U. and S. Lumber Co.

National Labor Relations Board - Board Decisions

Nov 20, 1950

92 N.L.R.B. 163 (N.L.R.B. 1950)

In the Matter of HAROLD V. UTTERBACK AND DAVID A. SCHATZ D/B/A
U. AND S. LUMBER COMPANY and UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA, A. F. L.
Case No. 36-CA-105.Decided November 00, 1950
DECISION AND ORDER
On August 28, 1950, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from,and take certain affirmative action as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the Respondents' exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recomlrlenda-
tions of the Trial, Examiner with the additions and modifications
hereinafter set forth.
1. The Respondents except to the findings of the Trial Examiner
on the ground that they are not supported by a preponderance of the
evidence. However, the record contains affirmative testimony which
indicates that the Respondents' decision to lay off the day shift em-
ployees on a crew basis as well as its layoff of Barker were motivated
by a desire to abort union activity. As the Trial Examiner's findings
-of fact rest largely on his credibility findings, which are reasonable
.and supported by the record, and which we hereby adopt, we find
-that the Trial Examiner's conclusions are supported by a prepon-
derance of the evidence.2
2. The Trial Examiner found, and we agree, that Bennett, planer
:man on the day shift, was not a supervisor within the meaning of the
Act. Burks, Respondents' superintendent of operations, testified that
Bennett possessed, but had not exercised, authority to hire and dis-
charge employees. However, he further testified that Bennett's au-
thority extended only to minor matters, and that Bennett was re-
,quired to refer major matters to Burks for decision. In view of the
' Pursuant to the provisions of Section 3 (b) of the Act , the National Labor Relations
Board has delegated its powers in connection with this case to a three -member panel
,[ Members Houston, Murdock , and Styles].
2 Standard Dry Wall Products , Inc., 91 NLRB 544.
92 NLRB No. 45. 163
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing, and absent any further explication regarding the effec-
tiveness of recommendations by Bennett regarding hire or discharge,.
we find that Bennett is not a supervisor within the meaning of the
Act.
The Remedy
We have found that the Respondents have engaged in certain unfair
labor practices. Accordingly, we shall order that they cease and
desist therefrom and take certain affirmative action in order to=
effectuate the policies of the Act.
It has been found that although the Respondents curtailed their
operations for legitimate business reasons, they unlawfully discrimi-
nated in regard to the hire and tenure of employment of Robert Wilson
Barker, Gene C. Bishop, Floyd Skinner, Irwin R. Whiting, Buck C..
Bennett, Hubert Herndon, and James G. Young.3 It is possible that
some of the employees discriminated against might have been affected.
in the reduction of operations even absent the Respondents' unfair
labor practices, but the record furnishes no basis for determining the-
order in which they might have been laid off or discharged. Under-
these circumstances, we shall order the Respondents to offer such.
employees immediate and full reinstatement to their former or sub-
stantially equivalent positions,4 without prejudice to their seniority
and other rights and privileges, and, in the event that there is insuf-
ficient work for all such employees entitled thereto, to dismiss, if'
necessary, all persons newly hired after the Respondents' discrimina-
tion. If there is not then sufficient work available for the remaining-
employees and those to be offered reinstatement, all available posi-
tions shall be distributed among them without discrimination against
any employee because of union membership or activity, in accordance
with the system of seniority or other nondiscriminatory practice here-
tofore applied by the Respondents in the conduct of their business..
The Respondents shall place those employees, if any, for whom no.
employment is available after such distribution on a preferential list,.
with priority in accordance with such system of seniority or other non-
discriminatory practice heretofore applied by the Respondents in the
conduct of their business, and thereafter offer them reinstatement as
such employment becomes available and before other persons are
hired for such work.
We shall also order the Respondents to make whole those employees
against whom it has discriminated for any losses that they may have
3 As noted by the Trial Examiner , Young has been reemployed in another capacity by the
Respondents . We are unable to determine on this record whether or not he desires
reinstatement to the position he occupied before his discharge or whether his present
position is equivalent to the former one.
