging equipment, he has, as he testified, employed a mechanic to do the neces-
sary repairs. However, this mechanic admittedly does all this work in the
Respondent's repair shop, uses its equipment and tools, and often even obtains
the necessary parts from the Respondent's maintenance foreman. Often, too,
when it becomes necessary for Holt to purchase replacement automotive parts
from outside sources, he lacks the necessary money, and apparently also the
credit, for, as he admitted, he often charges such parts to the Respondent, the
price subsequently being deducted from the amounts due him for the logging "r
Holt also obtains some of his gasoline and oil from the Respondent's company
store on credit. Even Holt's alleged employees are given credit at the Re-
spondent's company store, the amounts thus charged to them being deducted
from their wages by Holt, and turned over to the Respondent.
The facts thus disprove the Respondent's contentions that it contracted out
the logging operations in May 1948 because the time had become ripe for a
conti actor to be able to obtain labor, equipment, and parts, and by thus being
able "to make a go of it," be in a position to relieve the Respondent of the
problems connected with the logging. As we have seen, Holt, the alleged con-
tractor, is almost totally dependent upon the Respondent for a labor force,
equipment, parts, financing, 53 and even for a place in which to carry on his
repair work.
Also, as has been shown before, the Respondent's assertions that the
contracting out of its logging was being planned even before the Union came
into the picture are rebutted by the Respondent's complete silence as to any
such plans at the representation hearing, even though it was asked whether
any cessation of operations on its part, leading to reduced employment, was
being contemplated Since I cannot, therefore, credit the Respondent's ex-
planations for the motivation and timing of the Respondent's alleged contracting
of the logging, the numerous threats by the Respondent's supervisors that the
logging would be contracted out if the Union came in, seem to supply the only
believable explanation therefor. I conclude and find that the Respondent entered
into the arrangement with Graham Holt on or about May 1, 1948, for the purpose
of trying to sever its logging employees from the unit of employees represented
by the Union, to furnish it for a pretext for discharging union adherents among
the employees, and as part of its campaign to undermine the Union as collective
bargaining representative of the employees.
Whatever may have been the Respondent's motive for entering into the arrange-
ment with Holt, it is clear that under that arrangement Holt is not an independent
contractor. To complete the picture, several additional facts contained in the
record should here be noted. In the first place, there is no written contract
between the Respondent and Holt, and their oral arrangement is terminable at
will by either of them Holt has never contracted with anyone but the Respondent.
Holt was unable to answer, at the hearing, questions whether he pays business
taxes as an independent contractor, whether he is registered as such in his
county, or whether the heavy equipment used in the logging operations is covered
by insurance. Holt's logging operations are confined to timber land owned by
"Holt testified that the Respondent allows him to repay it for such parts gradually,
as fast as lie "can stand " In other words, the Respondent finances him
13 Holt admittedly dope not even maintain a hank account in connection with his alleged
bum
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent, though, as he testified, he has the right to cut other timber too 64
There is no agreement between the Respondent and Holt as to I-Iolt's compensation.
Before Holt starts to log any given tract of the Respondent's land, the Respond-
ent's supervisor of logging takes him there, gives him instructions as to the size
and species of timber to be cut, and informs him how much the Respondent will
pay him per thousand feet for the logs to be cut there When questioned at the
hearing whether the price thus set by the Respondent was always satisfactory to
him, Holt testified, "pretty well, sir " In view of Holt's almost dependence on
the Respondent, as above outlined, the only recourse available to Holt, were the
Respondent to offer him a price which he found unsatisfactory, would be to
refuse to do the work for that price, which puts him in no different position from
an employee in that respect. Be it noted that should that occur, and should either
Holt or the Respondent thereupon terminate their relationship, neither of them
would be liable to the other for breach of contract, for, as we have seen, the
arrangement between them is terminable at the will of either. In this respect,
one of the fundamental elements of the status of independent contractor is lacking
from the relationship of Holt to the Respondents` So too, the fact that in large
degree Holt performs his work with equipment furnished by the Respondent
mitigates against the relationship being held to constitute one of independent
contractor and customer 56 In view of these circumstances, and the other facts
shown by the record, I conclude and find that Holt is not an independent con-
tractor, that he is, to all intents and purposes, in employee of the Respondent,
and that his ostensible employees are, within the meaning of the Act, employees
of the Respondent."
I consider the whole transaction by which the Respondent entered into the
above-described arrangement with Holt, timed as it was just at the time that
negotiations with the Union were about to begin, as additional evidence of the
Respondent's desire to undermine the Union's status as collective bargaining
representative of its employees.
On the basis of the foregoing, and the record as a whole, I conclude and find
that at all the times material herein, on and after April 7, 1948, the Respondent
has failed and refused to bargain collectively with the Union, which was at all
such times, and still is, the duly designated representative of a majority of the
Respondent's employees within an appropriate unit, thereby interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and committing unfair labor practices as defined in
Section S (a) (1) and (5) of the Act 58
64 Holt testified that aside from one instance , in 1948 , he has cut logs only from lands
owned by the Respondent
65 Muncie Foundry if Machine Co v Thompson, 123 N E 196 (70 Ind App 157)
Washburn v Bunce, 287 N. Y S 1008, 1009 (248 App. Div 652) ; L B Price Mercantile
Co v Industrial Coin mission, 30 P 2nd 491. 494 (43 Ariz 257)
cc Snodgrass v Cleveland Co-op Coal Co , 167 N E 493, 496 (31 Ohio App 470)
Perkinson v Thomas (Va ) 164 S E 561, 562, Wright v Wilkinson, 300 S W 342, 343
(222 Icy 144) , Moore v Philips, 120 S W. 2nd 722, 726, 729; Hollingsworth v. Robe
Lumber Co., 45 P 2nd 614, 615, 616 (182 Wash 74)
67 In making the above findine I am not ignoring the fact that Holt, according to his
testimony, makes out the payrolls for the logging employees, pays them, and is registered
as then employer with the South Carolina Employment Security Commission and the
Federal Social Security Agency However , I do not consider these formal evidences of
his status as employer to outweigh the contrary evidence to which I have alluded.
61 The finding that the Respondent ' s refusal to bargain dates from April 7, 1948, is
based on the allegation in the complaint to that effect. The whole course of the
Respondent 's relations with the Union is of course relevant to the issue of the Respondent's
good or had faith.
THE STILLEY PLYWOOD COMPANY, INC. 977
D. The discharges
1. Aeron Lewis and Norton Allen
Lewis was hired as a mechanic's helper by the Respondent in 1941, and worked
under the supervision of the Respondent' s foreman of maintenance, F. B. Fowler,
Sr. At the time Lewis was hired , the Respondent was not doing its own logging
and owned only two or three trucks, and one Diesel -powered tractor 69 At the
beginning of his employment by the Respondent, Lewis worked as a trainee or
helper on the maintenance work, including the work of repairing the trucks and
tractor. He also did general maintenance work around the plant, such as
repairing motor saws, loaders, and skidders, and such things as electrical wiring.
Later the Respondent purchased a number of additional trucks and tractors,
both gasoline and Diesel, and in addition began to repair the equipment used by
its logging contractors. Lewis participated in this work, and after some time
became a lead mechanic, with about four mechanics assisting him.G°
Lewis joined the Union, and on May 3, 1948, was appointed to the Union's nego-
tiating committee. Prior to the union committee's meetings with the Respondent
on May 25 and May 31, 1948, Union Representative Bever sent telegrams to Lewis
at the Respondent's plant announcing these. meetings Both these telegrams
were handed to Lewis in open envelopes, the first by President Stilley, with the
remark that it was a telegram from Bever 61
Lewis was discharged on June 4, 1948, with the explanation that the Respondent
Was discontinuing doing its own truck repairs and would thereafter have the
repairs performed by outside garages.
Allen entered the Respondent's employ as a mechanic in 1946 He worked
with Aeron Lewis, who by that time had been promoted to the position of lead
mechanic. Previous to his employment by the Respondent, Allen had worked
as a mechanic for some 15 years.°R
Allen, like Lewis, was a member of the Union and of its negotiating commit-
tee, and attended some meetings between the Union and the Respondent prior
to his discharge on June 4, 1948. He was notified of his and Lewis' discharge
by Lewis on that date.
