Wind River Logging Co.

National Labor Relations Board - Board Decisions

May 2, 1969

175 N.L.R.B. 825 (N.L.R.B. 1969)

WIND RIVER LOGGING COMPANY
G. H. Reed and G . A. Reed d/b/a Wind River
Logging Company and International Union of
Operating Engineers , Local Union No. 326,
AFL-CIO. Case 27-CA-2519
May 2, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On December 31, 1968, Trial Examiner Herman
Corenman issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in any unfair labor practices, and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Charging Party
filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations 'Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no' prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions, and the entire record in this case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, only to the
extent consistent with this Decision and Order.
As more fully set forth in the attached Trial
Examiner's Decision, the Trial Examiner found,
inter alia , that timber cutters Edmond Zyskowski
and Phillip Zacharias were not discharged and
denied reemployment in violation of Section 8(a)(1)
of the Act. We do not agree.
In pertinent part, the record indicates that
Zyskowski was one of the most proficient timber
cutters and a leader of his fellow employees. He had
been discharged by Glavis Reed, copartner and
general manager of Respondent, in December 1967,
because Reed believed Zyskowski had been
circulating a petition among the cutters. Reed
subsequently discovered that his belief was incorrect
and he rehired Zyskowski 2 days later. However, as
a condition of reemployment, Zyskowski was not
permitted to continue riding in the Respondent's
bus, which transported several of the cutters to and
from the jobsite. The announced reason was to
prevent Zyskowski from causing trouble among his
fellow employees. (The foregoing incident is not
alleged as a iiolation herein.)
Zyskowski had been selected by the cutters as
their spokesman and he had acted as such at
meetings with Reed regarding methods of computing
payment. (The cutters are paid on a piecework
basis.) The most recent meeting had been held
around the middle of February and the matter of
wage rates did not appear to have been satisfactorily
825
resolved.
Respondent's timber cutters had been working in
an area known as "Long Creek." By January 4,
1968, the snow had become waist deep. The cutters
agreed that working under these conditions was too
difficult and dangerous. They asked Reed to transfer
operations to another area where there was less
snow depth.' Reed agreed to do so and the cutters
worked at "East Fork" until approximately
February 10, 1968. By this time all available timber
had been cut at East Fork, and Reed told the
cutters that "Camp Creek" was the only remaining
area which could be utilized.
Work began at Camp Creek on Monday,
February 19. The snow depth was approximately the
same as it had been at Long Creek when the cutters
had refused to continue working. Throughout the
week, the cutters discussed the hazardous working
conditions and reduced earning potential among
themselves. In fact, at least two of the cutters,
including Zacharias, suggested that all the men
should quit en masse and seek unemployment
compensation. Cutting proceeded erratically.
Snowstorms completely prevented work on February
20, 24, and 25, and resulted in curtailed operations
on February 21 and 23. The number of cutters who
reported for work on any given day during this
period ranged from nine to three, and marked
production disparities existed between the individual
cutters.
Respondents' log removal operation is necessarily
attuned to its cutting operation. The removal
operation, which requires the use of heavy
mechanized equipment, cannot be safely conducted
until a large tract of timber has first been cut.
Therefore, in order to determine its equipment and
manpower needs, an accurate estimate of the
cutters' production for the balance of the winter
season must be obtained.' Respondent became
concerned with the fact that, under the conditions
noted above, it was impossible to project the
amount of timber that would be cut in the balance
of the season. Sometime during the period of
February 23 thru 25, Reed told his foreman that
any cutter who did not report for work on Monday,
February 26, was not to be employed at a later date,
and that the foreman was not to search for any
cutter who failed to report.
On Monday, February 26, four cutters reported
for work. That day Respondent laid off 9 of the 12
employees then engaged in its timber removal
operations. On Wednesday, February 28, Zyskowski
and Zacharias reported and were refused
employment. Subsequently, they were among the
'Cutting in deep snow greatly decreases mobility and, therefore,
increases the likelihood that a cutter will be unable to avoid a tree falling
in an unanticipated direction . In addition , the cutting proceeds at a much
slower pace and, consequently , earnings are reduced.
'Respondent seeks to continue its operations throughout the winter.
Once the spring thaw begins, the roads to the timber tracts become
impassable . Operations are suspended for this period , which normally lasts
approximately 2 months.
175 NLRB No. 133
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees whom Reed instructed his foreman not to
rehire in the spring.
Respondent claims that it discharged and refused
reemployment to Zyskowski and Zacharias because
they were unwilling to work through the winter
season , as evidenced , inter alia , by their failure to
report on February 26. The Trial Examiner found,
and we agree , that Respondent was justified under
the Act in seeking to retain only those cutters who
would work through the winter season . However, in
our opinion , the facts presented herein do not
support the conclusion that Zyskowski and
Zacharias were discharged and refused
reemployment because they were recalcitrant
employees.
As previously noted , Zyskowski was selected by
the cutters as their spokesman and had acted as
such . In December , he had been discharged for 2
days for allegedly circulating a petition . Because of
the weather conditions , Zyskowski had been having
difficulty with his power saw and had communicated
this fact to Respondent ' s foreman . He had discussed
the adverse working conditions with fellow cutters
and, after considering the matter , he informed Reed
that he would continue to work . His failure to
report on February 26 was due to a malfunctioning
power saw and when the saw was repaired, on
February 28, Zyskowski reported for work.
Similarly, Zacharias had been having difficulties
with his power saw because of the weather
conditions . In addition , he had also discussed
existing conditions with his fellow cutters. On
February 21 he informed the foreman that he
preferred to wait until the snow settled somewhat
before continuing to work and that several of the
cutters felt the same way. Zacharias also had
suggested that, because of the existing weather
conditions , the cutters should all quit and seek
unemployment compensation.
Zyskowski and Zacharias had both worked for
Respondent through previous winters and, by
reporting on February 28, they clearly manifested
their intention to work through the period in
question . Furthermore, Respondent rehired, the
following spring , three cutters who had also failed to
report on February 26. No explanation of the
disparate treatment involved was offered by
Respondent . In fact, Reed admitted that he had
always had difficulty retaining cutters through the
winter months and he had never established a firm
policy of refusing reemployment in the spring to
cutters who had quit in the winter.
As we have observed , if Respondent had
discharged the employees in question because they
had refused to work during the winter season, the
discharges would not violate the Act. However, the
past work records of these employees, their
demonstrated desire to continue working, and the
disparate treatment accorded them creates serious
doubt as to whether the stated reasons were , in fact,
the operative causes of the discharges. Furthermore,
testimony of Reed , given at a state unemployment
compensation hearing and received in evidence
herein , clearly reveals the real reasons for the
discharges. In setting forth his reason for refusing to
recall Zyskowski in May 1968, Reed first referred
to the reluctance of several of the men to work
under the difficult winter conditions . Then he stated
"I can 't sweartunder oath that I know for a fact
that Ed [Zyskowski ] is the cause of this, and I don't
think he is the entire problem . I think he is a part
of it." (Emphasis supplied .) Thus, in order . . . "to
bar a long-range program of possible [sic] more
turmoil, I told him [the foreman] I just did not want
him [Zyskowski ] back to work again."
