Cheney Forest Products, Inc.

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees employed by the Mor- ganton Full Fashioned Hosiery Company, Huffman Full Fashioned Hosiery Mills, Inc., at their Morganton, North Carolina, plants, includ- ing the collector,11 but excluding office and clerical employees, fixers, timekeepers, guards, professional employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] MEMBER HOUSTON took no part in the consideration of the above Decision and Direction of Election. "The Union contends that Dorothy Roper , the collector, is a supervisor . She is con- sidered to be a production employee by the Employer , and she is paid on an hourly basis. She keeps the production employees ( preboarders ) supplied with work and returns the work to bins as particular operations are completed. She does not check the work of the prehoarders and all instructions which she gives are routine in nature. Nor can she effectively recommend the hire, discharge , or discipline of employees . We find therefore that she has no supervisory authority and, accordingly , include her in the unit. See Standard Romper Co ., Inc., 77 NLRB 421. CHENEY FOREST PRODUCTS, INC. and LUMBER AND SAWMILL WORKERS, LOCAL UN10N No. 3009, AFL.1 Case No. 36-CA-276. January 13,1953 Decision and Order On August 5, 1952, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The charging party filed a brief. The Board 2 has reviewed the rulings made by the Trial Examiner 1 Subsequent to the hearing , the charging party, Klamath Basin District Council , Lumber and Sawmill Workers, AFL. herein called the Council , and Lumber and Sawmill Workers, Local Union No 3009 , AFL, herein called Sawmill Workers, jointly'moved the Board to substitute in place of the Council the name of the Sawmill Workers wherever the former appears in the record. The affidavit of the attorney for both organizations reveals that the Council was disbanded on June 20 , 1952 , and that all rights , title , and interest which the Council had in this case have been transferred to and received by the Sawmill Workers. No objections have been filed to this motion We find that Sawmill Workers is , in effect, the successor to the Council Accordingly, the motion is granted 2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three -member panel [ Members Houston , Murdock, and Styles]. 102 NLRB No. 24. CHENEY FOREST PROD'tCTS, INC. 137 at the hearing and finds that no prejudicial error was committed. The I ulings are hereby affirmed. The Board has considered the Inter- mediate Report, the briefs of the parties, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, i:nd recommendations., Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Cheney Forest Products, Inc., Central Point, Oregon, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Lumber and Sawmill Workers, Local Union No. 3009, AFL, or in any other labor organization of its employees by discriminating in regard to their hire or tenure of em- ployment, or any term or condition of employment because of their membership in, or activity on behalf of, any such labor organization. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Lumber and Sawmill Workers, Local Union No. 3009, AFL, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Elvis C. Arnold immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges. (b) Make whole Elvis C. Arnold in the manner set forth in the section of the Intermediate Report entitled "The Remedy" for any loss of pay he may have suffered by reason of the Respondent's dis- crimination against him. S Although the complaint alleged that the Respondent committed violations of Section 8 (a) (1) of the Act independent of its violation of Section 8 (a) (3), the Trial Examiner made no separate findings as to the alleged 8 (a) (1) violations . In view of the absence of any exceptions to the Trial Examiner's failure to find that certain statements of the Respondent , particularly Askwith's statement to Arnold , "-you'll be sorry you 're trying to bring a union in here-," were independently violative of Section 8 (a) (1), we do not pass upon the legality of such statements. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Upon request make available to the Board or its agents for examination and copying all payroll records, social-security payment records, timecards, personnel records and reports, and all other rec- ords necessary to analyze the amount of back pay due. (d) Post at its mill at Central Point, Oregon, copies of the notice attached to the Intermediate Report marked "Appendix A." 4 Copies of said notice to be furnished by the Regional Director for the Nine- teenth Region shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter in con- spicuous places including all places where notices are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Nineteenth Region, Port- land, Oregon, in writing within ten (10) days from date of this Order what steps the Respondent has taken to comply herewith. This notice, however, shall be, and it hereby is amended by striking from the first paragraph thereof the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order " 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 "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." It is further amended by striking the name "Klamath Basin District Council. Lumber and Sawmill Workers, affiliated with American Federation of Labor ," and substituting in lieu thereof the name, "Lumber and Sawmill Workers, Local Union No. 3009, AFL." Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed on February 20, 1952. by Klamath Basin District Council, Lumber and Sawmill Workers, affiliated with American Federation of Labor, herein called the Union , the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Nineteenth Region ( Seattle, Washington), issued his complaint on April 15, 1952, against Cheney Forest Products, Inc.' Central Point, Oregon, herein called Respondent , alleging therein that Respond- ent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge and complaint , together with notice of hearing thereon, were duly served upon Respondent and upon the Union. With respect to the unfair labor practices, the complaint alleged in substance that since October 18, 1951, Respondent ( 1) by means of certain statements, acts, and conduct of its managerial personnel interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and (2 ) on or about February 14, 1952, discharged Elvis C. Arnold, and there- after refused to reinstate him, because he joined or assisted the Union or engaged in protected concerted activities with his fellow workers. I By stipulation of the parties made at the bearing the name of Respondent appearing in the complaint and in all other formal papers was corrected to read as it appears above. CHENEY FOREST PRODUCTS, INC. 139 Respondent duly filed an answer denying the commission of the alleged unfair labor practices. The answer affirmatively averred that Arnold's discharge "was dictated by reasons of safety, discipline and efficiency, and that [Arnold] was discharged for cause." Pursuant to notice, a hearing was held in Medford, Oregon, on June 26 and 27, 1952, before the undersigned, the duly designated Trial Examiner. The General Counsel and Respondent were represented by counsel and the Union by an official thereof. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues was afforded the parties. At the conclusion of the General Counsel's case-in-chief, Respondent's counsel moved to dismiss the complaint for lack of proof. The motion was denied. At the con- clusion of the taking of the evidence, Respondent's counsel renewed his motion to dismiss the complaint. Decision thereon was reserved. The motion is dis- posed of in accordance with the findings, conclusions, and recommendations here- inafter set forth. Although offered an opportunity to do so, no briefs were filed with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS Cheney Forest Products, Inc., an Oregon corporation, owns and operates a plant at Central Point, Oregon, where it is engaged in the manufacture, sale, and dis- tribution of 2 x 4 studs and railroad ties. Respondent annually ships from its Central Point plant to points located outside the State of Oregon finished products valued in excess of $25,000. Respondent admits, and the undersigned finds, that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED Klamath Basin District Council, Lumber and Sawmill Workers, affiliated with American Federation of Labor, is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES Interference, restraint, and coercion; the discriminatory discharge of Elvis C. Arnold 1. Sequence of events On or about August 1951, Elvis C. Arnold, who had been in Respondent's employ from April 1947 until his discharge on February 14, 1952, joined the Union. In September 1951, 3 union representatives met with approximately 18 em- ployees of Respondent, including Arnold, in a railroad freight car located about 100 feet from Respondent's mill. There, after discussion was had relative to the unionization of the employees, Arnold was designated by the employees present to "head up" the drive. About 4 days after the aforesaid meeting, Arnold informed Bill Askwith, mill superintendent, of the employees' union activities and suggested that Askwith ask Francis Cheney, Respondent's treasurer and manager of its Central Point plant, if Cheney desired to talk to the employees. Askwith replied that he did 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not think that Cheney would be interested in talking to the employees but, never- theless, he would pass on the information to Cheney. About 2 days later, Ask- with told Arnold that Cheney did not care to talk to the employees because Cheney was of the opinion that if he did so, "they'd [would] put him (Cheney) in jail." Arnold continued his efforts to organize the employees by means of discussing the Union with them and securing from them union-authorization cards. As a result of Arnold's efforts and the efforts of other interested parties, the Union filed a representation petition with the Board. A hearing upon said petition was scheduled for October 11, 1951. Due to the fact, however, that no one appeared at the hearing on behalf of the Company, the hearing was adjourned to October 23. On or about October 20, the Board served upon Arnold a subpena to appear as a witness at the adjourned hearing. The day Arnold received the subpena he informed Frank McManama, his foreman, of its receipt and then requested and received permission from McManama to absent himself from the mill to attend the hearing. Arnold credibly testified that because he did not see Askwith from the time he received the subpena until the morning of the day he was to appear,` he was unable to inform Askwith of its receipt ; that then he showed Askwith the sub- pena; that the latter stated, "You don't have to go. It isn't worth the paper it's written on . . . if you go, you're going on your own . . . you'll be sorry you're trying to bring a union in here"; and that when lie stated, "I'11 only be gone a couple of hours," Askwith replied, "if you're that rich, you can take off all day." Arnold appeared at the hearing and testified as a Board' s witness. No one, how- ever, appeared thereat on the Company's behalf. Pursuant to a Board order an election was scheduled for January 15. Because of inclement weather the election was postponed to February 