The Respondent contends that Lewis and Allen were discharged : ( a) Because
the contracting out of the logging made it unnecessary to maintain as large
a repair-shop staff as had formerly been required, and (b) because for other
reasons the Respondent decided to reduce the amount of repair done in its own
shop, and to have such work done by outside agencies
Insofar as the contracting out of the logging (and that appears from the
record to be the primary reason for the reduction of the repair-shop staff) led
to the discharge of Lewis and Allen, the discharges were of course in violation
of the Act. I have above found, and have pointed out the bases for that finding,
59 Based on Fowler ' s testimony
60 Based on the testunonv of Lewis and Fowler At one point during the cross -e-amina-
tion of Norton Allen , counsel for the Respondent advanced the contention that Lewis
supervised the work of Allen and thoiefore held the status of a supersisory employee
within the meaning of the Act This contention is not made in counsel ' s brief In any
event, it appears from the record that, as lead mechanic , Lewis merely transmitted to
the mechanics in his crew the instructions of Foienian Fowler There is some testimony
that howler lined Allen on Lewis ' lecmnmendation , and that Lewis either hired and
discharged some of his hclpeis or ieconimended such action However, it is also admitted
that Lewis was permitted to vote in the election without objection by the Respondent
I conclude and find that the recoi(1 does not support the contention, if seriously advanced
by the Respondent , that Lewis was a supervisor within the meaning of the Act
61 Rised on L^wis' undenied , credited testinionv
0' Based on Allen's undenied , credited testuuony
953841-52-vol 94 63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the contracting arrangement was entered into for the very purpose of
severing a substantial group of the Respondent 's employees from the unit repre-
sented by the Union , and to serve as a pretext for the discharge of union adherents
among the employees . But even aside from this , the selection of Lewis and
Allen for discharge appears to have been discriminatory . It is undisputed that
some maintenance mechanics who were hired long after Lewis and Allen, were
kept in the Respondent ' s employ after these two were discharged . Thus, Fore-
man Fowler ' s son, Barney Fowler , who was hired in 1948, and Wallace Abrams,
who was subsequently employed by the Respondent as a mechanic ' s helper,
were kept in the Respondent 's employ after the discharge of Lewis and Allen.
Foreman Fowler testified , it is true , that they were employed primarily to repair
Diesel-powered tractors , and that Lewis was not particularly experienced in this
work. Yet the record shows that Barney Fowler's alleged specialized knowledge
in this field consisted only of some 18 months' experience in the Navy as a motor
mechanic , and some 2 months' subsequent training in the shop of a tractor
dealer.
I am not impressed by the efforts of the Respondent 's witnesses to deprecate
the experience of Lewis on Diesel work as compared with that of Barney Fowler °3
In any event , there is nothing in the record to show that Abrams possessed any
special ability in such work which either Lewis or Allen did not have.
With respect to Allen, Foreman Fowler admitted that the former had set
up and put into condition to be used a certain dragline when it was purchased
by the Respondent for use in its operations . He also admitted that after the
reduction in the maintenance force which led to Allen's discharge , another
mechanic 's helper, instead of being discharged , was transferred to the job of
operating the aforesaid dragline. Yet Allen , who was familiar with the mecha-
nism, was not offered this position
In addition , neither Lewis nor Allen was kept in the Respondent ' s employ,
nor transferred to the nominal employ of Graham Holt, despite the fact that
Holt kept most of the logging employees in his employ , and subsequently em-
ployed newly hired mechanics to keep in repair the trucks and other logging
equipment . In view of Holt 's almost complete dependence on the Respondent,
and the fact that the equipment in question was the Respondent ' s property, and
was repaired in the Respondent 's shop, the conclusion seems impelled that ab-
sent a desire on the part of the Respondent to rid itself of these two active
union members , Lewis and Allen would have been retained either in the Re-
spondent 's direct employ , or even as nominal employees of Holt , to do this work
in which they were so experienced . In-view of the circumstances hereinbefore
summarized , it seems clear that Holt was in a position where the Respondent's
desires as to whom he should or should not employ were decisive , and I repeat
in this connection my conclusion that his asserted status as an independent
contractor was merely a pretense, and that in reality the employees formally
in his employ remained essentially employees of the Respondent
On the basis of all the above, and taking into consideration the Respondent's
a1 Lewis testified credibly that during his years with the Respondent he did a great
deal of repair work on Diesel-powered tractois H is promotion to position of lead
mechanic indicates that he must have become adept , in the opinion of the Respondent,
at performing his duties , which admittedly included work on the tractors . Despite
Fowler's general testimony that Lewis had done comparatively little Diesel work, lie
admitted so many instances of such work by Lewis during cross-examination that it is
apparent that in his general testimony he was greatly understating Lewis' experience
iii that field . Moreover, as Foreman Fowler admitted , the reason be gave to Lewis for
hiring Barney Fowler for the Diesel work was not because Lewis was incompetent to^
perform it but because the work load which Lewis was under at the time was so great
that he needed another man to relieve him of part of it
THE STILLEY PLYWOOD COMPANY, INC. 979
demonstrated hostility against the Union, and the many other unfair labor prac-
tices in which it engaged, I conclude and find that Lewis and Allen were dis-
charged by the Respondent on or about June 4, 194S, because of their active mem-
bership in the Union, and that by their aforesaid discharge the Respondent
committed unfair labor practices within the meaning of Section 8 (a) (1) and
(3) of the Act.
2. Jack Rush
Rush entered the Respondent's employ as a truck driver in 1945. He joined
the Union in about July of 1947, became active on its behalf, and, as we have
seen, his union activities became the subject of interrogation by the Respond-
ent's supervisors.
A few days before April 13. 194S, Rush drove a number of the Respondent's
employees to a meeting of the Union held at night in a meeting hall on the out-
skirts of Conway. He used for this purpose the Respondent's truck which he
drove in the course of his duty during working hours. Rush was arrested on
the night of the meeting upon the Respondent's complaint that by so using the
truck he bad violated a South Carolina statute which makes it a misdemeanor
for one knowingly and willfully to use a motor vehicle without the consent of
the ownei.°' After being held in jail for a day or two, Rush was released on
bond, and the charges were subsequently withdrawn by the Respondent upon
Rush's payment of court costs. After being released from jail, Rush reported
for work on or about April 13, 1948, but was told that the Respondent had no
more work for a "rogue" such as he.
The General Counsel contends that the Respondent's truck drivers were cus-
tomarily permitted to driNe company trucks for personal purposes outside of
working hours, and that the Respondent procured Rush's arrest and then dis-
charged him solely because the truck was used to transport employees to a meeting
of the Union, and that it was motivated by its desire to punish Rush for his union
activity and thereby to intimidate its other employees.
It would serve little purpose to set forth in detail all the circumstances sur-
rounding Rush's arrest and discharge. Suffice it to say that if, in fact, the
Respondent permitted its trucks freely to be driven by their drivers on the latters'
personal business, but arbitrarily had Rush arrested, and then discharged him,
because of the particular nature of the use to which he put the truck on the occa-
sion in question, such conduct would clearly be discriminatory, and since the
particular use to which the truck was put on said occasion was to assist the
Union, it would constitute discrimination within the meaning of the Act. On the
other hand, if the Respondent's truck drivers were under instructions not to use
their trucks outside of working hours for personal purposes, and these instruc-
tions were impartially enforced, the fact that Rush's violation of these instruc-
tions consisted of using the truck to help the Union would of course confer no
immunity from punishment on him
With respect to this issue the record is far from clear. There is a good deal
of testimony, which I credit, that the Respondent's truck drivers did, with the
acquiescence, if not express permission, of the Respondent, use their trucks after
hours for a variety of personal errands, such as driving to church, to visit rela-
tives, and even to do personal work for the Respondent's supervisors. On the
other hand, there is equally credited testimony to the effect that the Respondent
had issued instructions to the drivers to cease driving the trucks except on com-
pany business, and that it made some efforts to enforce these instructions.
Thus, the General Counsel's witness, Aeron Lewis, a leader of the Union,
admitted that as a mechanic he had several times called his supervisors' atten-
64 Section 1209, Criminal Code of South Carolina (1942)
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to the fact that the trucks were being "beat up" by drivers using them
outside of working hours, and had suggested that such use be prohibited Lewis
also admitted that instructions were issued to the drivers to "keep the trucks
off the road" outside of working hours
It is also undisputed that in February 1946 the Respondent swore out a war-
rant against a truck drip er named Freshley for using a company truck without
permission, although in this case it appears that the truck was shot through with
bullet holes, and badly damaged while being used by Freshley. Similarly, un-
denied is the fact that truck driver Washington was discharged in late 1946 for
unauthorized use of a company truck ; in this case also, the truck was seriously
damaged by such use.
It is reasonable to believe that the Respondent was, as its witnesses testified,
concerned about having its trucks used for other than its own business, and that
it would, as it claims to have done, attempt to prevent them from being used for
the personal purposes of the drivers. Self-interest on the part of the Respondent
would motivate such conduct, for heavy trucks consume gas and oil in substan-
tial quantity, are depreciated by undue use, and in addition, subject the owner
to liability when driven without the owner's permission.
I am persuaded, therefore, to credit the Respondent's contention that during
the period in question it was making attempts to prevent the use of its trucks for
the personal purposes of the drivers. Yet I have also credited the contrary
testimony that on many occasions, during the same period, the Respondent's
drivers drove company trucks on personal errands without being criticized
therefor, although this was done with the knowledge of the Respondent's super-
visors The testimony of Lewis furnishes a clue as to the basis for this incon-
sistency. He explained that although there was in effect a general rule that the
trucks should remain parked when the day's work was done, the enforcement
of that rule was left to the "man in charge of the logging," and that the rule was
observed at times while at other times it was not. I can only conclude that while
the Respondent had announced such a rule, it was not continuously and consist-
ently enforced by its supervisors.
The question remains whether the rule was enforced as to Rush because he
used his truck to transport employees to a union meeting.