* The Chase National Bank of the City of New York, San Juan , Puerto Rico, Branch,
65 NLRB 440 , 497-8.
U. AND S. LUMBER COMPANY 165
suffered because of the Respondents' discrimination, by payment to
each of them of a sum of money equal to the amount that he normally
ou1d have earned as wages from the date of such discrimination to
.the date of the offer of reinstatement, or placement on a preferential
list, as the case may be, less his net earnings during said period,5 the
• back pay to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289. Earnings
in one particular quarter shall have no effect upon the back-pay,lia-
bility for any other such period. We shall also order the Respondents
.to make available to the Board upon request payroll and other records
to facilitate the checking of the 'amount of back pay due.6
- As it is possible, however, that one or more of these employees might
'have been discharged in the reduction of the work force even if the
Respondents' selection had been made on a nondiscriminatory basis,
this possibility will be taken into consideration in determining the
amounts of back pay due to these employees, in compliance with our
Order herein.7
In view of the nature of the unfair labor practices committed, the
commission by the Respondents of similar and of other unfair labor
practices may be anticipated. We shall, therefore, make our Order
herein coextensive with the threat, and order that the Respondents
cease and desist from infringing in any manner upon the rights guar-
anteed in Section 7 of the Act.'
ORDER
Upon the basis of the entire record in the case; and pursuant to Sec-
tion 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that Harold V. Utter-
back and David A. Schatz, d/b/a U. and S. Lumber Company, Ash-
land, Oregon, their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Brotherhood of Car-
penters and Joiners of America, A. F. L., or in any other labor
organization of their employees, by discharging or refusing to rein-
state any of them because they have become members of or have been
active on behalf of any labor organization, or by discriminating in
any other manner in regard to hire and tenure of employment or
any term or condition of employment;
(b). Interrogating employees concerning their own or other em-
ployees' union membership and activities, threatening to close down
operations because of union activity,, or in any other manner interfer-
Crossett Lumber Company, 8 NLRB 440, 497-8.
6 F. W. Woolworth Company, sapra.
?Sandy Hill Iron d Brass Works, 69 NLRB 355; Wright-Hibbard Industrial Electric
Truck Co., Inc., 67 NLRB 897.
" Cee N. L. R. B. v. Express Publishing Company, 312 U. S. 426.
165-1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing with, restraining , or coercing their employees in the exercise of
the right to self -organization , to form labor organizations , to join
or assist United Brotherhood of Carpenters and Joiners of.America,
A. F. L., or any other labor organization , to bargain collectively
through representatives of their own choosing , to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection , or to refrain from any or all of such activities except
to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
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 Robert Wilson Barker, Gene C. Bishop , Floyd Skinner,
Irvin R. Whiting ,. Buck C. Bennett, Hubert Herndon, and James
G. Young immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority
or other rights and privileges, and make them whole in the manner
;set forth in the section entitled The Remedy;
(b) Upon request , make available to the 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 the amount of back pay due and the right
of reinstatement under the terms of this Order;
(c) Post at their operations at Ashland, Oregon, copies of the
notice attached hereto as Appendix A.9 Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall,
after being duly signed by the Respondents, be posted immediately
upon receipt thereof and be maintained by them for sixty (60) con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. The ' Respondents
shall take reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material;
(d) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of receipt of this Order,
what steps the Respondents have taken to comply herewith.
APPENDIX A'
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
I In the event this Order is enforced by decree of a 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."
U. AND S. LUMBER COMPANY 165-2
WE WILL NOT discourage membership in, or activities on behalf
of, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
A. F. L., or any other labor organization, by discriminating
against employees in regard to hire or tenure of employment or
any term or condition of employment.
WE WILL NOT interrogate employees concerning their own or
other employees' union membership and activities, threaten to
close down operations because of union activity, or in any other
manner interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form labor or-
ganizations, to join or assist UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, A. F. L., or any other labor organiza-
tion, 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 of such activities except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to the following named employees immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority and other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination against them :
Robert Wilson Barker
Gene C. Bishop
Floyd Skinner
Irvin R. Whiting
Buck C. Bennett
Hubert Herndon
James G. Young
All our employees are free to become or refrain from becoming
members of the above-named union or any other labor organization,
except to the extent that the right to refrain may be affected by a
lawful agreement requiring membership in a labor organization as
a condition of employment.
U. AND S. LUMBER COMPANY,
Employer.
By -------------------------------
Dated -------------------
(Representative) (Title)
This-notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Hubert J. Merrick, Esq., and Lincoln Klaver, Esq., for the General Counsel.
Richard 'Morris, Esq., of Portland, Ore., and Neff, Frohnniayer & Lowry, by
Philip Lowry, Esq., of Medford, Ore., for the Respondents.
Mr. S. D. Nelson, of Klamath Falls, Ore., for the Union.
