West Oregon Lumber Co.

National Labor Relations Board - Board Decisions

Feb 1, 1940

20 N.L.R.B. 1 (N.L.R.B. 1940)

In the Matter of WEST OREGON LUMBER COMPANY and LUMBER AND
SAWMILL WORKERS LOCAL UNION No. 3, INTERNATIONAL WOOD-
WORKERS OF AMERICA
In the Matter of WEST OREGON LUMBER COMPANY and LUMBER AND
SAWMILL WORKERS UNION , LOCAL No. 2532 , CHARTERED BY THE
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA
Cases Nos. C-963 and R-1014, respectively.Decided February 1, 1940
Dimber Industry-Interference, Restraint , and Coercion :. assistance of one
union to the disadvantage of rival union through statements , temporary plant
stoppage, solicitation by supervisory employees , circulation of petition in plant,,
threat of shut-down, and shut-down-Discrimination: as to tenure of employ--
ment : lock-out ; upon reopening of plant discharges , refusals to reinstate, andi
delayed reinstatements because of union membership and activity to discourage-
membership in one union and encourage membership in rival union-Unit Appro--
pri.ctte for Collective Bargaining: all plant and production employees, including:
foremen, but excluding' office employees and supervisory employees above the.
rank of foremen-Representatives: proof of choice : prior certification ; pledge-
cards checked against pay roll-Collective Bargaining: employer 's attempt to
destroy union majority and thus eliminate obligation to bargain ; refusal to
meet with collective bargaining representative ; execution of closed-shop contract
with labor organization other than the collective bargaining representative-
Remedy: usual cease and desist order ; company ordered to bargain with collec-
tive bargaining representatives; company ordered not to bargain with certain-
labor organization unless and until certified by Board-Reinstatement: ordered-
Back Pay: awarded-Investigation of Representatives : petition for, dismissed in
view of order to bargain.
Mr. Thomas P. Graham,, Jr., and Mr. G. L. Patterson, for the Board..
McCamant, Thompson, King d" Wood, by Mr. Grant T. Anderson,.
of Portland; Oreg.; for the respondent.
Mr. Fred Jensen, of Portland, Oreg., and Mr. L. Presley Gill, of
Seattle, Wash., for Local No. 2532.
Houghton, Cluck d Coughlin,, by Mr. Paul Coughlin, of Seattle,
Wash., for Local No. 3.
Mr. Aaron .8ewittes, of counsel to the Board.
20 N. L . R. B., No. 1.
1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Lumber & Saw-
mill Workers Local Union No. 3, herein called Local No. 3, the National
Labor Relations Board,; herein called the Board, by the Regional
Director for the Nineteenth Region (Seattle, Washington), issued
and duly served its complaint, dated May 16,1938, against West Oregon
Lumber. Company, Linnton, Oregon, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (3) and Section 2 (6) and. (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act.
The complaint alleged in substance that (a) on and after February
8, 1938,'the respondent, by plant shut-downs, solicitation, and threats,
coerced its employees into abandoning Local No. 3 and into joining
Lumber and Sawmill Workers Union, Local No. 2532, herein called
Local No. 2532; (b) on and after April 11, 1938, the respondent dis-
charged and refused to reinstate 73 employees because they were mem-
bers of Local No. 3 and refused to become members of Local No. 2532;
and. (c) by these and other acts, the respondent interfered with, re-
strained, and coerced its employees in the exercise of their right to
self-organization. The respondent filed an answer dated May 20, 1938,
denying that it had engaged in the alleged unfair labor practices.
Pursuant to notice, the hearing- opened in Portland, Oregon, on
May 26, 1938, before Martin Ralphael, the Trial Examiner duly desig-
nated by the Board. On the first day of 'the hearing, the Trial
Examiner granted the motion of Local No. 2532 to intervene. On June
6, 1937, Local No. 2532 filed .with the Regional Director a. petition
alleging thata`.qukstion affecting. commerce had.- ariseir.concerning' -the
representation of employees of the respondent, and. requesting an in-
vestigation and certification 'of ' representatives, pursuant to Section
9 (c) of the Act.
On June 13 the Trial Examiner permitted the.. complaint to. be
:amended. The complaint, as amended, alleged in addition to the above-
mentioned unfair labor practices that on and after December 15, 1937,
the respondent committed an unfair labor practice affecting commerce
within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7)
of the Act by refusing to negotiate in good faith, or with the intention
.of reaching an agreement, with Local No. 3, the duly designated
exclusive collective bargaining representative of employees of the
WEST OREGON LUMBER COMPANY 3
respondent in an appropriate unit. The respondent was permitted to
file an amended answer in which the respondent denied that it com-
'initted the unfair labor practices alleged in the amended complaint.
The hearing closed on June 30, 1938.
Upon further amended charges duly filed by Local No. 3, the
Board, by the Regional Director, issued and duly served its sup-
plemental complaint dated August 23, 1938, against the respondent.
The supplemental complaint repeated the allegations of the com-
plaint and amended complaint and, in addition, alleged that the
respondent committed an unfair labor practice affecting commerce
within the meaning of Section 8 (1) and (5) and Section 2 (6)
and (7) of the Act, by entering into a contract with Local No.
2532 providing for exclusive representation by Local No. 2532 and
for membership in Local No. 2532 as a condition of employment.
On August 26, 1938, the Board, acting pursuant to Section 9 (c)
of the Act and Article' III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 1, as amended, ordered an
investigation of the petition filed by Local No. 2532 and authorized
the Regional Director to conduct it and to provide for an appro-
'priate hearing upon due notice.
On August 26, 1938, the Board, acting pursuant to Article III,
Section 10 (c) (2), and Article II, Section 37 (b), of National Labor
Relations Board Rules and Regulations-Series 1, as amended,
ordered that the complaint and representation cases be consolidated
for the purpose of hearing.
On August 30 the respondent filed an answer to the supplemental
complaint, admitting the execution of the contract with Local No.
2532, but denying that it had engaged in or was engaging in the
alleged unfair labor practices.
Pursuant to notice, the supplemental hearing opened in Port-
land, Oregon, on September 1, .1938, before the same Trial Exam-
iner, duly designated by the Board. On September 1, 1938, the
Trial Examiner granted the motion of Local No. 2532 to intervene.
The hearing closed on September 2, 1938. The Board, the respondent,
,and Local No. 2532 were represented by counsel and participated
in both hearings. Local No. 3 was represented by counsel and par-
ticipated in the second hearing. Full opportunity to be heard; to
.examine and cross-examine witnesses, and tp introduce evidence
bearing on the issues was afforded all parties at both hearings.
During the course of the hearings the Trial Examiner made several
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. - . . •..
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 11, 1938, the Board, acting pursuant to Article II,
Section 37, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered the proceedings in the case
transferred to and continued before the Board for action pursuant
to Article II, Section 38, of said Rules and Regulations, directing
that no Intermediate Report be issued, that Proposed Findings of
Fact, Proposed Conclusions of Law, and Proposed Order be issued,
and that the parties herein shall have the right, within ten (10)
days from the receipt of the Proposed Findings, to file exceptions,
to request oral argument before the Board, and to request permission
to file a brief with the Board.
On September 8, 1939, the Board issued and served upon all the
parties its Proposed Findings of Fact, Proposed Conclusions of
Law, and Proposed Order. Thereafter the respondent and Local
No. 2532 filed exceptions to the proposed findings and briefs in sup-
port of their exceptions, and Local No. 3 filed a brief in support
of the proposed findings.
The respondent, in its exceptions, requests an opportunity to prove
that certain employees included in our proposed order of reinstate-
ment have already been reinstated. The matter to be proved under
this request, if true, does not warrant reopening the record, thereby
postponing our order. The respondent, in its exceptions, requests
an opportunity to prove that certain employees included in our pro-
posed order of reinstatement have not been reinstated "because of
intoxication and incompetence." The respondent has not shown
specifically what evidence it would offer if this request were granted,
nor has the respondent shown why it did not offer this evidence at
the hearing and supplementary hearing held in this case. The re-
quests to offer further proof are hereby denied.
The Board has considered the exceptions and briefs, and, save as
the exceptions are consistent with the findings, conclusions, and order
set forth below, finds them to be without merit.
. Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, West Oregon Lumber Company, is an Oregon cor-
poration, engaged in the manufacture and sale of lumber and wood
products. Its plant is located in Linnton, Oregon, on the Willamette
River. The respondent normally employs; between 300 and 355 per-.
sons. Its annual sales exceed $1,000,000. Five per cent of the logs
purchased come from outside the State of Oregon. It ships 90 per
cent of its manufactured products to States other than Oregon.
WEST OREGON LUMBER COMPANY 5
II. THE ORGANIZATIONS INVOLVED
Lumber and Sawmill Workers Local Union No. 3 is a labor organi-
zation, which is chartered by the Interna ,tiona.l Woodworkers of
America, herein called the I. W. A., which in turn is affiliated with
the Committee for Industrial Organization ,' herein called the C. I. O.
Lumber and Sawmill Workers Union, Local No. 2532 ,_ is a labor
organization -which is..chartered by, the. United Brotherhood of Car-
penters and Joiners of America, herein called the Carpenters, which
in turn is affiliated with the American Federation of Labor, herein
called the A. F. of L.
Each of the two locals admits to membership the respondent's plant
and production workers, excluding office and supervisory employees
above the rank of foremen.
Prior to the - summer of 1937 the plant and production employees
of the respondent were organized in Local No. 2532. In the summer
of 1937 the membership of Local No . 2532 voted to apply for a
charter from the I . W. A., the charter was installed and the employees
theretofore members of Local No. 2532 became members of Local
No. 3.2
Thereafter the Carpenters sought to regain its position among the
respondent's employees through a revived Local No. 2532. The
present cases do not raise any issues requiring a determination as to
whether Local No. 2532 is a continuation of the first Local No. 2532
or whether it is a new labor organization . Accordingly we need
not decide this question.
III. THE UNFAIR LABOR PRACTICES
A. The background
The.complaint alleges. that the respondent, engaged in unfair labor
practices within the meaning of Section 8 (1), (3), and (5) of the
Act. The respondent is charged with refusing to bargain with
Local No. 3 and with compelling its employees, by interference,
restraint, coercion, and discrimination, to reafiliate with Local
No. 2532.
The Carpenters placed pressure on the respondent which was cal-
culated to induce the respondent to engage in the aforesaid unfair
1 Now called Congress of Industrial Organizations.
2 See Matters of Jones Lumber Company, West Oregon Lumber Company , Clark 'and
WiltbnCLismber . Com pang, $ :.F. JohnsonfLu .mber,Compang. Portland . Lumber.. Mills,'Inmdn''
Paulsen Lumber Company and Eastern and Western Lumber Company ' and Columbia. River
District Council of Lambe?- and Sarom. ill Workers' Union No. 5, etc ., et al., 3 N. L. R. B.
855: Matters of Jones Lumber Company. B. F. Johnson Lumber Company , Portland
Lumber Mills and Eastern Western Lumber Company and Lumber and Sawn, ill Workert,
Union, etc., 12 N. L. R. B. 209.
283031-41-vol. 20--2
(j . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices . Beginning with August 1937 , the Carpenters in-
stituted a boycott against the respondent 's products . At first the
boycott activity was concentrated mainly in Portland and Los
Angeles. This phase of the boycott proved troublesome although it
did not substantially "harm" the respondent . Between January
and April 1938, however , the Carpenters imposed a boycott in San
Francisco which did substantially affect the respondent 's ability to
market its lumber in that area.
The respondent made several efforts to secure the elimination of
the boycott, including appeals for assistance to United States Senator
Steiwer, to the Federal Trade Commission , to the , United States
District Attorney , to officials of Local No . 3, to the West Coast
Lumbermen's Association, and to an organization known as the
Committee of 43. The record compels the conclusion that the re-
spondent in pursuing its efforts to obtain the removal of the boycott
also resorted to acts infringing rights guaranteed in the Act.
B. Interference , restraint , coercion, and discrimination
1. The stoppage of February 8, 1938
On or about February 8, 1938, Local No. 2532 engaged in a. mem-
bership drive among the respondent's employees. The events im-
mediately preceding this campaign are as follows : At the beginning
of February employees of the neighboring Jones Lumber Company
abandoned the I. W. A. and reaffiliated with the Carpenters. On
February 2 A. W. Muir, identified as an official of the Carpenters,
sent a telegram to A. E. McIntosh , president and manager of the
respondent ; suggesting that McIntosh and his employees "should
follow the lead of the employees in the Jones Lumber Co.," and
warning that "we are watching the Stanwood." 3 On February 7
the respondent posted on thq plant bulletin board a notice which
stated that the respondent was "out of business" in California "until
the boycott is lifted " and which announced "an indefinite shut-down'
effective after Wednesday, February 9."
The evidence shows that this membership drive of Local No. 2532
was conducted with the assistance of the respondent 's supervisory
employees.
At this time Hisakichi Koike was in charge of the Japanese crew
of both the day and night shifts and he had authority to hire and
discharge persons working 'on this crew. Frank Onishi, who was
in charge of. the Japanese crew on the night shift under Koike, also
had authority to hire and discharge. During the lunch period of
3 The Stanwood hauled respondent's lumber from Portland to San Francisco.
WEST OREGON LUMBER'COMPANY 7
the night shift Koike gave Onishi a batch of Local No. 2532 applica-
tion cards and told him "to sign" the men "up." After work re-
sumed, between the hours of 9: 00 p. in. and 2: 00 a. in., Onishi
solicited the employees in his charge and procured their signatures
to the membership application cards.
On February 8 George March was the respondent's head sawyer.
March was not a foreman and he did not have any authority to hire
and discharge. He was in charge of the head-rig, however, a ma-
chine upon whose operation the whole sawmill department depends.
During the day-shift lunch period on February 8 March and other
employees began to solicit fellow employees to join Local No. 2532.
At 12: 00 noon, the close of the lunch period, March continued
to solicit memberships for Local No. 2532 instead of returning to
work. The consequent stoppage of the head-rig and of the other
machines in the sawmill department continued for 11/2 hours and
during this time March and other persons carried on an active mem-
bership campaign on behalf of Local No. 2532. March informed the
employees that because of the boycott the plant could not remain
open unless they reaffiliated with Local No. 2532.
Although Plant Superintendent Wilkinson was present through-
out the period of the stoppage and fully aware of what was occur-
ring, he made no effort to restart the sawmill department or to forbid
solicitation during regular working hours on company property or
otherwise to disassociate the respondent from the membership cam-
paign of Local No. 2532. Wilkinson did not testify.
About 1: 00 p. in. the plant committee of Local No. 3 succeeded
in locating A. E. McIntosh and his son Kenneth, who was secretary-
'treasurer and assistant manager of the respondent, and requested
them to return to the plant. Upon their arrival at the plant at
about 1:20 p. m. A. E. and Kenneth McIntosh found that the saw-
mill department was not in operation. A group of employees and
some representatives of the I. W. A. had congregated near the time
.office and when A. E. and Kenneth McIntosh appeared they became
'involved- in a discussion with persons in the assembled group. In
the course of this discussion the Mclntoshes stated, inter alia, that
-they had not instigated the stoppage, that they could not operate
-the plant while the boycott continued, and that they did not care
.whether the employees were members of the A. F. of L. or of the
C. I. O. so long as the boycott was eliminated. A. E. McIntosh also
,made the following remark to the assemblage: "I don't give a damn
_how it's done, but this boycott has to be lifted."
Thereafter the Mclntoshes.instructed March and the other saw-
,mill . employees to return to their machines.. The sawmill depart-
ment resumed work about 1: 30 p. m.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the discussion outside the time office , hereinabove men-
tioned, A. E. McIntosh had stated that he would discipline March
if an investigation showed that March was at fault in connection
with the stoppage . Subsequently Kenneth reprimanded March and
criticized Wilkinson. It does not appear, however, that the respond-
ent notified the employees thereof or that the respondent , by other
measures , effectively disassociated itself in the minds of the em-
ployees from the actions of Marcli~and Wilkinson:
2. The shut-down commencing March 18, 1938
Although many employees signed cards applying for member-
ship in Local No. 2532 as the result of its membership campaign on
and about February 8, 1938, Local No. 2532 did not procure a ma-
jority at that time . Consequently the Carpenters continued the
boycott. The plant, accordingly, closed on February 9, 1938. There-
after the plant reopened for 4 days toward the end of February.
The plant operated again between March 7 and March 18, 1938,
remaining closed thereafter until April 7, 1938. We now turn to
the alleged unfair labor practices occurring in connection with this
shut-down commencing March 18.
At the time the plant reopened in MMlarch, Kenneth McIntosh
warned the plant committee of Local No. 3 "that the situation was
becoming impossible in San Francisco ." On March 11 or March
15, Kenneth McIntosh conferred with the representatives of Local
No. 3 with respect to the Carpenters ' boycott, measures taken by
Local No. 3 to defeat the boycott, and the plant's prospects for re-
maining open . Kenneth McIntosh testified , and we find , that he
made the following statement in the course of this conference :
That, privately and among gentlemen , my own opinion was
that it would be impossible for a C. 'I. O. union, or its affiliates,
by means of bringing pressure by counteraction or retaliatory
boycotts to enforce a lifting of this boycott in San Francisco.
I stated to them at that time that I feared that the only way
the West Oregon Lumber Company market would be opened
to the West Oregon Lumber Company in San Francisco would
be if at some future time the employees of the West Oregon
Lumber. Company could, in sufficient number , reaffiliate with
the A. F. of L.
The "future time " referred to.in this statement , could only mean the
very near future; since Kenneth McIntosh also informed the rep-
resentatives of Local No . 3 at this conference that "the situation
was rapidly coming to a point where this boycott business in San
WEST OREGON LUMBER COMPANY 9
Francisco was spelling financial ruin and disaster for the West
Oregon Lumber Company; that something would have to be done
very shortly," and the representatives stated that they realized the
seriousness of the situation. Thus Kenneth McIntosh made clear
to the employees the respondent's asserted belief that their reaf-
filiation with Local No. 2532, as_ the only method of ending the
boycott, would have to be brought about very shortly if the respond-
ent was not to be ruined by the boycott. In so doing he made clear
to the employees that the respondent wished them to reaffiliate with
Local No. 2532.
Kenneth McIntosh testified further that he did not declare at
this conference that the respondent intended to urge its employees
to change their union affiliation. Although Kenneth McIntosh may
not have made such declaration in so many words, nevertheless he
did make several statements at this conference which showed that
the respondent was in fact determined to force its employees into
joining Local No. 2532. These statements appear from credible
testimony of George Brown, spokesman for the representatives of
Local No. 3 at the conference. Kenneth McIntosh did not deny the
substantial truth of this testimony. Thus, according to Brown, he
engaged in the following colloquy with Kenneth McIntosh during
the discussion with respect to "keeping the mill * in operation and
keeping the men on the job":
Kenneth McIntosh told us (the representatives of Local No. 3)
that if we didn't get this lumber released within a period of
a week or ten days that the Company would take steps of their
own to effect -a ^ release of this lumber . . . I (George Brown)
told him, "I take it you mean you are going to force your men
into the A. F. of L.?" Kenneth replied, "We will not force
our men into the A. F. of L., we will simply play our cards
in such a way that the men will join of their own free will."
Obviously, in view of the respondent's declared belief, that only a
change in union affiliation would end the boycott, Kenneth McIntosh's
statement that the respondent "would take steps of their own" to
end the boycott could have only one meaning : the respondent would
procure the requisite change in affiliation. The further statement
that the respondent would not "force" the employees but would
simply "play our cards" so that the employees would "join of their
own free will" meant, of course, that the respondent would use subtle
means to effectuate its plan of inducing the employees to join Local
No. 2532. Kenneth McIntosh stated that one method of getting the
employees to affiliate with Local No. 2532 would be to announce a
reduction in wages until the boycott ended.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kenneth McIntosh also asked Brown what measures the respond-
ent could take. Substantially the following colloquy followed :
And I (George Brown) replied to Kenneth that he was asking
me to help him figure out ways and means of, putting his men
in the A. F. of L. and that I thought he was smart enough to
do that without any help from me. Kenneth said he thought
he was too, and that they would take steps if this lumber was
not released and I believe that at time he told me, "and I tell
you this, George, with the full knowledge you are going to use
it against me with the Board some day."
At the conference Kenneth McIntosh exhibited to the representa-
tives of Local No. 3 a proposed notice to employees which announced
a shut-down, attributing it to the boycott, and which placed the
problem of ending the boycott in the hands of the employees. Be-
cause the proposed notice stated that the problem of eliminating the
boycott was the employees' problem, Brown understood the notice
to mean that the employees "would have to join the A. F. of L."
Brown stated to Kenneth McIntosh that the respondent could force
its employees into Local No. 2532 by posting the proposed notice.
Kenneth McIntosh agreed that the respondent could.
On March 16 or-17 the respondent posted the following letter from
A. E. McIntosh :
To OuR EMPLOYEES :
As matters stand today we cannot continue, in business. The
condition of the market is bad enough, but when you add to
that a boycott that drives us out of one of our principal dis-
tribution points and threatens to drive us out of others, we
throw up our hands and howl for help. All the income of the
company and a very large cash loss during the past 6 months
have gone into your and other workers' pockets. The well is
running dry. We can no longer absorb the staggering losses
we have sustained. We could have kept our heads above water
had you made it possible for us to manufacture, sell, and move
our products and by-products freely.
.
We have placed the facts before your plant committee. They
in turn have described the seriousness of this situation to your
union officials. Everyone concerned now 'freely admits that a
crisis has arisen demanding action now. The whole future of
this company depends- upon release from this situation. Yours
'is the problem, yours the solution. Meanwhile we have all our
San Francisco lumber tied up, and we are notified that the cargo
on the Barbara C, will meet the same fate.
This you can take for gospel truth. We don't care a tinker's
dam what union you belong to. That has been and still is our
WEST OREGON LUMBER • COMPANY 11
attitude. All we want is freedom to do a job of work and. try
to make both ends meet. Our present troubles prevent that, and
don't forget, whether you like it or not, you will share our
troubles and suffer with us if present conditions prevail.
Something must be done quickly. Whether you are C. I. 0.,
A. F. of L., Socialist, Communist, superintendent, foreman,.
craftsman, or common laborer, this West Oregon Lumber Com-
pany problem is right in your lap. What are you going to do
about it?
The unmistakable object of this notice was to induce the employees
to join Local No. 2532 by warning them that the respondent would
close the plant unless they changed their union affiliation. Analysis
of.the notice supports this conclusion. The notice first states that
the respondent cannot continue in business "as matters stand today,"
then attributes this inability to the boycott, explains that the respond-
ent "could have kept our heads above water" in the absence of the
boycott, warns that "the whole future of the company depends upon",
the immediate elimination of the boycott, and places the problem of
ending the boycott in the "lap" of the employees. Although the
notice does not explicitly state that the desired solution of the prob-
lem is affiliation with Local No. 2532, such is its clear implica-
tion. Also there can be no doubt that the employees grasped this
implication. Thus when George Brown read the proposed notice at
the conference, hereinabove described, he discovered "that it put
the question of-right in the hands of the men as to lifting the
boycott." He determined that because the notice placed this problem
on the employees it "could only mean one thing, and that was well
understood"; namely, "the men would have to join the A. F. of L."