It is undisputed that about 2 months before the above-described incident,
Rush drove his company truck after working hours to Gresham, South Carolina,
which is located about 35 miles from Conway. During this trip, which was made
for Rush's personal purposes, the truck skidded into a ditch and became mired
in it. Rush finally persuaded a neighboring resident named Harris to drive him
back to Conway, and, on the following morning had the truck towed out of the
ditch and returned it to work. Some time later, as is undemed, Harris presented
a bill for $17 to the Respondent for his services in returning Rush to Conway,
and this bill was subsequently paid. The Respondent thereupon assessed this
charge, as well as an additional charge for Rush's unauthorized use of the truck,
against Rush, the whole suns amounting to about $32. This amount was deducted
from Rush's pay Superintendent Nelson and Foreman Holt testified that fol-
lowing the Gresham incident the Respondent warned its truck drivers that the
next one caught using a company truck without permission would be arrested
This Rush denied. However, the General Counsel's witness. Zora Robinson, ad-
mitted that immediately after Rush's mishap at Gresham, the drivers were in-
structed by Nelson to leave their trucks in the company yard over week ends,
instead of driving them home as some of them had previously been allowed to do.
I conclude and find that following the Gresham incident, the Respondent did warn
its drivers not to use their trucks outside of working hours. -
In view of the above, especially Rush's prior dereliction in taking the truck to
THE STILLEY PLYWOOD COMPANY, INC. 981
Gresham, his punishment therefor, and the subsequent warning issued to the
drivers, I am not satisfied that the General Counsel has established by a pre-
ponderance of the evidence that Rush's arrest and discharge in April 1948 was
motivated by the Respondent 's hostility against the Union. I shall therefore
recommend that the complaint be dismissed insofar as it alleges that Rush's
arrest and discharge constituted unfair labor practices.
3. John Woodle
Woodle began to work for the Respondent in April 1947, replacing Reuben
Lewis as a saw filer.
He joined the Union shortly after he entered the Respondent's employ, and
on March 26, 1948, acted as the Union's observer at the election. About 2 weeks
before Woodle's discharge, Foreman Arnett Singleton asked him "just what
[Woodle thought] the Union would do for" the employees, and Woodle answered
that it might change one thing, i.e, "running the saws day and night and only
paying me for the day's work." '5
Woodle was discharged on January 7, 1949. The Respondent justifies his dis-
charge as follows • According to the testimony of Foreman Fowler and Super-
intendent Spires, Woodle was hired with the understanding that although the
saws were operated during both the day and night shifts, he was to keep therm
filed within the number of hours operated by the day shift and was to be paid
(at the agreed hourly rate) only for the number of hours the day shift ran.
Thus, if the day shift ran 48 hours in any given week, Woodle (the saw filer)
would be paid for 48 hours regardless of the number of hours lie actually spent
in filing the saws. If the day shift ran only 40 hours, he would be paid for 40
hours. It is undisputed that Woodle was actually paid according to the number
of hours he claimed, and that he reported the number of hours for which lie
was to be paid each week directly to the office worker who made up the Respond-
ent's payroll." For some time after Woodle was hired, according to Spires and
Fowler, he clammed pay according to the aforesaid agreement Later, however,
Woodle began to put in claims for a substantially greater number of hours than
the day shift operated, and was paid accordingly. When this was brought to
Spires' and Fowler's attention, they spoke to Woodle about the matter and
reminded him of the understanding under which he was hired. When Woodle
persisted in claiming pay in excess of the number of hours operated by the day
shift, they reduced the understanding to writing and gave it to Woodle."i Finally,
when Woodle again violated the agreement, he was discharged, according to
these two witnesses.
Woodle's testimony with respect to the above was somewhat vague and con-
fused. He denied that at the time he was hired he was given to understand
that he would be paid only for the number of hours the day shift ran. He
admitted, however, that at the time he was first employed both the day and
night shifts were running and that he at first had no difficulty in keeping the
saws filed within the hours of the day shift. Later, he claimed the demands on
him became so great that he was forced to work longer hours in order to keep
the saws sharp, and he accordingly put in claims for more pay. He admitted
that Spires had objected to this, and had told him that "[the Respondent]
couldn't stand it any longer; that they just had to pay [Woodle] for the day-
" The significance of this remark will be made clear by the discussion that follows.
This finding is based on the undenied,,credited testimony of Woodle
" Spires explains this on the basis that "the saw filer was usually allowed to keep his
own time He knew how many hours the saws operated."
17 According to Spires this occurred in December 1948.
'982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time work." He also admitted that Spires had handed him the written note
'concerning the basis of his pay in December 1948. Woodle similarly admitted'
that on the occasion of his discharge Spires told him that one reason therefor
was the fact that he had claimed pay for a number of hours in excess of the
number operated by the day shift.
Reuben Lewis, who preceded Woodle as the Respondent's saw filer, and also
replaced Woodle after the latter was discharged, testified that he was paid on
the basis described by Fowler and Spires. Although it appears from the Re-
spondent's payroll records that on three occasions Lewis was paid for from 31/2
to 4 hours more than the day shift operated,88 the first such occasion is explained
by the undenied fact that during that week Lewis worked for 31/2 hours as a
sawyer, in addition to his work as a saw filer. He was unable to explain the
other two such occasions except by surmising that lie might have inadvertently
turned in claims for more pay than he was entitled to
I am unable to perceive any substantial support in the record for the allega-
tion that Woodle's discharge stemmed from his affiliation with the Union It is
true that the Respondent did, during the same approximate period, effectuate
some discriminatory discharges, but this fact does not in itself establish that
every contemporary discharge of a prounion employee was illegally motivated.
Woodle may have just cause for feeling that he was unfairly dealt with by the
Respondent because it refused to pay him for what he considered to be the num-
ber of hours necessary to perform his duties. But that dispute is not before us
for decision. All that is established by the record, in my opinion, is that Woodle
was discharged because he and the Respondent disagreed about the issue of his
pay. I shall recommend that the complaint be dismissed insofar as it alleges
that Woodle's discharge was in violation of the Act.
4. Jethro Rabon
Rabon, according to his testimony, entered the Respondent's employ in Sep-
tember of 1947,69 and was first put to work loading lumber. About 1 week later
he was transferred to the drying department in the plant, and was assigned to
the job of "tearing down forms," which consisted of removing buckles from
batches of veneer after they were glued, and loading the veneer on a truck.
Rabon's supervisor in the drying room was Foreman Junior Dusenberry.
About 3 days before the election, which was held on, March 26, 1948, Ration
had conversations with employees Leo Dorman and Hanley Singleton, the latter_
a former foreman, in which Ration made definite statements of his intention to
Note for the Union.70
60 January 27-February 2, 1949 (31/2 excess hours). March 3-March 9, 1949 (4 excess
hours). June 2-Juice 8, 1949 (4 excess hours).
"As to the date 1w hen Jethro Ration was first employed by the Respondent, Superin-
tendent Spires testified that he "believed" it was about January 1, 1948. The variation
in dates is without any great significance
70 Based on Rabon's undenied testimony Ration also testified that shortly after his
discussion with Singleton, he saw the latter in conversation with Foreman Dusenberry
and Superintendent Spires. Without denying that he had had the above-described con-
versation with Rabon, Singleton did deny that he had ever discussed Rabon with Dusen-
berry or Spires Dorman did not testify. without resolving the issue whether Singleton
passed on the information as to Rabon's prounion attitude to the Respondent, I believe
it is a fair inference, under the circumstances of this case, that the Respondent learned
about Rabon's sympathy with the 'Union. I draw that inference, and so find I base this
-particularly on the following facts : The comparatively small size of the Respondent's
plant ; the fact that the Union, and the attitude of the employees towards it, were subjects
of a great deal of discussion in the plant ; and the fact that the Respondent during this
period was making intensive efforts, through its supervisors, to discover the attitude of its
employees to the Union.
THE STILLEY PLYWOOD COMPANY, INC. 983
At the end of the day, March 23, 1948, during which the aforesaid conversations
took place, Foreman Dusenberry informed Rabon that his "job was run out" and
that he would be recalled to work if and when the Respondent again needed him
?.bout the first of June, Rabon was recalled." Shortly thereafter Ration was
transferred to a job which entailed mixing concrete and lifting kegs of sand and
stones into the concrete mixer. Rabon was not physically able to endure this
work,72 so he voluntarily laid off for about a week Upon his return to work
he was shifted about from job to job. On or about June 9, 1948, Rabon was again
laid off, being informed by his foreman that the Respondent was "out of orders
and would have to close down." He has not since been recalled to work.73
The General Counsel contends that the layoff of Jethro Rabon on March 23,
1948, on the very day that he had openly expressed his determination to vote for
the Union, is evidence of the Respondent's discriminatory attitude against him."