We view the foregoing testimony as convincing
evidence that Zyskowski and Zacharias were not
discharged and refused reemployment because of
their failure to report to work on February 26. In
essence, Reed admitted that the reason he fired
Zyskowski and other employees was to prevent
them from causing "more turmoil " among the
cutters. There is no doubt that Zyskowski in his role
as elected spokesman for the cutters, had engaged in
protected concerned activities .' Similarly, the
discussions and protests over adverse working
conditions and the suggestions that the cutters quit
en masse and seek unemployment compensation
because of these working conditions also constituted
protected concerted activities .' Zyskowski and
Zacharias had both been involved in these activities.
Under all of the circumstances enumerated herein,
we are of the opinion that the reasons assigned by
Respondent for discharging and refusing to
reemploy Zyskowski and Zacharias were clearly
pretextual.5 In view of their history of working
through previous winters , their demonstrated
willingness to continue working under the existing
conditions , the disparate treatment accorded them,
and their involvement in protesting adverse working
conditions , we do not believe that Zyskowski, and
Zacharias were discharged and refused
reemployment for failing to report on February 26.
Rather, as Reed 's own testimony at Zyskowski's
unemployment compensation hearing concedes,
Respondent was concerned about the protests over
existing working conditions , activities which are
protected by the Act. Accordingly, we find that, in
an attempt to foreclose such protected concerted
activity in the future , Respondent discharged and
refused reemployment to two of the primary sources
'Salt River Valley Water Users' Association, 99 NLRB 849, enfd. as
modified 296 F 2d 325 (C.A 9).
'See: Washington Aluminum Company, Inc., 370 U.S. 9.
'Employee Alfred Pressgrove was also terminated for failing to report on
February 26. However, Pressgrove had not worked for Respondent through
previous winters and did not seek to return to work during the period in
question . In addition , Read testified , without contradiction , that Pressgrove
was a poor worker and would not have been rehired in the spring under
any curcumstances. Furthermore, Pressgrove does not appear to have
been directly involved in any of the protected concerted activity engaged
in. Thus, we do not believe the record presents sufficient evidence to
find that his discharge was pretextual. Accordingly, we shall adopt the
Trial Examiner s dismissal of the complaint as it relates to Pressgrove.
WIND RIVER LOGGING COMPANY
of these activities,. Edruond Zyskowski and Phillip
Zacharias , thereby violating Section 8(a)(1) of the
Act,6
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
of the Act, we shall order that it cease and desist
therefrom and take certain affirmative action
designed to effectuate the policies of the Act. It has
been found that the Respondent has discriminated
against employees -Edmond Zyskowski and Phillip
Zacharias by discharging and refusing
reemployment to them in - violation of Section
8(a)(1) of the Act. We shall therefore order the
Respondent to offer them immediate and full
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or, other rights and privileges, and to make
them whole for any loss of pay they may have
suffered as a result of this discrimination against
them by payment to them of a sum of money equal
to that which they would have earned as wages from
the date of the discrimination to the date of
reinstatement, less their net earnings during such
period, in accordance with the formula prescribed in
F. W. Woolworth Company, 90 NLRB 289,
together with interest at the rate of 6 percent per
annum to be added to such backpay, such interest to
be computed in accordance with the formula
prescribed in Isis Plumbing & Heating Co., 138
NLRB 716. The nature of the unfair labor practices
found herein "go to the very heart of the Act." The
Respondent will, therefore, be further ordered to
cease and desist -'from "in any other manner"
infringing upon the rights guaranteed to its
employees by Section 7 of the Act.'
ADDITIONAL CONCLUSIONS OF LAW
1. Edmond Zyskowski and Phillip Zacharias were
discharged and refused reemployment in violation of
Section 8(a)(1) of the Act.
2. The unfair labor practices found above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
G. H. Reed and G. A. Reed d/b/a Wind River
Logging Company, DuBois, Wyoming, its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
`Falcon Plastics - Division of B-D Laboratories , Inc, 164 NLRB No
101.
'Fry Products Inc., 110 NLRB 1000, 1005
827
(a) Discharging and refusing reemployment to
employees or otherwise discriminating in regard to
their hire, tenure of employment , or any terms or
conditions of employment , because they have
engaged in concerted activities for the purpose of
mutual aid or protection.
(b) In any other manner interfering with,
restraining , or coercing employees in the exercise of
their right to self-organization , to form labor
organizations , to join or assist any labor
organization , to bargain collectively through
representatives of their own choosing , and to engage
in concerted activities for the purpose of mutual aid
or protection as guaranteed in Section 7 of the Act,
and to refrain from any and all such activities.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act:
(a) Offer Edmond Zyskowski and Phillip
Zacharias immediate and full reinstatement to their
former or substantially equivalent positions , without
prejudice to their seniority or other rights and
privileges previously enjoyed.
(b) Make the above-named employees , whole for
any loss of pay they may have suffered by reason of
the discrimination against them in the manner and
in accordance with the methods referred to in the
section above entitled "The Remedy."
(c) Notify the above-named employees if presently
serving in the Armed Forces of the United States of
their rights to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(d) Preserve and, upon request , make available to
the Board or its agents, for examination and
copying , all payroll records, social security payment
records , time cards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due and the rights of
employment under the terms of this Order.
(e) Post at its establishment in DuBois , Wyoming,
copies of the attached notice marked "Appendix."8
Copies of said notice , on forms provided by the
Regional Director for Region 27, shall, after being
duly signed by Respondent 's representative, be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places , including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(f) Notify the Regional Director for Region 27, in
writing , within 10 days from the date of this Order,
what steps Respondent has taken to comply
herewith.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint
insofar as it alleges violations of the Act not herein
found be, and the same are, hereby dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT discharge or deny reemployment to
any of our employees or discriminate in regard to their
hire , tenure of employment , or any term or condition of
employment , because they have engaged in concerted
activities for the purpose of mutual aid or protection.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
right to self-organization , to form , join , or assist labor
organizations , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any other or all of such activities.
WE WILL offer Edmond Zyskowski and Phillip
Zacharias immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges
previously enjoyed.
WE WILL make Edmond Zyskowski and Phillip
Zacharias whole for any loss of pay they may have
suffered by reason of the discrimination against them.
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their rights to full reinstatement, upon
application , in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended , after discharge from the Armed
Forces.
Dated By
G. H. REED AND G. A.
REED D/B/A WIND RIVER
LOGGING COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with it provisions, they may communicate
directly with the Board's Regional Office, New Custom
House, Room 260, 721 19th Street, Denver, Colorado
80202, Telephone 303-297-3551.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Trial Examiner: Upon a charge
filed on June 19, 1968, and an amended charge filed on
June 24, 1968, by International Union of Operating
Engineers , Local Union No. 326, AFL-CIO, herein called
the Union, said charges having been duly served on or
about June 19 and June 24, 1968, respectively, on G. H.
Reed and G. A. Reed d/b/a Wind River Logging
Company, herein called Respondent, the General Counsel
of the National Labor Relations Board issued a complaint
on July 24, 1968, against the Respondent alleging that
Respondent violated Section 8(a)(1) of the National Labor
Relations Act, as amended, herein called the Act, by the
discharge of its employees Edmond Zyskowski and Phillip
Zacharias on or about February 28, 1968, and by the
refusal to rehire its former employees, Eldo Coggins,
Arnold Conley, Dallas Morgan, Alfred Presgrove, Phillip
Zacharias, and Edmond Zyskowski on or about May 25,
1968.
Pursuant to due notice, a hearing in this matter was
held before me on September 18 and 19, 1968, at Lander,
Wyoming. The parties fully participated, presented
evidence , and examined and cross -examined witnesses.