Moreover Kenneth McIntosh's announced belief, that the respondent
could escape from the boycott only if its employees returned to Local
No. 2532, reinforces our conclusion that the purpose of the letter was
to make available to the respondent this means of escape. Finally
Kenneth McIntosh's other statements at the conference of March 11
or March 15 revealed that a letter to the employees, such as was
issued, constituted a part of the respondent's plan to procure the.
desired change in the union affiliation of its employees.
A. E. McIntosh testified that the object of the posted letter was to
prevail upon the employees to compel Local No. 3 to defeat the boy-'
cott. In view, however, of the considerations which we have just set
forth, we cannot credit this testimony. There are other reasons too
why we- cannot accept A. E. McIntosh's explanation. The explana-
tion assumes a belief by the respondent at the time it posted the letter
that Local No: 3 was able, but unwilling, to nullify the Carpenters'
interference with' the respondent's business. Because of the rivalry
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the two labor organizations and because of the very purpose
of the Carpenters ' interference , it is incredible that Local No. 3 was
unwilling to combat the Carpenters ' campaign or that the respondent
entertained the alleged belief. Indeed Kenneth McIntosh 's statement
to the representatives , quoted above, shows that in the respondent's
opinion Local No. 3 was unable to eliminate the boycott .. Conse-
quently there would be no point in appealing to the employees to
prod Local . No. 3 into . action against the boycott. The wording of
the letter is also inconsistent with the claim that the respondent
believed it necessary to bring pressure on Local No. 3 to induce that
organization to take measures against the boycott . Thus the letter
acknowleges that "the seriousness of this situation" had been described
to the officials of Local No . 3 and that "everyone concerned now freely
admits that a crisis has arisen demanding action now." If Local No.
3 "freely"' admitted the need for immediate action, the alleged object
of the letter had already been accomplished prior to its publication
and the respondent would have no reason for issuing it.
We conclude and find that by Kenneth McIntosh 's statements to
the representatives of Local No . V3 and by the notice posted on March
16 or 17, the respondent threatened to shut the plant unless the
employees joined Local No. 2532 in sufficient number to end the
boycott.
The contemplated shift in union membership did not take place.
Accordingly the respondent closed the plant on March 18, 1938.
The respondent informed the employees that the plant was closing
indefinitely because of the Carpenters ' boycott. Nevertheless despite
the shut-down the bulk of the respondent's employees persisted in
retaining their affiliation with Local No. 3 and at the end of March
they were still members of that organization . At this point the
respondent's supervisory employees undertook to end the boycott by
enrolling the employees into Local No. 2532.
The respondent paid some supervisory employees by the hour and
some by the month. The hourly paid supervisory employees had
been laid off with the other employees on March 18 . The respondent,
however , did not lay off the monthly paid supervisory employees
until March 31. Among , the former . was Paul . Lansberry. Lans-
berry was in charge of the millwright department and was classified
as head millwright on the respondent 's pay roll . He supervised the
employees in his department. He also reported directly to Super-
intendent Wilkinson . Lansberry 's recommendation that an employee
be discharged carried "some weight" although not as much weight
as a similar recommendation from some of the other supervisory
employees . Lansberry characterized himself as a foreman, Ken-
neth McIntosh testified that Lansberry "approximates " a foreman,
WEST OREGON LUMBER COMPANY 13
and. the..record shows that the employees considered Lansberry as a
foreman. Among the supervisory employees laid off on March 31
were F. B. Gallagher, Harry Duncan, John Anderson, and Dennis
McKay. Each of these persons was a foreman in charge of a depart-
ment, supervising the employees in his department. Kenneth McIn-
tosh characterized them as "bona fide" foremen. Duncan, Anderson,
and McKay had "advisory" power with respect to the hiring and
discharging of employees. Duncan also supervised Koike and
Onishi, both of whom, as we noted above, had authority to hire
and discharge employees. Gallagher had authority to hire.
On March 31, the, day the monthly paid foremen were laid off,
Gallagher and Duncan held a conference in Gallagher's office at the
plant. They decided at this conference to launch a membership
campaign for Local No. 2532. Accordingly they persuaded other
foremen to accept membership in that organization and to solicit
memberships on its behalf. During the ensuing week Foremen
Gallagher, Duncan, Anderson, McKay, and Lansberry engaged in
widespread solicitation. They informed the employees that affiliation
with Local No. 2532 would end the boycott and thereby enable them
to return to work.
This, it will be recalled, was the theme of the respondent's posted
letter to the employees. It will also be recalled that that letter con-
cluded with the question, "What are you going to do about it?" The
respondent addressed the question explicitly to the foremen as well
as- to°the other employees. The .letter, was thus -wclear invitation to
the foremen to procure the change in affiliation which the respondent
desired. Gallagher, who initiated the foremen's campaign, testified
that he knew the plant would reopen if a majority of the employees
affiliated with Local No. 2532 because he interpreted the posted letter
to the employees to mean that the respondent would resume opera-
tions upon elimination of the boycott. We find that by the posted
letter the respondent instigated the foremen's solicitation.
3. The reopening of the plant on April 7 1938, and events subsequent
thereto
By April 7 many employees had applied for, and accepted, mem-
bership in Local No. 2532. The boycott ended and the plant reopened
under circumstances which we set forth in Section III subsection D,
infra. We find in that subsection that the respondent discriminated
in regard to hire and tenure of employment on and after April 7,
ther:eby' encouraging, membership in Local No. 2532 and discouraging
membership in Local No. 3.
Upon the reopening of the plant in April, a committee representing
Local No. 3 called upon A. E. McIntosh to protest an alleged- disre-
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gard of seniority by the respondent in selecting persons for reinstate-
ment. In the course of this conference A. E. McIntosh stated that
he would not take any action which would cause the Carpenters to
reimpose the boycott. Although he denied any intention of main-
taining a Local No. 2532 majority to prevent a recurrence of the
boycott, nevertheless he stated to the committee that he would not
agree not to permit the prospect of a renewed boycott to color his
judgment in making adjustments in the selection of employees. The
committee suggested that Local No. 3 would file charges against the
respondent. A.. E. McIntosh replied in substance : "Well, I know
that is going to be your move. I will admit that I will probably
have to pay some back pay" but "I am going on and run this mill
the way I see fit." A. E. McIntosh's statements at this conference
'reveal that the respondent had determined to favor Local No. 2532
in order to avoid a recurrence of the boycott.
This policy of the respondent emerges clearly from the speech
which Kenneth McIntosh delivered to the planing-mill employees.
This department had remained closed after April 7. On April 18
Kenneth addressed a group of employees who were anxious to know
when and how the planing-mill department could resume operations.
The substance of his talk was as follows : (1) The planing mill had
been unprofitable during the previous 6 months and it was difficult
to foresee whether or not market conditions would justify renewed
operations in that department. (2) The respondent proposed, as far
as was possible, to do nothing that would bring about a recurrence of
the boycott; since if that should occur, the respondent would again
shut down the whole plant. (3) The planing mill could not reopen
unless it commanded a crew which had the respondent's interests at
heart and which would prevent the Carpenters from again subjecting
the respondent to a boycott. (4) The planing-mill employees could
learn at the Labor Temple, the headquarters of Local No. 2532,
"what they had to do to keep that boycott off."
This speech was a further instance of Kenneth McIntosh's "playing
his cards" to induce the. employees to join Local No. 2532. By the
first statement set forth above, he aroused the apprehensions of the
employees that the department might not reopen. He thereby en-
hanced their susceptibility to the respondent's wishes. By the second
and third statements, he in effect informed his audience that the-
planing-mill department could reopen only if it had an A. F. of L.
crew. That this was his meaning is plain, since the whole purpose
of the boycott had been to compel the respondent's employees to
return.to Local No. 2532. Obviously the method of ending the boy-
cott would be the method of preventing its renewal;, namely, affiliation
with Local •No..2532. By the fourth statement Kenneth McIntosh
left no, doubt as to the purport of his speech. The Carpenters had
WEST -OREGO LUMBER COMPANY 15
imposed the boycott. Obviously the Carpenters would inform em-
ployees that "what they had to do to keep that boycott off" was to
become members of Local No. 2532, and it is inconceivable that this
was not uppermost in his mind.'
In the course of the speech Clarence Nordyke, a member of the
plant committee of Local No. 3, asked Kenneth McIntosh whether he
was informing the planing-mill employees that the reopening of their
department depended upon their becoming affiliated with Local No.
2532. Kenneth McIntosh's reply, testified to by- Nordyke, was sub-
stantially as follows : the employees "would have to figure that out"
for themselves, since "a federal -law . . . prohibited him from
telling the employees what they would have to join." This reply
could mean :.the employees "would have to figure . . . out" for them-
selves (1) the meaning of the speech or (2) whether or not the reopen-
ing of the department was contingent upon affiliation with Local No.
2532 . In either event this reply did not tend to change the coercive
meaning or to counteract the coercive effect of the speech.
At the close of Kenneth Mclntosh's speech Nordyke repeated his
question. Substantially the following colloquy, testified to by
Nordyke, ensued :
(MCINTOSH.) I stand on my constitutional right and refuse to
answer that question.
(NoRDYKE.) Would it incriminate yourself?
(MCINTOSH.) You took the words right out of my mouth.
By these. statements Kenneth McIntosh further revealed the coercive
purport of his speech.
Kenneth McIntosh also answered Nordyke's question by stating
that he was not advising the planing-mill employees to join, he was
simply noting where they could learn under what circumstances the
Carpenters would again impose a boycott against the respondent's
business . In its context this, of course, was equivalent to stating that
although he was not advising the employees to join Local No. 2532,
nevertheless they had better join if they wished the planing mill to
reopen , since the respondent would not incur the risk of another boy-
cott by reopening that department without a Carpenters' crew.
The planing-mill employees could not escape understanding Ken-
neth McIntosh's purpose. Nordyke testified as follows in this
connection :
Q. What did you understand him to mean when he said the
answer to the boycott was in the Labor Temple?
' On cross-examination Kenneth McIntosh *as evasive with respect to the information
which he contemplated would be received by employees who went to the Labor Temple.
He testified finally that one of the possibilities he considered when he told the employees
to go to the Labor Temple was that they would be informed there that they would have
to become members of Local No. 2532.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. He didn't definitely tell us to go to the Labor Temple : but
he couldn't have made it any plainer if he had to me, and that
is why I interrupted him at the time.
Q. Was that the general understanding of those present, do you
know?
A. I can speak for myself and all .I have talked to, and that
is exactly it. He couldn't have made it any plainer if he had
come out and wrote it on the board, than to go to the Labor Temple
and join the A. F. of L., or the planer mill would not start.
Q. Do you know whether or not that was the understanding of
those who heard the speech?
A. It was to some that I have talked to. I couldn't state for
all of them, because I haven't talked to all of them .. .
Bertucci, a planing-mill employee, testified that a number of plan-
ing-mill employees declared, after the speech, that they would have
to join Local No. 2532 in order to secure the reopening of the depart-
ment. To illustrate their attitude, Bertucci cited Ben Sears, a plan
-ing-mill employee, who said, "Well, everything is lost," and signed
a card for membership in Local No. 2532.
Kenneth delivered his talk in a section of the plant called the
grinding room. During Kenneth's talk F. R. Hinckle, an employee
who was also an active solicitor on behalf of Local No. 2532, brought
some membership application cards into the grinding room and left
them there. Foreman Anderson left before, and Kenneth left upon
the completion of the speech. Immediately thereafter the applica-
tion cards were circulated among persons in the audience. Although
Anderson observed Hinckle bring the cards into the grinding room,
and therefore must have known that membership solicitation on be-
half of Local No. 2532 would take place on the respondent's property
in conjunction with McIntosh's speech, he made no effort to forestall
such solicitation. If any employees had any doubts with respect to
the purport of McIntosh's speech, those doubts must have been dis-
pelled when the distribution of Local No. 2532 membership cards
followed immediately after his speech and upon company property.
It will be recalled that in his speech Kenneth McIntosh cast doubts
on whether or not the respondent would reopen the planing-mill
department. In this connection Kenneth testified that "we were
not ready for it at that time. The market conditions and the logs
we were cutting, nothing led us to believe it would be feasible for us
to open up that side of the mill." The planing mill, however, com-
menced operations on April 25, only 7 days after Kenneth McIntosh's
talk. The record does not show any uncontemplated change in
market or other conditions during this interval that would suddenly
persuade the respondent to reopen the planing-mill department.
WEST OREGON LUMBER COMPANY 17
The reasonable inference is that on April 18 the respondent already
contemplated renewing operations in the planing mill. Kenneth
McIntosh, therefore, had an immediate motive for enrolling the plan-
ing-mill employees into Local No. 2532. He wanter them to join so
that the respondent could reopen the planing-mill department without
incurring opposition from Local No. 2532.
The record discloses additional credible testimony throwing light
on Kenneth McIntosh's activity at this time. He exhibited to James
Park, an employee, a letter of resignation from Local No. 3 signed
by Joe Chapo, an employee, and asked Park in substance whether
he "would do the same."
Kenneth,McIntosh also questioned William Theis about his union
affiliation. He asked Theis in substance whether Theis would not
"be better off under the A. F. of L." Theis replied he would not,
and McIntosh "wanted to know why." During the conversation
McIntosh made several remarks from which Theis understood that
he would not be reinstated unless he joined Local No. 2532. Theis
asked whether lie understood McIntosh correctly and McIntosh re-
plied substantially as follows : "I wouldn't make a statement of that
kind, but there are some of the men that are never going to get back
and you may be one of them." We find that Kenneth McIntosh's
statements to Theis constituted a threat that he would be denied
reinstatement if he did not accept membership in Local No. 2532.
On the witness stand, a number of supervisory employees denied
that they solicited members for Local No.,.2532 after they returned
to the pay roll on acid= after April 7. The following considerations
preclude us from giving substantial weight to these denials. Many
of them were vague, general, and pro forma. The record contains
much credible, mutally corroborative, and in some instances undenied,
testimony which conflicts with these denials. Moreover since the
foremen admittedly engaged in widespread solicitation between
April 1 and April 7 it is unlikely that they would not continue
such activity thereafter. The motives for such activity did not cease
after April 7. Furthermore, the Mclntoshes inspired this solicitation
by the posted letter prior to the shut-down and the respondent's
manifest policy after April 7 was continued aid to Local. No:'2532.
The reasonable inference therefore is that the supervisory employees
would continue to execute the respondent's policy. The record con-
vinces us that the respondent's supervisory employees engaged in
interference, restraint, and coercion, after April 7, 1938, and we
so find. Illustrative thereof are the following incidents established
by the credible evidence.
.On April 11 Roy Colglazier, a member of Local No. 3, applied
to Wilkinson, superintendent of the plant and in charge of reinstate-
1s DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments ; for reinstatement. Wilkinson , in the words of Colgiazier,
"told me if I would sign up with the A. F. of L., I would go back
to work." Colglazier stated that he would not join. He has never
received reinstatement.
Sometime after the plant reopened Carl Engbrecht asked Gal-
lagher, yard foreman and a participant in the selection of persons
to be reinstated, "whether there .was going . to be any work." Gal-
lagher replied there was "nothing doing, " although he agreed that
business would be "picking up." Engbrecht "stalled around" the
plant during the morning and finally asked Gallagher whether he
would be reinstated if he joined Local No. 2532. Gallagher replied
in the affirmative. Engbrecht signed an application card that day
and on the following day he so reported to Gallagher . Pursuant to
Gallagher's direction, Engbrecht reported to Wilkinson that he had
"signed up" and Wilkinson replied, "All right. " Gallagher had
asked Engbrecht whether he was "going up to the Labor Temple
Friday night 'to be obligated into the lodge." Engbrecht stated to
Gallagher that he so intended , and he did appear at the ^ Labor
.Temple. According to Engbrecht , Gallagher "was up there to see
that those fellows did get obligated ." • Engbrecht was reinstated
within a few days after he joined . Local No. 2532.
Dennis McKay, sawmill foreman, resumed work when the plant
reopened on April 7 on a restricted basis. On April .8 Richard
Symons, a member of Local No. 3, applied to McKay for reinstate-
ment. In Symons' words, McKay "told me the only thing I could
do if I wanted to go back to work was to sign the A . F. of L. card,
and he said that he had them there, but he couldn't sign me himself
during working hours."
John Anderson , planing-mill foreman, solicited Henry Snider, a
member of Local No. 3, to join Local No. 2532 twice during the shut-
down of March-April 1938. Upon the reopening of the plant,
Snider applied to Anderson ' for reinstatement: Anderson replied :
"You know what the trouble is." Snider has never been reinstated.
During the shut-down Paul La.nsberry, millwright foreman, had
solicited R. L. Bell , a member of Local No. 3, to join Local No. 2532.
When the plant reopened , Bell applied to Lansberry for reinstate-
ment. Lansberry replied : "Well , you see what the rest of the boys
have done ." Lansberry told Bell that if he would join the A.. F. of L.
he could work on the day crew.
During the shut-down , Vito Demarinis had signed an application
card for membership in Local No . 2532 ' at the request of Gallagher
but he had not been notified to return to work .- when the plant re-
opened. Shortly thereafter Demarinis applied to -Gallagher for
reinstatement. Gallagher told him : "If you want to work , you have
WEST OREGON LIMIER, COMPANY I9
got to go down and be initiated." He was reinstated the day. after
he accepted the obligations of membership in Local No. 2532.
Leslie Carter applied. to the superintendent for work but he was
not reinstated. At the Labor Temple he was informed that if he
accepted membership in Local No. 2532 on the following Friday
night he would be reinstated on the Monday thereafter. Carter
"took the obligation" that Friday night. The following day he in-
formed Foreman Anderson that he was now "a full-fledged" member
of Local No. 2532 and Anderson replied that Anderson knew he was.
Anderson also informed him that he could return to work that
Monday and he did.
. About the beginning of May, Anderson told Jack Williams that
if he had "any hopes" of being reinstated he would "have to go over
to the Labor Temple."
The following incidents also occurred subsequent to the reopening
of the plant. Harry Duncan, yard foreman,' and Frank Onishi, greeln-
chain boss, told Fred Kokubu that he, would be reinstated if he
joined Local No. 2532. Gallagher resumed work on April 7, and
thereafter he solicited Mike Kovach to join Local No. 2532. After
the plant reopened Gallagher and Duncan asked Kohachi Itoyama
to join Local No. 2532. Delbert Bennett became foreman of the
green-lumber sorting department on April 20, 1938. Thereafter Earl
Johnson asked Bennett whether he had to procure an A. F. of L.
button before he could be reinstated. Bennett replied : "I wouldn't
tell you that, but you can see who is working and draw your own
conclusions."
When the plant closed down on March 18, 1938, Saki Hokamura
was a member of Local No. 3. A few days before the reopening of
April 11, Hisakichi Koike told him that he would have to join Local
No. 2532. He signed an A. F. of L. card and on April 11 he was
reinstated to his position as a chain puller. On the following day.
April 12, Hokamura rejoined Local No. 3. Thereupon Frank Onishi_
discharged him, giving as the reason Hokamura's reahiliation with
Local No. 3.
On April 19, 1938, the respondent reinstated George Jacobs, a,
member of Local No. 3. On the following day, A. J. ("Red")
Aldridge 5 and F. R. Hinkle, employees of the respondent, solicited
memberships for Local No. 2532 in the plant during working hours..
They asked Jacobs to join Local No. 2532 but he refused to do so.
After leaving Jacobs, Hinckle and Aldridge approached Foreman
Anderson and spoke to him for about half an hour. The following
day, April 21, Anderson notified Jacobs that he had received orders.
from the office to lay Jacobs off. On the following Monday, April
In the transcript his name is sometimes misspelled Aldrich.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I
25, Jacobs applied to Foreman Bennett for reinstatement. Bennett
exhibited a list of names to Jacobs and stated, "they are all A. F. of 11.
on there but one." The following Monday Jacobs again applied to
Bennett for reinstatement. Bennett told him : "You know as well
as I do why you are not getting a job."
The one person on the list exhibited by Bennett to Jacobs on April
25, who was not affiliated with Local No. 2532, was identified by
Jacobs as "Tony." According to Jacobs, "Tony went to work and
about a half hour after he came off the job too;" that is, he was dis-
charged. The record reveals that this Tony was Tony Kitrina, a
member of Local. No. 3., On the day his department opened Kitrina
applied to Bennett- for work and he was .reinstated. He' was dis-
charged at the end of half an hour. In the words of Kitrina, Su-
perintendent Wilkinson had told Bennett "that if he [sic] didn't sign
over to A. F. of L., he would send me home." The respondent rein-
stated John Kostrba to Kitrina's position. Kostrba had become a
member of Local No. 2532 prior to such reinstatement.
In May and June 1938 Local No. 2532 circulated petitions for.
the signature of employees of the respondent. These petitions were
addressed to the National Labor Relations Board. According to
these petitions, the signers purported to revoke their affiliation with
Local No. 3 and to certify their affiliation with Local No. 2532.
These petitions continued and reinforced the interference, re-
straint, and coercion, by the respondent's supervisory employees,
favorable. to Local No. 2532 and prejudicial to Local No. 3. They
were circulated throughout the plant during working hours by
representatives of Local No. 2532. Superintendent Wilkinson and
Foreman Gallagher authorized such use of the respondent's property.
In view of the other acts of interference, restraint, and coercion by
the respondent and its supervisory - employees, hereinabove men-
tioned, such authorized use of company time and property for
organizational purposes made unmistakable the respondent's deter-
mination to coerce its employees into abandoning Local No. 3 and
into affiliating with Local No. 2532. Moreover, it is inconceivable
that the supervisory employees were not present when the persons
circulating the petitions asked employees to sign, since the petitions
were circulated throughout the plant. Their presence at this time
and their membership in Local, No. 2532 necessarily coerced em-
ployees into signing the petitions because employees could not help
but feel that their failure to sign would become ' known to the
respondent and thereby subject them to discrimination for not carry-
ing out. the respondent's clearly manifested will.
Furthermore, the evidence shows that Gallagher actively aided
representatives of Local No. 2532 in procuring signatures to the
petitions. O. H. Hill, business agent of Local. No. 2532; "Red". Ald=
WEST OREGO1\71 LUMBER COMPANY 21
ridge, and F. R. Hinckle , asked Carl Engbrecht and his partner,
identified as "Jim,' ' to sign one of the petitions while the latter
two were at work. In order "to get rid of" the solicitors, Eng-
brecht and his partner stated that they "would think it over." About
15 minutes later Hill returned with Gallagher . Hill asked : "Well,
have you fellows decided yet ?" Gallagher stated: "Jim, it is just for
the bargaining agency." Jim replied : "Yes, I know it is. Well,
I will sign the damn thing. " Accordingly , as Engbrecht explained
on the witness stand, "there was nothing for me to do but to sign
it. too."