The Respondent explains this layoff by the fact that, as it contends, Rabon was
at the time employed on a job involving the production of oak drawer bottoms
for which the Respondent had received an order ; that this order was completed
on or about March 23, 1948; and that Rabon, together with other employees, was
consequently laid off because that particular job was at an end.76
A summary of the Respondent's payroll records, which is in evidence, disproves
the Respondent's aforesaid contention. That summary shows that for the week
of March 18-March 24, 1948, Jethro Rabon was listed on the Respondent's payroll
together with 13 other employees, for the "Glueing Department," which is appar-
ently part of the drying department. The next week, that of March 25-March
21, 1948, the payroll also lists a total of 14 employees in the "clueing Department,"
all of them the same except that Rabon is shown to have been replaced by Hubert
Richardson. It is thus clear that contrary to the Respondent's contention,
Rabon was the only employee in his department laid off on this occasion. More-
over, the fact that he was immediately replaced by another employee refutes the
Respondent's explanation that his layoff was occasioned by the ending of the
job. It is obvious that work of some kind continued to be available for the full
complement of employees in that department. I therefore cannot credit the
Respondent's justification for laying off Rabon on March 23, 1948, and, under
all the circumstances, conclude and find that Rabon was laid off in punishment
for his openly expressed intention of voting for the Union.
Rabon's transfer to the job on the concrete mixer, which Rabon was physically
unable to perform, after his subsequent recall to work, is similarly relied upon
by the General Counsel as an indication of the Respondent's discriminatory
intent as to Rabon. The Respondent takes the position with respect to this that
the concrete mixing was a temporary job occasioned by the necessity of laying a
foundation for a press, which had to be completed before threatened flood waters
arose; that a number of other employees were also temporarily transferred to
11 Rabon could not recall exactly how long after his layoff he was recalled to work
Superintendent Spires testified that it was about June 1, 1948. Spires further testified
that previous to this time, namely on May 1, 1948, Rabon's layoff was discussed with the
Union's negotiating committee which brought up that subject at the first meeting between
the parties held on that date
7z Based upon my observation of Rabon at the hearing I find that he is shorter than
average and has abnormally short arms. I credit Rabon's undenied testimony that he
was made ill by the exertions involved in his attempting to do the work to which he
was assigned on the above-described occasion.
73 The foregoing facts are undisputed except as here, or hereinafter, indicated
74 The complaint alleges only that the final layoff, or discharge of Rabon, which occurred
on or about June 9, 1948, constituted an unfair labor practice. I take it that the General
Counsel relies on the Respondent' s previous treatment of Rabon merely as evidence of
the Respondent 's attitude towards him, to support the aforesaid allegation in the complaint.
75 Testimony of Superintendent Dewitt Spires.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this job: 76 and that "it was certainly no fault of the Company that Rabon
happened to get hot and sick and that he was out at least a week " 77 The Re-
spondent's counsel also argues that the fact that Rabon was given work upon his
return, after being made ill by his exertions on the concrete job, tends to dis-
prove any discriminatory intent on the part of the Respondent.
Taking into consideration the proven lack of genuineness of the Respondent's
explanation for its previous treatment of Rabon, the fact that Ration was
patently unsuited physically for the concrete job, and the over-all pattern of
antiunion coercion indulged in by the Respondent, I am impelled to reject the
Respondent's contentions. I conclude and find that the Respondent deliberately
attempted to make Ration's employment insufferable by assigning him to a job
which it had every reason to believe he could not do. That the Respondent ap-
parently preferred to force Ration to quit, rather than to take the more overt
action of discharging him at the time, is of course not inconsistent with my
conclusion.
Rabon's final layoff, fioni which he was never recalled up to the time of the
hearing, occurred approximately a month after his return to work following his
illness, namely on or about June 9, 1948. The allegation in the complaint that
Ration was discharged on or about that date is denied in the Respondent's
answer.78 Superintendent Spires testified that at the time in question Ration
was working on another oak order, and that Ration quit his employment on
June 14, 1948. He further testified that the said oak order was completed about
1 or 11/2 weeks later. In his brief, counsel for the Respondent makes no refer-
ence to any contention that Rabon's final termination of his employment was
voluntary, but argues that the mill was closed in June of 1948-apparently in
justification of Rabon's termination.
The Respondent's position as to the cause or motivation for the final termina-
tion of Jethro Ration's employment is thus extremely vague. Other than Spires'
testimony that Ration quit on June 14, 1948, there is nothing in the record to
i erify such a contention. The Respondent did not call to the witness stand
Ration's immediate supervisor at the time to testify with respect to the circum-
stances of his termination. Rabon's testimony that he was then working under
the supervision of Foreman G. W. Causey, and that the beginning of June, Causey
told him that the Respondent "was out of orders and would have to close down"
stands undenied except by the testimony of Spires. Causey did not testify.
I find, on all the evidence, that Rabon did not quit, but was discharged by the
Respondent on or about June 9, 1948, the date alleged in the complaint 5p
The Respondent's apparently alternative contention that Ration's discharge
was brought about by the fact that the mill was closed down for lack of work
is flatly contradicted by the testimony of Spires. The latter averred that work
continued on the oak order on which Rabon was allegedly working for 1 week or
more after Rabon's termination. Thus, lack of work can hardly be relied upon
as explaining that termination A0
I conclude and find that the Respondent discharged Jethro Rabon on or about
June 9, 1948, and has since failed to reinstate him, because of his openly ex-
pressed adherence to the Union, and that by such conduct it has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
76 Testimony of Spires.
77 Brief of counsel for the Respondent, p. 19.
78 Second amended complaint, par VIII , answer to second amended complaint, par 8.
79 It is undisputed that Rabon had never been recalled to work at the time of the hearing.
80 Any shutdown of the plant for legitimate business reasons occurring after Rabon's
discharge has no bearing on the validity of his discharge, and can be considered at the
compliance stage of this proceeding in connection with the remedy to be offered to Rabon.
THE STILLEY PLYWOOD COMPANY, INC. 985
E. The strike, and the Respondent's alleged refusal to reinstate 19 strikers after
its termination
It is undisputed that the Union called a strike of the Respondent's employees
which began the morning of August 26, 1948 The cause of the strike is in issue.
The complaint alleges that it was brought about and prolonged by unfair labor
practices committed by the Respondent This the Respondent denies.
At a meeting of the Union held at the beginning of August 1948, International
Representative Bever reported to the employees on the status of the negotiations
between the Union and the Respondent; he stated that the Union had attempted
to negotiate in good faith, but that it had apparently "exhausted every effort they
had to get anywhere, and it looked like a strike was the last straw. . . ." At
this meeting a tentative strike vote was cast, the strike to be held in abeyance
pending a last effort to get the Respondent to bargain with Fogle instead of
Bever This was on the theory that the absence of Bever might facilitate mat-
ters if animosity by Stilley against Bever was a factor in the Respondent's
intransigent attitude Si
On August 23 and 25, 1948, Fogle made last-minute attempts to avoid a strike
by calling Attorney McCutcheon and asking whether the Respondent had changed
its attitude and was willing to confer with the Union again. McCutcheori s
answers were to the effect that unless the Union were willing to accept the
Respondent's final proposals, he could see no use in having further meetings.
At the meeting of the Union held on August 25, the night before the strike, Fogle
reported all this to the employees, and stated that the Union had "exhausted all
honorable means" to get a "workable contract." The employees voted to go on
strike On cross-examination, George E. Rabon testified that at the first of the
aforesaid meetings, Bever reported that although the Union had tried in good
faith to reach an agreement with the Respondent, "it was just like being up
against a brick wall with them ; never got nowhere with them," and that the Union
was faced with the alternative of striking or to "continue on and do the best" it
could to negotiate further At the meeting of August 25, according to Rabon,
Fogle's report was in essence the same as Bever's, i e., that the good faith efforts
of the Union to get an agreement had been unsuccessful.
Counsel for the Respondent argues that all this supports the conclusion that
the strike was caused solely by the Union's determination to enforce its economic
demands by getting a contract with the Respondent -
I cannot agree. As has been found above, the Respondent did not bargain
with the Union in good faith in an honest effort to reach agreement, but was
determined to frustrate the Union's efforts to engage in collective bargaining.
The evidence as a whole points to the conclusion that the Union became convinced
that its efforts to reach an agreement were doomed to failure because of the
Respondent's attitude of unyielding opposition to collective bargainvng, and that
this is what fundamentally brought about the decision to resort to a test of
strength with the Respondent. It should be kept in mind also that among the
subjects discussed between the parties during the preceding negotiations were
the discriminatory discharges of union members, which the Union's negotiators
insisted were part of the Respondent's illegal campaign to undermine the Union ffi
The Respondent's failure to offer the Union any satisfactory adjustment of these
unfair labor practices must also be reasonably looked upon as a cause of the
strike.
I conclude and find that the Respondent's failure to bargain in good faith, and
its refusal to rectify its unfair labor practices (the discriminatory discharges),
81 Based on the credited testimony of Bever and George E Rabon.
62 See testimony of McCutcheon and Spires , as well as that of Bever and Fogle.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were the primary causes of the strike, and that it was therefore an unfair labor
practice strike as distinguished from an economic strike:'
It is undisputed that on September 21, 1948, the Union notified the Respondent
in writing that it was ending the strike, and requested the Respondent to rein-
state those employees who reported back to work. Since the strike in question
was an unfair labor practice strike, it was incumbent on the Respondent to
reinstate all the striking employees who requested reinstatement, even those
who had been replaced during the strike.84
I shall discuss below, in summary form, the cases of each of the 19 strikers
who are alleged in the complaint wrongfully to have been denied reinstatement.