STATEMENT OF THE CASE
Upon a first amended charge filed October 20, 1949, by United Brotherhood
of Carpenters and Joiners of America, A. F. L., (herein called the Union), the
General Counsel for the National Labor Relations Board, by the Regional Direc-
tor-for the.Thirty-sixth Region (Seattle, Washington), issued a complaint dated
February 17, 1950, alleging that, by discriminatorily discharging certain named
employees and by other conduct, the Respondents have engaged in and are en-
gaging. in unfair labor practices affecting commerce within the meaning of.Sec-
tion 8 (a) (1) and (3), and Section 2 (6) and (7) of the Labor Management
Relations Act, 1947; 61 Stat. 136, herein called the Act. Copies of the complaint
and the first amended charge were duly served upon the Respondents.
The Respondents filed an answer denying that they committed the unfair labor
practices alleged in'the complaint; they also interposed affirmative defenses to
the complaint.
Pursuant to notice, a hearing was held on June 13.and 14, 1950, at Medford,
Oregon, before the undersigned Trial Examiner. The General Counsel and the
Respondents were represented by counsel and the Union by a representative.
The parties participated in the hearing .and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues.
Harold V. Utterback, one of the party Respondents, was unable to attend the
hearing or to be available for the taking of his testimony by deposition because
of a serious physical incapacitation. In accordance with an agreement of the
parties, the undersigned has received as part of the record and considered in
the disposition of this case an affidavit of Utterback containing statements which
he would have made had he been able to testify at the hearing. The affidavit of
Utterback and the agreement of the parties providing for its admission in evi-
dence are designated as Respondents' exhibit number 1.
All parties were afforded an opportunity to file briefs and proposed findings of
fact and conclusions of law.
Upon the entire record in the case and from his observation of the demeanor
of the witnesses, the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondents are a partnership engaged in. the manufacture and sale of
lumber at Ashland, Oregon. Their annual sales exceed $300,000 in value, of
which 90 percent is sold and shipped outside the State.
I find that the Respondents are engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
U. AND S. LUMBER COMPANY 167
III. THE UNFAIR LABOR PRACTICES
Discrimination
1. The issue
The Respondents operate a sawmill and a planing mill at Ashland, Oregon.
The sawmill operations began in September 1948. In April 1949 the planing
mill went into operation with a single day shift ; on July 18 a night shift was
added. Most of the night crew were new employees. On August 19, -1949, the
Respondents discharged one employee, Robert Barker, and on August 24, 1949,
they discharged the entire day planing crew, with. certain exceptions mentioned
below, and thereafter operated the planing mill with only one shift comprising,
substantially, the members of the night planing crew.
The General Counsel. contends that all the foregoing discharges were dis-
criminatory. The Respondents- assert, on the other hand, that they have re-
quired only one planing crew at all times after August 24, and that they dis-
•charged the day crew on a nondiscriminatory basis.
2. Management personnel
Of the two Respondent partners, Utterback and ' Schatz,' Utterback was in
principal charge of operations during the period under discussion. Harry'George
Burks has been superintendent of all operations, including the planing mill, since
spring 1949; he had hired most of the day planing employees when that operation
began in April 1949. Immediately responsible to Burks on each planing crew
was DeWitt Atchley on the night shift and Buck Bennett (one of the alleged
-discriminatees) on the day shift; Atchley and Bennett occupied the position
of planer man or setup man on their respective crews. Although both the planer
men had general charge of their respective crews, the record indicates that their:
authority was not equal. Atchley had hired men for the night crew ; he also
had the power of discharge and was in complete charge of the planer in the
absence of Utterback and, Burks. Bennett was planer man on the day shift, as
indicated above ; however, Burks was present during the day operations. Burks
testified that Bennett had authority to hire and fire but that he did not know
whether Bennett had ever exercised such power ; he also testified that Bennett
had authority only as to minor matters and that, as to all major items, Bennett
-would have to consult with Burks. Under the circumstances, I find that Bennett
is an employee and not a supervisor within the meaning of the Act.
3. Events relating to the discharges
The matter of union organization became a subject of discussion among the
day planing employees after the Respondents put into effect a general wage
-cut on July 1, 1949. On August 18, one of the employees, Robert Barker, had a
-conversation at the mill respecting the Union with another employee within
hearing of employee Hubert Herndon. The following day, Superintendent Burks
asked Herndon what Barker had said about the Union, and the same day Burks
told Atchley that he was going to fire Barker because Barker appeared to be
trying to organize a union. The Respondents accordingly discharged Barker
that same day, and 2 days after this discharge Burks told employee James
Young that lie, Burks, had discharged Barker because Barker was "too aggres-
sive" in his union activities. (I do not credit Burks' denial of this statement.)
