Elk Lumber Co.

In the Matter of ELK LUMBER COMPANY and LUMBER AND SAWMILL WORKERS UNION, LOCAL No. 3063, AFL Case No. 36-CA-53.-Decided September 20,1950 DECISION AND ORDER Upon an amended charge filed on July 18, 1949, by Lumber and Saw- mill Workers Union, Local No. 3063, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board, by the Re- gional Director for the Nineteenth Region (Seattle, Washington), issued a complaint, dated December 30,-1949, against Elk Lumber Company, 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 ( a) (1) and (3) and Sec- tion 2 (6) and (7) of the Act. Copies of the complaint, the amended charge, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged that on or about February 7, 1949, the Respondent discharged five named employees without warning, and thereafter refused to rein- state them, because they had engaged in concerted activities to pro- test the Respondent 's unilateral act of changing the method of com- putation of pay from a piece-rate basis to an hourly rate. Thereafter, the Respondent filed its answer , in which it admitted certain allegations of the complaint , but denied that it had engaged in the alleged unfair labor practices . The Respondent also filed a motion asking the Board to dismiss the complaint allegedly because it had been issued in violation of Section 10 (a), (b ), and (c) of the Act and related sections of the Board's Rules and Regulations and State- ments of Procedure. Pursuant to notice , a hearing was held on January 24 , 1950, at Med- ford, Oregon, before Wallace E . Royster, the Trial Examiner duly designated by the Chief- Trial Examiner. The General Counsel, the Respondent, and the Union were represented and participated in the hearing. All parties were afforded full opportunity to be heard, to 91 NLRB No. 60. 333 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. At the opening of the hearing, the Trial Examiner denied the mo- tion to dismiss previously .filed by the Respondent.' At the close of the General Counsel's case, the Respondent moved to dismiss the com- plaint on the ground that no violation of the Act had been shown. The Trial Examiner granted the motion orally from the bench and closed the hearing. Thereafter the General Counsel filed a petition, together with a sup- porting brief, asking the Board to review the Trial Examiner's action in granting the Respondent's motion to dismiss the complaint. The Respondent filed a brief in opposition to the petition. The Board has considered the petition for review and finds that it is without merit, for the reasons hereinafter discussed. The Board has also reviewed the other rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Elk Lumber Company is a California corporation having a mill in the vicinity of Medford, Oregon, where it is engaged in the pro- duction and sale of lumber. Its annual purchases, consisting princi- pally of logs and machinery, are valued in excess of $500,000; all purchases are made within the State of Oregon. It annually sells rough and finished lumber valued in excess of $500,000, of which 80 percent is sold or shipped to points outside the State. The Respondent admits, and we find, that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. H. THE ORGANIZATION INVOLVED Lumber and Sawmill Workers Union, Local No. 3063, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 'Because of our dismissal of the complaint on other grounds , we consider it unnecessary to consider this ruling of the Trial Examiner. ELK LUMBER COMPANY 335 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The material facts 2 For some time before February 7,1949, the five individuals named in the complaint 3 were employed by the Respondent as carloaders. On February 7, they were discharged. The circumstances surrounding the discharges were as follows : Until January 1949, most of the lumber manufactured at the Respondent's mill was carried by chain from the planing machine to railroad cars, where carloaders, working in pairs, loaded it for shipment. The loading, which was done directly from the end of the chain, had to be carried on at high speed in order to keep up with the planer. Because of the strenuous nature of the work, the carloaders were paid on a gyppo (piecework) basis. They earned, on an average, $2.71 an hour. A crew of two men could load from two to three cars a day if the planer ran steadily, but because of frequent interruptions in its operation, they averaged only about a car and a half a day. On January 3, 1949, as a result of certain physical improvements in' the plant, the Respondent changed the method of loading. There- after, the lumber was taken by carrier from the planer to a loading platform, and the actual loading was clone from it. As a result, the work of the carloaders was both easier and more steady. At the same time, the Respondent unilaterally changed the rate of pay of the carloaders to $1.521/2 an hour. Some of the carloaders there- upon decided among themselves that it was sufficient to load one car a day, and proceeded to work at approximately that rate until