(1) Neal Hunt : Hunt, at the time the strike was called, was employed by the
Respondent on the day shift at a wage rate of 65 cents per hour. He joined in
the strike and applied for reinstatement on September 27, 194S 'S At this time he
was told by Foreman Lewis Lee that no job was available for him 88 He admit-
tedly was offered work on October 7, 1948, but did not report until October 14 At
this time he was given a job at 60 cents per hour. Superintendent Spires testified
that on October 7, when Hunt was first offered reinstatement, it was to a job on
the night shift paying 68 cents per hour. Hunt denied that he had been offered
any particular job on October 7, but since his testimony was vague as to details,
I am inclined to credit Spires' testimony on this point. I credit Hunt's undenied
testimony that at the time of the strike he was employed on the day shift, and
that he had never worked at night.
With respect to the above, I conclude and find as follows : The offer of a job
on the night shift to an employee whose job had always been on the day shift
was not an offer of a job substantially equivalent to the one the employee had
held before the strike. Therefore, Hunt did not forfeit his right to reinstate-
ment by his failure to accept the Respondent's offer of October 7. Neither did
the Respondent fulfill its obligation to reinstate Hunt to his former job, or one
substantially equivalent thereto, by reemploying him on October 14 at a wage
rate of 60 cents per hour ; his rate of pay when he went out on strike was ad-
mittedly 65 cents per hour.
At the hearing the Respondent adduced testimony to the effect that during the
strike Hunt had threatened several nonstriking employees with physical violence
if they insisted on going to work. This Hunt denied. At the time of Hunt's
application for reinstatement, and up to the time that the Respondent filed its
answer to the complaint, no mention was made of Hunt's alleged misconduct
during the strike. Indeed, the Respondent has never sought to justify its failure
to offer Hunt substantially equivalent employment on the ground of his alleged
misconduct. On the contrary, the Respondent's answer (par. 13) avers that
shortly after Hunt and several other named employees applied for reinstatement,
they were "employed or reemployed at their former or substantially equivalent
positions." The answer further admits that some of the strikers were not re-
instated after the strike. Apparently in justification for this, paragraph 14 of
the answer alleges in part that "the striking employees were not entitled to re-
instatement for the reason that they engaged in illegal and improper acts in
connection with the strike. . . ."
83 Even when the employer's unfair labor practices are only one contributing factor in
causing a strike , the other being the employees ' desire to enforce economic demands, the
strike may be considered an unfair labor practice strike Berkshire Knitting Mills v.
N.L R. B, 139 F. 2d 134 , 137 (C. A 3).
64M L. R B . v. Mackay Radio & Telegraph Co, 304 U . S. 333, United Biscuit Co. V.
N L R. B, 128 F 2d 771 , 774 (C. A 7).
83 The above date is based on Spires' testimony. -
86 Hunt' s undenied, credited testimony.
THE STILLEY PLYWOOD COMPANY, INC. 987
Giving the Respondent 's answer the broadest possible interpretation , what it
appears to plead is that although Hunt was not entitled to reinstatement , never-
theless the Respondent did reinstate him to a job substantially equivalent to the
one he held before the strike.
My conclusion is that when the Respondent offered to reemploy Hunt 10 days
after his application for reinstatement , and subsequently did put him back to,
work , all without any mention of his alleged misconduct during the strike, it
thereby condoned his alleged misconduct , and thereby waived the right subse-
quently to raise that defense with respect to his case." For this reason I find it
unnecessary here to resolve the conflict in evidence as to whether or not Hunt,
in fact, engaged in the threats ascribed to him by the Respondent ' s witnesses.
It should be noted, in this connection, that even if that conflict were to be resolved
in favor of the Respondent, the misconduct in question was not so flagrant that
it would render Hunt so unfit for employment by the Respondent that, as a matter
of public policy, the Board would feel impelled to deny him any remedy..""
I therefore find that the Respondent, on October 7, 1948, and at all times there-
after, wrongfully failed and refused to reinstate Neal Hunt to his former or a
substantially equivalent job.
About a month after Hunt's return to work on October 14, he was laid off and
has not since been recalled to work. According to Superintendent Spires, this
layoff occurred on November 21, 1948; was occasioned by lack of work due to
trouble with one of the Respondent's pieces of machinery ; and involved a total
of about four employees . The Respondent offers no explanation for its failure
to recall Hunt to work after this layoff, though as the Respondent 's records
show, many new employees were hired in departments throughout the plant after
his layoff, specifically during the period from January 13 to July 21, 1949. In
the absence of any explanation for the failure to recall Hunt to work, I must
conclude, on the whole record, that this constituted further discrimination
against him because of his participation in the strike
(2) John llVillsams: At the time the strike began Williams was employed by
the Respondent at 60 cents per hour. He joined in the strike and according to
his testimony applied for reinstatement on or about September 27, 1948, but was
told by Superintendent Spires, to whom this application was made, that the
Respondent had no openings. He further testified that he has never since been
recalled to work. Spires testified on direct examination that Williams had never
applied for reinstatement after the strike. It is undisputed that he has never
been reinstated.
Spires also testified, and Williams admitted, that he had worked only 1 day
continuously just before the strike. However, Williams explained that he had
worked for the Respondent intermittently since 1930; that his last period of
employment began in about September of 1947, and that he had been absent from
work the whole week before the strike and had reported back on the day preced-
ing it. The facts thus do not support the implication apparently sought to be
raised by the Respondent that Williams was merely a temporary employee hired
to fill in for the 1 day before the strike. As Spires testified, about 75 percent of
the Respondent's employees are farmers, who frequently take varying periods
off from work.
With respect to the disputed issue as to whether or not Williams applied for
reinstatement after the strike, he testified that he made this application on or
about September 27, and that he accompanied employee William Leroy Martin
87 Stewart Die Castling Corp v. N L R . B , 114 F. 2d 849, 855-856 ( C. A. 7), cert.
denied, 312 U. S. 680.
88 Cf Horn Manufacturing Co., Inc , 83 NLRB 1177 , 1179-1180
988 DECISIONS- OF 'NATIONAL LABOR RELATIONS BOARD
to the plant that day and joined a group of other employees who were present
on the occasion in question Martin corroborated this, and testified that the
group, through a spokesman,89 applied to Spires for reinstatement but were told
that there were no openings On cross-examination Spires admitted that J. B.
Lee, the employee named as the spokesman for the group, had discussed the
matter of reinstatement with him, and that Lee "may have done some talking
for the others" on the aforesaid day, but asserted that he could not remember
"the one that was with [Lee] "9p On the whole record I credit Williams' testi-
mony, discredit Spires' denial that the former had applied for reinstatement, and
find that John Williams did apply for reinstatement on or about September 27,
1948. I further find that the Respondent has ever since failed and refused to
reinstate him to his former or it substantially equivalent position.
(3) William Leroy Alai tan: This Martin is the ,anie employee vai iously re-
ferred to in the pleadings and (hiring the hearing as "Roy Martin" and "Leroy
Martin." He was being paid 90 cents per hour at the time the strike began.
OOn September 27, 1948, after participating in the strike, Martin, together with
John Williams and a group of other ex-strikers, applied to Superintendent Spires
for reinstatement 81 They were told that the Respondent had no openings.
About 5 weeks later, the Respondent offered Martin a job at 60 cents per hour,
telling him at the time that that job was the only one open. On April 19, 1949,
and again on July 31, 1949, the Respondent offered Martin the job which he had
held at the time he went out on strike, but Martin refused the offers because he
was in the midst of harvesting and marketing his tobacco crop.
I conclude and find that from September 27, 1948, the date on which Martin
applied for reinstatement, to April 19, 1949, the date when he was first offered
his old job, the Respondent failed and refused to reinstate Martin to his former
or substantially equivalent employment.
(4) Meon King: Immediately before the strike King's pay was 65 cents per
hour. He engaged in the strike and as he testified, applied for reinstatement
on September 27, 1948, as a member of the group which has been described
above. The Respondent's answer denies that King applied for reinstatement,
and Spires testified that he did not recall seeing him. However, since other
members of the group of ex-strikers corroborated King's testimony to that ef-
fect,92 I credit it, and find that on September 27, 1948, he applied for reinstate-
ment to his former job. As we have seen, this application was refused. He was
called to work by the Respondent on November 11, 1948, and was restored to his
former job On or about December 10, 1948, he was laid off, allegedly for lack
of work, and he has not since been recalled to work. Spires testified that King's
layoff in December was occasioned by a shutdown of the mill. I credit this.