On the last 2 days of the first hearing in this case , June 29 and 30,
1938, many witnesses testified that although they had signed the
petitions circulated by Local No . 2532; nevertheless they wished to
be represented by Local No . 3. One such employee was named
N. P. Nielson . In the supplementary hearing he testified , and we
find, that within a few days after the close of the first hearing Fore-
man Bennett made substantially the following statement to a group
of employees, including Nielson :
Q. . . . did anyone from the management of the West Ore-
gon plant tell you that you had to belong to any union in order
to have a job?
A. Well, it was brought up in this way ... we were sitting
talking things over, and Mr . Bennett came out and sat with us,
and he made the statement that if any of us didn 't change our
minds, there would be a lot of new faces around there.
The respondent did not call Bennett to the stand to explain this
statement . This statement of Bennett further establishes that the
respondent was engaged in coercing its employees into transferring
their affiliation from Local No. 3 to Local No. 2532.
Obviously , under the circumstances disclosed by this case , it would
have been futile for Local No. 3 to apply to the respondent for per-
mission to circulate similar petitions on company property and on
company time.
On July 6, 1938 , the respondent executed a contract with Local
No. 2532. We discuss this contract below and the circumstances
leading to its execution.
4. Concluding findings
The acts and statements of A. E. and Kenneth McIntosh and of
Superintendent Wilkinson , hereinabove set forth , are, of course,
attributable to the respondent.
From the facts we have found above it is clear that Fred Gallagher,
Harry Duncan, John Anderson , Dennis McKay, Paul Lansberry,
Delbert Bennett, Hisakichi Koike, and Frank Onishi were supervisory
28.30,31-41-vol . 20--7,
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees at the time they engaged in the statements and acts herein-
above set forth, that they represented management, and that these
statements and acts were attributable to the respondent.
The respondent in fact admits that the supervisory employees
known 'as foremen constitute a part of management. Thus A. E.
McIntosh testified as follows :
I have always argued with our plant committees and with the
officials of the union that they [foremen] were in such close
connection with the management that, for the sake of the union
itself, I have always told them that I thought they should
exclude foremen.
The Mclntoshes and other witnesses for the respondent testified
that A. E. and Kenneth McIntosh instructed foremen not to engage
in union solicitation. Such testimony by the Mclntoshes also con-
stitutes a clear recognition on their part that such a foreman repre-
sents management and that his activity on behalf of one of two rival
unions reveals to employees, and coerces the employees into adopt-
ing, the employer's selection of a collective bargaining representative
for them, thereby preventing their exercise of rights guaranteed in
Section 7.
Thus, even if we assume that instructions were given to the fore-
men not to engage ih union solicitation the crucial fact remains that
the foremen represented and acted for the respondent." Foremen
are company representatives as well. The respondent is responsible
for the acts of its representatives, for the effect on employees of
coercive acts of foremen is telling, whether or not the acts have
specific sanction from above. To remove the effect of such discrimi-
natory tactics; vigorous remedial measures, clearly brought to the
attention of the employees, are obviously required. We see in this
record no evidence of.any such effective action to make clear to the
employees that the foremen were not acting for the respondent and
that the respondent would preclude the foremen from wielding their
power against employees who refused to accede to their solicitation.
It does not even appear that the fact that such instructions were
given to the foremen was communicated to the employees. On the
other hand, the record does show that supervisory' employees did
wield management power to the detriment of those who refused to
affiliate with Local No. 2532. Finally, the statements and acts of
A. E. and Kenneth McIntosh and of Wilkinson made clear to the
supervisory employees that the respondent had established a policy
of assistance to Local No. 2532, thereby superseding, in effect, the
asserted instructions.
6 Cf. Swift & Co. V. National Labor Relations Board, 106 F. (2d) 87 (C. C. A. 10th).
WEST OREGON LUMBER COMPANY 23'
As we have noted, the foremen who participated in the member-
ship campaign during the first week in April were not receiving any
wages at that time. It is clear, however, that they remained man-
.agement representatives during this period. Both they and the
respondent ' contemplated that these foremen would return to their
usual positions on the pay roll upon the resumption of operations.
Moreover, there is nothing in the record to show that the employees
ceased to consider the foremen as supervisory employees simply be-
cause the foremen were not receiving any salary. Finally, as we
have already found, the respondent invited the foremen's member-
ship campaign by its posted notice.
Although Koike, Onishi, and the foremen were management repre-
sentatives, they were eligible for membership in Local No. 3 and
Local No. 2532. We hold, nevertheless, that their statements and
acts, hereinabove set forth, constitute unfair labor practices by the
respondent because these statements and acts were inspired by the
policy of assistance and discrimination established by the Mclntoshes
and by Wilkinson, and we so hold; further, because union rules can-
not sanction management interference, restraint, and coercion. The
Act was directed against interference by management with the exer-
cise by employees of rights guaranteed in Section T. Since by Section
1 of the Act it is the policy of the United States to protect commerce
through the guarantees. in Section 7 and through the prohibitions in
Section 8, those guarantees and those prohibitions cannot be set aside
by the rules of private organizations.'
In Matter of Tennessee Copper Company 8 we answered a similar
question as follows:
Membership of supervisory employees in a labor organization in-
volved in a controversy over representation cannot confer on
such employees a privilege to interfere, nor can the immunity
guaranteed employees by the Act be impaired or diminished by
the membership rules of any labor organization. The employees'
right to a choice free from employer interference is absolute.
Supervisory employees, although eligible for membership in com-
peting labor organizations, are forbidden by the Act, in their
capacity as the employer's agents, to interfere in the selection of
employee bargaining representatives
In a. prior Decision 9 and in the present Decision (Section III C 1)
we find that a unit of the respondent's plant and production em-
ployees, including foremen, is appropriate for the purposes of collec-
' Compare Matter of Ingram Manufacturing Company and Textile Workers Organizing,
Committee, 5 N. L. R. B. 908.
8 Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21,.
8 N. L. R. B. 575, 9 N. L. R. B. 117.
9 Supra , footnote 2, Matters of Jones Lumber Company, etc ., 3 N. L. R. B. 855.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining within the meaning of Section 9 (b) of the Act.
Such finding does not constitute a determination that foremen do not
speak and act for management or that representatives of manage-
ment can engage in activities not permitted to management under
Sections 7 and 8 of the Act. As we note below our finding with
respect to the appropriate unit for the respondent's employees is
based upon our usual practice of adopting the apparent desires of the
parties. We therefore see no reason for altering our conclusion with
respect to the respondent's responsibility for the acts and statements
of its representatives.
We find that the acts and statements of the management represen-
tatives set forth in Section III B 1, 2, and 3 are attributable to the
respondent.
The respondent's solicitation on behalf of Local No. 2532 on or
about February 8, 1938, through Koike and Onishi, and through the
use of its property, constituted interference, restraint, and coercion.
Its coercive effect was intensified by the fact that it was based on the
respondent's announced position that the respondent could not oper-
ate unless the boycott was eliminated, and further by the fact that
March's solicitation occurred during a stoppage of machinery sanc-
tioned by the superintendent. The respondent did not counteract
this assistance to Local No. 2532. On the contrary, it increased this
assistance, to the detriment of Local No. 3, in the following months.
The respondent's course of conduct after the plant reopened on
March 7 reveals a studied and finally successful effort to coerce the
employees into joining Local No. 2532.
The respondent desired this change in union affiliation and was
intent on procuring it by the use of some method like the letter to
the employees which the respondent issued on or about March 16.
This posted notice in substance threatened a shut-down unless the
employees reaffiliated with Local No. 2532. It also invited the fore-
men to effectuate the respondent's purpose. When the change in
affiliation did not materialize the respondent shut the plant. The
respondent's motive, its determination, and the posted letter compel
the conclusion that by the shut-down the respondent proposed to
compel its employees to accept membership in Local No. 2532.
Subsequent events corroborate our conclusion that the shut-down
commencing March-18 was an integral part of the respondent's un-
lawful plan to aid Local No. 2532.
The foremen, acting upon the invitation extended in the posted
letter, exploited and developed the coercion inherent in the threat
to close and in the consequent shut-down, by systematically solicit-
ing the employees and by warning that the plant could not reopen
until the membership campaign of Local No. 2532 was successful.
WEST OREGON LUMBER COMPANY' 25
These efforts of the respondent induced a number of persons to
accept membership in Local No. 2532. Accordingly the respondent
resumed operations and reinstated persons upon the basis of union
affiliation, thereby further encouraging membership in Local No.
2532 and discouraging membership in Local No. 3.
The respondent continued to insist that the operation of the plant
depended upon the employees becoming affiliated with Local No.
2532. By solicitation, threat, and the use, of its property, the re-
spondent engaged in further interference, restraint, and coercion,
assisting Local No. 2532 to the disadvantage of Local No. 3.
Although we deplore the dual union dispute and the dilemma in
which it placed the respondent, we cannot for that reason close our
eyes to the fact that the respondent sought to escape the dilemma
by taking action which the act forbids both in provision and policy.
The Circuit Court of Appeals for the Ninth Circuit enforced our
order in a. similar case and stated the following:
The respondent further contends that it was necessary to make
the, transfer, and thus engage in the unfair labor practice,
because its business would otherwise be disrupted, and therefore,
under all the facts, the transfer was excusable. We think, how-
ever, the act is controlling. The act prohibits unfair labor prac-
tices in all cases. It permits no immunity because the employer
may think that the exigencies of the moment require infraction
of the statute. In fact, nothing in the statute permits or justi-
fies its violation by the employer.10
The respondent appears to claim that the effectiveness of the boy-
cott prevented further operation of the plant after March 18. The
record contains much evidence with respect to whether or not the
San Francisco boycott affected the respondent, and as we noted above
the boycott did interfere substantially with the respondent's business
in San Francisco." The record shows, however, that the respondent
'°National Labor Relations Board v. Star Publishing Company, 97 F. (2d) 465
(C. C. A. 9th).
11 Of the 2 , 758,365 board feet of lumber arriving in San Francisco between January 1
and March 18, 1938, including lumber sent on speculation and lumber sold in advance of
shipment, the respondent failed to sell or to complete delivery on 1,019,564 board feet, or
37 per cent , between January 1 and March 18, 1938.
The figure of 1,847 , 269 board feet , given by the respondent as remaining on the docks
in San Francisco , includes 76,465 board feet which arrived in San Francisco in 1937 and
with respect to which no claim is made that the boycott prevented its sale . The figure
of 1,847,269 board feet also includes at least 7-51.240 board feet which were shipped on
the 6arbara C. in advance of sale and which arrived at San Francisco between March
19 and March 21, that is , after the plant closed . Under normal conditions the respondent
"turns over " stock , which is shipped to San Francisco in advance of sale , in about 30 days.
The respondent's witnesses estimated that about 40 per cent of the lumber shipped to
January 1 and April 11, 1938.
The respondent's witnesses estimated that about 40 per cent of the lumber shipped to
San Francisco is shipped in advance of sale, that is, on speculation . The record indicates
that the percentage of lumber shipped to San Francisco in advance of sale during the
'26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have operated beyond March 18. Thus at the conference
which occurred on March 11 or on March 15, Kenneth McIntosh
made substantially the following statement as testified to by
George Brown :
A.... I asked him how'much longer he could keep his mill in
operation with the orders that he had on hand at that time.
Q. And what was his reply to that?
A. He replied that he could run possibly for two weeks on
his present orders, shipping this lumber to southern California
and the Los Angeles areas.
Further, from figures given by A. E. and Kenneth McIntosh on the
witness stand, with respect to the respondent's unfilled orders on
March 15 and with respect to the respondent's average daily produc-
tion at that time, it appears that the respondent would have operated
about 8 working days beyond March 15, or 5 working days beyond
the date of the shut-down, filling orders which were already on
band .12
Moreover, were it true that the respondent could not operate the
plant after March 18, the evidence would still warrant but one inter-
pretation; namely, the respondent used the threat of a shut-down,
the shut-down commencing March 18, and the subsequent reopening,
as instruments for assisting Local No. 2532 to recover its position
with the respondent's employees. By thus seeking to thwart Local
No. 3, and to aid Local No. 2532, the respondent committed an unfair
labor practice regardless of its ulterior motives, whether or not they
period of the boycott was substantially greater than 40 per cent . Thus the fourth cargo
in this period , that carried by the Barbara C., consisted of 1,095 ,329 board feet of which
at least 751 ,240 board feet, or close to 70 per cent , was shipped on speculation.
The respondent 's witnesses estimated that of the 1,847 ,269 board feet remaining unsold
or undelivered on the docks in San Francisco prior to the end of the boycott , the re-
spondent sold but could not deliver about 400 ,000 board feet. In other words, of the
amount which remained unsold or sold but undelivered , during the period of the boycott,
about 78 per cent represented unsold lumber, and only about 22 per cent represented sold
but undelivered lumber.
The distinction between unsold lumber and lumber sold but undelivered is important
on this record since the latter may be ascribed directly to boycott activity whereas the.
former may have been due to any number of factors.
Since most of the lumber remaining on the docks in San Francisco during the period'
of the boycott was lumber which was not sold , it follows that the extent to which the
boycott affected the respondent 's business in San Francisco and the net effect thereof on
the respondent 's total business cannot be measured because of the presence of other
factors including the general depression in the lumber industry, completion by the re-
spondent of its California sales outlet only late in 1937, changes in the respondent ' s sales
price for lumber, and the notable flexibility of demand for lumber in relation to the sales
price.
12 A. E. McIntosh testified that the respondent had orders for a minimum of 2,500,000
board feet of lumber and a maximum of 3,500 , 000 board feet which remained unfilled.
on March 15 . The average of 2,500 ,000 and 3,500 ,000 is 3,000 , 000. Estimates given by
A. E. and Kenneth McIntosh as to the respondent 's daily production at this time varied
from 300,000 board feet to 425,000 board feet the average of 300,000 and 425,000 is 362,500.
If.the respondent produced 362,500 board feet a day and the respondent had orders for
3,000,000 board feet, then the respondent would have filled the orders in approximately
8 working days.
WES'T OREGON LUMBER COMPANY 27 \
included a desire to eliminate the boycott. That a determination to
thwart Local No. 3 and to aid Local No. 2532 may not have been the
sole incentive for the shut-down is equally immaterial. 13 If the
boycott rendered operation of the plant futile, the respondent was
privileged to close, but not to use any such shut-down to propel the
employees into a labor organization which they in fact had previously
rejected. The record compels the conclusion that the respondent
used the shut-down as a discriminatory weapon.
Accordingly, we find that by the shut-down commencing March 18,
1938, the respondent discriminated in regard to the hire and tenure
and terms and conditions of employment of all the employees in its
employment on that date, thereby discouraging membership in Local
No. 3 and encouraging membership in Local No. 2532. We find
further that by the stoppage of February 8, 1938; the shut-down
commencing March 18, 1938; the solicitation of Koike and Onishi on
and about February 8, 1938, the statements of Kenneth McIntosh on
or about March 11, 1938; the notice to the employees on or about
March 16, 1938; the solicitation by the foremen on and off the re-
spondent's property on and after April 1, 1938; A. E. McIntosh's
statements to the representatives of Local No. 3 on or about April 11,
1938; Kenneth McIntosh's statements to the planing-mill employees
on or about April 18, 1938, and the solicitation in connection there-
with; Kenneth McIntosh's statements and acts with respect to James
Park and William Theis; the statements and acts of the respondent's
supervisory employees after April 7, 1938; the circulation of the peti-
tions on the respondent's property in May and June 1938, and the
statements by supervisory, employees in connection therewith ; and
the threats and discrimination involved in these statements and acts
of, or attributable to, the respondent, the respondent has interfered
with, restrained, and coerced its employees in the exercise of the right
to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining, as guaranteed in Section 7 of the Act.
C. The refusal to bargain collectively with Local No. 3; exclusive
recognition of Local No. 25372; the closed-shop contract
1. The appropriate unit
On September 1, 1937, a petition was filed on behalf of Local No.
3 with the Regional Director for the Nineteenth Region, alleging
13 See National Labor Relations Board v. Stackpole Carbon Company, 105 F . (2d) 167
(C. C. A. 3d), cert. den'd , 308, U. S. 605; National Labor Relations Board v. Remington-
Rand, Inc., 94 F. (2d) 862 (C. C. A. 2d ), cert. den'd 304 U. S. 576 , 585; Matter of
Borden Mills , Inc. and Textile Workers Organizing Committee , 13 N. L. R. B. 459.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that questions affecting commerce had arisen concerning the repre-
sentation of employees of the respondent, and requesting the Board
to conduct an investigation pursuant to Section 9 (c) of the Act.
On October 21, 1937, after hearing upon due notice, the Board
issued its Decision 14 and certified Local No. 3 as the exclusive repre-
sentative of all the plant and production employees of the re-
spondent, including foremen, but excluding office employees and.
supervisory employees above the rank of foremen.
In the present cases Local No. 2532 is satisfied with the unit
which we designated in our Decision dated October 21, 1937. Local
No. 3 does not request that we designate a different unit for the
purposes of the complaint case. At the hearings, the respondent did
not assert any interest in the scope of the unit.
Accordingly, we find that the respondent's plant and production
employees including foremen but excluding office employees and
supervisory employees above the rank of foremen constitute a unit
appropriate for the purposes of collective bargaining and that said
unit insures to the employees of the respondent the full benefit of
their rights to self-organization and collective bargaining and other-
wise effectuates the policies of the Act.
2. Representation by Local No. 3 of the majority in the
appropriate unit
In our Decision and Certification dated October 21, 1937, we found
that Local No. 3 was the duly designated representative of the ma-
jority of the respondent's employees in the appropriate unit, and
pursuant to Section 9 (a) of the Act, the exclusive representative of
all the employees in such unit for the purposes of collective bargain-
ing in respect to rates of pay, wages, hours of employment, and
other conditions of employment.
Since a "state of affairs once shown to exist is presumed to continue
until the contrary is shown," 15 Local No. 3 was the exclusive repre-
sentative of the defined unit for collective bargaining purposes at all
times after October 21, 1937, unless it is shown that Local No. 3 lost
this status.16 The question is raised by the record whether or not
Local No. 3 lost this status on or about and after May 11, 1938.
The respondent produced a petition dated May 11, 1938, which con-
tains about 180 signatures. The petition recites that the signers
constitute a majority of the respondent's employees in a defined unit,
that they designate Local No. 2532 as their bargaining agent, and that
14 Matters of Jones Lumber Company , etc., supra , footnote 2, 3 N. L. R. B. 855.
15 National Labor Relation Board v. National Motor Bearing Company, 105 F. ( 2d) 652
(C. C. A. 9th).
11 In addition to our Decision and Certification dated October 21, 1937 , other evidence
in the record shows that Local No . 3 was designated by a majority in March 1938.
WEST OR .EiGO'N LUMBER COMPANY 29
they rescind their affiliation with Local No. 3. Local No. 2532 pro-
duced a similar petition dated June 1, 1938, and containing 12 sig-
natures. Local No. 2532 also produced about 175 signed affidavits
dated at various times between June 21 and July 8, 1938, which state
in substance that the signers designate Local No. 2532 of their "own
free will," as their bargaining agent. Many persons who signed one
of the petitions also signed an affidavit. We must consider whether
or not these petitions and affidavits constitute genuine revocations of
the authority of Local No. 3 and genuine designations of Local No.
2532.
As we have found above in Section III B, the respondent engaged
in unfair labor practices on or about February 8, 1938,' and after
March 7, 1938. The necessary effect of this course of conduct was to
coerce employees into joining Local No. 2532, and into signing the
petitions and affidavits. 17 Indeed, as we have already seen the peti-
tions were circulated on the respondent's property with the explicit
approval and assistance of supervisory employees. Moreover, the
record contains much credible testimony directly to the effect that the
witnesses joined Local No. 2532 and signed the petitions because of
given statements, actions, and conditions, which are an integral part,
or a clear consequence, of the respondent's unfair labor practices.
Thus N. P. Nielson was a member of Local No. 3 at the time of the
shut-down commencing March 18. Following the shut-down of
March 18 he understood that the respondent would not reopen the
plant unless the employees joined Local No. 2532. When the plant
reopened he understood that the planing mill would not reopen until
a majority of that department's crew became affiliated with Local No.
2532. Toward the end of April he concluded that he could not be
reinstated unless he joined Local No. 2532. Nielson testified in this
connection as follows :
Q. . . . Isn't it a fact, Mr. Nielson, that the impression that
you got that you had to belong to the A. F. of L. Union in order
to hold a job was gained by you in the initial or casual conversa-
tions that you had with members of your own crew?
A. No, it was not covered by casual conversation, be-
cause . . . the only way I could get back [to work, about May
1] was after I signed up. The job was running, and the other
fellows that had returned had signed up; and I was down there
several days [i. e., applied several times] and I couldn't get on.
I went to the Labor Temple [headquarters of Local No. 2532]
17 From the record it is clear that at the time the petitions and affidavits were signed,
employees of the respondent believed that membership in Local No. 2532 already was, or
soon would be, a condition of employment. The inescapable conclusion is that the em-
ployes flocked to sign the petitions and affidavits in order to be sure that they filled this
condition of employment . This belief of the employees and their consequent action must
be attributed on this record to the respondent's unfair labor practices.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on Friday night [to accept membership] and on [the following]
Monday morning I got my job back. There was no question
about it.
Nielson testified further that he did not join Local No. 2532 at this
time of his own free will, and that he was coerced because he
"couldn't go to work without joining." Shortly after he resumed
work he was solicited by Hinckle, a fellow employee, to sign a peti-
tion designating Local No. 2532 as his bargaining agent. The solici-
tation occurred on company property. Nielson and Hinckle en-
gaged in substantially the following ; conversation :
A. . . . He [Hinckle] told me this : "Do you want the
A. F. of L. to be your bargaining agency?" I [Nielson] said,
"No, not intentionally." He said, "You want to work, don't
you?" I said, "Yes." Then he said, "You had better sign it."
Nielson signed the petition in order to retain his position.
Henry Roza was a member of Local No. 3 on March 18, the day
the plant closed. A few days before the plant reopened he joined
Local No. 2532 pursuant to the solicitation of Foreman McKay.
Roza testified in this connection that he "just joined to lift the boy-
cott and get to work," and that he "was forced to join . . . they
[McKay and another] come out after me to sign it." Sometime
after Roza resumed work, he and a number of other employees were
eating their lunch in the grinding room at the plant when Hinckle
and Hill approached one of the persons in the group and asked him
to sign the petition. Upon the refusal of this employee to sign the
petition Hinckle and Hill wrote his name down "for some kind of
reason or other." This induced Roza to sign the petition because
he was.afraid that he might lose his position if he did not sign it.