Upon the close of the General Counsel's case in chief,
ruling was reserved by the Trial Examiner on the
Respondent's motion to dismiss the complaint with
respect to violations alleged in connection with the
Respondent's alleged refusal to rehire former employees
Dallas Morgan, Arnold Conley, and Eldo Coggins. The
ensuing decision will dispose of this motion . Briefs
submitted by the General Counsel and by the Respondent
have been carefully considered. Upon the entire record,
including briefs, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
The pleadings establish, and, I find, that the
Respondent is a copartnership composed of G. H. Reed
and G. A. Reed doing business under the name and style
of Wind River Logging Company. Respondent maintains
its principal place of business at DuBois, Wyoming, and is
engaged as a logging contractor felling trees and supplying
logs valued in excess of $50,000 annually to United States
Plywood-Champion Papers, Inc., located at Riverton,
Wyoming. United States Plywood-Champion Papers, Inc.,
annually ships goods and materials valued in excess of
$50,000 from Wyoming to other states. It is established
by the pleadings, and, I find, that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The pleadings establish, and, I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Did the Respondent by the discharges of Zyskowski
and Zacharias on' February 28, 1968, and the refusal to
rehire Zyskowski, Zacharias, Coggins, Morgan, Conley,
and Presgrove in May 1968 thereby interfere with, coerce
and restrain employees in the exercise of their rights
guaranteed by Section 7 of the Act, and thereby violate
8(a)(1) of the Act? The Respondent while admitting its
failure to rehire Zyskowski and Zacharias on or about
February 28, 1968, and its refusals to rehire Zyskowski,
Zacharias, Conley, Coggins, Presgrove , and Morgan in
WIND RIVER LOGGING COMPANY
May 1968, contends , nevertheless , that such action on its
part was not violative-of the Act.
B. Preliminary Statement
Respondent is a logging contractor for U.S. Plywood,
responsible for cutting, preparing , and delivering raw
timber to the U.S. Plywood Mill in DuBois , Wyoming.
Respondent sends its crews into designated sections of the
woods where the timber is first cut down by men known
as "cutters" or -"fallers ." Falling entails the actual cutting
down and rough preparation of the trees. Using power
saws the "cutters" cut the trees down, remove all the
limbs which can be reached without turning the trunk
over, measure the log and out or "buck" it into lengths
specified by the U.S. Plywood. The six employees named
in the complaint were "cutters." Because of the danger of
falling timber the cutters cannot work too close together.
Hence, the area in which the crew is working is divided
into strips. Each cutter is assigned to a strip. The cutters
start on their strips at the face and work their way back
into the woods.
After the cutters have cleared out an area, the partially
prepared logs which they have left on the ground must be
dragged out of the woods to a central landing point. This
operation is known as "skidding." It is performed by
another crew of men known as "skidders" who operate
crawler type tractors to perform this operation. At the
landing point other skidders unhook the cables attached to
the skidded logs, and cut the remaining limbs off the logs.
This done, tractors push the logs into piles known as
"decks." Later the logs will be loaded onto trucks by a
shovel type loader and hauled to the mill.
For reasons of safety the skidders and cutters cannot
work in close proximity. There may be a lot of dead
timber and timber too small for marketing that the cutters
will leave standing . It would be quite easy for a skidder to
knock one of these trees over on a cutter. Similarly a
cutter could misjudge and fall a tree on top of a skidder.
For these reasons, the-Respondent must have a large area
of timber, prepared ahead by the- cutters before it starts
"skidding ." Normally Respondent tries to maintain a
margin of at least 30 to 45 days between the skidding and
falling operations . When the skidding. crew gets close to
the falling operation , work scheduling and coordination
become difficult.
Logging is greatly affected by the weather. The entire
operation is forced to close down for a period of
approximately 2 months in • the spring when the thaw
makes the roads into the forest so muddy that it is
impossible to get , to and from. the woods. This period is
known as the spring "breakup ," and generally lasts from
the latter half of March to the latter part of May. The
employees are laid off during this period.
With the end of the "breakup" and the commencement
of logging operations , the laid off men expect to be
reemployed and the word generally gets around in DuBois,
a small town - of 6004,000 population. Respondent's
copartner and general manager, Glavis Reed, testified,
without contradiction , that he never contacts a man who
had quit or had been terminated prior to breakup, to offer
him reemployment . If-such an individual wants to return
to work , he must take the initiative and ask for
reemployment, in;which case Mr. Reed may or may not
reemploy him after a discussion of the matter.
Snow depth slows down the cutting operation. The
deeper the snow the slower,, more arduous, and more
hazardous the cutting operation becomes . Snow depth
over the knees is significant . When snow gets this deep,
829
the cutter not only has more difficulty moving about
amongst the trees, but he must also shovel out each tree
so that the stump remaining after the cutting operation
does not exceed the 10-12 inch height limit set by the U.S.
Forest Service. The necessity to shovel out a tree also
increases the hazards of the work. The cutter must dig out
a pit around the tree in which he must then stand while he
cuts it down with his power saw. His mobility is thereby
greatly decreased, and he is less able to move out of the
way of a tree falling in an unanticipated direction. These
deep snow conditions persist from approximately the
middle of January to the first of March.
The cutters are paid on a piece rate basis of $4.25 per
thousand board feet cut. Since they are unable to cut as
many trees during the deep snow months, their gross
earnings fall off during those months anywhere from 35
percent to 50 percent. The Respondent is also paid by
U.S. Plywood on a board feet basis, and its income
likewise falls off in the same ratio during this same
period.
It has been the Respondent's policy to continue its
logging operations during the deep snow months, among
other reasons to fulfill its contractual commitments to
U.S. Plywood and in order to keep as many men as
possible employed in order to have a return crew after the
end of the spring breakup. Mr. Reed testified that he tries
to encourage the men to go on cutting and to go on
skidding even though it isn 't sometimes the most
economical thing. Mr. Reed testified that since it is
impossible to hire cutters in the wintertime, he likes to
employ as cutters men who will cut in deep snow - that
he wants men who will take the bad winter cutting with its
reduced earnings with the good cutting the rest of the
year. But Mr. Reed experiences difficulty every winter
with men just quitting and going home because they think
the snow is too deep. Thus, in the winter 1967-68, the
number of cutters decreased from 17 in early January
1968 to 4 on February 26. Since the number of cutters
determines the availability of other jobs, this may require
a layoff of skidders, loaders, and haulers.
Relevant to the controversy in this matter is a
definition of the practice in the logging industry,
recognized by the Respondent since its inception known as
"bunching it." All concerned agree that "bunching"
means simply knocking off for the day, either by one
person or more than one person for any number of
conceivable reasons, such as saw trouble, storms, high
winds, illness, etc.
C. The Progress of Events
Beginning November 25, 1967, the falling crew started
working in an area known as "Long Creek." About
January 4, 1968, when the snow became waist high deep
at Long Creek, all the men agreed to "bunch it," knowing
that another timber area, "East Fork," was available
where the snow was not nearly so deep. At the men's
request for a better cutting area, Mr. Reed readily moved
them to "East Fork" where the cutting could proceed at a
much faster and less hazardous pace. Mr. Reed agreed
with the men's opinion that the work was rough and
dangerous at Long Creek and that the move was justified.
Mr. Reed testified, and I find, that the men's "bunching
it" at Long Creek had no effect whatsoever on his opinion
or feeling toward them.
The falling crew left Long Creek on January 5 and
went to East Fork, which had less snow . The crew started
cutting at East Fork on or about January 15, 1968, and
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
most of the cutters finished there on February 10, 1968.