Feb- ruary 7. The rate was adopted, according to their testimony, because it was the quota at other plants in the same area, and because they "thought one carload was a good day's work at a dollar and a half." Admittedly, they could have loaded more cars in a day, would have done so for more pay, and knew that the Respondent was not satisfied with their production. The Respondent did not at any time set a quota for the carloading operation or warn the carloaders that they would be discharged if they failed to increase their production. However, on February 1, 1949, George C. Flanagan, the Respondent's vice president and man- ager, invited them to dinner at his house to discuss the situation 4 2 These findings are based on the evidence introduced by the General Counsel. Because of the Trial Examiner 's favorable ruling on the Respondent's motion to dismiss, the Respondent offered no evidence. 3B. W. Coltts , J. A. Johanson , James V. Johnson, W. F. Herring, and H. M. Lovenborg. 4 All the complainants except Coltts attended the dinner . In addition , at least two or three other carloaders were present. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the course of the discussion, he asked them for suggestions for improving production. One of them, apparently speaking for and with the approval of the entire group that had engaged in the slow- down, suggested that the Respondent either return to the piecework rate of pay or increase the hourly rate, and made it clear that the men did not intend to increase their production unless they were given a corresponding increase in pay. Flanagan said that he would investi- gate the practice at another mill in the vicinity, which he was about to visit, and would report back to them. Thereafter, he visited the mill in question, but he made no report. On February 7, 1949, the five carloaders named in the complaint, who had not struck but continued to work at their own chosen pace in the interim, were given their final checks. Kennedy, the planing mill superintendent, merely told one of them that "we can't make it go that way, so we have got to find some new faces." Two carloaders not named in the complaint were discharged at the same, time; one was later rehired because the Respondent decided that he had not wanted to join in the slowdown and that his decreased production was the fault of his partner, Coltts. At least three carloaders were not discharged, two of them, according to Flanagan, because they were loading more than the others, and the third because he was really a yard lumber handler, not a carloader. B. Conclusions The Respondent contends, and the Trial Examiner apparently found,' that the five carloaders were discharged, not for having en- gaged in concerted activities, as alleged in the complaint, but because their production was not satisfactory. It is clear, however, that their failure to produce was the result of an agreement to slow down. In our opinion, therefore, the only question presented is whether this conduct was a form of concerted activity protected by the Act. We believe, contrary to the contention of the General Counsel, that it was not. Section 7 of the Act guarantees to employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. However, both the Board and the courts have recognized that not every form of activity that falls within the The Trial Examiner's concluding finding was as follows : I conclude that these five men named in the complaint were not discharged because of their concerted activity , but that they were discharged because of their concerted refusal in the course of their employment to work at a speed or at a rate or to produce to the extent that the employer felt that they should , and that the employer's insistence upon a higher rate of production was not a design to discourage or to punish the employees for acting concertedly. ELK LUMBER COMPANY 337 letter of this provision is protected-' The test, as laid down by the Board in the Harnischfeger Corporation case,' and referred to with apparent approval by the Supreme Court in the recent Wisconsin case's is whether the particular activity involved is so indefensible as to warrant the employer in discharging the participating employees. Either an unlawful objective or the adoption of improper means of achieving it may deprive employees engaged in concerted activities of the protection of the Act. Here, the objective of the carloaders' concerted activity-to induce the Respondent to increase their hourly rate of pay or to return to the piecework rate-was a lawful one. To achieve this objective, however, they adopted the plan of decreasing their production to the amount they considered adequate for the pay they were, then receiving. In effect, this constituted a refusal on their part to accept the terms of employment set by their employer without engaging in a stoppage, but to continue rather to work on their own terms. The courts, in some- what similar situations, have held that such conduct is justifiable cause for discharge. Thus, in the Conn case,° the court of Appeals for the Seventh Circuit