Carl Engbrecht was a member of Local No. 3 at the time of the
shut-down commencing March 18. We have described above the
coercive circumstances under which he joined Local No. 2532 and
under which he signed the petition. He testified that he did not
sign the petition voluntarily because of
the way they went about it. Because the way we had to sign
up for the A. F. of L. to get work, we just figured that we had
to sign that [the petition] too in order to keep working.
Q. . . . Did anybody tell you that?
A. No; they didn't tell me that; no. They didn't come right
out and tell me, but when we were asked by the foremen the
second time, we figured out just about what was going to happen.
Sam Lane was a member of Local No. 3 at the time of the shut-
down commencing March 18. When the plant reopened Lane un-
derstood that only members of Local No. 2532 were being reemployed.
WEST OREGON LUMBER COMPANY 31
He came to the plant to inquire with respect to his reinstatement
and he asked Foreman Anderson whether he had to join Local No.
2532. Anderson's reply in substance follows : "Well, I can't say
that" because "it will put me on the spot" but "you see what the
rest of the fellows are doing." Accordingly, when the planing-mill
department reopened, he "figured" that he would not be reinstated
unless he joined Local No. 2532; he joined, and he was reinstated.
Shortly thereafter, during his lunch period, he signed the petition
because he was "afraid" of losing his position unless he did sign it.
The testimony of the witnesses named in the footnote is also to
the same effect.19
Nielson, Roza, Engbrecht, and Lane, and the employees named in
the last footnote were among a group of about 45 signers of petitions
who were called to the stand by the Board on the last 2 days of the
first hearing in these cases. There is nothing in the record to show
that these 45 employees are not a fair sample of the signers of the
petitions which were circulated by Local No. 2532. A substantial
majority of these 45 witnesses testified that they wished to be repre-
sented by Local No. 3, not by Local No. 2532, at-the time they signed
the petitions. Almost all of these 45 testified they wished to be
represented by Local No. 3, at the time of their testimony.
These witnesses, who testified that the petitions did not manifest
their uncoerced choice, gave such testimony during the period in
which the affidavits were signed. Many of the witnesses who so tes-
tified on June 29 and June 30 signed affidavits within a few days
thereafter. Nothing had been done to dissipate the effects of the
respondent's unfair labor practices. The record affords no reason
for believing that the affidavits represent a free and genuine choice
any more than do the petitions.
There is'affirmative evidence to show the contrary. The affidavits
were produced by Local No. 2532 at the supplementary hearing.
Only two affiants, Nielson and Roza, testified with respect to their
affidavits.19 Nielson signed. his affidavit because the respondent had
already executed the closed-shop contract. Roza signed his affidavit,
is Mike Minto , Emilios Rosins , Jack Williams, George Hoekstra, James Parks, Melvin
Lewis, Frank Parks, C. B. Mitchell, Vito Demarinis, Thorsten Hoglund, John Sjoholm,
John Kostroba. Jr., L. J. Callison, Frank Mikesh, John Walyer, Matthew Pfeifer, Joe
Pfeifer, Harry Cowles, Martin Lien, Axel Johnson, Mat Hobigal, ( Hobigal ), 0. M. Moore,
Adam Vajda, Vincent Uhlar, William Somnerfelt, Pete Bennett, Joe Kovach.
19 They were both called by Local No. 3. It will be recalled that they were among the
witnesses called by the Board on June 29 and June 30. The affidavits identified by the
notary public who took the acknowledgments were offered by Local No . 2532 and admitted
into evidence by the Trial Examiner over the objection of Local No. 3. The affidavits
were properly admitted for the limited purpose of showing the ' affiants' purported designa-
tion of Local No. 2532. These affidavits recited in substance that the selection of Local
No. 2532 was voluntary. There is no showing, however , that the recitals in the affidavits
were admitted in lieu of testimony . The Board does not, in the absence of special cir-
cumstances , consider testimonial statements in affidavit form. Assuming , however, con-
trary to fact, that affiants testified that they designated Local No. 2532 voluntarily, such
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on July 1, because of his belief `that the plant would 'not run" with-
out a. Local No. 2532 majority.
On the present record of interference, restraint, coercion, discrimi-
nation, and the effects thereof, we hold that the petitions and affi-
davits do not constitute valid designations of Local No. 2532 or
genuine rescissions of the authority of Local No. 3. The number of
signatures on these petitions and affidavits registers nothing more
than the success of the respondent's campaign of assistance to Local
No. 2532. The labor organization with whom the employer is obli-
gated to bargain within Section 8 (5) is the one which by Section
9 (a) has been designated by a majority for the purposes of collec-
tive bargaining. Local No. 3 has been thus designated and this
record reveals no genuine withdrawal of such designation. A com-
pany-coerced choice of a labor organization is clearly inoperative.20
It is clear that a company-coerced defection from a. labor organiza-
tion is equally invalid.21 To hold otherwise in this case would be to
permit the respondent to avoid its obligation under Section 8 (5)
by the simple expedient of violating that subsection as well as Sec-
tion 8 (1) and (3). Accordingly, we find that a majority of the
employees in fact wished to be represented by Local No. 3 at all
times after October 21, 1937, and that the contrary has not been
shown.
We find that on, and at all times after, October 21, 1937, Local No.
3 was the duly designated representative of the majority of the re-
spondent's employees in the appropriate unit, and pursuant to Section
9 (a) of the Act, the exclusive representative of all the employees
in such unit for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other conditions of
employment.
3. The refusal to bargain with Local No. 3; exclusive recognition of
Local No. 2532; the closed-shop contract
(a) History
The complaint alleges and the answer denies that the respondent has
refused and continues to refuse to bargain collectively with Local
No. 3.
testimony of itself, no more than any other testimony , would be conclusive ; and where
the record shows, as it does here , that the respondent has engaged in unfair labor prac-
tices and that the effects of such unfair labor practices have not been dissipated, such
testimony deserves little or no weight.
2a Cf. National Labor Relations Board v. Stackpole Carbon Company , 105 F. ( 2d) 167
(C. C. A. 3d), cert. den'd 308 U. S. 605+.
21 Cf. National Labor Relations Board Y. Arthur L. Colten., etc., 105 F . (2d) 179
(C. C. A. 6th) ; National Labor Relations Board v . American Manufacturing Co., 106 F.
( 2d) 61 (C. C. A. 2d).
WEST OREGON LUMBER COMPANY 33
Shortly after we certified Local No. 3, the respondent and a com-
mittee representing Local No. 3 engaged in a series of bargaining con-
ferences, pursuant to the respondent's invitation. Both the respond-
ent and the union committee submitted and discussed written pro-'
posals but a meeting of the minds was not reached. The respondent
presented as its final offer a document hereinafter referred to as
Respondent Exhibit No. 2-B. Local No. 3 rejected this proposal but
did not close the door to further negotiation. Neither did the respond-
ent close the door to further negotiation although it termed Respond-
ent Exhibit No. 2-B its final offer.
These bargaining conferences had taken place during November
and the early part of December 1937. The plant -had. not been in
operation since October 28, 1937. The respondent decided to reopen
the plant, effective December 16, under the conditions of work set
forth in Respondent Exhibit No. 2-B. On December 15 the respond-
ent delivered to Local No. 3 a letter which stated that the respondent
recognized Local No. 3 "as the agency designated under the agree-
ment submitted." 22 In exchange therefor Local No. 3 agreed not to
hinder the return to work of its members who were employed by the
respondent. Local No. 3, however, did not execute or otherwise accept.
Respondent Exhibit No. 2-B. Pursuant to the notice posted by the
respondent, its employees resumed work on December 16, 1937.223
On March 11 or 15, 1938, Local No. 3 met with and submitted to the
respondent a proposed contract coupled with a request for collective
bargaining negotiations. At about the same time Local No. 3 served
similar requests upon a number of other lumber sawmill companies
in the Portland region. At first the lumber companies held a meeting
among themselves and planned to confer separately with Local No. 3.
At their following meeting, however, they decided to participate in
joint negotiations with Local No. 3. The companies appointed a ne-
gotiating committee to deal with a similar committee representing
Local No. 3 and the two committees held their initial joint conference
on March 31. 'The two committees continued to meet in joint negotia-
tions during April and May. The companies' committee was author-
ized to represent the respondent at the conferences 24 and A. E.
McIntosh was an alternate delegate to the companies' committee.
22 The respondent inserted a similar clause in its notice of reopening. The document
referred to as the "agreement submitted " is Respondent Exhibit No . 2--B which the
respondent had submitted to Local No . 3 and which Local No . 3 had rejected.
'a The record contains evidence with respect to the terms of the notice of reopening,
the reaction of union member employees to these terms, and conferences between the
respondent and the plant committee of Local No. 3 concerning these terms . Whether or
not the respondent refused to bargain collectively with Local No. 3 can be determined.
without detailed reference to this evidence.
24 The committee was not authorized to bind the respondent or any of the other com-
panies it represented . The committee of the union was not authorized to bind Local No. 3._
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the collective bargaining demand of Local No. 3 on the
respondent between March 11 and March 15, and during the joint
bargaining conferences in which the respondent participated, the
respondent was engaging in the unfair labor practices which we have
described above in Section III B.
On or about May 11, Local No. 2532 demanded recognition as the
exclusive representative of the respondent's employees. Upon learn.
ing of this demand, A. E. McIntosh made the following announce-
ment :
It looks like as if I will have to break off negotiations with the
C. I. O. and that the A. F. of L. can substitute their claims. It
looks like I will have to begin bargaining with them.
Thus the respondent announced its intention of recognizing Local
No. 2532 as the exclusive collective bargaining agency for the re-
spondent's employees. The evidence shows further that the respond-
ent did recognize Local No. 2532 at this time. Kenneth McIntosh
testified in this connection as follows :
Q... .. Did you at that time enter into negotiations and con-
versations with them as the bargaining agency for your plant?
A. I did.
Q. You did?
A. Yes.
On or about May 13 the respondent withdrew from the joint con-
ferences. The companies' committee informed Local No. 3 that it
was no longer authorized to represent the respondent and A. E.
McIntosh was no longer an alternate member of the committee. By
letter dated May 18, Local No. 3 called the respondent's attention to
the notice which it had received from the companies' committee, re-
quested collective bargaining negotiations with the respondent, recom-
mended May 19 for the initial meeting, and asked to be notified
"immediately of your acceptance or rejection." Kenneth McIntosh
replied by a letter dated May 19, stating that he would refer the
request to A. E. McIntosh upon the latter's return from California
about June 1. Local No. 3 renewed its request by letter dated May
31, and called for an answer by June 2, "stating where these negotia-
tions will take place." A. E. McIntosh, in a letter dated June 2,
referred to "recent developments at this plant including the Labor
Board hearing" and the claim of Local No. 2532 to be the new
collective bargaining agent, then concluded as follows :
Under the circumstances as outlined above, we feel sure that you
will understand and will afford sympathetic consideration to the
quandry, in which we find ourselves. We are taking the liberty
of assuming that you do not wish to add further complications
WEST OREGON LUMBER COMPANY 35
to our already highly involved labor relations; and that upon
more mature consideration you will withdraw your request for
negotiation, at least until such time as circumstances affecting
the relations between this plant and the employees are clarified.
We would appreciate your assurances in this regard.
On June 13, upon additional charges filed by Local No. 3, the Board
amended its complaint to allege a refusal to bargain on and after
December 15, 1937, and May 13, 1938, respectively. The respondent
took no steps to comply with the collective bargaining demand of
Local No. 3.
On June 27, Local No. 2532 requested a collective bargaining con-
ference. Pursuant thereto a meeting was held with the respondent
on June 29. At this conference Local No. 2532 demanded a closed-
shop contract. A. E. McIntosh asked for time in which to consider
the demand. On the following day, June 30, he informed Local No.
2532 that he desired further proof of majority representation.25 4
On July 5 Local No. 2532 began to picket the plant. The plant
did not operate that day or the following day.26 On July 6 in the
morning A. E. McIntosh assured Local No. 3 that he had no inten-
tion of executing any contract with Local No. 2532. That afternoon
he met with Local No. 2532. The negotiations consumed somewhat
under 2 hours. There was no disagreement with respect to the sub-
stance of Local No. 2532's proposed contract. After considering the
proof of majority offered by Local No. 2532,27 and after making some
changes in the union's draft, the respondent executed the contract.
The parties to the agreement as executed are the respondent and
Local No. 2532. By this contract the respondent agreed : (1) to
recognize Local No. 2532 as the exclusive representative of its em-
ployees;" (2) to employ only (a) members in good standing of Local
No. 2532 and (b) persons who agree to become members thereof, who
,are acceptable to Local No. 2532, who are satisfactory to the respondent
and to Local No. 2532 after a reasonable period, and who thereupon
become members of Local No. 2532; and (3) to commence negotiations
expeditiously for the purpose of determining wages, hours of work,
and other conditions of employment. This agreement contains no
other provisions with respect to wages, hours of work, and other
conditions of employment.
25 The proof offered at the conference on June 29 included claimed memberships and the
petitions which were circulated with the assistance of the respondent . We have found
above that these represent the respondent ' s coercion and do not constitute valid proof of
majority ( Section III, C 2).
26 On July 6 Local No. 3 offered its aid to A. E. McIntosh in restarting the plaint. A. E.
McIntosh declined such aid on the ground that it was not feasible'to operate the plant
because of the Carpenters ' picket line.
27 The proof of majority offered by Local No. 2532 at the .Iuly 6 conference included the
petitions and the affidavits . We have found above that these represent the respondent's
coercion and do not constitute valid proof of majority ( Section III, C 2).
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The plant reopened under the contract with Local No. 2532 on
July 7. Local No. 3 established a picket line and secured the as-
sistance of the longshoremen's union. Shortly thereafter Local No.
3 demanded reinstatement for its members against whom the respond-
ent had allegedly discriminated. Local No. 3 also advised the re-
spondent not to enforce the contract dated July 6. The respondent
replied that the contract was in effect and that the respondent would
abide by the Board's determination of the agreement's validity.
On or about July 20, the plant shut down because of the refusal
by the longshoremen to load cargo for the respondent. On August
15 the plant reopened under the terms of an agreement between the
interested parties, whereby a truce was arranged pending our
determination of the issues in these cases.28
(b) Concluding findings
The selection of Local No. 3 by a majority of the respondent's eln-
ployees in an appropriate unit from about March 11, 1938, to about
May 11, 1938, is unchallenged by the respondent. But while the re-
spondent met with Local No. 3 during this period, the respondent was
engaged in unfair labor practices in an effort to destroy the majority
designation of Local No. 3 and thereby to undermine the very
negotiations in which it purported to participate. Under these.
circumstances it can hardly be contended that the respondent was
making a bona fide attempt to reach a collective bargaining under-
standing with Local No. 3. The respondent's campaign .to cut the
ground from under Local No. 3 was as patently a refusal to bargain
as a forthright refusal to meet with the exclusive bargaining agent.
Conduct so inconsistent with the requirements of genuine collective
bargaining constitutes a refusal to bargain within the meaning of
Section 8 (5).29
On and after May 13. the respondent refused to meet with Local
No. 3 in collective bargaining conferences. A. E. McIntosh testified
that the respondent withdrew from the joint conferences at the re-
quest of the other participating companies, that it thought the re-
quest to withdraw really stemmed from Local No. 3, and that it
28 The agents of the Board suggested that : ( 1) Local No . 3 withdraw its picket line so
that "normal operations " could continue , and (2 ) Local No . 2532 permit the rehiring of
all regular employees who were on the pay roll on June 30, 1938 , without regard to
union affiliation , then permit the rehiring of regular employees , who were on the pay roll
prior to June 30, 1938 , as required , in the order of seniority , and without regard to union
affiliation . Local No . 3 agreed to withdraw its picket line so long as its members were
not discriminated against. Local No. 2532 agreed not to compel the respondent to enforce
the closed -shop contract with respect to employees who were not members of Local No.
2532 on or before June 30 or "not now" members thereof . The respondent agreed to "be
guided" by the above program.
29 Matter of Chicago Apparatus Company and Federation of Architects, Engineers,
Chemists and Technicians , Local 107, 12 N. L. R. B. 1002.
WEST OREGON LUMBER COMPANY 37
learned only later that Local N. 3 had not sought the retirement of
the respondent from the joint negotiations. This testimony is in-
credible in view of the respondent's announcement at this time that
it would have to break off negotiations with Local No., 3 and bargain
with Local No. 2532 and in view of the respondent's recognition of
Local No. 2532 as the bargaining agent at this time. The record
shows, moreover, a clear refusal to meet with Local No. 3 for collec-
tive bargaining purposes after May 13. Local No. 3 persisted in
demanding collective bargaining negotiations. Its letter of May 31
asked for an answer, within a limited period- of time, which would
set time and place for the meetings. Instead of complying with this
unequivocal demand, the respondent requested assurances from Local
No. 3 that Local No. 3 was withdrawing the demand. This reply
was in effect a refusal to negotiate with Local No. 3. Local No. 3
treated the reply as a refusal by requesting the Board to issue its
amended complaint in these cases. The respondent concurred in the
construction that its letter of June 2 was a refusal to meet with
Local No. 3 for bargaining purposes by not setting any time and
place or making any other effort to comply with the demands of
Local No. 3 for collective bargaining negotiations. Finally, the un-
equivocal meaning of the exclusive representation and closed-shop
contract, dated July 6, with Local No. 2532, was that the respondent
would not engage in collective bargaining negotiations with
Local No. 3.
The respondent's letter of June 2 to Local No. 3 raises the claim
that the respondent did not desire to negotiate with Local No. 3 while
a Board hearing was. current, and while the respondent's labor re-
lations were "highly involved." We cannot accept the bona fides of
this claim, since, the respondent signed the exclusive representation
and closed-shop contract with Local No. 2532 on July 6, while Local
No. 3 still asserted that it was the exclusive representative, before w&
issued any decision, and before the "highly involved" labor relations
of the respondent were otherwise clarified.
Furthermore, were the respondent's claim sincere it would never-
theless not constitute a valid defense. Complex labor relations do
not excuse the obligation of Section 8 (5). Rather, they render col-
lective bargaining with the true representative even more imperative.
Moreover, we perceive no ground for holding that the mere currency
of the Board hearing in this case postpones an employer's obligation
to bargain with the exclusive representative.30
The respondent's letter of June 2 also raises the claim that the
respondent did not desire to negotiate with Local No. 3 while a rival
30 Cf. Matter of Sheba Ann Frocks, Inc. and International Ladies' Garment Workers'
Union of America, etc., 5 N . L. R. B. 12.
283031-41--rol. 20-4
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union was claiming to be the exclusive representative. Local No. 3
was the exclusive representative at all times after October 21, 1937.
Yet its rival claim did not dissuade the respondent from executing
the closed-shop contract with the company-assisted Local No. 2532.'
Besides the respondent must have been aware of the, fact that the
ostensible defections from Local No. 3 were in' reality responses to
the respondent's unfair labor practices and not genuine withdrawals
of authority from Local No. 3. Company-coerced revocations ob=
viously cannot create an honest doubt that such revocations are
genuine. Further, the record is clear that even if the respondent
had any doubts that Local No. 3 remained the selection of a majority
within Section 9 (a), such doubts were not the true basis for the
respondent's refusal to negotiate with Local No. 3. The respondent
refused to negotiate with Local No. 3 on and after May 13 because
the respondent was intent on completing its program of assistance
to Local No. 2532 and on taking the logical step of recognizing Local
No. 2532. Finally, the respondent's actions were inconsistent with
any asserted willingness to resolve any asserted honest doubt. By
recognizing Local No. 2532 on or about May 11 and by executing
'the exclusive representation, closed-shop contract on July 6, the
respondent announced its firm intention to have nothing to do with
Local No. 3 and precluded all further attempts on the part of that
union to secure the recognition to which it was entitled. We con-
clude that no question with respect to majority status excused the
respondent's refusal to negotiate with Local No. 3 on and after
May 13.31
As we have already found, the respondent recognized Local No.
2532 as the bargaining agent on or about May 11 and executed an
exclusive representation, closed-shop contract with that organization
on July 6 although Local No. 3 was the true exclusive representative
within Section 9 (a) at this time and actively asserting its rights as
such representative. 'By thus dealing with Local No.' 2532, the re-
spondent violated its duty to respect the exclusive quality of Local
No. 3's representation and thereby infringed its duty to bargain only
with Local No. 3., The Supreme Court of the United States in con-
struing an employer's obligation to bargain under the Railway Labor
Act stated the following : The "obligation imposed on the employer
.. .. to treat with the true representative of the employees as des-
ignated by the Mediation Board . . is exclusive. It imposes the
affirmative duty to treat only with the true representative, and hence
the negative duty to treat with no other." 32 The Supreme Court
nNational Labor Relations Board v. National Motor Bearing Company, 105 F. (2d)
652 (C. C. A. 9th) ; National Labor Relations Board v. Remington-Rand, Inc., 94 F. (2d)
862 ((. C. A. 2d), cert. den'd 304 U. S. 576, 585; Cf. National Labor Relations Board v.
Biles-Coleman Lumber Co., 98 F. (2d) 18 (C. C. A. 9th).
ai The Virginian Railway Company v. System Federation, 300 U. S. 515.
WEST OREGON LUMBER COMPANY 39
held this language applicable to the National Labor Relations Act
in National Labor Relations Board v. Jones & Laughlin Steel Corp.33
Thus the respondent refused to bargain collectively within the
meaning of Section 8 (5) because it committed unfair labor practices
calculated to dissipate the majority of Local No. 3 and thereby
manifested its unwillingness to bargain collectively with Local No. 3
in good faith, because it refused to meet with Local No. 3 for col-
lective bargaining purposes, because it recognized Local No. 2532
aas the bargaining agent, and because it executed the contract dated
July 6 with Local No. 2532. Local No. 3 made its initial request
to bargain in.1938, on March 11 or on March 15. The respondent
announced its policy of discrimination, through Kenneth McIntosh,
in the course of the conference at which this initial request was made.
Accordingly, the respondent's refusal to bargain dates from March
11 or March 15. Thereafter Local No. 3 repeated its request and
never withdrew it. The respondent's refusal to bargain was a con-
tinuing refusal. The respondent has not yet withdrawn such refusal.
Accordingly, we find that on March 11, or on March 15, 1938,
and at all times thereafter, the respondent refused and has continued
to refuse to bargain collectively with Local No. 3 as the exclusive
representative of its employees in an appropriate unit, and that the
respondent has thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
Since the contract dated July 6 is with the company-assisted. Local
No. 2532 in which membership was coerced by the respondent, it is
clear that such agreement represents the fruit of the respondent's
unfair labor practices, a device to perpetuate their effects, and a
convenient cover under which to continue the respondent's discrimi-
nation against Local No. 3. Moreover, the contract did not tend to
stabilize labor relations. Indeed, it contained no substantive provi-
sions with respect to conditions of employment other than that
requiring membership in Local No. 2532. We find that Local No.