On February 10, 1968 , the men were told by Mr. Reed,
and they all understood , that the only area left to cut was
at "Camp Creek" for the balance of the winter to the
beginning of spring "breakup."
The Respondent in order to consider more equitable
means of computing the board feet production of the men,
both from the Respondent 's standpoint and the men's,
called a meeting of his cutters on February 10, 1968, to
discuss the matter . Knowing that Reed thought changes
should be made , the cutters met beforehand that same day
at Gerald Hagberg 's house . Edmond Zyskowski, one of
the six employees named in the complaint , was elected as
spokesman for the men and acted as such at the meeting
of the group with Reed . The matter was discussed and the
upshot was the formulating of three methods of
computing the production of the men. Mr . Reed credibly
testified that he himself had asked for the meeting, he was
aware that the men had previously discussed this matter
and that he entertained no hostility to the men because of
this meeting or the men's previous discussion among
themselves.
Before the falling operation began in the East Fork
area, and as a consequence of complaints made at Long
Creek by cutters who wished to continue working even
though other cutters had "bunched" it for the day, a new
rule was made by Reed concerning the use of the bus-like
truck furnished by the Respondent to transport the cutters
and their tools from the town to the woods and back to
town . This bus, called a "crummy" was available for use
by the cutters at a fee of 75 cents per day. Some would
use it ; others would provide their own transportation, or
group ride with other cutters . It had been the practice
prior to operations in East Fork for the "crummy" to
remain in the woods until the end of the workday when it
would transport the riders back to town . Before the rule
change, if a majority of the cutters riding the "crummy"
bunched it, in that case everyone riding the crummy even
those not wishing to "bunch it" would be forced to ride
back to town . Reed changed the rule. Henceforth he
directed that as long as any crummy rider wished to
continue working , the crummy would remain in the woods
until the end of the workday . This meant that those
cutters who relied on the "crummy" for a ride found
themselves unable to leave the area in the "crummy" if
they should "bunch it" before the end of the day. They
could sit in the crummy and wait . According to the
credible and undisputed testimony of Reed, no one
protested this change in the rule pertaining to use of the
"crummy."
D. Coggins and Morgan Quit
Coggins and Morgan, two of the employees named in
the complaint, had worked as cutters at Long Creek and
in the East Fork area and were scheduled to work at
Camp Creek . Mr. Reed took both of them to look at the
cut site on about February 15, 1968, and they
unaccompanied by Mr . Reed returned again on February
17 to look over the site . After viewing the job, they
individually decided to quit because they were of the
opinion snow was too deep and the trees too scattered and
too small . They felt that the reduced earnings would not
justify the effort.' They did not join the crew of cutters
that started falling operations at Camp Creek on
February 19. Morgan notified Fritz Robertson, the Woods
Boss, that he was quitting on the night of February 19.
Coggins notified the elder Reed that he was quitting. They
left town on or about February 20 for other work. Neither
have asked for their jobs back. During the 1968 spring
breakup, Mr. Reed gave instructions to his supervisory
foreman, Gerald Hagberg, that both Coggins and
Morgan, as well as Zyskowski, Zacharias, Conley, and
Presgrove , were not to be rehired in the ensuing logging
season . The General Counsel admits that Coggins and
Morgan quit their employment with the Respondent.
I find nothing in the record to substantiate the General
Counsel's apparent claim that Reed' s instructions to his
foreman , Hagberg , not to rehire those two men is based
on any concerted activity. To the contrary their individual
decisions to quit their employment do not constitute
concerted activity. Mr. Reed testified that he gave such
instructions to Hagberg because of his determination that
they had terminated their employment by not reporting
for work on February 26. There is nothing in the record
to even suggest that the individual decisions of each of
these two employees to quit on or about February 17,
1968, amounted to concerted activity. I am satisfied that
so far as the record shows, Reed ' s decision not to rehire
Coggins and Morgan after spring breakup was based on
their quitting their jobs in the wintertime , and his desire to
hire and retain men who would work in the wintertime.
Neither Coggins nor Morgan sought rehire with the
Respondent , and there is no evidence that their failure to
apply for work was based on any knowledge that Reed
had instructed Hagberg not to hire them.
The General Counsel' s argument that Reed was angry
because the men bunched it at Long Creek in January
1968 is not supported by the evidence. To the contrary
Reed readily agreed with the men that the move to East
Fork should be made and he unhesitatingly made the
move where the snow was shallow , a circumstance which
permitted greater earning for both the men and the
Respondent.
I shall , therefore, grant the Respondent's motion
previously made at the close of the General Counsel's case
to dismiss the complaint insofar as it alleges that the
refusal to rehire Coggins and Morgan violated Section
8(a)(1) of the Act.
E. Events the Week of February 19 to February 23,
1968 , at Camp Creek
Work began by the cutters at Camp Creek on Monday,
February 19. The snow depth at Camp Creek was about
the same as it had been at Long Creek where the entire
crew had "bunched it" on or about January 5, resulting in
the move to East Fork where cutting was substantially
completed on February 10.
I find upon the basis of testimony from several
witnesses that the snow was approximately 32 inches to
waist deep at Camp Creek. Cutting was arduous and
hazardous . The cutters were required to dig pits in which
to stand preparatory to cutting down the trees. Bert
Taylor, Art Conley, and Ed Zyskowski rode to work in
Conley's car on February 19. Reed encountered the three
of them as they were coming out of the woods that
morning headed for home . They were "bunching it."
Conley had a slip of paper on which he had made some
computations as to anticipated net earning he could make
at Camp Creek, after calculating deductions for saw
rental and transportation . Conley told Reed he was
'Goggins testified the snow was waist -high. He estimated that he could
"cut probably 75 trees average per day if he really worked at it ," which, he
concluded "would not give him enough money to make a fair wage."
WIND RIVER LOGGING COMPANY
quitting that it wasn't-wbrth -it to work and earn only 50
or 60 dollars more per week than he could draw on
unemployment insurance. Reed told the three men that he
wasn't going to force them to go back and cut logs, but if
they left, he would, protest their unemployment insurance,
"that as long as there were men that wanted to work, that
we would continue to operate up there with men that
wanted to continue to work and, that I would contest any
unemployment that was applied for anyone that left the
job." Zyskowski told- Reed that it was rough cutting, the
timber too scattered, his powersaw was acting up, that he
was going home to think -about it. Reed told Zyskowski
he would call him. That evening Reed phoned Zyskowski
to inquire what the three men intended to do about
returning to work. Zyskowski told Reed that he didn't
know what the other men were going to do, but he was
coming back to work.' Hagberg credibly testified, without
contradiction, that at Camp Creek, Conley urged the
other cutters "that we should all go home and our
unemployment would not be protested."
On Tuesday, February 20, nobody worked as a storm
blew up and the crummy, with its passengers, operated by
supervising foreman Fritz Robertson turned back to town
rather than venture into the woods.
On Wednesday, February 21, the following people rode
the "crummy": Zyskowski, Hoffman, Zacharias, Bert
Taylor, Bill Taylor, lind -Alfred Presgrove. On that day
the number of trees felled by cutters was as follows:
Hagberg 105, Zyskowski 28, Savich 64, Hoffman 80,
Zacharias 20, Bill Taylor 11, Presgrove 11, Bert Taylor
32, and Seaton 40.