On August 22, 1949, a representative of the Union, Robert Hall Murray, went
to the mill at the instigation of one or two of the day planers ; he requested
Schatz' permission to speak with the men concerning the Union. Receiving
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schatz' permission , Murray discussed with the day planing crew the advisability-
or organizing the Union . This was during the employees ' lunch hour . Utter
back came on the scene during this discussion ; Murray introduced himself to
Utterback and sought the latter ' s permission to continue his conversation with
the employees . Utterback rejected the request and instructed Murray to leave..
the premises ; Utterback stated in the presence of the employees that he didn't
want any "vultures " or "leeches" on his property , that union organizers were
merely seeking to "feather their own nests," and that the Company could not.
afford to pay union wages and would shut down if a union were organized.
Murray then left the premises , retiring to an adjacent public road , visible from
the Respondents ' office. Three of the day planing crew followed Murray. Two-
days later , on August 24, the Respondents discharged the day planing crew.
Superintendent Burks instructed planer man Atchley some time between Mur--
ray's visit and the August 24 discharges , that Murray was not to have access:
to the night planing crew on company property ; Burks advised Atchley at the-
time that Utterback had stated that the plant would shut down if the Union:
came in. ( I do not credit Burks' denial of this testimony of Atchley.) So far
as the record'shows, Burks' instructions received full compliance . Also, during:
this 2-day period, Atchley overheard part of a conversation between Utterback
and Burks in which they discussed what to do about the Union, and he also-
overheatd their decision to abort these organizational activities by discharging:
employees.
Schatz testified that Utterback had advised him, after Murray's afore-men-
tioned visit with the planing employees , that the Respondents could not operate-
under a union scale of wages , and that they had discussed shutting down if the-
Union came in.
Shortly after the discharges , 'Superintendent Burks asked employee Paul
Cushman, a lumbergrader , whether Cushman was a union member.
Some time after the charges were filed in the present case , Burks told Atchley
that the Respondents .. might justify the discharges on an individual basis if'
they "couldn ' t have-an excuse: .for.firing them as a whole : crew."
4. The August 24 discharges
The Respondents discharged the entire day planing crew of approximately
eight employees ,' except lumbergrader Cushman and trimmerman Smelzer, and
retained the night planing crew . Cushman was the lumbergrader on the night
shift and also divided this work on the day shift with an employee of another-
company ; at times he worked both entire shifts. Lumbergrading , the record.
shows, is a highly skilled job. The Respondents had been unable to obtain a-
qualified trimmerman on the night shift and there had been quite a turn-over-
in that position ; good trimmermen , the record shows, are not easy to obtain..
Smelzer on the day crew was a good trimmerman.
The Respondents adduced testimony to the effect that the Respondents had.
not contemplated using two crews when planing operations began in April 1949;
and that the night crew was later hired because the day crew was unable t&
keep up with the mill production and because the Respondents had received a
particularly large order for lumber which had to be processed . According to
further testimony of the Respondents , a local shortage of rail transportation in
August 1949 caused the Respondents to curtail their production , with consequent
need for only one planing crew ; and that the Respondents, have required and
I Gene C. Bishop , Floyd Skinner, Irvin R . Whiting, Buck C. Bennett, Hubert Herndon.
and James G. Young.
U. AND S. LUMBER COMPANY 169
_had only one planing shift from August 24, 1949, until the hearing in this matter
,on June 13, 1950.
Utterback decided which employees were to be laid off, according to the testi-
mony of Schatz and Burks, in consultation with these two latter individuals.
Neither planer man, Atchley, nor Bennett, was consulted. The record also shows
that none of the employees, except Bennett, was given any advance notice that
-one entire shift would be eliminated, until the very day the discharges were made.
Schatz testified that the transportation shortage began the week before the
-discharges. Burks testified that a discussion concerning the layoff of a planing
crew occurred 11/2 or 2 weeks before the layoffs were effected ; and that the
decision to make the layoffs was made but 3 or 4 days before the layoffs, in
connection with which he was unable to testify whether this decision was made
before or after Murray's afore-mentioned visit on August 22, which was but 2
-days before the layoffs.
In support of their contention that the selection for layoffs was made on a
nondiscriminatory basis, the Respondents adduced testimony to the effect that
the night crew was more productive than the day crew. And although the
Respondents also offered testimony that the individual night crew members
were better than the day crew on a man-for-man basis as to each of the positions
comprising an entire planing crew, Utterback's testimony and that of other
witnesses indicates, and I find, that the discharges were made on a crew; rather
than an individual, basis.
The record supports the Respondents' contention that the night crew had
greater output than the day crew, although of "rougher" quality than the day
crew's production. In this latter connection, however, there is testimony that
none of the Respondents' customers had ever made any complaints which might
be attributed to the comparatively rougher work of the night crew.