2532 was maintained and assisted by unfair labor practices and was
not the representative of the employees within the meaning of Sec-
tion 9 (a). We find therefore that the contract between the respond-
ent and Local No. 2532 is not covered by the proviso to Section
8 (3). Accordingly, we find that by the contract dated July 6, 1938,
the respondent interfered with, restrained, and coerced its employees
in their exercise of the rights guaranteed in Section 7.34
33 301 U. S. 1.
94 National Labor Relations Board v. National Motor Bearing Company, 105 F. (2d) 652
(C. C. A. 9th) ; Matter o f National Electric Products Corporation and United Electrical
and Radio Workers of America, etc., 3 N. L. it. B. 475.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. D'ischcdrges and refusals to reinstate on and after April 7, 1938
On March 18, 1938, the respondent employed about 345 persons.
Following the shut-down commencing on that date, the respondent
reopened the plant on April 7, 1938, and continued to expand its
personnel thereafter. By September 1, 1938, the respondent was
employing about 310 persons.35
The complaint alleges and the answer denies that upon and after
this reopening of the plant the respondent discriminatorily dis-
charged and refused to reinstate 73 named employees, hereinafter
sometimes referred to as charging employees.
Eleven charging employees did not testify with respect to these
allegations.36 Seven of these eleven charging employees joined Local
No. 2532 and subsequently were reinstated 31 Of the remaining four,
two were reinstated'38 and two apparently were not reinstated3°
Thus 62 charging employees testified with respect to the allega-
tions of discrimination against them upon and after the reopening
of the plant. From the testimony of Hisakichi Koike, a charging
employee, it appears that he was reinstated on or about April 11 but
that he left the respondent's employment and was not discharged.
We are also unable to find that the respondent discriminatorily
delayed the reinstatement of Charles Mack and Donald Park, charg-
ing employees.4.0 Mack's last period,; of =service with the respondent
dated only from the end of 1937. Mack was reinstated on May 23
and he admitted that he was not discriminated against on the basis
of seniority.4' Donald Park was reinstated on May 5 to the position
which he held on March 18. This position was the only one of its
kind at the plant and it does not appear that it was regularly filled
until May 5, the day of Park's reinstatement to it.
The credible evidence shows that on various dates on and after
April 7 the respondent discriminated in regard to the hire and tenure
and terms and conditions of employment of the remaining 59
charging employees.42 The discrimination consisted in delayed
reinstatements, refusals to reinstate, and discharges. We shall first
36 The Mclntoshes testified that operation of the plant at maximum efficiency does not
require the emplryment of as many persons as were on the pay roll on March 18.
16 Their names are listed in Appendix "C."
31 J. C. Durgin, W. Hoffman , J. Houseman , W. Lomnicky , R. L. Sims , R. Ward, and
M. Hobigal ( Hobizal).
F. G. Anderson and H. E. Clark.
$0 E. Somnerfelt and E . Lingle. Lingle was too ill to testify . Leslie James testified with,
respect to the allegations of discrimination against Lingle.
40 Koike , Mack, and Park are named in Appendix "C."
41 Mack testified that he would have . been reinstated at an earlier date had due regard
been given to the criterion of efficiency . The record , however , does not permit of a com-
parison between his efficiency and that of others who were reinstated prior to May 23.
"Their names are listed in Appendix "A" and in Appendix "B."
e
WEST OREGON LUMBER COMPANY 41
discuss the employment history 43 and union activity. 44 of, and various
specific defenses in connection with, each of the 59 charging em-
ployees and then in a separate subdivision discuss the affirmative
proof of discrimination and the evidence common to all 59 charging
employees.
1. Employment history; union activity
(a) Delayed reinstatement of 8 employees and refusal to reinstate
5 employees on the green chain
Jihachi Shirota, Don (Yoshiomi) Hashiguchi, Tohei Asanuraa,
Kohachi Itoarza, Ryoheie Fukuyama, Frank Murazen, Ti Kashahara,
Fred I. Kokubu, Kiniehi Suzuki, Koshiro Hammamura, Kunimitsu
Shori, Tom Arai, Yoshisuke Oba. On March 18, 1938, the date the
plant shut down, these 13 charging employees were employed during
the day shift Qn an operation called the green chain. The day-shift
green chain resumed on April 11, 1938, and it acquired a full crew
within a few days. The positions occupied by these 13 charging
employees were filled on or about April 11 by employees who for
the most part had been employed on the green chain during the night
shift on March 18. The night shift did not resume until May 23.
Eight of these 13 charging employees were reinstated on or about
May 23, 1938.'' The other five have not been reinstated.41, At the
time of the shut-down, commencing March 18,E the 13 charging
employees received 65 cents per hour.
The 13 charging employees were members of Local No. 3 and were
not members of Local No. 2532 on or about April 11, 1938. The
employees were selected for reinstatement to the green chain on or
about April 11 by Frank Onishi and Hisakichi Koike. During the
shut-down commencing March 18, Onishi and Koike had affiliated
with Local No. 2532 and had procured employees to sign cards
applying for membership in that organization. Onishi testified that
in selecting persons for reinstatement to the green chain on or about
13 In Section III, D , 1. we use the term seniority to refer to the last period, of service
of an employee with the respondent , without regard to service in any particular depart-
ment , unless we specify otherwise . Respondent Exhibit No . 18 and Petitioner Exhibit
No. 6, both prepared by the respondent , purport to show the seniority of many employees.
Unless contradicted by specific and credible testimony , the seniority standing shown by
these documents is accepted as correct in this Decision.
44 The statements by various supervisory employees with respect to union membership
or activity , which are cited in Section III, D , 1, are taken from the credible testimony
of charging employees . On the witness stand, supervisory employes directly or indirectly
denied having made a number of these statements . On this record, however , we cannot
credit such denials.
45 The following were reinstated on the dates shown :
Shirota , Hashiguchi , Kasahara , Hammamura , Short , Arai-May 23, 1938;
Suzuki-May 25, 1938;
Kokubu-June 6, 1938.
46 Asanuma , Itoama , Fukuyama , Murazen, Oba.
0
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 11 he and Koike were guided by the desire to secure a crew
whose members could work harmoniously. From Onishi's testi-
mony it is clear that the criterion of selection employed by Onishi
and Koike was membership in Local No. 2532 and non-membership
in Local No. 3. Thus Onishi testified : "If we would pick fellows
from the C. I. O. and put them right on the A. F. of L. crew, why,.
it would cause trouble. You see, they wouldn't be able to work
smoothly." He testified further that the Japanese employees dis-
cussed the matter and concluded that it was best "not to mix the
unions up." He also testified that the members of Local No. 2532
did not wish to work along with members of Local No. 3, and that
accordingly he did not "mix the unions up"" in selecting the persons
to be{ reinstated to the green chain. Of the 16 persons shown by
Respondent Exhibit No. 18 to have been employed on the green chain
on or about April 11, 14 were members of Local No., 2532 at the time
they were reinstated. The fifteenth and sixteenth, M. Akijama and
K. Iwasa, were reinstated on April 11, and the date of their joining
Local No. 2532 is given as April 15 by Petitioner Exhibit No. 3-C.
Apart from Onishi's testimony the record does not show that mem-
bers of Local No. 3 and members of Local No. 2532 could not co-
operate when working alongside each other. On or about April 11
some members of Local No. 3 were reinstated to positions alongside
members of Local No. 2532 in divisions of the plant other than the
green chain, and on May 23 members of both organizations were
employed to work alongside each other on the green chain, although
rivalry between the two organizations continued.
(b) Discharge of four employees subsequent to their reinstatement
Saki Hokamura. Hokamura was hired by the respondent on Sep-
tember 16, 1936. On March 18 he was employed on the green chain
and he received 65 cents an hour. He; was laid off on March 18.
Hokamura was reinstated to the green chain on April 11 but was
discharged on the following day. He has not been reinstated.
Hokamura joined Local No. 2532 on April 7 and reaffiliated with
Local No. 3 on April 12, the date of his discharge. Hokamura
testified that Onishi, in discharging him, stated that he was dis-
charged because of his reaffiliation with Local No. 3.
Onishi testified that he discharged Hokamura because Hokamura
was inefficient. In this connection Onishi testified that in 1937
Hokamura was a member of the crew of which Onishi was the
supervisor and that during this period Onishi discovered that Hoka-
mura was inefficient. At that time Koike transferred Hokamura
from Onishi's crew, which worked during the night shift, to Koike's
crew which worked during the day shift. Onishi quoted Koike as
WEST OREGON, LUMBER COMPANY 43.
having said that Hokamura was inefficient. Koike, however, as-
serted on the witness stand that Hokamura was efficient. Onishi's
testimony with respect to Hokamura's inefficiency was vague and
unconvincing. Hokamura had been employed by the respondent
since September 16, 1936. He continued to be employed by the
respondent subsequent to the time that Onishi claims he discovered
Hokamura's inefficiency. Furthermore, Hokamura was reinstated
on April 11 when other persons employed on the green chain on
March 18, who were admittedly, efficient, were not reinstated. More-
over, Hokamura was discharged only 1 day after his reinstatement.
and there is nothing in the record to show that he did not perform
his work efficiently on that day. Finally, it will be recalled that on
or about April 11 Onishi's criterion for employment on the green
chain was membership in Local No. 2532, and that Hokamura
changed.back from Local No. 2532 to Local No. 3 on the date of his.
discharge. Accordingly we do not credit Onishi's testimony that
Hokamura was discharged because of inefficiency and we do credit
-Hokamura's testimony and find that Onishi stated that he was dis-
charging Hokamura because of the latter's reaffiliation with Local
No. 3.
George Jacobs. Jacobs was hired by the respondent on April 22,.
1935. On March 18 he operated a band ripsaw and he received 671/2
cents an hour. Jacobs was laid off on March 18. When the band
ripsaw was placed in operation again on April 19, 1938, Jacobs was.
reinstated to his former position. He was discharged 2 days later
and has not been reinstated.
Jacobs was a member of Local No. 3. We have already described
above the circumstances leading to the discharge of Jacobs on April
21. On April 20, the day following Jacobs' reinstatement, Aldridge
and Hinckle asked Jacobs to join Local No. 2532. This solicitation
occurred in the plant and during working hours. Jacobs refused.
After leaving Jacobs, Aldridge and Hinckle approached Foreman
Anderson and spoke to him for about half an hour. On April 21
Anderson notified Jacobs that he had received orders from the office
to lay Jacobs off. On April 25 Jacobs applied to Foreman Bennett
for reinstatement. Bennett exhibited a list of names to Jacobs and
stated : "They are all A. F. of L. men on there but one." 47 About
a week later Jacobs again applied to Foreman Bennett for reinstate-
ment. Bennett stated to Jacobs : "You know as well as I do why
you are not getting a job."
The position from which Jacobs was discharged was given to E.
Rosini. Rosini joined Local No. 2532 in order to procure reinstate-
4' The single employee was identified as Tony Kitrina . Kitrina was discharged on
April 25. Kitrina is one of the charging employees and his case follows that of Jacobs.
.44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. On May 16 Rosini was transferred to another position and
the position of band-ripsaw operator was given to J. C. Durgin.41
Durgin had applied for membership in Local No . 2532 on April 28,
and on May 16, the day of"his reinstatement , he accepted the obliga-
tions of membership in that organization . On May 23 Durgin was
transferred to another position and C. L. Broome became the band-
ripsaw operator.
Tony Kitrina. Kitrina was hired by the respondent in 1927. On
March 18 he was employed as a sorter of dry lumber and he received
621/2 cents an hour. He was laid off on March 18. He worked for
half an hour on April 25 and was then discharged. He had not been
reinstated by June 13 , 1938, the day he testified in these cases. It
ilppears from Kenneth McIntosh 's testimony that he was subsequently
reinstated.
Kitrina was a member of Local No. 3, and he refused to become a
member of Local No . 2532, although requested to do so by one of
the foremen.
We have already set forth the facts with respect to Kitrina's dis-
charge on April 25. Kitrina had applied for reinstatement and had
been given employment on April 25. He was discharged, however,
tit the end of half an hour. In the words of Kitrina , Wilkinson had
told Bennett "that if he [sic] didn 't sign over to A. F . of L., he would
send me home ." The respondent reinstated John Kostrba to the
position from which Kitrina was discharged. Kostrba had become
a member of Local No. 2532 prior to such reinstatement.
After the plant reopened the respondent discontinued the sorting
of dry lumber and substituted therefor the sorting of green lumber.
Kitrina had greater seniority than several employees who were given
positions as sorters of green lumber on and after April 18 and who
became members of Local No. 2532 prior to such reinstatement.
Some of these employees had been sorters of dry lumber. Others of
these employees had filled various other positions prior to March 18.
Jphn Hamlin. Hamlin was hired by the respondent in February
or March 1937 . On March 18 he operated the line vertical resaw
during the night shift , and he received 65 cents an hour. He was
laid off on March 18 and he was reinstated on April 14. Thereafter
he was laid off on April 25. He has not been reinstated.
On March 18 Hamlin affiliated with Local No. 3. On April 4 he
signed a card for Local No. 2532 but on the following day he re-
affiliated with Local No. 3. Following his reinstatement on April 14
he failed to wear an A. F. of L. button. On the Thursday or Fri-
day preceding his discharge on April 25 he was asked by Charles
Olds, a fellow employee, whether he belonged to Local No. 3 or Local
48 Durgin is one of the charging employees who did not testify in these cases.
WEST ORECUUN. LUMBER COMPANY 45
No. 2532. Hamlin pulled his sweater back and stated , "That is what
I am." On his sweater was a C. I. O. button. At this time both
A. F. of L . and C. I. O. buttons were being worn in the plant. On
April 25 Foreman McKay informed Hamlin that the superintendent
had instructed McKay to lay Hamlin off so that Hamlin's position
could be given to an employee who had greater seniority than Hamlin
in that position.
On May 23 the position which Hamlin had occupied prior to the
commencement of the shut-down was given to W. M . Marquis. Prior
to the commencement of the shut-down Marquis had occupied the
position of horizontal resawyer and this position had been discon-
tinued by the respondent . Marquis had less seniority than Hamlin,
and he became a, member of Local No. 2532 during the shut-down and
prior to his reinstatement.
(c) Delayed reinstatement-reinstatement of Demarinis on April 21
Vito Demarinis . Demarinis began to work for the respondent
about June 1935 or 1936. On March 18 Demarinis was a lumber
handler classified as a shed worker in Foreman Gallagher's depart-
ment and he received 65 cents an hour. He was laid off on March
18. Demarinis was reinstated on or about April 21.
Demarinis was a member of Local No. 3 prior to the shut-down.
Employees in Gallagher 's department began to work on April 7. On
April 6 or 7, pursuant to the solicitation of Foreman Gallagher, De-
marinis signed a card applying for membership in Local No. 2532.
At this time , however, Demarinis did not go to the Labor Temple to
assume the obligations of membership in Local No. 2532. Gallagher
summoned other employees in his department to return to work but
Demarinis was not included among them . Having failed to receive
employment Demarinis applied to Gallagher for reinstatement. In
substance , Gallagher informed Demarinis that he could return to
work if he obtained membership in Local No. 2532. Demarinis joined
Local No. 2532'9 and on the following day he returned to work.
On the witness stand Gallagher characterized Demarinis as a "very
good" worker. Demarinis had seniority over other employees who
were reinstated to various positions before April 21, 1938, and subse-
quent to their affiliation with Local No. 2532.
(d) Delayed reinstatement-reinstatement of Kuehn on May 9
William Kuehn . Kuehn was hired by the respondent on March 16,
1936. On March 18 Kuehn was a carrier driver during the night
shift and he received 721/ cents an hour. Kuehn was laid, off on
4° On the witness stand Demarinis asserted that he had since reafliliated with Loca'
No. 3.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 18. On May 9 he was reinstated to the position of carrier
driver during the day shift.'
Kuehn was a member of Local No. 3 and he refused to join Local
No. 2532, although requested to do so during the shut-down by Fore-
man McKay. Kuehn testified as follows in connection with his re-
instatement to the position of carrier driver :
Q. Was anyone put on driving the carrier . . . that shouldn't
have been put on ahead of you ... ?
A. No.
From Kuehn's further testimony, however, it appears that prior to
the shut-down Kuehn had been employed at a number of tasks other
than that of carrier driving. On a prior occasion when the respond-
ent did not need carrier drivers during the night shift' the respondent
transferred Kuehn to .a different position. Kuehn had greater senior-
ity than several employees who were reinstated to various positions
before he was.
The facts with respect to the employment of the tractor driver and
the truck drivers, which we have set forth in discussing the respond-
ent's failure to reinstate Nordyke, are also relevant to the allegations
of discrimination against Kuehn.
(e) Delayed reinstatement-reinstatement of six employees on
May 23 10
Joe Ilias. Ilias has been employed by the respondent since Decem-
ber 10, 1934. His work was subjected only to an.occasional criticism
and such criticism as was made occurred when he first started to work
for the respondent and not thereafter. On March 18 Ilias was em-
ployed during the day shift on an operation known as the gang line-up
and he received 65 cents an hour. He was laid off when the plant shut
down on March 18. When the night shift reopened on May 23 the
respondent reinstated Ilias to the position which he occupied prior to
the commencement of the shut-down.
Ilias was a member of Local No. 3 and he refused a number of re-
quests that he join Local No. 2532.
The position which Ilias occupied on March 18 was not filled until
April 25. At that time it was given to John Novak. On May 4
Novak was transferred to another position and Ilias' position given to
C. W. Brower. On May 23 Brower was transferred to another posi-
tion and Ilias reinstated to the position occupied by him on March 18.
Novak and Brower joined Local No. 2532 prior to their reinstatement.
The position which Novak had occupied on March 18 was dis-
continued when the plant reopened. According to Respondent
50 The original complaint was issued on May 16, 1938.
WEST 'ORE'G'O'N, LUMBER COMPANY1 11
=Exhibit No. 18, Novak was first employed by the respondent on
September 4, 1934, or about 3 months prior to Ilias. Kenneth Mc-
Intosh testified, however, that he did not know whether or not
Novak had interrupted his service with the respondent in the spring
,of 1937. Brower was first hired by the respondent on July 15, 1936,
a year and a half after Ilias. On March 18 Brower was foreman
of the sawmill department during the day shift. When that de-
partment reopened on April 11, the foreman of the sawmill depart-
mnent during the night shift became the foreman of that department
for the day shift. Brower testified in this connection that the sub
stitution occurred because the former night-shift foreman had
greater seniority than he. Brower, however, expected to and did
become foreman of the sawmill department on the night shift when
that shift resumed on May 23.
The record shows that Ilias had greater. seniority than other per-
sons who were reinstated to various positions before April 25 and
subsequent to their affiliation with Local No. 2532.
R. L. Bell. Bell was first hired by the respondent in January
1936. He left the respondent's employment about 10 days later and
returned to work for the respondent on June 11, 1936. On March
18 Bell was classified as a shop mechanic. From Bell's testimony it
.appears that he did millwright, blacksmith, and machinist work
and that he received 871/2 cents an hour. Bell was laid off when the
plant shut down on March 18. He was reinstated to the position of
shop mechanic on May 23.
Bell was a member of Local No. 3 and he refused to join Local
No. 2532 although requested to do so during the shut-down by
Foreman Lansberry. On April 11 Bell applied to Lansberry for
reinstatement. Lansberry replied : "You see what the rest of the
boys have done." On one occasion thereafter Bell spoke to Mc-
Nerlen, identified as a minor supervisory employee and as an active
solicitor on behalf of Local No. 2532, in the millwright department
during the night shift. McNerlen stated, in substance, to Bell:
"Why don't you get wise and go sign up?" Bell, however, refused
to join Local No. 2532.
On April 9 Hinmers, formerly an oiler, was reinstated to the
position of millwright helper and on April 11 W. Zimmerman,
formerly a slasher, was reinstated to the newly created position of
labor millwright. Both Hinmers and Zimmerman had less seniority
than Bell. As we point out in our discussion of the allegations
with respect to Richard Perkins, both Hinmers and Zimmerman
were members of Local No. 2532 when they were reinstated' to their
respective positions.
C. L. Broome. Broome was hired by the respondent in October
1927. On March 18 Broome operated the pony edger and he received
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
671/2 cents an hour. He was laid off on March 18. Broome's posi-
tion was discontinued when the plant reopened . On May 23 Broome
was reinstated to the position of band-ripsaw operator.
Broome was a member of Local No. 3 and he refused to become
a member of Local No. 2532, although requested to do so during the
shut-down by Foreman McKay and by McNerlen.
Broome had greater seniority than other employees who were
reinstated to various positions before May 23 and subsequent to
their affiliation with Local No. 2532.
Willijam F. Theis. Theis was hired by the respondent on July
18, 1923. On March 18 he was employed as a garage mechanic and
he received 771/2 cents an hour. Theis was laid off a few days after
the plant shut down on March 18. When the position of garage
mechanic was reopened by the respondent on May 23 Theis was
reinstated to it. -
We have already described the substance of a conversation which
Kenneth McIntosh had with Theis on or about April 11. McIntosh
questioned Theis about his union affiliation and asked him whether
membership in Local No. 2532 would not be an improvement. Theis
replied that it would not be and McIntosh asked him for his reasons.
From McIntosh's statements during the conversation Theis under-
stood that he would not be reinstated unless he joined Local No.
2532. Theis asked McIntosh whether this understanding was cor-
rect. and McIntosh replied substantially as follows: "I wouldn't
make a statement of that kind , but there are some of the, men that
are never going to get back and you may be one of then."
Theis had greater seniority than other employees who were rein-
stated to various positions before May 23 and subsequent to their
affiliation with Local No. 2532.
Sam Dragovich. Dragovich was hired by the respondent on Sep-
tember 23 , 1932. On March 18 he was a dry -lumber unloader and
he received 65 cents an hour. He was laid off on March 18 and on
May 23 he was reinstated to the corresponding position of green-
lumber unloader.
Dragovich was a member of Local No . 3. On one occasion after
April 18 Dragovich applied to Foreman Bennett for reinstatement.
Bennett told him in substance : "You got to go down to the Labor
Temple and come back and see Wilkinson ." Dragovich , however,
did not Join Local No. 2532.
After the plant reopened the respondent transformed the dry-
lumber section into a green-lumber section. From April 18 to May
23 the position of green-lumber unloader was held by L. A.
Reinikka . 51 Dragovich had greater seniority than Reinikka and
m On May 23 Reinikka was transferred to another position.
WEST OREGON LUDIBER COMPANY 49
Reinikka was a member of Local No. 2532 at the time of his rein-
statement. Dragovich also had seniority over other employees re-
instated on or about April 18 and thereafter to positions involving
the handling of green lumber. A number of employees so reinstated
became members of Local No. 2532 prior to their reinstatement.
George R. Moore. Moore was hired by the respondent on April
13, 1937. On March 18 he operated the pull resaw during the night
shift and he received 65 cents an hour. Moore was laid off on March
1.8. His former position was discontinued by the respondent on the
reopening of the plant, and he was reinstated on May 23 to the posi-
tion of slasher. Moore was affiliated with Local, No. 3. He had,
greater seniority than other employees who, were reinstated to var-
ious positions before May 23 and subsequent to their affiliation with
Local No. 2532.