Zyskowski's testified explanation for only cutting 28
trees that day was that the carburetor of his powersaw
was acting up, the snow too- deep, the timber too
scattered, and finally that he broke the starter on his
powersaw - so that he had to discontinue working.
Zyskowski reported the saw trouble to his foreman, Fritz
Robertson. He testified, without contradiction, that he
also told Robertson that he was almost hit by a tree
because he was' unable to get out of a hole he had
shoveled to fell the tree.
Zacharias testified concerning weather conditions at
Camp Creek as being stormy, the snow waist-deep, that
due to the snow saturating his powersaw, it was not
running properly, that one day he slipped off a tree and
the blade of the saw cut his forehead, that it was
dangerous and hazardous, and at the same time he wasn't
feeling well; that he was wet"all the time from walking in
the deep snow. Zacharias further testified that it was more
or less understood b6tween Gerald Hagberg, Everett
Seaton, Louis Savich, and himself that they weren't going
to cut up there any more.' Zacharias did not wait to
return in the crummy on February 21, but rode back to
town in Everett Seaton's jeep. Before he left that day,
Zacharias testifies he told his foreman, Fritz Robertson,
that he didn't think it was worthwhile at the time to
continue working- until the snow settled a little bit "which
was the feeling of these other men too."
'Respondent 's records show that on February 19, Conley felled 10 trees,
Bill Taylor 10 trees, Zyskowski 16 trees, whereas Hagberg felled 92 trees,
Savich 72 trees, Hoffman 105 trees , Zacharias 25 trees, Seaton 37 trees,
and Bert Taylor 40 trees.
'Concerning the foregoing understanding , Hagberg testified that
"Zacharias felt that if we all left as an entire group our unemployment
compensation would not be protested, and everybody would get their
unemployment " Hagberg further testified that at Camp Creek, the
majority was disgusted - too much snow - up to their waist - nobody
was happy about the snow - the men wanted to quit and go on
831
Woods Foreman, Fritz Robertson testified that on
same day Zacharias got his tools "and told me that that
was it, that he was through. He wasn't going to work
under those conditions for anybody."
On Thursday, February 22, Respondent's records show
that only three men worked and the number of trees felled
as follows: Hoffman 90, Bill Taylor 36, and Bert Taylor
42.
On Friday, February 23, it appears from the
Respondent's records that only five men reported for
work, and their production was as follows: Savich 18
trees; Hoffman 70 trees; Bill Taylor 21 trees; Presgrove 21
trees, and Bert Taylor 42 trees. A bad storm came up on
February 23, and the entire crew working that day
including the foreman bunched it and returned to town
early.
Testifying generally with respect to the behavior of the
men in the week of February 19 to February 23, Foreman
Fritz Robertson said:
Well, there was a few that was going up there and
working all day. Then there was some others that was
just going up and cutting a few trees and sitting around
the fires in bunches - more than there was working."
The men said the snow was too deep. Reed testified that
in the week of February 19-23, cutting was very erratic
due to men "standing by the fire and some not showing
up at all." Reed also testified, without contradiction, that
in that same week when Everett Seaton expressed
dissatisfaction to him - that the snow was too deep and
he couldn't make it, Reed told him, "Well this is your
decision and all I want to know is if you are leaving. If
you are leaving, well, you won't come back to work for
me - you will not draw unemployment if I can help it,
and you won't return to work for me."
On the last day that Zacharias worked (February 21)
Reed testified he saw him sitting in the crummy instead of
working. Zacharias was talking about how rough it was.
Reed told Zacharias that he couldn't cut logs in the
crummy - but it was his decision to make. Zacharias
expressed dissatisfaction with the condition of the snow
and the small timber. Reed testified that it was his
opinion that "Zacharias was feeling sorry for himself -
that maybe he didn't feel good."
Reed testified that a storm "kept us out [of the woods]
over Saturday and Sunday, February 24 and 25."
To meet the problem of his cutters who manifested a
propensity not to work and instead to sit by the fire or in
the crummy, or not even to report for work, Reed
testified, and I find, that he instructed his foreman, Fritz
Robertson "that we would take all the men who showed
on February 26 and balance the skidders according to the
number of cutters - anybody not showing up on
February 26, not to take them back at a later date." Reed
issued these instructions to Robertson on Friday,
Saturday, or Sunday, February 23-25.
Reed further told Robertson at that time "not to go
looking for the fellows - or hunting them." Reed further
testified that he personally did not inform any of the
cutters that if they didn't show up on Monday they would
be considered "quits or discharges."
Robertson credibly testified, and I find, in that
connection that Reed told him "he (Reed) either wanted
them to work or not to work. Make up their minds. If the
unemployment. In this connection, Zacharias conceded on
cross-examination that he told Hagberg that all of the cutters should quit,
because if some continued to work those who quit would not be able to
draw their unemployment compensation
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men wanted to go up to work , they should work . If they
didn 't, they shouldn' t go up [to the woods]. He wanted
them to make up their minds whether they wanted to or
not so he would know to make his plans accordingly."
Robertson testified , and I find , that he was instructed not
to take back anyone who didn't show up for work on
February 26.
On Monday, February 26, only four cutters reported
for work, namely, Hoffman, Hagberg, Nelson, and
Savich. With respect to the men who didn't show up,
Robertson testified, "Well, they just stayed home I guess.
I didn 't call them up or nothing."
Reed testified , and I find , that his decision to continue
the rest of the season only with those cutters who reported
on February 26 was based on the fact that the skidders
were finishing up at East Fork and would be ready to
move into Camp Creek in a few days , and it was essential
to know how many skidders and how many tractors he
would need at Camp Creek. The ratio is usually one
skidder to two cutters. He testified further, and I find,
that as a result of only four cutters showing up on
February 26 , he laid off nine men in the skidding
operations retaining only three skidders.
Testifying as to his reason for directing Robertson not
to take back any cutter who didn't show on February 26,
Reed said "because of everything that had taken place the
week of the 19th - the men were coming and going until
I finally made up my mind I was going to make up
something - I also punished myself in the fact that this
meant that I was going to have to lay off some skidder
operators, and they were not going to be very happy."
Reed also testified he felt obligated to make this rule this
winter because the skidders were about to catch up with
the cutters.
On February 28, Zacharias and Zyskowski reported for
work. Robertson told them there was no work available,
that they were about to finish up with the four cutters and
once the "cats" got up to the four men which would be in
a few days, that would be the end of it until breakup time.
Reed testified , and I find , that on the morning of
February 26, when many of the cutters did not show up
for work, he determined that those who did not show
would have no future work with him . Stating his reason
for this decision , he testified as follows:
Because they were jeopardizing the entire operation; not
only myself, but all these other men that were employed
- the truck drivers, skidders , loaders , and everybody
that relies on getting this timber out to make a
balanced operation , and I had had enough previous
experience to know that I could anticipate during the
coming winter I would have the same problem, so I
said, `Why rehire them knowing that this coming year
they would do the same thing? Just terminate them and
try somebody new.' The new men we hired, maybe they
will go ahead . . . I wanted to hire men that would
work all winter."
Rationalizing his decision further, Mr. Reed testified as
follows:
If we know these men prefer not to cut in the
wintertime , then why should I hire them in the
summertime and let them have good cutting and make
big money ' and they walk off and leave me in the lurch,
and it 's impossible to get cutters in the wintertime
where if I can hire new men in the spring , maybe these
men will stay on during the winter so I can continue my
operation and keep employed the rest of my men. Now,
this is not a sure thing . . . . The men left us in the
lurch in the wintertime , and my feeling was that they
just walked off the job, so why buy more trouble, that
we were going to be going into the same thing come
another winter , so I decided I just wouldn 't reinstate
them.