However, no explanation appears in the record either for the Respondent's
failure to reinstate King during the period from September 27, 1948, to Novem-
ber 11, 1948, or for its failure to recall him to work after his subsequent layoff,
when the Respondent, as has been shown, began to hire new employees I
19 Williams' testimony was to the effect that he spoke to Spires directly. In view of the
undisputed fact that such a group did discuss the matter with Spires on that clay, I do
not regard this variation between the testimony of Williams and the other members of
the group as indicating Williams' unieliability as a witness
°D The cases of the other members of this group of employees are discussed below
ei Spires testified that he did not recall seeing Martin on this occasion The Respondent's
answer admits that Martin applied for reinstatement on September 27 In any event,
Martin 's testimony to this effect is corroborated by other members of the group I credit
Martin' s testimony
vz Martin and Collins
THE STILLEY PLYWOOD COMPANY, INC. 989,
therefore conclude and find that the Respondent, in violation of the Act,"
failed and refused to reinstate Meon King to his former or a substantially equiv-
alent job from September 27. 1948, to November it, 1948, and that at some
time after December 10, 1948. the Respondent would, absent discrimination
against King on account of his participation in the strike, have recalled him
to work'
(5) Claude Collins. Collins was being paid 65 cents per hour at the time he
went out on strike He was a member of the group which applied for and was
refused reinstatement on September 27, 1948. He was, however, reemployed on
or about October 7, 1948. at the rate of 60 cents per hour, being told on this
occasion that "if both were satisfied" after 2 weeks, he would be raised to 05
cents per hour. his rate of pay before the strike°o Three weeks later his pay
was restored to 65 cents per hour Shortly after his return to work he was
summoned to the othce of Supeuntendent Spires where Spires and Attorney
McCntcheon asked him to sign a statement to the effect that the Respondent had
never discriminated against him He declined to sign the statement Collins
was laid off on or about December 10. 194S, on account of lack of work, and
was recalled to work in March of 1949; at that time he was paid 59 cents per
hour, the rate at which be is still being paid so far as appears in the record.
Since the undisputed facts are that Collins was not restored to the same job
which lie performed before the strike, and that he was rehired at it lower rate
than he had been paid poor to the strike, I conclude and find that lie was not
reinstated to his former or a substantially equivalent position, but was hired
and treated like a new employee Witness Spires' admitted stipulation that he
would be raised to 05 cents after 2 weeks if lie proved to he satisfactorv, and
the fact that on being recalled to work in March 1949, he was paid only 59 cents
per boor I further conclude and find that at all times since September 27,
1948, the Respondent has failed and refused to reinstate Collins to his former or
a substantially equivalent position °"
(6) Bud Allen: At the time of the strike, in which lie participated, Allen's
pay was 60 cents per hour. He applied for reinstatement on or about October 1,
1948. (This is alleged in the complaint and admitted in the answer, and is
verified by the testimony of Allen and Spires, though neither witness was specific
as to the date.) He was reinstated shortly thereafter (according to Spires it
was on October 21) at his former rate of pay.o' Allen was laid off on or about
November 20, 1948, and has admittedly never been rehired Superintendent
Spires testified that Allen is "nervous" and that the Respondent did not recall
him because it has had no job suitable for him' Accepting the Respondent's
explanation for Allen's layoff, namely that it was caused by a falling off of
work, I am not satisfied that thereafter no job became available which Allen
was competent to fill He had worked on various jobs during his employment
by the Respondent, and it seems reasonable that he could have continued to do
so after work became available following his layoff in November. I therefore
conclude and find that at some time after November 20, 1948, the Respondent
"The illegality of the Respondent ' s various refusals to reinstate , and failures to recall
laid-off employees is discussed below
9' The date ii hen this discrimination against King took place I leave to be determined
at the compliance stage of this proceeding
Trstuuony of Spires.
Here again the question of what loss in pay was suffered by Collins as a result of
the Respondent 's wrongful conduct is left for determination at the compliance stage.
97 The General Counsel apparently raises no issue that the Respondent delayed unreason-
ably in reinstating Allen after his application
^ I credit Allen ' s testimony that the Respondent never made any complaint to him
about his work being affected by his alleged nervousness.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would, in the absence of discrimination against Allen on account of his partici-
pation in the strike, have recalled him to work.
(7) Acre Faulk, Jr.: This employee was admittedly offered reinstatement
b,, the Respondent on October 5, 1948, after allegedly applying for reinstatement
on September 27, 1948. He testified that he rejected this offer because in the
meantime he had obtained a job paying more money than he had received from
the Respondent prior to the strike. I conclude and find that on October 5, 1948,
the Respondent discharged its obligation to Faulk by offering him reinstatement,
which he refused, and that the Respondent thereafter owed him no duty to
reemploy him.
(8) Charles E. Sherman: Prior to the strike Sherman was being paid 58
cents per hour A0 and had been employed on the day shift. He admittedly applied
for reinstatement, after engaging in the strike, on October 4, 1948. On this
occasion he was interviewed by Spires and Attorney McCutcheon in the presence
of a stenographer who recorded the interview. Spires asked him whether he
would be willing to accept a job on the night shift. Sherman pointed out that
lie was living about 17 miles from the plant and had no means of transportation
at night. (While employed on the day shift before the strike Sherman rode to
and from work in a labor truck which was operated to provide transportation
for employees needing it. This truck did not operate at night.) Thereupon
Spires asked him whether he did not own a bicycle, to which Sherman replied
that even if he did, which was not the fact, he could hardly ride a bicycle that
distance at night.100 Subsequently Sherman was offered work by the Respondent
on the day shift, and was reemployed at his old job on or about July 7, 1949,
but at only 52 cents per hour 101 I am convinced from the record that the Re-
spondent has never either offered to reinstate, nor has reinstated Charles E.
Sherman to his former or a substantially equivalent position. The offer of
night work on October 4, 1948, was, under all the circumstances, patently made
in bad faith, and the cynical question about whether Sherman owned a bicycle
on which to ride 34 miles to work and back, was in keeping with the spirit in
which the offer was made. In any event, this offer of night work did not con-
stitute an offer of substantially equivalent employment. Sherman's reemplo\-
ment on his old job at a rate of pay lower than he had received prior to the
strike likewise failed to constitute reinstatement to a substantially equivalent
position. I find that the Respondent has, since October 4, 1948, failed and refused
to reinstate Charles E. Sherman to his former or substantially equivalent position.
(9) Jessie James Burroughs: At the time the strike was called, Burroughs
was employed on the day shift at 55 cents per hour.102 His admitted applica-
tion for reinstatement was made on October 5, 1948, and he also was interviewed
by Spires and McCutcheon in the presence of a stenographer. Like Charles E
Sherman, Burroughs lives about 17 miles from the Respondent's plant He
also was offered a job on the night shift and declined it for the same reason,
namely lack of transportation According to 'Spires, Burroughs was reemployed
on October 21, 1948, and worked until November 22, 1948, on the day shift, at 55
rents per hour He was then laid off, according to Spires, on account of a shut-
down, and subsequently returned to work, at what wage rates Spires did
10 Superintendent Spires testified that Sherman's pay prior to the strike was 55 cents
per hour. The factual issue this raised is without significance
100 Sherman's testimony with respect to the interview is undonied and I credit it
1°i Based on the testimony of Sherman and Spires Spires' testimony is silent as to
:Sherman's rate of pay after being reemployed
in I credit Buiroughs' denial, (luring cross-examination, that he had been hired as a
itemporary employee
THE STILLEY PLYWOOD COMPANY, IN C. 991
not say. Burroughs testified that the first time he was given reemployment
after the strike was on July 20, 1949, and at a wage rate of 52 cents per hour.
The Respondent does not point to any documentary evidence to support its version
of the facts, either by way of company records or otherwise. I find that when
Burroughs first was reemployed by the Respondent after the strike, whatever
the date may have been, it was at a wage rate of 52 cents per hour, and that this
did not constitute reinstatement to his former or a substantially equivalent
position. I also find, for the same reasons stated in my discussion of the case
of Charles E. Sherman, that the offer of work on the night shift made to Bur-
roughs on October 5, 1948, was not an offer of substantially equivalent employ-
ment. I conclude and find that since October 5, 1948, the Respondent has failed
and refused to reinstate Jessie James Burroughs to a former job or one sub-
stantially equivalent thereto.
(10) Earl J. Sherman: Sherman was hired by the Respondent on the same
day as Jessie Burroughs, and put on the same job. The date of his first employ-
ment, according to Spires' credited testimony, was July 7, 1948103 His wage
rate was 55 cents per hour. I credit Sherman's denial, during cross-examination,
that nothing was said to him when he was hired about being taken on as an
extra or temporary employee. Like the two employees whose cases are discussed
immediately above, Earl Sherman was interviewed, upon his application for
reinstatement on October 5, 1948, by Spires and McCutcheon, with the interview
being recorded by a stenographer. He also was offered work on the night shift,
which lie declined because transportation was lacking from his place of resi-
dence, 17 miles from the plant. Thereupon Attorney McCutcheon asked him
whether he didn't own a mule and wagon.10i Sherman was reemployed by the
Respondent on the day shift, on or about July 1, 1949, at the wage rate of 52
cents per hour. I conclude and find that the Respondent has, since October 5,
1948, failed and refused to reinstate Earl J. Sherman to his former or a sub-
stantially equivalent position.