(f) Delayed reinstatement-reinstatement of five employees
subsequent to May 23
Rene J. Lorette. Lorette was hired by the respondent on April
20, 1936. On March 18 Lorette operated a machine known as the
off-bearer trimmer during the day shift and he received 65 cents an
hour. Lorette was laid off on March 18. On May 27 Lorette was
reinstated as an operator of the off-bearer trimmer during the night
shift.
Lorette was a member of Local No. 3. On or about April 2 Fore-
man McKay asked him to join Local No. 2532. Lorette refused
and McKay stated : "All right, if you want to have it that way, let
it go that way and have the C. I. O. pay your bill." The following
Saturday McKay asked Lorette whether Lorette had changed his
mind. Lorette replied in the negative. Thereupon McKay stated
to him, "If you don't want to work, it is up to you." On April
11 McKay told Lorette that the respondent could not use Lorette's
services as yet. That day the position which Lorette had filled on
March 18 was given to T. W. Stoppelcamp, an employee who, prior
to the commencement of the shut-down, had operated the off-bearer
trimmer during the night shift.
Stoppelcamp was hired by the respondent 3 weeks before Lorette.
Stoppelcamp joined Local No. 2532 on April 2, that is, 9 clays before
he received Lorette's position.
W. A. White, V. R. Shalander, L. E. Norris, F. M. Bishop, and
H. T. Trombley each had less seniority than Lorette. Each of these
five employees occupied positions similar to that of Lorette prior
to the commencement of the shut-down. White joined Local No.
2532 during the shut-down and he was reinstated to his own posi-
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion on April 11. Shalander joined Local No. 2532 during' the shut--
down and he was reinstated to the position of spot No. 2 trimmer
on April 18. Norris joined Local No. 2532 on April 18 and was
reinstated to his own position on April 25. Bishop was a member
of Local No. 2532 prior to the commencement of the shut-down. He-
was reinstated to his own position on April 11. Trombley joined.
Local No. 2532 during the shut-down and he was reinstated to the
position of trimmer No. 2 on April 18. In addition there were other
employees with less seniority than Lorette who were reinstated
before May 23 and after they affiliated with Local No. 2532.
Mike Kovach. Kovach was hired by the respondent between Feb-
ruary 13 and April 8, 1927. On March 18 Kovach was a lumber
handler classified as a shed worker in Foreman Gallagher's depart-
ment. Kovach was laid off on March 18 and he was reinstated to
his former position on May 31.52.
Kovach was a member of Local No. 3 and he refused to join
Local No. 2532, although requested to do so by Foreman Gallagher.
From Kenneth McIntosh's testimony it appears that shed workers
and truck loaders are interchangeable. Kovach had greater sen-
iority than J. Anderson, a truck loader who was reinstated to that
position on April 8. Anderson signed a card applying for member-
ship in Local No. 2532 on April 7 and he accepted the obligations of
membership in that organization on the day of his reinstatement.
Kovach also had greater seniority than J. Houseman.63 Houseman,
a truck loader, was reinstated to that position on May 12. House-
man signed a card applying for membership in Local No. 2532 on
April 6 and he accepted the obligations of membership in that organ-
ization on the day before his reinstatement.
Gordon Evjen. Evjen was hired by the respondent on May 17,
1937. On March 18 Evjen was a laborer in the planing-mill depart-
ment. He was laid off on March 18.. On June 7 he was reinstated
to the position of bull planerman.
Evjen was a member of Local No. 3, and he refused to become a
member of Local No. 2532, although requested to do so by Foreman
Gallagher.
Evjen had greater seniority than other employees who were rein-
stated to various positions before June 7, 1938, and subsequent to
their affiliation with Local No. 2532.
Otis Hilkey. Hilkey was hired by the respondent on February,13,
1933. On March 18 he, was a rail tallyman and he received 75 cents
an hour. Hilkey was laid off a. few days after the plant shut down
on March 18. .Hilkey was reinstated to the position of tallyman on
^ Kovach worked for 1 day, April 9, 1938 , shortly after his department reopened.
co Houseman was one of the charging employees who did not testify in these cases.
WEST -OREGON! LUMBER COMPANY 51
June 28, 1938, 2 days before the close of the first hearing in these
cases and after Hilkey and Foreman Gallagher testified with respect
to the allegations of discrimination against him.
Hilkey was a member of Local No. 3. He also served for a- time as
a member of its plant committee.
Gallagher testified that he did not reinstate Hilkey upon the re-
opening of, the plant because, although Hilkey was a very good "all-
around" tallyman, Jack Knutsen was a little faster than he. The
respondent did not produce any records or similar evidence to sup-
port Gallagher's testimony in this respect.54 As we point out in
discussing the allegations of discrimination against Maurice Bertram,
Knutsen joined Local No. 2532 only a few days prior to his reinstate-
ment. Hilkey also had greater seniority than Knutsen.
Hilkey had also handled lumber for the respondent. J. Houseman
was doing this kind of work for the respondent on March 18 and he
'was reinstated to this same position on May 12,1938., Houseman had
less seniority than Hilkey. Houseman signed a card applying for
membership in Local No. 2532 during the shut-down and he accepted
the obligations of membership in that organization the day before
he was reinstated.55 Joe Anderson, an employee who handled lumber
for the respondent on March 18, was reinstated to the same, position
on April 8, 1938. Anderson; had less seniority than Hilkey. Ander-
son signed a card applying for membership in Local No. 2532 on the
day before his reinstatement, and he accepted the obligations of
membership in that organization on the day of his reinstatement.
Earl Johnson. Johnson was hired by the respondent on February
25, 1936. On March 18 Johnson was a dry-lumber sorter and he
received 621/2 cents an hour. He was laid off on March 18 and he
had not been reinstated by June 13, 1938, the day he testified. From
Kenneth McIntosh's testimony it appears that he was subsequently
reinstated.
Johnson was a member of Local No. 3. Johnson had applied to
Foreman Bennett and Superintendent Wilkinson for reinstatement
on a number of occasions but without success. About a month be-
fore he testified in these cases he had substantially the following
conversation with Bennett:
Q. What further discussion was there?
A. Well, .I [Johnson] just said to him, I said, "What have
I got to do to get a job here, get one of those great big white
buttons [A. F. of L. insignia] ?"
54 The records which Gallagher produced purported to show only that his crew was more
efficient after the plant reopened than it was before the shut-down commencing March 18.
11 Houseman was one of the charging employees in these cases who did not testify.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. What did he reply?
A. He [Bennett] said, "I wouldn't tell you that, but you can
see who is working and draw your own conclusions."
Johnson, however, did not join Local No. 2532.
Johnson had greater seniority than several employees who on or
about April 18 and thereafter were given positions involving the
handling of green lumber. Some of these employees had become
members of Local No. 2532 prior to their reinstatement.
(g) Refusal to reinstate 29 employees
Joseph Gerritsen. Gerritsen was first hired by the respondent in
1935. He left in the fall of 1936 and was reemployed in December
1937. Foreman Dennis McKay praised Gerritsen'A work. On March
18 Gerritsen was employed on a machine known as the timber cut-
off and he received 65 cents an hour. He was laid off on March 18
and he has not been reinstated.
Gerritsen was a member of Local No. 3. He refused to affiliate
with Local No. 2532. On April 11 Foreman McKay told him that
his machine would not be placed in operation and that he might
be reinstated within a day or two. Gerritsen, however, observed the
respondent place the timber cut-off in operation on April 11. Ac-
cordingly he applied for reinstatement to Superintendent Wilkin-
son. Wilkinson replied that he would consider the matter later.
Gerritsen applied several times thereafter but without success.
On April Ti Gerritsen's position was filled by J. C. Roth. Prior
to the shut-down commencing March 18, J. C. Roth had been a
member of Local No. 3. The record shows, however, that Roth
joined Local No. 2532 on April 1, 1938. Gerritsen started to work
for the respondent before Roth did and his last period of uninter-
rupted service was longer than that of Roth.
Max Dilley. Dilley was hired by the respondent in October 1923.
He left the respondent's employment in 1926 and returned thereto
on April 21, 1927. On March 18 Dilley was employed as a mill-
crane operator and he received 671/2 cents an hour. He was laid off
on March 18. He has not been reinstated.
Dilley was a member of Local No. 3 and he refused to become
a member of Local No. 2532. Shortly before April 11 Foreman
Harry Duncan remarked to Dilley that the superintendent was won-
dering why Dilley had not as yet "signed up," referring to joining
Local No. 2532. Dilley replied that he had "signed up" in the fall
of 1937, referring to his affiliation with Local No. 3. On April
11 Dilley applied for reinstatement. Foreman McKay informed
Dilley that the crane of which Dilley had been the operator would
A VEST OREGON LIIII•SEP^\ C^RMPAITY 53
not be started ' for a couple of days. - On April 12' this crane was
placed in operation and Dilley's position filled by Clarence Wilson.
Dilley applied several times thereafter but without success.
Prior to the shut-down Wilson had operated a crane during the
night shift. He had been "broken in" as a crane operator by Dilley
in April 1937 , and he had less seniority than Dilley. Wilson had
been a member of Local No. 3 -. ' On February 7, 1938, lie signed a
card applying for membership in Local No . 2532. In March 1938
he signed a pledge of loyalty to Local No . 3. ' On April 4, 1938,
he became a member of Local No. 2532 . In short, Dilley, a member
of Local No . 3, was replaced by Wilson who shifted from Local
No. 3 to Local No. 2532 shortly before April 12, although Dilley had
greater seniority.
F. B. Robertson . Robertson was first hired by the respondent in
1917. He left the respondent 's employment in 1929. During a por-
tion of this period from 1917 to 1929 Robertson acted as foreman of
the respondent 's green chain and occasionally during the World
War he substituted for the superintendent . He returned to the
respondent 's employment in 1929, left in 1930 and returned again
on June 6, 1936 . On March 18, 1938, Robertson was employed as
a gang sawyer, and he received 80 cents an hour. He was laid off
on March 18. He has not been reinstated.
Robertson was a member of Local No. 3 and during the shut -clown
he refused to join Local No. 2532, although requested to do so by
Foremen McKay and Brower.
Prior to the shut -down commencing March 18 the respondent op-
erated two gang saws, designated No. 1 and No . 2 respectively , during
the day shift and one gang saw during the night shift. Robertson
operated gang saw No. 1 and R. E. Utz operated gang saw No. 2
during the day shift , and A . O. White operated the gang saw at
night. On April 11 the respondent restarted gang saw No. 2 and
filled this position by reinstating A. O. White. On April 18 the
respondent began to operate gang saw No. 1 with Utz in charge. On
May 26 the respondent began to operate the gang saw at night with
White as the sawyer . Respondent Exhibit No. 18 does not reveal
which person , if any , undertook the operation of gang saw No. 2
during the day shift when White was transferred to the night shift.
White started to work for the respondent on August 3, 1.936. Utz
began to work for the respondent on April 13 , 1936. He left the
respondent 's employment , - however, in July 1937 and dici not return
until several weeks thereafter . Thus Robertson had greater prior
experience with the respondent than both White and Utz. Robert-
son's last period of uninterrupted service with the respondent was
also greater than that of eitlier White or Utz.
°_°SS03]-^1- rol. 20----s
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both White and Utz were members of Local No. 2532 at the time
of their reinstatement.
L. C. Goodwin. Goodwin was hired by the respondent in Feb-
ruary 1936. His work was criticized once by Superintendent Wil-
kinson about the beginning of March 1938. His foreman, Brower,
however, had praised his work. On March 18 Goodwin was em-
ployed on a machine known as the resaw hoist and received 65 cents
an hour. Goodwin was laid off when the plant shut down on March
18. He has not been reinstated.
Goodwin was a member of Local No. 3, and he refused to become
a member of Local No. 2532, although requested to do so during the
shut-down by Foreman McKay. On April 11 he applied for rein-
statement but was told by McKay that his position would be filled
by an employee identified as "Frenchy," an employee who had greater
seniority than Goodwin. On April 11, however, the position was in
fact not given to "Frenchy" but to G. K. Ziemer, an employee who
operated the resaw hoist during the night shift prior to the shut-
down.
Ziemer was first hired by the respondent on September 29, 1936.
He thus had less seniority than Goodwin. Ziemer had been a mem-
ber of Local No. 3 but he accepted the obligations of membership in
Local No. 2532 on April 5, 1938, a few days before his reinstatement
to Goodwin's position.
E. F. Bennett. Bennett was hired by the respondent on June 21,
1937. On March 18 he operated a machine known as the No. 1
trimmer spotter during the night shift. Bennett was laid off when
the plant shut down on March 18 and he has not been reinstated.
Bennett was a member of Local No. 3.
The. position which Bennett filled prior to the commencement of
the shut-down was given to R. O. Burk on. May 31. Burk had
greater seniority than Bennett. Burk was reinstated on April 27,
shortly after joining Local No. 2532.
F. M. Bishop and H. T. Trombley each had less seniority than
Bennett. F. M. Bishop was a member of Local No. 2532 prior to
the commencement of the shut-down and he was reinstated on April
11 to a position similar to that held by Bennett. Trombley joined
Local No. 2532 during the shut-down, and he was reinstated on April
18 to a position similar to that held by Bennett.
W. Zimmerman had less seniority than Bennett, and the position
which he held on March 18 was discontinued by the respondent. He
joined Local No. 2532 during the shut-down and on April 11 he was
reinstated to a newly created position, that of labor millwright.
L. A. Reinikka had less seniority than Bennett. Reinikka was a
member of Local No. 2532 prior to the commencement of the shut-
- WEST OREGON LUMBER COMPANY 55
down. On April 18 he was given a newly created position of
unloader.
J. K. Bishop left the respondent's employment on February 25,
1938. The respondent rehired him as a trimmer spotter on June 6,
1938. J. K. Bishop had signed a card applying for membership in
Local No. 2532 on February 7, 1938, and he accepted the obligations
of membership therein on June 21.
Frank Russell. Russell was hired by the respondent in 1930. On
March 18 he filled the position known as spot No. 3 trimmer, and he
received 65 cents an hour. Russell was laid off when the plant shut
down on March 18. He has not been reinstated.
.Russell was a member of Local No. 3, and he refused to become a
member of Local No. 2532 although requested to do so. The position
which Russell held prior to the commencement of the shut-down was
discontinued by the respondent and the work which Russell per-_
formed was done in another department after the plant reopened.
Several persons with less seniority than Russell were reinstated upon
and after the reopening of the plant to positions similar to the one
filled by Russell prior to the commencement of the shut-down. We
have already set forth the records of a number of employees holding
similar positions in connection with our discussion of the allegations
with respect to Lorette and Bennett. These facts are also relevant
to the allegations with respect to Russell.
Joe Bertucci. Bertucci was hired by the respondent on September
5, 1933. On March 18 Bertucci was employed as a trimmer and
received 671/2 cents an hour. Bertucci worked on several different
operations in the planing department, the department in which he
worked when the plant shut down on March 18. He was laid off
when the plant closed and he has not been reinstated.
Bertucci was a member of Local No. 3. He attended the talk which
Kenneth McIntosh delivered to the planing-mill department em-
ployees on or about April 18. Bertucci understood Kenneth
McIntosh to mean that the planing-mill employees would have to
join Local No. 2532 if they wished their department to reopen. Ac-
cordingly, following Kenneth McIntosh's speech, Bertucci signed a
card applying for membership in Local No. 2532. After he signed
the card, however, he reconsidered the matter and decided to retain
his membership in Local No. 3. Consequently he never appeared at
the Labor Temple to accept the obligations of membership in Local
No. 2532.
When the planing mill reopened on or about April 25 Bertucci was
not reinstated. The planing-mill department had five trimmer posi-
tions prior to the commencement of the shut-down. Of the five
persons who held these positions Bertucci was fourth in seniority and
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank Pro fifth in seniority. Upon the reopening of the department
only three trimmer positions were filled and these were given to the
three trimmers of greatest seniority. Pro, the trimmer who had less
seniority than Bertucci, was reinstated on May 23 to a position called
chipper feeder. A number of persons with less seniority than Bertucci
were reinstated upon or after the reopening of the plant to positions
similar to that held by Bertucci prior to the commencement of the
shut-down. We have already set forth the employment records of
several such persons in our discussion of the allegations with respect
to Lorette and Bennett.
G. L. Smith. Smith was hired by the respondent on or about
October 16, 1936. On March 18 Smith was an assistant engineer and
received 671/2 cents an hour. Smith was laid off when the plant shut
down on March 18. He has not been reinstated.
Smith was a member of Local No. 3. During the shut-down Fore-
man Lansberry told Smith that if he wished to work lie would have to
join Local No. 2532. Smith, however, retained his membership in
Local No. 3.
Prior to the shut-down commencing March 18 the respondent em-
ployed three assistant engineers. Smith had greater seniority than
one of the assistant engineers and less seniority than the other. On
April 11 the respondent employed two assistant engineers and rein-
stated to those positions A. F. Aldridge. the assistant engineer who
had greater seniority than Smith, and H. E. Cusic, the assistant
engineer who had less seniority than Smith. Both Aldridge and
Cusic had become members of Local No. 25:32, prior to the commence-
ment of the slut-down.
Louis Chapo. Chapo was hired by the respondent in August 1933.
Prior to the shut-down he was employed as a fireman and received
671/ cents an hour. He was laid off a few days after the shut-down
commenced on March 18 and he has not been reinstated.
Chapo was a member of Local No. 3. He refused to join Local
No. 2532 although requested to do so.
On March 18 the respondent employed six firemen. Of these six
firemen Chapo had the second greatest seniority. By April 12 the
respondent had reinstated to the position of fireman the five persons
who held that position prior to the commencement of the shut-down.
Thus the only fireman not reinstated was Chapo, although he had
greater seniority than four of the firemen reinstated.
Four of the firemen reinstated had become members of Local No.
2532 prior to their reinstatemelit. The fifth fireman, reinstated,
A. J. Newman, signed a card applying for membership in Local No.
2532 on April 8, 1938, he accepted the obligations of membership in
that organization on April 9, 1938, and he was reinstated on April
8; 1938.
WEST OREGON LUMBER COMPANY 57
Howard Mangum. Mangum was hired by the respondent in Feb-
ruary 1936. On March 18 he was employed as a fireman 's helper.
Mangum was laid off a few days after the shut-down started on
March 18 and he has not been reinstated.
Mangum was a member of Local No. 3. He refused to become a
member of Local No. 2532 although requested to do so.
On March 18 the respondent employed four firemen helpers. The
respondent employed one fireman helper on April 11 and added an
additional fireman helper to its force on each of the following
dates-April 12, May 15, May 28. F. G. Brewer, a fireman helper
prior to the commencement of the shut-down, was reinstated to the
position of fireman helper on April 11, 1938. He had less seniority
than Mangum and he was a member of Local No. 2532 at the time
of his reinstatement . From May 15 to May 25 Cusic acted as a
fireman 's helper. We have already pointed out that Cusic became
a member of Local No. 2532 prior to his reinstatement . Cusic had
less seniority than Mangum.
Randall Perkins. Perkins was hired by the respondent on August
5, 1935. On March 18 he was employed as a millwright operator
and lie received 871/2 cents an hour. Perkins was laid off when
the plant shut down on March 18. He has not been reinstated.
Perkins was a member of Local No. 3 and he refused to become a.
member of Local No. 2532, although requested to do so during the
shut-down by Foreman Lansberry.
On April 9 L. H. Hinmers , formerly an oiler, was reinstated to
the position of millwright helper . Hinmers had less seniority than
Perkins. Hinmers became a member of Local No. 2532 prior to the
shut-down . On April 11, 1938, C. J. Hansen , formerly a mill-
wright helper, was reinstated to the newly created position of mill-
wright. Hansen had less seniority than Perkins , and lie became a
member of Local No. 2532 2 days prior to his reinstatement. On
April 11 W. Zimmerman , formerly a slasher, was reinstated to the
position of labor millwright. Zimmerman had less seniority. than
Perkins and he became a member of Local No. 2532 shortly before
his reinstatement . On April 25 O. M. Moore, formerly a millwright
operator , was reinstated to that position . Moore had less seniority
than Perkins and he joined Local No. 2532 prior to such rein-
statement.
Frank Lindahl. Lindahl was first hired by the respondent in
1923. His last period of uninterrupted service dates from August
1935. On March 18 he occupied the position of operator millwright,
and he received 871/9 cents an hour . Lindahl was laid off when the
plant shut down on March 18. He has not been reinstated.
Lindahl was a member of Local No . 3. Lindahl 's seniority is the
same as that of Perkins. Accordingly , the comparisons which we
58 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
have set forth in our discussion of the allegations with respect to
Perkins are equally relevant in connection with Lindahl' s case.
Henry Snider. Snider was hired by the respondent in 1918 or
1919. On March 18 Snider was classified as a sander. From the
record it appears, however, that the sanding machine had not been
in frequent operation for a year or two prior to March 18. Snider
performed miscellaneous tasks, including oiling, tending conveyers,
and cleaning. He received 621/2 cents an hour. Snider was laid off
when the plant shut down on March 18, and he has not been rein-
stated.
Snider was a member of Local No. 3. He refused to join Local No.
2532, although requested to do so by Foreman Anderson. Upon the
reopening of the plant Snider applied to Anderson for reinstate-
ment. Anderson replied, "You know what the trouble is." Snider
had greater seniority than other employees reinstated to various
positions on and after April 7 and subsequent to their affiliation with
Local No. 2532.
John Desimini. Desimini was first hired by the respondent in
1920. He left the respondent's employment in 1924 and returned to
work for the respondent in 1925. On March 18 Desimini occupied
the position of grader No. 2 in the planing-mill department, and he
received 721/2 cents an hour. Desimini was laid off on March 18.
When.the plant reopened Desimini's position was discontinued by
the respondent. Apparently Desimini has not been reinstated to
any other position.
Desimini was a member of Local No. 3. On or about April 28
Foreman Anderson told Desimini that-if he wished to work he.
should see one "Red" 56 and "think it over." Desimini understood
from what Anderson said that Anderson wished him to join Local
No. 2532.
L. C. Versteeg had less seniority than Desimini. Versteeg joined
Local No. 2532 during the shut-down and on April 9 he was rein-
stated to grading work.
Boy Colglazier. Colglazier was hired by the respondent in 1927
or 1928. On March 18 Colglazier was a bull planerman in the plan-
ing-mill department and he received 721/2 cents an hour. Colglazier
was laid off when the plant shut down on March 18 and he has not
been reinstated.
Colglazier was a member of Local No. 2532. On different occasions
Colglazier was asked to join Local No. 2532 by. Foremen Duncan,
Gallagher, and McKay. On April 11 Oolglazier applied to Super-
intendent Wilkinson for reinstatement. Wilkinson informed Col-
36 From other parts of the record it appears that "Red" is Aldridge, an active solicitor
on behalf of Local No. 2532.