During the breakup period , Reed engaged Gerald
Hagberg to supervise the cutters in the ensuing season
under a form of subcontractor relationship.' On or about
April 15, 1968, Reed instructed Hagberg not to rehire the
six employees involved in these complaint proceedings,
namely , Conley, Coggins , Morgan, Zyskowski , Zacharias,
and Presgrove . Coggins, Morgan , Zyskowski, and
Zacharias did not reapply for work after the spring
breakup . During spring breakup , Conley addressed a letter
to the Respondent applying for work , but the Respondent
ignored it and did not reply. Presgrove applied for work
to Hagberg in May 1968, after the spring breakup.
Hagberg told Presgrove that Reed had instructed him not
to rehire him as well as the five others named in these
complaint proceedings . On the following day Presgrove
approached Reed who refused to take Presgrove back
giving as his reason that there was "no use of buying
trouble by hiring us, a group back who wouldn't work in
the wintertime."
F. Discussion of Activities of Zyskowski, Conley,
Zacharias, and Presgrove
Edmond Zyskowski had been employed by the
Respondent since October 1964 . Evidence adduced at the
hearing shows that on occasion , Zyskowski aroused the
displeasure of Respondent .' He is acknowledged by Reed
to be one of his best cutters with customary earnings in
the high brackets . Testifying what Zyskowski ' s status
would have been if he had showed up for work on
February 26, Reed stated "He (Zyskowski ) would have
gone back to work as far as I was concerned, and I would
be tickled to death to have him ." Zyskowski testified that
in previous years, it had been the practice of Mr . Reed to
call him and others back to work at the end of spring
breakup , but in May 1968, he was not called back.
'Reed testified that the cutter ' s gross earnings at piece rate average
approximately $45-$60 a day in good weather and at the Wyoming
Unemployment Compensation hearing about $25 a day in deep snow such
as existed at Camp Creek in the week February 19-26
'It is agreed by the parties that for the purposes of this case Respondent
still remains the employer , and Hagberg a supervisory employee.
'For example , as credibly testified by Zyskowski in the spring of 1965,
representing the men , he met with Mr. Reed to discuss the matter of
scaling trees On this occasion , due to the failure of the men to show up at
the meeting , he told Reed that this was the last time he was going to act as
spokesman for the group . On December 11, 1967, while refusing to divulge
the reason for his action , Foreman Fritz Robertson discharged Zyskowski.
When Zyskowski contacted Reed to ascertain the reason, Reed told him
that he had been fired for reportedly circulating a petition among the men.
Zyskowski denied circulating the petition but stated to Reed he would
probably be blamed for the fact that the men were going to approach Reed
for a wage increase. Reed admonished Zyskowski to go home and not to
talk to any of the other employees while he checked out the matter, and 2
days later Zyskowski was rehired on December 13, 1967 , at which time
Reed told Zyskowski he should find some other means of transportation to
the woods and not use the "crummy" so as not to agitate the men. The
nature of Zyskowski 's agitation, other than general griping to other
employees, is not clear and the substance of the purported petition was not
disclosed by the evidence . The events recited in this footnote are either too
remote in time or too insubstantial in causality to have played a part in the
decision of Reed to refuse to rehire Zyskowski and the other five cutters
named in the complaint . Other events occurring from February 19 to 26
overshadow the inferences which the General Counsel derives from these
earlier events.
WIND RIVER LOGGING COMPANY
Zyskowski admitted on the witness stand that he had been
told by fellow cutter Hagberg previous to the February 26,
1968, deadline, that if he didn't report for work on
February 26 he would be fired.'
Notwithstanding Hagberg' s friendly warning,
Zyskowski made no effort to contact Reed to notify him
why he could not report for work on February 26.
Zyskowski testified that he did not show up for work on
February 26 because he had not yet received certain repair
parts from Michigan necessary to the operation of his
powersaw , and that this disrepair of his powersaw was the
reason for his failure to report for work after February
21, until February 28. Concerning the cutters "bunching"
it at Long Creek, Zyskowski testified that he went along
with the rest of the crew and "bunched it" at "Long
Creek" although he "didn't particularly have such a bad
strip." He testified he did not instigate "bunching" at
Long Creek. He further testified that he did not attempt
to get the men to walk off the job at Camp Creek and
that he had "bunched it" on February 19 and February 21
on account of saw trouble.
Arnold Conley: Arnold Conley "bunched it" with Bert
Taylor and Zyskowski on February 19. On this day
Conley urged the other cutters "that we should all go
home and our unemployment would ' trot be protested."
Conley told Reed he was quitting, that it wasn't worth it
to work and earn only $50 or $60 more per week than he
could draw on unemployment insurance . Conley reapplied
for work by letter at the start of the following season,
Reed did not reply. I find that Conley's decision to quit
was his own and was not the result of concerted activity.
Phil Zacharias: I find that Zacharias like Zyskowski
cut few trees the week of February 19-23 (25 trees on
February 19 and 20 trees on February 21). In short he
found the going unbearable in the two days he worked,
namely, February ' 19 and 21. He was not notified by
management or anyone else concerning the February 26
deadline. He testified that he didn't report for work on
February 26 because he didn't expect anybody else would
report ; anyhow, he wasn't feeling too well , his "saw was
not running too good ," and, so he testified , he was waiting
"until the snow settled a little bit." Zacharias did report
on February 28,' - but was refused employment by
Robertson for the balance of the winter season before
breakup . The deep ' snow and the tough going led to
discussions between - Zacharias and other cutters, and it
was more or - less understood , according to Zacharias'
testimony , that he and three other cutters , namely
Hagberg , Seaton, and Savich,; "that they weren't going to
cut up there any more, until the snow settled ."9 Zacharias
testified he told his foreman, Robertson, of this
understanding when he rode back to town early on
February 21. Zacharias also conceded on
cross-examination that he had suggested to employees,
that if they all left as entire group , their unemployment
insurance would not be protested . During the spring
breakup , Zacharias ' wife was told by the new foreman,
Hagberg , that he had been instructed by Mr . Reed not to
rehire her husband and the five other cutters , namely,
Coggins, Morgan, Zyskowski, Conley, and Presgrove.
Thereafter, Zacharias made no attempt to seek
'Hagberg credibly and without contradiction testified that when he
conveyed this information to Zyskowski as a friend, Zyskowski's reply was
"that he (Zyskowski) wasn 't concerned because U.S. Plywood needed 40
million feet of logs this coming , season , and that in his opinion they
couldn't get no timber fallers and he wasn 't too worried about his job. He
felt that to produce this amount of timber they would give him his job
back."
833
reemployment with the Respondent. The previous season
he had been called back.
Alfred Presgrove: Presgrove had worked for
Respondent for one year beginning October 1964 and quit.
He returned in November 1967. Respondent's records
show that in the workweek beginning Monday, February
19, Presgrove worked 2 days, February 21 and 23. He
testified he did not report for work Monday, February 19,
because he had to tend bar for his father who was ill that
day. Respondent's records show that Presgrove felled 11
trees on February 21 and 21 trees on February 23.
Presgrove's low production for February 23 is explained
by the undisputed fact that the foreman called for the
entire crew to bunch it and come in early on that day
because of a snow storm. No explanation was elicited
from Presgrove for his low production on February 21,
which is conspicuously low when compared with
Hagberg's who felled 105 trees on that day, Savich, 64,
Hoffman, 80, Bert Taylor, 32, and Seaton, 40.