(11) Earnest Graham: This employee admittedly rejected his old job, at the
rate of pay he was receiving before the strike, which the Respondent offered
him upon his application for reinstatement, or shortly thereafter. The Re-
spondent thereby discharged its duty to offer him reinstatement.ro5
(12) Moses Sherman: It is not disputed that Sherman was reinstated to his
former job at the same rate of pay, shortly after his application for reinstate-
ment. He was also put back to work after an economic layoff Subsequently
his pay was reduced. I. do not see that his subsequent cut in pay is here in
issue The undisputed facts establish that the Respondent did reinstate this
employee to his former job after the stn Ike
(13) George J. llurray: Murray was employed on the day shift when the
strike occurred I credit his denials, during cross-examination, that lie was
hired as an extra or temporary worker. After the strike, in which lie partici-
pated, he admittedly applied for reinstatement on October 5, 1948; was there-
upon offered a job on the night shift; and declined it because he lives about 17
miles from the plant and there was no transportation available.100 He has not
since been offered work by the Respondent. I find that at all times since October
103 Sherman testified he was hired on June 1. I believe he was mistaken as to the date
since Burroughs testified they had worked only about 3 weeks before the strike.
101 Sherman's undenied, credited testimony
105 Graham offered to return to work the day after the offer was made, but the Respondent
told hint the job would be filled by then, and Graham replied, "go ahead and fill it"
Graham advanced no season to the Respondent for his refusal to start work immediately.
1°G He was also asked whether he did not own a bicycle on the occasion of his interview
with Spires and McCutcheon on October 5
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5, 1948, the Respondent has failed and refused to reinstate George J. Murray to
his former or a substantially equivalent job.
(14) Willie J. DLeCray: McCray, who had worked on the day shift prior to
the strike, was admittedly reinstated to a job on the day shift at the same rate
of pay lie had received before the strike, promptly upon his application for
reinstatement. On December 14, 1948, McCray was laid off because of a shut-
down of the plant, and was recalled to work in March of 1949, but did not
return.i01 I find that the Respondent fulfilled its obligation to McCray to rein-
state him to his former or a substantially equivalent position
(15) Charles Hemingwvay: Hemingway was employed on the day shift at 65
cents per hour at the time the strike began. A day or so after his application
for reinstatement, he was offered his same job back, but on the night shift, and
at a wage rate of 68 cents per hour. As Hemingway put it in his testimony, "of
coiuse, being out of work, I accepted the job." Hemingway was laid off in
December 1948 because of lack of work, was recalled to work in March 1949,'08
but did not return. The only question here involved is whether Hemingway's
acceptance of the night job without objection 109 bars a finding that he was not
reinstated to a job substantially equivalent to the one he held prior to the strike.
Since economic necessity seems to have dictated I3emingway's acceptance of
the job on the night shift, even though he was entitled to reinstatement on the
day shift, it would be unfair and unrealistic to hold that Hemingway voluntarily
accepted the job on the night shift. In fact, his credible testimony indicates
the contrary. Since Hemingway uu as thus employed after the strike on a job
which was not substantially equivalent to his former one, he was under no
obligation after being laid off that job to accept the Respondent's offer to
reinstate him to it. Under all the circumstances I conclude and find that at all
times since October 4, 1948 (on which he admittedly applied for reinstatement),
tale ..esuondent has failed and refused to reinstate Charles Hemingway to his
former job or one substantially equivalent to it.
(16) George Hunt: This employee was admittedly employed up to the time
of the strike on the day shift at 55 cents per hour. He applied for reinstate-
ment, after engaging in the strike, on October 5, 1948. At'that time he was
offered a job on the night shift, which he declined. On October 20, 1948, he was
reinstated to a job on the day shift at 60 cents per hour, on which he has been
working since, after an intervening layoff.Y°5 I conclude and find that the
Respondent, from October 5 to October 20, 1948, failed and refused to reinstate
George Hunt to his former or a substantially equivalent position.
(17) James E. Glover: It was stipulated at the hearing that Glover, up to
the time of the strike, was employed on the day shift at 58 cents per hour.
After engaging in the strike lie applied for reinstatement on October 5, 1948,
and was offered a job on the night shift at 60 cents per hour, which he declined.
He was given a job on October 14, 1948, on the day shift, at 60 cents per hour,
and was laid off on December 7, 1948, due to a shutdown of the plant According
to Spires ' undenied , credited testimony, Glover was recalled to work after the
aforesaid layoff, and subsequently quit his job. I conclude and find that from
October 5 to October 14, 1948, the Respondent failed and refused to reinstate
James E. Glover to his former job or one substantially equivalent thereto.
10' Based on the testimony of McCray and Spires , which is in substantial agreement
'03 Based on Spires' credited testimony. Hemingway testified vaguely that he had heard
that Supeuntendent Spires had been inquiring about him I hnd that word reached
Hemin;way in March 1049 that the Respondent wanted him to return to work
16° He to'd the Respondent lie did not object to the night job providing lie could arrange
for transportation
110 Testimony of Spires and Hunt , which is in substantial agreement
THE STILLEY PLYWOOD COMPANY, INC. 993
(18) George E Rabon: Prior to the strike Ration was receiving 65 cents per
hour; his job was grading veneer. He participated in the strike and applied
for reinstatement on September 27, 1948, which at that time was refused."'
About 5 weeks later he was given a job on a splicer at the rate of 60 cents per
hour, with the understanding that he would be restored to 65 cents per hour
after 2 weeks.."` Rabon inquired whether he could not have his old job back
but Superintendent Spires advised hiiu that that job was filled. Rabon thereupon
accepted the proffered job at 60 cents per hour, but quit about 5 weeks later when
he was not raised to 65 cents as he had been promised. Spires testified that
he refused to give Rabon the raise in question because Ration's work, after
being reemployed after the strike, was not satisfactory. This was denied by
Rabon. I consider it unnecessary to resolve this factual conflict, since in any
event the undisputed facts show that Rabon applied for reinstatement to his
former job, and that the Respondent has never reinstated him thereto or to
one substantially equivalent. I find that since September 27, 1948, the Respondent
has wrongfully failed and refused to reinstate George E. Rabon to his former
job or one substantially equivalent thereto.
(19) J B Lee: It is undisputed that Lee applied for reinstatement on Sep-
tember 27, 1948, after participating in the strike, and that up to the time of the
hearing herein lie had not been rehired on any jot) The Respondent has come
forwaid at various times with differing explanations for its refusal to reinstate
him' Thus, in an affidavit dated October 12, 1948, which was submitted to the
Regional Office of the Board in connection with its investigation -of the case,
Superintendent Spires stated that J B. Lee had been asked to return to work
(whether during or after the strike is not clear), had refused to do so, and
that his job as a tractor driver was thereupon filled by the employment of a
replacement. Thereafter, according to Spires, Lee applied for reinstatement and
was told that he would be reemployed as soon as possible. In the seine affidavit
Spires also alleges that before the strike Lee had interrupted production by
engagm-, in conversation with other employees, and had persisted in this be-
havior'although wai ned to desist theretrom. "Despite these matters," the affi-
davit concludes, "we are wilting to give Lee another opportunity, and we will
Ieeinploy him as soon as lie can be placed in a suitable job" At the hearing,
Spires was asked why Lee had not been rehired since the strike He listed the
following reasons.
1 The Respondent has not had an opening for him
2. He loafed on the job before the strike.
3 lie had made threats to employees during and after the strike.
From the testimony adduced by the Respondent it would appear that Lee's
alleged "loafing on the job" consisted of prounion solicitation during working
hours. The short answer to the Respondent's contention that Lee had forfeited
his right to reinstatement by misconduct on the job before the strike is that
appai ently the Respondent did not then consider his alleged derelictions to be
serious enough to warrant disciplinary action, and that, by retaining him in
its employ without more than a warning, it, condoned his alleged misconduct.
This conclusion is forfeited by the fact that even after the strike the Respondent,,,
took the position that it was willing to reemploy Lee as soon as possible
The misconduct in which Lee is alleged to have engaged during the strike
consisted, according to the Respondent's witnesses, of:
I" Testimony of Rabon and Spites
I` I pires testified that Rabon was reemployed "a few days after" his application for
reinstatemt nt I credit Ration s testimony that this occuried about 5 ueehs later
953'541-52-col 94--64
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Carrying a stick or club in his hands while on the picket line.
2. Telling another picket to carry a baseball bat and to "use it." 113
3. Going to the home of a nonstriking employee and warning him not to go
to work that night if he didn't want something to happen to him.
4. Engaging, with other pickets, in picketing which until enjoined by a State
court, at times blocked the entrance to the Respondent 's plant.