Burks testified that Barker-who was. discharged shortly before the August
24 discharges-was employed at the time only to work out a sum of money
owed by Barker to the Respondents ; that Barker was an extra employee on
the slick chain at the time ; and that his job has not been filled since his dis-
charge. The record shows, however, that Barker received a pay check when
he was discharged; therefore, if Barker had at some time owed money to the
Respondents, such obligation had been satisfied before his layoff, otherwise
there would not have been a final check for unencumbered earnings.
Conclusions
That the Respondents had clear motive and plausible opportunity to defeat
the organizational interests and activities of the day planing crew, I have no
question. The issues are, however, whether such motive actually impelled the
Respondents to eliminate an entire planing crew and whether, assuming that
the elimination of a planing crew was for lawful business reasons, the selection
of the day crew was discriminatory.
While the timing of the discharges was suspiciously proximate to the advent
of union activity, I am unable to find on a preponderance of the evidence that
the Respondents eliminated one planing crew and have since operated with the
remaining crew for reasons other than those proffered by the Respondents.
The circumstances of the case do convince me, however, that antiunion con-
siderations impelled the Respondents to choose the day personnel for discharge.
In summary : The Respondents considered the existence of a union inimical
to their own interests; only the day planing crew, so far as the record shows,
had been contacted by the Union; and the discharges were made precipitously.
Also to be considered is Burks' statement that the Respondents would attempt
17(O DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
to justify the discharges on an individual basis, if they could not do so on a
crew basis; nonetheless, the Respondents failed to consult with the planer men
who were in a particularly advantageous position to advise the Respondents
regarding the respective performance, by positions, of employees on the day and
night shifts. Then there is the improbability, on the hypothesis of individual
selection, apart from the separate considerations as to Smelzer and Cushman,
that all the respective members of the more recently engaged night crew were
more desirable to the Respondents on a merit basis than their opposite numbers
on the day crew. I am satisfied, in any event, that the testimony as to,indi-
vidual performance is pretextual. All these foregoing circumstantial indicia
of discrimination round out the more direct evidence, recounted above, of the
Respondents' unlawful motive to remove the threat of unionization by dis-
charging the crew which had manifested an interest in organizing a union.
Under all the circumstances, I conclude that the Respondents discharged the
afore-mentioned employees, including Barker, because of. their interest in and
activities. on behalf of the Union. The Respondents thereby discriminated in
regard to their hire and tenure of employment, discouraging membership in
the Union ; and by such conduct and by the interrogation of Cushman in regard
to his union membership, the interrogation of Herndon as to Barker's union
conversation, and by the threats of shutdown if a union were organized, the
Respondents also interfered with, restrained, and coerced their employees in
the exercise of the rights guaranteed in Section 7 of the Act. This conduct
violates Section 8 (a) (3) and 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents described in Section III, above, occurring in
connection with Respondents' operations described in Section I, above,' have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and such of them as have been found to constitute unfair
labor practices, tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor
practices, I shall recommend that they cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
Having found that the Respondents discriminatorily discharged the afore-
mentioned employees, I shall recommend that the Respondents offer them im-
mediate and full reinstatement 2 to their former or substantially equivalent
positions 2 without prejudice to their seniority or other rights and privileges
and wake them whole for any loss of pay suffered by them as a result of the
discrimination by payment to them of a sum of money equal to the amount they
would have earned from the dates of their respective discharges to the date
of offer of reinstatement less their net earnings" to be computed on a quarterly
basis in the manner established by the Board in F..IT'. Woolworth Contpalty,
90 NLRB 289. Earnings in one particular quarter shall have no effect upon
2 Although Young has been reemployed in another capacity by the Respondents, I am
unable to determine on this record whether or not he desires reinstatement to the position
he occupied before his discharge or whether the present position is substantially equivalent
to the former one.
3 The Chase National Bank' of the City of New York, San Juan, Puerto Rico Branch,
65 NLRB 827.
4 Crossett Lumber Companu, 8 NLRB 440 , 497-8.
U. AND S. LUMBER COMPANY 171
the back-pay liability for any other such period. It will also be recommended
that the Respondents make available to the Board upon request payroll and
other records to facilitate the checking of the amount of back pay due.'
In view of the nature of the unfair labor practices committed , I shall also
recommend that the Respondents cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America , A. F. L., is
a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Robert
Wilson Barker , Gene C. Bishop , Floyd Skinner , Irvin R. Whiting , Buck C. Ben-
nett, Hubert Herndon, and James G. Young , thereby discouraging membership
in United Brotherhood of Carpenters and Joiners of America , A. F. L., the
Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing their employees in the
exercise of rights guaranteed in Section 7 of the Act, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
F. W. Woolworth Company, supra.