WEST OREGO 'N LUMBER COMPANY 59
glazier that he would be reinstated if he joined Local No. 2532.
Colglazier, however, refused to become a member of that organization.
On April 25, 1938, the position of bull planerman was given to
L. C. Hutchison, who prior to the shut-down had been Colglazier's
helper. Hutchison had less seniority than Colglazier and he became
a member of Local No. 2532 prior to his reinstatement to Colglazier's
former position.
Richard Symons. Symons was hired by the respondent on March
19, 1936. On March 18 Symons was a boom helper during the night
shift and he received 65 cents an hour. Symons was laid off when
the plant shut down on March 18. He has not been reinstated.
Symons was a member of Local No. 3, and he refused to become a
member of Local No. 2532, although requested to do so. About the
time the plant reopened Foreman McKay told Symons that if Symons
wished to return to work he had to join Local No. 2532.
C. D. MacMahon, also a boom helper during the night shift prior
to the commencement of the shut-down, had less seniority than
Symons. MacMahon signed a card applying for membership in
Local No. 2532 67 during the shut-down and he was reinstated on
April 11 to the position of boom helper during the day shift. On
May 23 MacMahon was made boom foreman during the night shift.
H. W. Judd. Judd was hired by the respondent in June 1934.
On March 18 he held the position of edgerman during the night
shift and he received 921/2 cents an hour. Judd was laid off when
the plant shut down on March 18, and he has not been reinstated.
Judd was a member of Local No. 3. Judd applied for reinstate-
ment on a number of occasions on and after April 11 but without
success. On the Saturday prior to the reopening of the night shift,
Judd applied to Superintendent Wilkinson for reinstatement. Wil-
kinson, however, would not commit himself. On the day the night
shift reopened Judd again asked Wilkinson for a position. Wilkin-
son replied that another woilldbe 'reinstated in Judd's place. Judd
asked for the reason. and Wilkinson referred him to Kenneth Mc-
Intosh. McIntosh referred him back to Wilkinson. In the course
of this interview Wilkinson passed by them. Thereupon Judd again
asked Wilkinson "What is what?" Before Wilkinson could reply,
McIntosh stated, in substance, "I am not passing the buck here, we
just haven't any job; that is all."
The position of edgerman which Judd formerly held was given on
May 23 to J. Parypa, who prior to the commencement of the shut-
down occupied the position of setter during the night shift and who
also at times substituted for Judd. Parypa had less seniority than
Judd and he became a member of Local No. 2532 during the shut-
67 MacMahon accepted the obligations of membership in Local No. 2532 on April 19.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
down. The appointment which Parypa received on May 23 was a
transfer from the position of deck scaler during the day shift to
which Parypa had been reinstated on April 11 . This position of
deck scaler had been filled prior to the commencement of the shut-
down by M. Eaton. On May 23 Eaton was reinstated to the position
of deck scaler during the night shift. Eaton , who was a member of
Local No. 2532 at the time of the shut-down, had less seniority than
Judd. The position of deck scaler during the day shift was given
on May 23 to E. A. Brown, who prior to the commencement of the
shut-down occupied the position of cleaner . Brown , who was a
member of Local No. 2532 at the time of the shut-down, had less
seniority than Judd.
William Violette. Violette was hired by the respondent on Feb-
ruary 10, 1937 . On March 18 he occupied the position , of filer during
the night shift and he received 821/. cents an hour. Violette was
laid off on March 18. He has not been reinstated.
Violette was a member of Local No. 3 and he refused to become
it member of Local No. 2532 although requested to do so during the
shut-down.
Prior to the commencement of the shut-down the respondent em-
ployed during the day shift a head filer , an assistant filer, and a
filer helper. On the night shift the respondent employed a filer.
With respect to.these day-shift positions, A. E. McIntosh testified
that the head filer quit, that filers are highly skilled, and there were
no spare filers available at the respondent 's plant, and that accord-
ingly the respondent hired a person from the outside to fill the
position of head filer. A . E. and Kenneth McIntosh testified further
that by custom the head filer was privileged to appoint his own
assistant . From the record it does not appear whether the respond-
ent ever considered Violette for the position of head filer and if it
did whether the respondent purportedly determined that Violette
was not sufficiently skilled for that position.
The new head filer, P. T. Hobbs, began to work .for the respondent
on April 7, 1938, and he brought with him his son who began to work
for the respondent as filer helper on April 11 . P. T. Hobbs, Jr.,
joined Local No. 2532 a few days after his employment by the
respondent and P . T. Hobbs, Sr., joined Local No. 2532 on May 20.
The position of assistant filer during the day shift was given on
April 11 to S. L. Cormany, who prior to the commencement of the
shut-down was the filer helper. From A. E. McIntosh 's testimony
it is not clear whether the head filer was given the privilege of
appointing one or more assistants . Kenneth McIntosh , however,
testified that the new head filer "is always given the privilege of
selecting a new assistant ." Accordingly , we conclude that P. T.
Hobbs, Sr., was given the privilege of appointing one and under the
WEST OREGON LUMBER COMPANY 61
circumstances we think it clear that that one was his son who first
came to work for the respondent when he, P. T. Hobbs, Sr., was
appointed.
Cormany, who had become a member of Local No. 2532 prior to
the shut-down, had less seniority than Violette.
On May 23 the position of night filer was given to J. W. Cowling,
a new employee.
Frank W. Leasia. Leasia was hired by the respondent in 1924.
On March 18 he was employed in the position of cleaner during the
night shift, and he received 621/ cents an hour. Leasia has held
several other positions with the respondent. He was laid off on
March 18 and he has not been reinstated.
Leasia was a member of Local No. 3.
His position was given, on May 23, to W. Hofman,55 who prior
to the commencement of the shut-down held a similar position during
the day shift. Hoffman had less seniority than Leasia, and he joined
Local No. 2532 after the plant reopened and prior to his reinstatement.
R. L. Sinis 59 held a similar position during the night shift prior to
the commencement of the shut-down, and he was reinstated to. his
former position on May 23. Sims had less seniority than Leasia,
and he joined Local No. 2532 after. the plant reopened and before his
reinstatement.
Frank C. Lucker. Lucker was hired by the respondent on July
19, 1936. On March 18 he was a chipper picker during the night
shift and he received 621/2 cents an hour. He was laid off on March
18 and he has not been reinstated.
Lucker was a member of Local No. 3.
On May 23 L. C. Kocarnik was given the position of chipper picker
during the night shift. Prior to the commencement of the shut-down
Kocarnik had occupied a position which the respondent discontinued.
.Kocarnik had less seniority than Lucker and he became a member
of Local No. 2532 after the plant reopened and prior to his rein-
statement.
Daryl Calloway. Calloway was hired by the respondent in April
1937. On March 18 he was a laborer during the day shift and he
received 621/ cents an hour. From Calloway's testimony it appears
that he sorted lumber in the planing-mill department. Calloway
was laid off on March 18 and he has not been reinstated.
Calloway was a member of Local No. 3.
Persons with less seniority than Calloway were reinstated to
various positions upon * and after the reopening of the plant and
subsequent to their affiliation with Local No. 2532.
65 Hoffman was one of the charging employees who did not testify in these cases.
5» Sims was one of the charging employees who did not testify in these cases.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gustaf Ljungland. Ljungland was hired by the respondent on May
14, 1928, and has worked for the respondent since that time except
for periods during which he was ill. On March 18 he operated the
dock stencil. He was laid off when the plant shut down on March
18 and he has not been reinstated.
Ljungland was a member of Local No. 3. Foreman Pederson told
Ljungland that he was dependable and that he "stenciled the load
right."
On April 15 Ljungland's position was given to T. A. McCoy.
McCoy began work for the respondent on May 25, 1937, and on
March 18 McCoy was a fuel picker, this job being discontinued by
the respondent. McCoy did not sign a card pledging loyalty to the
I. W. A. when such cards were circulated by Local No. 3 in March
1938. Although Petitioner Exhibit No. 3-C does not list McCoy
as a member of Local No. 2532, it appears from Ljungland's testimony
that McCoy wore an A. F. of L. button.80 On May 23 McCoy became
ill and the dock-stencil position was given to P. Bennett. P. Bennett
began work for the respondent on December 16, 1936. On March
18 he was employed in the position of a pull trimmer, this job being
discontinued by the respondent. Bennett became a member of Local
No. 2532 prior to his reinstatement on May 23.
Kenneth McIntosh testified that dock stenciling "is comparatively
light work around the plant and can be done by men who are physi-
cally or otherwise unable to handle the heavier work; so that job is
used in that way round our plant." McIntosh testified further that
he did know why Ljungland was replaced by McCoy and Bennett.
C. E. Nordyke. Nordyke was hired by the respondent in Septem-
ber 1936. On March 18 Nordyke was a carrier driver and he received
721/2 cents an hour. Nordyke was laid off on March 18. He has not
been reinstated.
Nordyke was a member of Local No. 3 and for a time he served
as a member of its plant committee. Toward the end of February
1938, the respondent refused to permit Nordyke to serve on a union
committee which the respondent was sending to San Francisco to
probe the extent of the Carpenters' boycott against the respondent in
that area. On April 18 when Kenneth McIntosh delivered his talk
to the planing-mill employees, Nordyke asked questions which were
calculated to reveal that the true purpose of McIntosh's talk was
to coerce the employees into affiliation with Local No. 2532.
Prior to the commencement of the shut-down the respondent em-
ployed six carrier drivers. Upon and after the reopening of the
plant the respondent employed seven carrier drivers, five of them
61 Ljungland referred to McCarthy . From the record, however, it is clear that he was
referring to the person who filled his position after the reopening of the plant and this
person 's name is given on Respondent Exhibit No . 18 as T. A . McCoy.
\W'F.ST OREGON LUMBER COMPANY 63
having held this position on March 18 . Of the other two, one was
transferred from the position of garage mechanic and the other, M.
Skeels , was a person formerly employed by the respondent but not
on the respondent 's pay roll on March 18. It does not appear from
the record that any of these seven had become affiliated with Local
No. 2532 by the time of his reinstatement.
A. H. Anderson, the tractor driver, employed by the respondent
on March 18, was reinstated to that position on April 7, 1938. Ander-
son had less seniority than Nordyke and he became a member of Local
No. 2532 on April 1, 1938, that is, less than a week prior to such
reinstatement.
The respondent also employed a number of truck drivers. Prior to
the summer of 1937 the truck drivers had been members of the.Team-
sters' Union, an A . F. of L . affiliate. At that- time they abandoned
the Teamsters ' Union to affiliate with Local No. 3 . In the spring
of 1938, however, the truck drivers shifted their allegiance back to
the Teamsters ' Union. The Teamsters ' Union had been cooperating
with Local No. 2532 in its campaign to regain the respondent's em-
ployees. The persons employed as truck drivers by the respondent
upon and after the reopening of the plant all had less seniority than
Nordyke. Two of them, Al Diller and T . J. Kelley, had left the re-
spondent's employment in September 1937 because they did not wish
to become members of Local No. . 3. In May 1938 when the respondent
needed two additional truck drivers, the respondent employed Diller
and Kelley at the request of William Wedel , connected with Local
No. 2532.
Maurice Bertram . Bertram was hired by the respondent on June
18, 1929. On March 18 he was classified as a retail tallyman and
he received 75 cents an hour. Bertram was laid off a few days after
the plant shut down on March 18 and he has not been reinstated.
Bertram was a member of Local No . 3. He has also served as a
member. of its plant committee. In December 1937 Bertram had
participated in discussions concerning the respondent 's offer to Local
No. 3 of a collective bargaining contract. Bertram was a member
of the committee representing Local No. 3 which conferred with the
Mclntoshes upon the reopening of the plant with respect to charges
that the respondent was discriminating against members of Local
No. 3.
Although Respondent Exhibit No. 18 classified Bertram as a
retail tallyman, it appears from Kenneth McIntosh 's testimony that
retail-tallying work was "practically ' entirely discontinued" toward
the beginning of 1937, and from Bertram's testimony it is clear that
Bertram did rail -tally work as well as other types of tally work prior
to the shut-down . J. Knutsen , who was employed as a rail tally-
man prior to the shut -down , was reinstated to that position on April
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7, 1938. Knutsen had less seniority than Bertram. He had less
experience than,Bertram with the respondent as a tallyman and he
became a member of Local No. 2532 less than a week before his re-
instatement. Foreman Gallagher testified that he selected Knutsen
in preference to Bertram because Knutsen was the respondent's best
"all-around" tallyman. The respondent has produced no records
or similar evidence showing that the respondent did consider Knut-
sen more efficient than Bertram."l Moreover, Bertram worked for
the respondent without interruption for 9 years and did tally work
during 51/9 of those 9 years, whereas Knutsen did not start to work
for the respondent until August 1934. Furthermore, prior to the
shut-down Gallagher praised Bertram's work.
Gallagher testified that he had no reason other than that of
Bertram's relative ability for not reinstating him. The respond-
ent's attorney, however, stated on the record that one of the reasons
why the respondent did not reinstate Bertram after the plant re-
opened on April 7 was because Bertram caused a temporary stoppage
of work in 1936. In 1936 the respondent's employees were affiliated
with Local No. 2532 and at that time its plant committee, of which
Bertram was cha.irtnan, caused a temporary stoppage of work in
order to procure the discharge of a fellow employee. The plant
committee was carrying out the instructions of the executive board
,of Local No. 2532 and its membership. As the record stands it
would appear that the 1936 stoppage was an instance of union
activity protected by the Act, and if we believed the statement of
the respondent's attorney we would be compelled to hold that by
refusing to reinstate Bertram in 1938 for his lawful union activity
in 1936 the respondent was thereby engaging in an unfair labor prac-
tice within Section 8 (3). We are of the opinion, however, that
Bertram's activity in 1936 did not motivate the respondent. in its
refusal to reinstate him 2 years later, because Bertram continued to
work for the respondent without molestation long after the stop-
page of 1936. But the respondent's resurrection of a long-closed
incident to justify its refusal to reinstate Bertram casts doubt on the
bona fides of its defense.
Tallying is a form of grading work. L. C. Versteeg and E. Lan-
deem, both with less seniority than Bertram, were reinstated to
grading positions after they became members of Local No. 2532.
In addition to tallying, Bertram had performed many other tasks
for the respondent during the course of his employment. Bertram
had greater seniority than other employees who were reinstated to
various positions upon and after the reopening of the plant.
81 Footnote 54, supra..
WEST OREGON LUMBER COMPANY 65
William F. Carley. Cawley was hired by the respondent on Janu-
ary 19, 1927. On March 18 he was a lumber handler. He was clas-
sified as a. truck loader and as a carrier driver in Foreman
Gallagher's department and he received 721/2 cents an hour. Carley
was laid off on March 20, 2 days after the plant shut down and he
has not been reinstated.
Carley was a member of Local No. 3. On one occasion Foreman
Gallagher asked Carley, in substance, whether he "was ready to
come over on their side." Carley, however, refused to join Local
No. 2532.
Carley's work had been praised by Foreman Duncan.
Carley had seniority over J. Anderson and J. Houseman, truck
loaders, both of whose records have already been set forth in our dis-
cussion of the allegations of discrimination against Mike Kovach,
Carley also had seniority over A. H. Anderson, tractor driver, whose
record we have -set forth in discussing the allegations of. discrimina-
tion against C. F. Nordyke.
Richard Wail,. Wall was first hired by the respondent on March
29, 1.926. He left in 1929 and was reemployed on February 5, 1930.
.On March 18 he was a truck loader. Wall was laid off on March 21,
3 days after the plant shut down and lie has not been reinstated.
I all was a• member of Local No. 3. At the time of the reopening
of the plant lie was serving as secretary-treasurer of its plant com-
mittee and in that capacity he conferred with the McIntoshes with
respect to charges that the respondent was. discriminating against
members of Local No. 3. Wall applied to Gallagher for reinstate-
ment. Gallagher replied in the negative and told him to see the man-
agement and the plant committee of Local No. 3. Wall observed that
Gallagher's reply was "rather excited."
Gallagher testified that he did not reinstate Wall because Wall had
been wasting too much time during working hours for a period of 6
mouths prior to March 18: Gallagher asserted further that he
brought this matter to the attention of Wall. Gallagher, however,
did not remember the dates or contents of these alleged conversations
with Wall. Wall denied on the witness stand that Gallagher criti-
cized his work. While Gallagher claimed that he observed that Wall
handled fewer bundles than a fellow employee, he did not give any
approximation of the difference in bundles handled by Wall and his
fellow employee, nor does the record show how Wall's performance
compared with the performances of other truck loaders. Gallagher
also testified in this connection that Wall frequently left the place
where he was working to talk to other employees. Although Gal-
laglier claims that Wall's work was unsatisfactory during the 6
months prior to March 18. Gallagher did not report his complaint to
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Wilkinson or to the McIntoshes, and it does not ap-
pear that he took any other disciplinary action.
Gallagher also testified that he did not reinstate Wall because dur-
ing 2 or 3 months prior to March 18 Wall had absented himself from
work too frequently and without notice. Gallagher estimated that
during the 6 months' period prior to March 18 Wall. had failed to-
report for work about six or seven times. From Gallagher's testi-
mony it appears that when Gallagher asked Wall about his absences
Wall stated that Gallagher would not object if he knew the circum-
stances causing these absences, and it also appears that Gallagher did-
not ask Wall for a further explanation. Gallagher did not complain
to Superintendent Wilkinson or to the McIntoshes about Wall's ab-
sences, nor did he take other disciplinary action. The absences must
have been known to Gallagher's superior officers, yet they did not
reprimand Wall.
Under the circumstances disclosed by this record we cannot credit
Gallagher's testimony that he refused to reinstate Wall because of
Wall's alleged absences or because of his alleged inefficiency.
Wall had greater seniority than J. Anderson and J. Houseman,
truck loaders. We have already set forth their employment records
in our discussion of the allegations of discrimination' against Kovach.
P. E. Penman. Penman was hired by the respondent on June 26,
1937. On March 18 he was a sorter of dry lumber and he received
621/2 cents an hour. He was laid off on March 18 when the plant shut
down and he has not been reinstated.
Penman was a member of Local No. 3.
Penman had greater seniority than at least two persons who on
April 18 were given positions involving the handling of green lum-
ber and who joined Local No. 2532 prior to their reinstatement.62
R. T. Maa°ion. Marion was hired by the respondent in October
1929. On March 18 Marion was employed on the kiln chain and he
received 621/ cents an hour. Marion had also held several other
positions with the respondent at various times. He was laid off on
March 18 and he has not been reinstated.
Marion was a member of Local No. 3.
The kiln chain was used in the processing of dry lumber and, as
we have already noted, the respondent's reorganization of the plant
required discontinuing many operations involving the handling of
dry lumber. The record shows, however, that many dry-lumber
handlers were reinstated to other positions in the plant.
Marion had greater seniority than several employees who were
reinstated to various positions on and after April 11, and many of
these employees obtained membership in Local No. 2532 prior to
their reinstatement.
,11L. A. Reinikka and W. Zimmerman.
WEST OREGON: LUMBER COMPANY 67
Leslie James. James was hired by the respondent on July 25,
1936: On March 18 James was a dock laborer and he received. 65
cents an hour. James was laid off on March 18. He has not been
reinstated.83
James was a member of Local No. 3. During the shut-down Fore-
man Gallagher asked him whether he had become a member of Local
No. 2532 and he replied that he had not.
James had greater seniority than V. Shadley , who was reinstated
to a position as dock laborer on April 13 . Prior to the coimuence-
ment of the shut-down Shadley had been a crane chaser and this
position had been discontinued by the respondent . Shadley became
a member of Local No. 2532 during the shut-down and prior to this
reinstatement . On May 13 Shadley was transferred to another
position.
2. Concluding findings
The Mclntoshes testified that proper operation of the plant, as
reorganized subsequent to the shut-down, does not require quite as
many employees as were working prior to the shut-down. We have
no reason to doubt the respondent's sincerity of belief in this con-
nection. Accordingly we find that the respondent did not engage
in discrimination by employing fewer persons after the shut-down
than it employed on March 18. In so finding, however, we have by
no means disposed of the allegations with respect to the 59. charging
employees; singe we must consider further whether or not the re-
spondent's method of selection of employees to be given work on
and after April 7 involved discrimination against Local No. 3 and
in favor of Local No. 2532.
. We have already adverted to the respondent's desire and determi-
nation to effect a change in the affiliation of its employees from
Local No. 3 to Local No. 2532. The respondent's threat to shut the
plant, and its invitation to the foremen, to procure the desired
change ; the shut-down ; the widespread and systematic canvassing
of employees by foremen on behalf of Local No. 2532 during this
shut-down; and the consequent reopening of the plant will also be
recalled. The successful development of the respondent's plan to
aid Local No. 2532 in recovering its position among the respondent's
employees logically involved discrimination. in employment, for this
was the ultimate sanction by which the respondent could compel its
employees to reaffiliate with the Carpenters. Indeed, although Local
No. 2532 claimed that it had a majority on April 11, there is in
fact no proof that it had obtained at that time an ostensible majority
of the persons employed on March 18 and the record does not
James worked for 1 day for the respondent , during the shut -down, that is, on March 23.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
justify an inference that the respondent or Local No. 2532 thought
that such majority had been procured .64
Moreover , it will be recalled that the respondent did not contem-
plate operating the plant during the continuance of the boycott.
As appears from the respondent 's answer a few days prior to April
11, Local No. 2532, purporting to have a majority and so advising
the respondent , informed the Mclntoshes that the boycott would
end if the respondent resumed operations "under conditions that met
the approval" of Local No. 2532. The boycott and the shut-down
terminated at about the same time . Thus the plant reopened on
terms satisfactory to Local No., 2532. This, of course., meant that
members of Local No. 2532 would be preferred for reinstatement
and for continued employment.
The conduct of A. E . and Kenneth McIntosh and Superintendent
Wilkinson upon and subsequent to the reopening of the plant leaves
no doubt that the respondent 's policy was to discriminate against
members of Local No. 3 and in favor of members of Local No. 2532.
We have already referred to A. E . McIntosh 's statement that the
respondent 's reinstatement policy could not be unaffected by its
determination to prevent a renewed boycott even at the risk of being
ordered to pay back wages, to Kenneth McIntosh 's speech of April
18 informing the planing -mill employees that the reopening of that
department hinged upon their becoming affiliated with Local No.
2532 , to Kenneth 's request that James Park resign from Local No. 3,
to Kenneth 's veiled threats to William Theis that employees who
did not join Local No. 2532 might never be reinstated , and to Super-
intendent Wilkinson 's statement to. Roy Colglazier that he could
obtain reinstatement by signing "up with the A. F. of L."
Numerous statements by foremen , which we have set forth above,
also support our conclusion that the respondent 's reinstatement and
employment policy on and after April 7 was discriminatory. Thus
Gallagher informed Carl Engbrecht and Vito Dema.rinis that they
would be reinstated if they joined Local No. 2532 and they did re-
ceive employment upon obtaining membership in that organization.