At the hearing , counsel for the Respondent apparently took the position that
the alleged misconduct engaged in by the strikers was fostered by Lee, who
was admittedly one of the leading members of the Union prior to and during
the strike. n
I do not deem it necessary to resolve the conflict in evidence resulting from
the denials by Lee and other strikers that they had engaged in the misconduct
ascribed to them. In the first place, no actual violence is alleged to have occurred,
and no arrests were made, despite the fact that peace officers were admittedly
present near the plant in numbers during the strike The conduct ascribed
-to the strikers ( including Lee) is thus, even if the Respondent 's testimony be
believed, not of such a flagrant nature that these employees have forfeited the
right to relief from the Board . Of course , if they actually did engage in the
said conduct , the Respondent would have had the right , had it exercised it,
to have discharged them or to have refused them reinstatement upon their
application therefor. But the Respondent never raised the issue of their alleged
misconduct, and, instead, did reemploy most of these employees. Moreover, as
Spires admitted , even when Lee applied for reinstatement , no mention was
made that he had forfeited the right thereto by engaging in improper conduct
during the strike. On the contrary , as is shown by Spires ' affidavit , the Respond-
ent expressed its willingness to reemploy Lee as soon as it had a job for him.
In addition, the Respondent did reemploy George E. Rabon, who was just as
active as Lee during the strike and who also is supposed to have engaged in
carrying a stick , improper picketing , and the like . On all the evidence, I am
convinced that even if Lee did engage in the acts ascrbed to him, the Respondent
condoned such conduct by reemploying the other strikers who allegedly partici-
pated in it, and by expressing its willingness to reinstate Lee as soon as possible.
If, as Spires swore in his affidavit , Lee's job was filled by a replacement
during or after the strike, that is no defense to its refusal to reinstate Lee,
for as is shown by the record , Lee promptly applied for reinstatement after
the strike and has at all times since been willing to return to his job.
On the record as a whole I conclude and find that the Respondent 's refusal
to reinstate Lee was not based on any of the reasons it now advances , but was
motivated by its resentment at his leading role in the activities of the Union.
I therefore find that at all times since September 27, 1948, the Respondent has
wrongfully failed and refused to reinstate J. B. Lee to his former position or
to a substantially equivalent job.
I further conclude and find, on the record as a whole , that all of the above-
-discussed employees who were refused reinstatement and otherwise discriminated
119 According to Spires , the employee who carried a baseball bat on the picket line in
accordance with Lee's alleged instructions ( Ed Williams ), was subsequently reemployed by
the Respondent Williams did not testify to corroborate Spires ' hearsay testimony on
the point of Lee's alleged instructions to Williams.
THE STILLEY PLYWOOD COMPANY, INC. 995
against were so treated by the Respondent because of their participation in
the strike and their adherence to the Union thereby demonstrated. I further
find that by such conduct the Respondent engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
1V THE EFFECT OF IHE 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 described in Section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States , and tend to lead to, and have led to , labor disputes
burdening and obstructing commerce and the free flow of commerce.
V THE REMEDY
It has been found that the Respondent has engaged in unfair labor practices.
It will therefore be recommended that it cease and desist therefrom and take
certain allirniative action designed to effectuate the policies of the Act
Having found that the Respondent has refused to bargain with the Union as
the exclusive representative of its employees in an appropriate unit, I shall
recommend that the Respondent, upon request, bargain collectively with the
Union as such representative, and if an understanding is reached, embody such
understanding in a signed agreement.
It has also been found that the Respondent discriminated with respect to
the hire and tenure of the following-named employ ees because of their adherence
to or activity on behalf of the Union.
Aeron Lewis Charles E. Sherman
Norton Allen Jessie James Burroughs
Jethro Halton Earl J Sherman
Neal Hunt George J. Murray
John Williams Charles Hemingway
William Leroy Martin George Hunt
Moen King James E. Glover
Claude Collins George E Ration
Bud Allen J. B. Lee
The ordinary remedy for such discrimination is reinstatement and back pay.
However, it has been found that on April 19, 1949, the Respondent offered rein-
Statenlent to his former job to William Leroy Alai tin, which the latter refused ;
that George Hunt was, after the Respondent's discrimination against him, rein-,
stated to a job substantially equivalent to his former one; and that James E.
Glover was also reinstated to his former or a substantially equivalent position
after the Respondent's initial discrimination against him. I shall not, there-
fore, recommend that the Respondent again oiler reinstatement to these em-
ployees As to all of the other employees above named as having been
discriminated against by the Respondent, I shall recommend that the Respondent
offer each of them immediate and full reinstatement to his former or a sub-
stantially equivalent position."' without prejudice to his seniority and other
14 In accordance v ith the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights and privileges. I shall also recommend that each of the employees dis--
criminated a_rainst be made whole by the Respondent for any loss of pay he may-
have suffered by season of the Respondent's discrimination against him. It will
be recommended that the loss of pay for each such employee be computed on
the basis of each separate calendar quarter or portion thereof during the period
from the Respondent's discriminatory action to the date of a proper offer of
reinstatement; the quarterly periods, hereinafter called "quarters," shall begin
with the first day of January, April, July, and October ; loss of pay shall be
determined by deducting from a suns equal to that which each employee would-
normally have earned for each quarter or portion thereof, his net earnings,"'-
if any, in other employment during that period; earnings in one particular
quarter shall have no effect upon the back-pay liability for any other quarter.
It is also recommended that the Respondent he ordered to make available to,
the Board upon request payroll and other i ecords to facilitate the checking of
the amount of back pay due....
In adchtioii to the Respondent's aforesaid refusal to bargain with the Union,
and its nunierors acts of discrimination against em plovees on account of their
union aflliatmonc or activities, it has also been found that the Respondent con-
ducted an unremitting antiunion campaign by means of interrogation, threats,
and other illegal conduct, in order to intimidate the employees from exercising
their rights under the Act By the number, variety, and seriousness of the
unfair labor practices thus engaged in, the Respondent has demonstrated its
disposition to defeat concerted activity among its employees by any available
means, all of which indicates a danger that the Respondent may in the future
resoit to sunilamly varied forms of unfair labor pi ictices I shall therefore
recommend that the Respondent cease and desist, not only from the unfair labor
practices herein found, but also trom in any other manner interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act."'
Since it has been found that the strike of the Respondent's employees which
began on August 26, 1948, was caused by the unfair labor practices of the
Respondent, it will be recommended that the former strikers found to have been
discriminated against by being refused reinstatement to their former or sub-
stantially equivalent positions be offered such reinstatement by the Respondent
even though such offers of reinstatement to former strikers may make it neces-
sary to dismiss employees hired on and after August 26, 1948.
Since it has been found that the Respondent did not commit unfair labor
practices by discharging Jack Rush and having him arrested ; by discharging
John Woodle, by imposing onerous and discriminatory work conditions upon
its employees (except in the case of Jethro Rabon ) ; by discontinuing the
on-the-job training program previously offered to veterans of the armed services
among its employees ; or by refusing after the strike to reinstate Acie Faulk,
possible and if such position is no longer in existence then to a substantially equivalent
position " See The Chase National Bank of the City of New York , San Juan, Puerto Rico
Branch , 65 NLRB 827
115 By " net earnings " is meant earnings less expenses , such as for transportation, room,
and hoard , incurred by an employee in connect'ion."with obtaining work and working
elsewhere than for Respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Crossett
Lumber Company . 8 NLRB 440 . Monies received for work performed upon Federal , State,
county , municipal , or other work -relief projects shall be considered as earnings See
Republic Steel Corporation v N I. R B 311 U S 7
118 F 1V. Woolworth Company. 90 NLRB 289
117 Mail Department Stores v N . L R B , 326 U S 376
CROW-BURLINGAME COMPANY 997
Jr., Earnest Graham, Moses Sherman, and Willie J. McCray, it will be recom-
mended that the complaint be dismissed insofar as it alleges that the Respondent
committed the aforesaid unfair labor practices.
Upon the foregoing findings of fact and the entire record in the case, I make
the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Pulp, Sulphite & Paper Mill Workers of the
U. S. & Canada, A. F. L., is a labor organization within the meaning of Section
:2 (5) of the Act.
2. All production and maintenance employees of the Respondent's plant and
woodland operations, excluding office and clerical workers, salespeople, technical
employees, superintendents, and all other supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. International Brotherhood of Pulp, Sulphite & Paper Mill Workers of the
U. S. & Canada, A. F. L., was on March 26, 1948, and at all times thereafter
has been, the exclusive representative of all the employees in the above-mentioned
-appropriate unit for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the aforesaid Union, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the terms and conditions of employment
.of some of its employees , thereby discouraging membership in the aforesaid
Union, the Respondent has engaged and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
6. By the above unfair labor practices, and by otherwise interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Respondent has engaged and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent did not commit unfair labor practices by discharging Jack
Rush and causing his arrest; by discharging John Woodle; by discontinuing the
,on-the-job training program for veterans ; by imposing onerous and discrimina-
tory working conditions upon its employees (except with respect to Jethro
Rabon) ; nor by refusing after the strike to reinstate Acie Faulk, Jr., Earnest
Graham, Moses Sherman, and Willie J. McCray.
[Recommended Order omitted from publication in this volume.]
CROW-BURLINGAME COMPANY and LODGE 325, INTERNATIONAL Asso.
CIATION OF MACHINISTS . Case No. 32-CA-129. May 31, 1951
Decision and Order
On January 30, 1951, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged and was engaging in certain unfair
94 NLRB No. 146.