Presgrove testified he did not report for work on
February 26 because he believed he had been laid off. He
testified he worked on February 23 until Foreman Fritz
Robertson told him the crew was quitting for the day
(bunching it) on account of a snow storm. In this
connection, Presgrove testified:
Fritz had told me on Friday to bring my stuff in and he
would let me know, and he never came around, and so
there wasn't any use of getting up at 5:00 in the
morning for nothing.
Presgrove also sought to justify his failure to report for
work on February 26 by testifying he had heard the four
men that were going back to work were the oldest men in
the crew and he "just figured they were going to use the
older men and clean up there."
I have earlier in this decision related that Presgrove
sought reemployment in May after the spring breakup by
applying first to Gerald Hagberg who refused to hire him
on instructions from Reed, and subsequently to Reed
himself who refused to take him back, telling Presgrove
"there wasn't any use of buying trouble by hiring us guys
back that wouldn't work in the wintertime."
Presgrove further testified that Reed told him "that us
five men were always stirring up trouble, and that
especially in the wintertime when we didn't like to work in
the winter, so I asked him if he had fired me, and he said
no, he thought I had quit, and I [said] I thought that Fritz
had laid me off because he told me to bring my stuff in
and that he would let me know, so I just figured I was
laid off for the spring breakup." Reed's reply, according
to Presgrove, was, "it caused him to have to lay off 15
other men because we wouldn't work."
G. Analysis of the Evidence and Conclusionary
Findings
I have already granted the Respondent's motion to
dismiss the complaint insofar as it alleges violations of the
Act with respect to the Respondent's refusal to rehire
Coggins and Morgan in May 1968. There remains to be
'Zacharias testified at the Unemployment Compensation hearing before
the Wyoming Employment Security Commission , and I find, that he
reported for work on February 28, after Mrs . Hagberg told him the
previous day "that anybody that didn ' t return to work that week was fired,
and that is the first I knew of it."
'The- Respondent 's records disclose that Zacharias, Hagberg, and Seaton
did not report for work on February 22 and 23 , that Savich reported on
February 23 but not the 22nd.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determined the question whether the Respondent 's refusal
to retain in its employ or to rehire Zyskowski and
Zacharias on February 28, 1968 , or to rehire Zyskowski,
Zacharias , Conley, and Presgrove in May 1968 was based
on the exercise by these employees of rights guaranteed by
them by Section 7 of the Act.
The General Counsel receives little or no testimonial
support from his own witnesses for whom he seeks
remedies of reinstatement and backpay. Although Conley
did not testify, it is established without question that
Conley quit on February 19 because he didn 't believe it
was worthwhile cutting in the deep snow at Camp Creek
to earn only about $60 more per week than he could
receive by sitting home and drawing unemployment
compensation . It is undisputed that Conley made no
attempt to return to work during the balance of the winter
season.
Zyskowski testified that he made no effort to get the
men to "bunch it" either at Long Creek or to leave their
work at Camp Creek. He attributes his "bunching it" at
Camp Creek on February 19 (going home early) and on
21 (doing little work) and his failure to report thereafter
until February 28 to a malfunctioning powersaw.
Zacharias attributes his bunching it, for example,
sitting in the "chummy" or standing by the fire or leaving
early on February 19 and 21 to the problems of deep
snow , being wet and not feeling well and his saw not
functioning very well on account of the snow . He testifies
he didn ' t report for work on February 26 because he
wasn ' t feeling too well and his saw was not running good.
He conceded he was not "striking or on protest ." On the
other hand , he testified that on February 21, there was an
understanding between himself, Hagberg, Seaton, and
Savich that they shouldn 't cut any more until the snow
settled , and he reluctantly admitted on cross-examination
that he had urged the men all to quit so that their
unemployment compensation would not be protested.
Presgrove makes no claim that he engaged in any form
of concerted activity in the period February 19 to 26. He
testified he didn 't report for work on Monday , February
19, because he had to take his sick father' s place tending
bar. He doesn't seek to explain his low production on
February 21 of 11 trees. He testified he did not report for
work on February 26, believing that he had been laid off
for the balance of the winter season.
Reed takes the position that it was his decision made
on February 26, 1968 , to discharge or consider as quits
those employees who did not report for work on February
26. The stated reasons for his action , recited earlier herein
and not here repeated , all appear legitimate on their face.
But the General Counsel notes that, notwithstanding
Reed ' s testimony , he determined on February 26 to
discharge all those who did not report for work on that
date , he nevertheless gave no instructions to Hagberg not
to rehire Seaton and the two Taylors for the following
season after breakup , notwithstanding the fact they also
failed to report on February 26. From this apparent
inconsistency , the General Counsel argues that the failure
of Zyskowski , Zacharias , Presgrove , Coggins, Morgan,
and Conley to report on February 26 could not be the true
reason for Reed ' s instructions not to rehire these six
employees and that the real reason was their protected,
concerted activity. Initially I see no fatal inconsistency in
Reed 's determination on February 2 to consider those who
did not report as quits or discharges and his later action
in the middle of April in not including the names of the
two Taylors and Seaton to the list of names he instructed
his new foreman , Hagberg , not to hire. It is established by
the General Counsel ' s witness , Bert Taylor , that when he
went to Reed ' s house approximately 2 or more weeks
after February 26, to check the rumor that "we weren't
going to be hired back" and to learn if the rumor was
true, he asked Reed why he was not to be hired back and,
according to Taylor's testimony , Reed replied, "for
quitting up there at Camp Creek." No effort was made by
the General Counsel or by the Respondent ' s counsel to
elicit any testimony in explanation of the reason for the
different treatment of the two Taylors and Seaton. But it
is apparent from Bert Taylor 's testimony that as late as
approximately the middle of March , Reed had not
retracted his discharge with respect to Bert Taylor. It
must be assumed that Reed later relented on Seaton and
the two Taylors for reasons not directly explained in the
record , but in this connection , I cannot disregard Reed's
credible and uncontradicted testimony that it has been his
general policy throughout the years not to call back to
work any employee who quits or who had been discharged
the previous season , but if such employee approaches him
for work and they can adjust their difference and
problems he may rehire such individual.
In any case , as will appear later in this discussion of the
issues, I am of the opinion , and I conclude , that Reed was
free to discharge or to refuse to rehire all or any of the six
employees named in the complaint without violating the
Act because , I have concluded , none of their conduct in
the period February 19 to 26 constituted protected
concerted activity.
There is no proof in the record that the failure of these
six employees to report for work on February 26 was a
strike or refusal to work to force a demand upon, or a
concession from the Respondent . Such testimony as was
elicited concerning the employees ' failure to report on
February 26 amounted in each instance to a personal
excuse from the testifying employee for his failure to
report for work that day. On such testimony , I am unable
to find that their failure to report for work on February
26 amounted to concerted activity . But, argues the
General Counsel , Reed 's testimony before the Wyoming
Employment Security Commission does not attribute his
refusal to recall these employees to their failure to report
on February 26. To aid in examining that argument,
Reed ' s statement in the Unemployment Compensation
hearing setting forth his reason for refusing to recall
Zyskbwski to work in May 1968 is hereunder set forth:
A. Yes, I - Gerald is sub-contracting for me, and
he has taken the cutting over , sub-contracting you
know , and I could clarify this in that my feeling, and
still is, that these men were dissatisfied with the job.