McKay informed Richard Symons that Symons could return to work
only by joining Local No. 2532 , and upon Rene Lorette's refusal to
join Local No . 2532 McKay stated to him "If you don 't want to
work, it's up to you." Lansberry impliedly told R. L. Bell that
6l Petitioner Exhibit No . 3-C lists the names of employees purportedly affiliated with
Local No. 2532 , the dates of application for membership , and the dates of acceptance of
the obligations of membership . On this exhibit substantially less than half of the persons
employed on March 18 are claimed as applicants for membership in or as members of
Local No. 2532 , by April 11. There is nothing in the record to indicate that persons em-
ployed by the respondent on March 18, in addition to those listed on Petitioner Exhibit
No. 3-C, applied for or accepted , membership in Local No . 2532 on or before April 11, 1938,
in sufficient number to give to Local No. 25.12 on April 11 an ostensible majority of the
persons working for the respondent on March 18.
WEST OREGON, LUMBER COMPANY 69'
Bell's reinstatement was contingent upon his affiliation with Local No.
2532. Anderson made statements of similar import to Henry Snider,.
Jack Williams, and John Desimini; Bennett made such statements to.
George Jacobs, Earl Johnson, Sam Dragovich, and N. P. Nielson;:
and Duncan ]made or approved such a statement to Kokubu. Onishi
told. Hokamura he was being discharged because he had reaffiliated
with Local No. 3, and from Onishi's testimony it is clear that Onishi's;
selections for reinstatement were based on membership in Local
No. 2532.
On April 11 the number of persons then identified with Local No..
3, who were working, was disproportionately small. At the close,
of the shut-down the respondent had 346 plant and production en-
ployees,65 of whom about 189, or approximately 54 per cent, were
identified with Local No. 3 on April 11, the date from which the.
respondent reckons the resumption of operations by the clay shift.,;".
Yet of the 137 persons working on April 11,67 only 29 or about 21
per cent were selected from the group then identified with Local
No. 3.68 The gross disparity between a. 54-per cent expectancy and
a 21-per cent realization can be explained only on the ground that
the respondent's personnel on April 11 was selected discriminatorily. .
"The first and third columns of Respondent Exhibit No. 18 and Petitioner Exhibit
No. 6 show that 346 plant and production employees were working on March 18. the
day the plant shut down.
"By "identification with Local No. 3 on April 11" is meant signing a card pledging
loyalty to the I. 11'. A. in March and not purporting to repudiate such pledge on or before-
April 11. These pledge cards are included within Local No. 3 Exhibit No. 2. By "pur-
porting to repudiate such pledge on or before April I1" is meant applying for, or obtaining,
membership in Local No. 2532, or signing a letter of resignation from Local No. 3, after
signing an I. W. A. pledge card and before April 12, but without regard to whether or
not such purported repudiation is given effect as a valid repudiation. (Compare Section
III, C (2). supra.)
The persons, and dates of. making such application are shown by the second and third
columns of Petitioner Exhibit No. 3-C. The persons, and dates of, obtaining such member-
ship are shown by the second and fourth columns of Petitioner Exhibit No. 3-C. One such
letter of resignation, and its date. is shown by Board Exhibit No. 12.
The figure 189 is obtained as follows : Local No. 3 Exhibit No. 2 comprises 290 I, W. A.
pledge cards, hereinafter called cards. Two cards appear to be signed by the same person.
There are thus 289 signers. Comparison between the third column of Respondent Exhibit
No. 1S and Petitioner Exhibit No. 6 on the one hand and the signatures to the cards on
the other reveals that 272 signers were working on March 18. Inspection of the dates
on these cards shows that of these 272, 270 signed the cards before April 11. Comparison
of the names and dates on the cards of these 270 persons on the one hand with the names
and dates of the second, third, and fourth columns of Petitioner Exhibit No. 3-C and with
the name and date on Board Exhibit No. 12 on the other shows that 81 of these 270
persons had ostensibly repudiated their identification with Local No. 3 by April 11.
Deducting 81 from 270 we arrive at the figure 189 representing the number of employees
of the respondent, whether or not they were working on April 11, who were still identified
with Local No. 3 on April 11. Fifty-four per cent is the ratio of 189 to 346.
°7 The first, fourth, fifth, and eighth columns of Respondent Exhibit No. 18 and Teti-.
tioner Exhibit No. 6 show that 137 named plant and production employees were reinstated
or hired on or before April 11 and were working on April 11.
°8 The figure 29 is obtained by comparison of the names of the 137 employees working
on April 11 (footnote 67, supra ) with the names of the 189 employees identified with Local
No. 3 on April 11 (footnote 66, supra ). Twenty-one per cent is the approximate ratio
of 29 to 137.
2830:31-41-vol. 20
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Mclntoshes testified generally and the respondent contends,.
that in selecting employees to be given work on and after April T.
the respondent applied various lawful criteria including "efficiency,
skill, length of service, and family obligations." The respondent,
however, has not produced definite and specific evidence with respect
to the scope of these purported standards, the manner in which they
were applied, and the weight which the respondent attached to these
categories, singly or in combination.
The respondent has supplied little of the data upon which it pur-
ported to act. Thus we are not given concrete information concern-
ing the "family obligations" of the bulk of persons employed on
March 17. Onishi testified that certain persons were inefficient but
his testimony on this point was vague and general, largely con-
tradicted by Koike, and besides, it is clear from Onishi's other
testimony that membership in Local No. 2532 was the substantial
criterion which he applied on and about April 11 in selecting persons
for his crew. Gallagher also testified with respect to the efficiency
of a few employees but we have already set forth the inadequacies
in this testimony. For the most part, the respondent simply omitted
to produce specific information or judgments with respect -to the
efficiency and skill of the individuals working on March 18 and we
are left with the testimony of charging employees that their work
was not criticized.
With respect to seniority the record shows that this criterion
would have received substantial weight in a non-discriminatory
selection of personnel for the respondent's plant. Kenneth McIn-
tosh testified that the respondent did not have any "standard pncc-
tice" in regard to three types of seniority-length of service witli
the respondent (a) generally, (b) in a particular department, (c)
in a particular position-and that the respondent "sometimes obeyed
one and sometimes the other." The respondent has not supplied
us with data showing comparative departmental seniorities. With
respect to job seniority the record shows that on April 11 the number
of employees. then identified with Local No. 3, who were given
their own jobs back, was disproportionately small. Thus with respect
to persons holding positions on March 18 which were filled by
April 11, only 54 per cent of persons identified with Local No. 3 on
April 11 were given their own jobs back by that date, whereas 85
per cent of persons not identified with Local No. 3 on April 11 were
given their jobs back by that date.°9 We have set forth much of
0 These two ratios were calculated as follows : Of the jobs in operation on March 18,
134 were filled again by April 11 and 100 of these 134 positions were given on April 11
to persons who held them on March 18. Forty-six persons, occupying 46 of the 134 posi-
tions on March 18, were identified with Local No. 3 on April 11 and 25 of these 46 persons,-
or approximately 54 per cent, were given their own jobs back on April 11. Eighty-eight
persons, occupying 88 of the 134 positions on March 18, were not identified with Local
- WFiST DREIGON' LUMBER COMPANY 71
the information with respect to the comparative plant seniority 10
of the respondent's employees in discussing the employment history
and union activity of the charging employees. It is evident from
this survey that the respondent in numerous instances preferred
to the charging employees persons who had less service but who
had become identified with Local No. 2532.71 We conclude therefore,
that the evidence concerning seniority does not bear out the respond-
ent's defense but indicates, on the contrary, that the respondent
was engaged in a policy of discrimination against members of Local
No. 3 upon and after the reopening of the plant in April 1938.
Superintendent Wilkinson was in charge of reinstatements for
all departments on and after April 7. Yet he did not take the
stand to explain his selections or to deny testimony that they were
based on union membership.
In view of the respondent's practice of notifying employees to
return to work and in view of the unlawful shut-down commenc-
ing March 18, it was not incumbent on the charging employees to
make application for reinstatement.
Under the circumstances disclosed by this record we must, and
accordingly do, find that subsequent to the end of the shut-down the
respondent discriminated in regard to the hire and tenure and"terms
and conditions of employment of the 59 charging employees listed
in Appendix "A," and Appendix "B," thereby discouraging mem-
bership in Local No. 3 and encouraging membership in Local No.
2532, and that the respondent thereby interfered with, restrained,
and coerced its employees in their exercise of the rights guaranteed
in Section 7 of the Act. We find that the record does not support
the all of the complaint that upon and after the reopening
of the plant in April 1938, the respondent discriminated against
the employees named in Appendix "C" in regard to their hire and
tenure and terms and conditions of employment thereby discourag-
ing or encouraging membership in a labor organization.
No. 3 on April 11 and 75 of these 88 persons, or approximately 85 per cent , were given
their own jobs back on April 11. The method of determining the fact of identification
with Local No. 3 on April 11 is explained in footnote 66, supra.
From Kenneth 's testimony , from the statement of respondent 's counsel in offering
Respondent Exhibit No . 18, and from other testimony in the record , it is clear that plant
seniority would have been given weight in a non-discriminatory selection of personnel for
the respondent's plant. It follows, therefore, that as to many positions employees may
be transferred from one position to another . Inspection of Respondent Exhibit No. 18,
and of the relevant testimony in the record , reveals a relatively free transferability from
one position to another . In fact a number of jobs in operation upon and after the reopen-
ing of the plant , including several which are treated on Respondent Exhibit No. 18 as
having been created subsequent to April 7 , are not distinguishable in regard to required
skills from many positions in operation on March 18 which were marked "discontinued"
on Respondent Exhibit No. 18.
'a We have not attempted to point out all the instances in which members of Local No.
2532 were preferred to Local No . 3 members who had longer periods of service with the
respondent.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tend to lead and have led to labor disputes burdening and
obstructing commerce and the free flow of commerce.
P. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices we will order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act and to restore as nearly as possible the condition which existed
prior to the commission of the unfair labor practices.
We have found that the respondent discriminated against all
the employees laid off incident to the shut-down commencing March
18. We have found further that the respondent did not engage in
discrimination by employing fewer persons after the shut-down than
it employed on March 18 but that upon and after the reopening of
the plant the respondent 's method of selection of personnel involved
discrimination in regard to the hire and tenure and terms and con-
ditions of employment of the 59 charging employees named in Ap-
pendix "A" and Appendix "B." Since the respondent has already
reinstated the employees named in Appendix "A," we shall not order
the respondent to reinstate them. The respondent , however, has
not reinstated the employees named in Appendix "B." We shall
therefore order the respondent to offer to the employees named in
Appendix "B" reinstatement to their former or substantially
equivalent positions . The offer of reinstatement shall be without
prejudice to their seniority and other rights and privileges and
shall be effected in the manner set forth in paragraph 2 (a) of
the Order.
As we have found above, a lawful shut-down would not have
occurred for 5 days after March 18. Accordingly, we shall order
the respondent to make payment to each of the employees named in
Appendix "A" and Appendix "B" and to each of the other employees
employed on March 18, 1938, an amount equal to that which he
would normally have earned as wages during the 5-day period from
March 18, 1938, less his net earnings '' during that period. By delay-
'" By "net earnings " is meant earnings less expenses , such as for transportation, room,
and,hoard , incurred by an employee in connection with obtaining work and working else-
where than for the respondent . which would not have been incurred but for his unlawful
discharge and the consequent necessity of bis seeking employment elsewhere. See Matter
of Crossett Lauber Company and deited Brotherhood of Carpenters and Joiners of Amer-
WEST OREGON' LUMBER COMPANY 73
ing the reinstatement of, or by discharging, or by refusing to rein-
state, the employees named in Appendix "A" and Appendix "B,"
the respondent has discriminated in regard to their hire and
tenure and terms and conditions of employment. Accordingly we
shall order the respondent to make payment to each of the employees
named in Appendix "A" and Appendix "B," an amount equal to that
which each would normally have earned as wages during the period
from the date of discrimination to the date of the offer of reinstate-
ment, less his net earnings 7^' during that period, had the respondent
not discriminated in regard to his hire and tenure and terms and
conditions of employment.
Since the respondent has refused to bargain with Local No. 3 as
the exclusive representative within the meaning of Section 9 (a) the
policy of the Act will be best effectuated by ordering the respondent
to bargain on request with Local No. 3.74 Moreover, we have found
That Local No. 3 has been the exclusive representative within the
meaning of Section 9 (a) at all times after October 21, 1937. The
order to bargain on request with Local No. 3 is also predicated on
this finding.7'
Since we shall order the respondent to bargain on request with
Local No. 3 as the exclusive representative, it follows that the
petition of Local No. 2532 for certification must be dismissed.
Since the agreement dated July 6, 1938, between the respondent
and Local No. 2532 embodies recognition of Local No. 2532 as the
tea, Lumber and Sawmill Workers Union, Local 2.590, 8 N. L. R. B. 440. We shall order
the respondent to deduct from the back pay due under our Order moneys received by an
employee for work performed upon Federal, State, county, municipal, or other work-relief
projects during the period for which we are ordering the respondent to pay such employee
back wages and to pay such deductions over to the proper fiscal agency of the govern-
ment which supplied the funds for the work-relief project. Matter of Republic Steel
Corporation and Steel Workers Organizing Committee. 9 N. L. B. It. 219, enforced in
National Labor Relations Board v. Republic Steel Corp., 107 F. (2d) 472 (C. C. A. 3d).
13 Footnote 72. supra.
'4National Labor Relations Board v. Louisville Refining Co., 102 F. (2d) 678 (C. C. A.
(3th), cert. denied 308 U. S. 568 ; National Labor Relations Board v. Arthur L. Cotten, etc..
105 F. (2d) 179 (C. C. A. Gth). Section 10 (c) of the Act authorizes the Board, upon
finding that a person "has engaged in or is engaging in" an unfair labor practice, to
order such person "to take such affirmative action * * * as will effectuate the policies
of the Act." This section is designed to enable the Board to restore, as nearly as possible,
the, status quo had the wrongs not been committed. The necessary delays incident to the
adjudication of a dispute have postponed the Board's order until a time considerably
subsequent to the original wrongful refusal to bargain. The refusal to bargain collectively
disrupts the morale of the men, has a deterring effect upon the organizational activity
of the union and a discouraging influence on members already gained which tends to induce
them to drop from the ranks. If an order to bargain collectively cannot be deemed an
appropriate remedy for the refusal to bargain collectively unless the union' s majority is
kept intact until the Board can issue a decision, the plain policy and intent of the Act
will be defeated. The respondent would be permitted further to evade the obligation of
Section 8 (5) by profiting from the discouraging effects of its already accomplished vio-
lation of that very obligation. We cannot concede the validity of such a doctrine of
futility. and we hold that to effectuate the policies of the Act. the respondent' s refusal to
bargain must be remedied by an order to bargain, based on the majority obtaining on the
date of the refusal to bargain.
"National Labor Relations Board v. National Motor Bearing Company, 105 F. (2d)
652 (C. C. A. 9th).
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive representative, since further the agreement represents the
fruit of the respondent's unfair labor practices, a device to perpetuate
their effects, and a cover under which the respondent may continue
to commit unfair labor practices, we will order the respondent to
cease and desist from giving effect to this or any other agreement
which it may have entered into with Local No. 2532 in respect to
rates of pay, wages, hours of employment, or other conditions of
work and to cease and desist from recognizing Local No. 2532 as the
exclusive representative of its employees unless and until it is certified
as such by the Board.76
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Lumber and Sawmill Workers Local Union No. 3 and Lumber
and Sawmill Workers Union, Local No. 2532, are labor organizations
within the meaning of Section 2 (5) of the Act.
2. All the plant and production employees of the respondent, in-
cluding foremen, but excluding office employees and supervisory
employees above the rank of foremen, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. Lumber and Sawmill Workers Local Union No. 3 was on
October 21, 1937, and at all times thereafter has been, the exclusive
representative of all such employees for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Lumber and Sawmill
Workers Local Union No. 3, as the exclusive representative of its
employees in an appropriate unit, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8
(5) of the Act.
5. By discriminating in regard to the hire and tenure and terms
and conditions of employment of all the persons employed by it on
March 18, 1938, including the employees named in Appendix "A" and
in Appendix "B," thereby discouraging membership in Lumber and
Sawmill Workers Local Union No. 3, and encouraging membership
in Lumber and Sawmill Workers Union, Local No. 2532, the respond-
ent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
7e National Labor Relations Board v. National Motor Bearing Company , 105 F. (2d)
652 (C. C. A. 9th) ; of. National Labor Relations Board Y. Stackpole Carbon Company,
105 F. (2) 167 (C. C. A. 3d) ; cert. den'd 308 U. S. 605.
WEST ORE'GO'N LUMBER COMPANY 75
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
7. The aforesaid labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, West Oregon Lumber Company, and its officers, agents,.
successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Lumber and Sawmill Workers
Local Union No. 3, or any other labor organization of its employees,
or encouraging membership in Lumber and Sawmill Workers Union,
Local No. 2532, or any other labor organization of its employees,
by discharging, laying off, or refusing to reinstate any of its em-
ployees, or in any other manner discriminating in regard to hire
or. tenure of employment or any term or condition of employment;
(b) Giving effect to any agreement which it may have entered
into with Lumber and Sawmill Workers Union, Local No. 2532, in
respect to rates of pay, wages, hours of employment, or other condi-
tions of work, or recognizing Lumber and Sawmill Workers Union,
Local No. 2532, as the exclusive representative of its employees unless
and until Lumber and Sawmill Workers Union, Local No. 2532, is
certified as such exclusive representative by the Board ;
(c) Refusing to bargain collectively with Lumber and Sawmill
Workers Local Union No. 3, as the exclusive representative of all of
its plant and production employees, including foremen but excluding
office employees and supervisory employees above the rank of fore-
men in 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 right to self-organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid and protection, as guaranteed in
Section 7 of the National Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to the employees named in Appendix "B" immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and
privileges, such offer to be effected in the following manner : The
'76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of persons hired after March 18, whose dismissal may be
required to provide such immediate reinstatement, shall be dismissed.
If, despite such discharges, there is not by reason of a reduction in
the force of employees needed, sufficient employment immediately
available for the remaining employees, including the employees
named in Appendix "B," all available positions shall be distributed
among such remaining employees in accordance with the respondent's
usual method of reducing its force, without discrimination against
any employee because of his union affiliation or activities, following
a system of seniority to such extent as has her been applied
in the conduct of the respondent's business. Those employees remain-
ing after such distribution, for whom no employment is immediately
available, shall be placed upon a preferential list prepared in accord-
ance with the principles set forth in the previous sentence and shall,
thereafter, in accordance with such list, be offered employment as
it becomes available and before other persons are hired for such
work ;
(b) Make whole the employees named in Appendix "A" and
Appendix "B" and the other employees employed on March 18, 1938,
for any losses of pay they may have suffered by reason of the re-
spondent's unlawful shut-down on March 18, 1938, by payment to
.each of them respectively of a sum of money equal to that which
-each would normally have earned as wages during the 5 working
-days beginning March 18, 1938, less his net earnings," if any, during
said period; provided that the respondent shall deduct from the back
pay due each employee a sum equal to that received by such employee
for work clone in Federal, State, county, municipal, or other relief
project during the period for which back pay is due him under this
'Order, and shall pay any such amount deducted to the appropriate
fiscal agency of the government financing such relief project;
(c) Make whole the employees named in Appendix "A" and Ap-
pendix "B" for any losses of pay they may have suffered by reason
-of the respondent's discrimination in regard to their hire and tenure
.and terms and conditions of employment, by payment to each of them
respectively of a sum of money equal to that which each would
normally have earned as wages during the period from the date of
the discrimination to the date of the offer of reinstatement, less his
net earnings," if any, during said period, had the respondent not
-discriminated in regard to his hire and tenure and terms and condi-
tions of employment; provided that the respondent shall deduct from
the back pay due each employee a sum equal to that received by such
employee for work done in Federal, State, county, municipal, or
.other relief project during the period for which back pay is due him
17 See footnote 72, supra.
WEST OREGON LUMBER COMPANY 77
under this Order, and shall pay any such amount deducted to the
appropriate fiscal agency of the government financing such relief
project ;
(d) Upon request, bargain collectively with Lumber and Sawmill
Workers Local Union No. 3, as the exclusive representative of all of
its plant and production employees, including foremen, but excluding
office employees and supervisory employees above the rank of foremen
in respect to rates of pay, wages, hours of employment, and other
conditions of employment;
(e) Post immediately and in conspicuous places in each department
of the respondent's plant notices stating that the respondent will cease
and desist in the manner set forth in 1 (a), (b), (c), and (d) and
that it will take the affirmative action set forth in 2 (a), (b), (c),
and (cl) of this Order, and maintain said notices for a period of at
least sixty (60) consecutive days from the date of posting;
(f) Notify the Regional Director of the Nineteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the petition of Lumber and Saw-
mill Workers Union, Local No. 2532, for an investigation and certifi-
cation of representatives and the allegations of the complaint as to
discrimination against the employees named in Appendix "C?' upon
and after the reopening of the plant in April 1938 be, and they hereby
are, dismissed.
APPENDIX "A"
Tom Arai
R. L. Bell
C. L. Broome
Vito Demarinis
Sam Dragovich
Gordon Evjen
Koshiro Hammamura
Otis Hilkev
Don (Yoshiomi) Hashiguchi
Joe Ilias
Earl Johnson
Ti Kasahara
Tony Kitrina
Fred I. Kokubu
William Kuehn
Mike Kovach
Rene J. Lorette
George R. Moore
Jiachi Shirota
Kunimitsu Shori
Kinichi Suzuki
William F. Theis
APPENDIX "B"
Tohei Asanuma
E. F. Bennett
Maurice Bertram
Joe Bertucci
Daryl Calloway
William F. Carley
Louis Chapo
Roy Colglazier
John Desimini
Max Dil]ey
78 DECISIONS OF
Ryoheie Fukuyama
Joseph Gerritsen
L. C. Goodwin
John Hamlin
Saki Hokamura
Kohachi Itoama,
George Jacobs
Leslie James
H. W. Judd
Frank W. Leasia
Frank Lindahl
Gustaf Ljungland
Frank C . Lucker
Howard Mangum
F. G. Anderson
H. E. Clark
J. C. Durgin
M. Hobigal ( Hobizal)
W. Hoffman
J. Houseman
H. Koike
NATIONAL LABOR RELATIONS BOARD
R. T. Marion
Frank Murazen
C. E. Nordyke
Yoshisuke Oba
P. E. Penman
Randall Perkins
F. B. Robertson
Frank Russell
G. L. Smith
Henry Snider
Richard Symons
William Violette
Richard Wall
APPENDIX "C"
E. Lingle
W. Lomnicky
C. Mack
D. Park
R. L. Sims
E. Somnerfelt
R. Ward
MR. WII.LIAM M. LEISEasox took no part in the consideration of
the above Decision and Order.