found that the employer was justified in discharging employees who ref used to work overtime, saying : We are aware of no law or logic that gives the employee the right to work upon terms prescribed solely by him. That is plainly what was sought to be done in this instance. It is not a situation in which employees ceased work in protest against conditions im- posed by the employer, but one in which the employees sought and intended to work upon their own notion of the terms which should prevail. If they had a right to fix the hours of their em- ployment, it would follow that a similar right existed by which they could prescribe all conditions and regulations affecting their employment. And in the Montgomery Ward case,10 in which employees at one of the employer's plants refused to process orders from another plant where a strike was in progress, the Court of Appeals for the Eighth Circuit said : It was implied in the contract of hiring that these employees would do the work assigned to them in a careful and workman- like manner; that they would comply with all reasonable orders B International Union, U. A. W. A., A. F. of L., Local 232, et at. Y. Wisconsin Employment Relations Board, et at., 336 U. S. 245 , and cases therein cited. 7 9 NLRB 676. 8 See footnote 6, supra. B C. G. Conn, L;•d. v. N. L. R. B., 108 F. 2d 390 (C. A. 7), cited with appreyal by the Supreme Court in the Wisconsin case, supra. 10N. L. R. B. v. Montgomery Ward ei Co., 157 F. 2d 486 (C. A. 8). 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conduct themselves so as not to work injury to the employer's business; that they would serve faithfully and be regardful of the interests of the employer during, the term of their service, and carefully discharge their duties to the extent reasonably required . . . Any employee may, of course, be lawfully dis- charged for disobedience of the employer's directions in breach of his contract . . . While, these employees had the undoubted right to go on a strike and quit their employment, they could not continue to work and remain at their positions, accept the wages paid them, and at the same time select what part of their allotted tasks they cared to perform of their own volition, or refuse openly or secretly, to the employer's damage, to do other work. We believe that the principle of these decisions is applicable to the situation before us, and that, under the circumstances, the carloaders' conduct justified their discharge."' The General Counsel contends, however, that "if such activity [a slowdown] is to be condemned by the Board, it should only be done after there has been a deliberate refusal to do the Employer's bidding," and that here, "at the time of discharge there still had been no failure to comply with any command of management." In support of this contention, he asserts that "after the outset of this slowdown, the Employer obviously acquiesced in it and made no protest"; that it "did not set a definite rate [of production], nor did it make any statement as to what rate of production was considered accurate"; and that it discharged the men "without any warning or reason being given." On the record before us, however, we find no convincing evidence that the Respondent at any time acquiesced in the slowdown. On the contrary, it appears from the testimony regarding the dinner meeting on February 1, that the Respondent was concerned about the reduced production and was attempting to find some way of increasing it. Furthermore, although the Respondent admittedly did not tell the carloaders how many cars a day they were expected to load, and, so far as the present record shows, did not warn them that they would be discharged if they did not increase their production, it is clear that the men knew that the rate they had adopted was not satisfactory. Despite this knowledge, they continued to load fewer cars a day than they could have loaded, or than they would have loaded for more money. Under these particular circumstances, we regard it as im- material that the Respondent had given them no express order as 11 See the Wisconsin case, supra. ELK LUMBER COMPANY 339 to the amount of work required, or any, warning that they would be discharged if they failed to meet the requirement. We therefore find that the Respondent did not violate the Act by discharging the five carloaders named in the complaint. As no other unfair labor practices are alleged, we affirm and adopt the Trial Examiner's ruling dismissing the complaint in its entirety;. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The Respondent, Elk Lumber Company, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Lumber and Sawmill Workers Union, Local No. 3063, AFL, is a labor organization, within the meaning of Section 2 (5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, as alleged in the complaint. ORDER Upon the basis of the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint against the Respondent, Elk Lumber Company, Medford, Oregon, be, and it hereby is, dismissed. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. 917572-51-vol. 91-23