The day they left off the job on the 19th they went up
and down the road talking to other men on the job,
wanted to know if they was going to stay there and cut
under those conditions . Now I can 't point my finger at
Ed but Ed was with these three groups of men and for
this reason I felt that these men caused a certain
amount of turmoil in the crews so when we returned to
work this spring I didn ' t see any reason for buying
more trouble. Now this is not the only case this has
happened before as Ed and I both admit that we have
had out differences prior to this time which was about a
year ago and for this reason that Ed does not like to
cut in the winter time which I don't blame him a bit. I
didn ' t choose his occupation , I told him this before, but
in this case this is a detrimental thing and I told
Gerald that for this reason , these men , I didn't want
them back because we have this working condition, we
have to work throughout the winters and" if this is
WIND RIVER LOGGING COMPANY 835
where part of pur- troubl e, is coming from - I can't
swear under oath that I know for a fact this that Ed is
the cause of this and I don't think he is the entire
problem, I think he is a part of it. So for this reason to
bar a long-range program of possible more turmoil I
told him I just did not want him back to work again
and he is the sub-contractor to me and I still reserve
the right for this.
Q. And you didn't want Mr. Zyskowski to come
back either under you or under his sub-contractor?
A. This is correct, and I think this is my prerogative,
I think I have this choice as an employer. I don't think
there's anything pertaining, pertinent to this particular
case here that we're hearing today has anything to do,
bearing on what has taken effect at the present time.
With Reed's statement to the Wyoming Employment
Security Commission before me, I am of the opinion, and
I find, that Reed's reasons for his action stated before
that commission are essentially the same reasons which he
testified to in the instant matter in much greater detail,
and which I find, motivated his action to refuse
employment to the complainants in this case. Although
Reed does not in his statement to the Unemployment
Commission particularize the February 26 deadline, he
made it clear that he didn't want a recurrence of the
turmoil resulting from the reluctance of Zyskowski and
the others to cut in the wintertime . Reed made his reason
perfectly clear when he stated to the Unemployment
Commission:
Ed [Zyskowski] and I both admit that we have had
our differences prior to this time which was about a
year ago and for this reason that Ed does not like to
cut in the winter time which I don 't blame him a bit. I
didn 't choose his occupation , I told him this before, but
in this case this is a detrimental thing, and I told
Gerald [Hagberg] that for this reason, these men, I
didn 't want them back because we have this working
condition . We have to work throughout the winters ...
It was the conduct of some of the men from February
19-23, in staying home , going home early, standing by the
fire, sitting in the "crummy," some working all day
cutting logs , others not, which prompted Reed to finish
the season with those cutters who reported on February
26, necessitating the layoff of nine skidders to balance his
work forces in the interest of the efficient operation of his
business as he saw it . It is clear that those cutters who
reported for work on February 26 were retained
notwithstanding the fact that they too had in the week
February 19-23 evidenced an inclination not to work in
the deep snow. Thus, Hagberg did not report for work on
February 22 and 23, but he reported on February 26 and
was retained . Nelson did not report for work at all in the
week February 19-23, but he reported on February 26 and
was retained . Savich did not report for work on February
22 but he reported on February 26 and was retained.
In view of Reed 's retention of those employees who
reported on February 26, I have no reason to doubt
Reed's testimony that if Zyskowski had reported for work
on February 26, he would have been "tickled" to have
him, as Reed acknowledged that Zyskowski was one of
his best cutters."
The production of the men in the workweek February
26 through 29 at the same location is in sharp contrast
with the production of the previous week February 19-23.
"Reed testified he would have retained Presgrove for the remainder of
the winter season , but would not have rehired him the following spring as
he found him to be an unsatisfactory employee.
Hagberg's production for February 26-29 was: Monday,
116; Tuesday, 95; Wednesday, 48; Thursday, 78. Nelson's
production was: Monday, 60; Tuesday, 76; Wednesday,
105; Thursday, 106. Savich's production was: Monday, 70;
Tuesday, 68; Wednesday, 96; Thursday, 88_ Hoffman's
production was: Monday, 75; Tuesday, 85; Wednesday,
85; Thursday, 80.
The production figures of the cutters this second week
at Camp Creek, when compared with the production
figures for the preceding week, serve to emphasize the
slowdown indulged in by employees in the week February
19-23.
These figures serve to corroborate the testimony of
Reed and Robertson that while some men worked -
others stood by the fire or sat in the crummy. While no
witness testified that he was on strike or was attempting
to have the Respondent change any working conditions; in
fact, most asserted to the contrary, the General Counsel
takes the osition nevertheless "that this case is not a
question of the men asking the Respondent to do anything
about conditions but rather the fact that the employees
were punished for their protected, concerted activity for
refusing to work under adverse working conditions."
If the position of the General Counsel above-underlined
conforms to fact, namely his contention that the
employees were punished for refusing to work under
adverse working conditions, it must follow that their
conduct, if concerted, was nevertheless not protected,
because it involved slowdowns and intermittent work
stoppages. Employees may not remain on the job,
determining for themselves when, how, and under what
conditions they will work; what jobs they will perform or
not perform and when they will or will not report for
work. These principles have been firmly established by a
long line of Board and court cases. Auto Workers v.
Wisconsin Employment Relations Board , 336 U.S. 245;
Honolulu Rapid Transit Co., 110 NLRB 1806; N.L.R.B.
v. Montgomery Ward & Co., 157 F.2d 486 (C.A. 8);
Home Beneficial Life Insurance Co. v. N.L.R.B., 159
F.2d 280 (C.A. 4); N.L.R.B. v. Kohler Co., 220 F.2d 3
(C.A. 7); C. G. Conn, Ltd. v. N.L.R.B., 108 F.2d 390
(C.A. 7); Pacific Telephone and Telegraph Company, 107
NLRB 1547; Personal Products Corporation, 108 NLRB
743; Valley City Furniture Company, 110 NLRB 1589.
The Respondent, vested with the right to manage its
business, may exercise its prerogative and determine who
it shall retain and who it shall not retain, who it shall hire
and who it shall not hire in the operation of its business,
whether that judgment is reasonable or unreasonable, as
long as it is for a reason not proscribed by the Act.
N.L.R.B. v. Standard Coil Products Co., 224 F.2d 465
(C.A. 1).
But as I have pointed out earlier in this decision, none
of the employees named in the complaint claimed that
their conduct in failing to report for work on February 26
or at any time during their stay at Camp Creek was
deliberately intended to force any kind of concession from
Respondent. Each had an excuse entirely negating the idea
that it was intended as strike activity or a form of
concerted activity to force a concession from the
Respondent . Upon all the evidence presented, I conclude
that the General Counsel has failed to prove that the
employees named in the complaint engaged in protected,
concerted activity. Compare N.L.R.B. v. Washington
Aluminum Co., 370 U.S. 9. It follows, therefore, that the
action taken by the Respondent in refusing to hire the
employees named in the complaint did not violate Section
8(a)(1) of the Act.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. G. H. Reed and G . A. Reed, doing business as Wind
River Logging Company, a copartnership , the Respondent
herein , is and has been at all material times, an employer
engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Union of Operating Engineers, Local
Union No . 326, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging and/or refusing to rehire Eldo
Coggins, Dallas Morgan, Edmond Zyskowski, Arnold
Conley, Phillip Zacharias, and Alfred Presgrove, the
Respondent has not violated Section 8(a)(1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law , and the entire record in this
proceeding, I recommend that the Board enter an order
dismissing the complaint.