12. Thereat, Arnold acted as the Union's observer and employee Barnett acted as the Company's observer. After the conclusion of the voting, the ballots were tallied in the presence of Askwith and the two observers. While this was being done, Barnett inquired of Askwith whether Arnold could not "be fired for [engaging in] union activities," to which inquiry Aslcwith made no reply. However, after the tallying had been completed and after the Board's agent in charge of the election had announced the results of the election, which indicated that the Union had won, Askwith stated, according to Arnold's credible and undenied testimony, "if the company hadn't kept my hands tied behind me, I might [be] in jail but I know that the union wouldn't have come into the plant." The following day, February 13, McManama informed Arnold and the two other green chain operators that in the future the operators would have to stack the 2 x 4's neater and that they must cease smoking in the freight cars.' The same day Arnold was relieved of his daily job of tallying the amount of lumber placed in the freight ears. This job of tallying the lumber was then assumed by Askwith. Despite the fact that by being relieved of said job Arnold lost some extra compensation, the undersigned is convinced, and finds, that the change was made for business reasons. The following morning, February 14, the 3 green chain operators reported for work at their usual hour. Arnold, for the first hour, worked in the freight car stacking lumber and the other 2 operators worked on the chain. As was the operators' custom, they shifted jobs each hour. After Arnold had been working 2 The record indicates that the adjourned hearing was to be held in the afternoon 8 Contrary to the General Counsel's contention , the undersigned finds that the no-smoking order was given solely as a fire prevention precaution. CHENEY FOREST PRODUCTS, INC . 141 on the chain for about 10 minutes of his second hour of work, Askwith came to where Arnold was working and complained to Arnold about the way Arnold was stacking the 2 x 4's. Arnold replied that he was doing the best he could. Askwith then stated, "You've been causing a lot of trouble around here lately- you're fired" and thereupon left Arnold. After walking about 10 feet, Askwith returned and asked Arnold whether he had not been told that the 2 x 4's had to be stacked neater. Arnold, being under the impression that Askwith had asked if he had been so instructed that morning, replied in the negative. Ask- with then sought out McManama and inquired whether McManama had not carried out his instructions to inform all green chain operators to stack the 2 x 4's neater After assuring Askwith that he had the day before informed each green chain operator that the lumber coining off the chain had to be stacked neater, McManama and Askwith went to where Arnold was working. There, McManama stated to Arnold that if Arnold had stated to Askwith he had not been instructed to stack the lumber neater then Arnold was "a liar." Arnold replied, "1 was told about it yesterday, but not this nmorning." Askwith and McManama then walked away and Arnold continued to work.' At about 9 o'clock, during the usual morning rest period, Arnold approached Mclllanama and said, "I guess as far as Mr. Askwith is concerned, I'm through." McManama then instructed Arnold to work until lunchtime. When the luncheon period arrived, McManama told Arnold that Cheney had decided to discharge him and that Arnold should go to the mill's office to pick up has check This Arnold did and then left the mill after an argument had ensued at the mill office between him, Cheney, and Askwith. Askwith testified that lie did not discharge Arnold because, even though he was mill superintendent, he had delegated the authority to hire and fire to McManama 3 or 4 weeks before the Arnold incident had occurred. He admitted. however, that he told Arnold, when he first talked to him on February 14, "as far as I [am] concerned [you are] fired" ; that after he and McManama had left Arnold he said to McManama, "What do you think, we should discharge Arnold" and that McManama replied, "Well, let's think it over and I'll come up to the office later " McManama testified that Arnold was discharged "on account of not obeying orders, in other words, trying to make me out a liar." Cheney's testimony indicates that Arnold was discharged because (1) Arnold "failed to comply with a reasonable request" to stack the 2 x 4's correctly, and (2) Arnold "lied about being told" to perform the job neater. Respondent's answer stated that Arnold's discharge "was dictated by reasons of safety, discipline , and efficiency, and that said employee was discharged for cause." 2. Concluding Findings The undersigned is convinced , and finds, that Askwith discharged Arnold and that Askwith seized upon the inefficient manner in which Arnold was allegedly stacking the 2 x 4's as a pretext to rid Respondent 's mill of the known leader of the Union's movement therein. In view of the inadequacy and inconsistencies of Respondent 's explanations for Arnold's discharge coupled with Respondent's unconcealed antiunion hostility, a finding is clearly warranted that Arnold was terminated because of his union activities and sympathies. In N. L. R. B. v. May Department Stores Co., 154 + The undersigned finds that if Arnold did not continue to work until a relief operator was put on the job the green chain operations would immediately cease because at least 2 men had to work jointly on the chain and 1 operator had to be in the freight car. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. 2d 533 (C. A. 8), the court said at page 538, regarding a situation similar to the one here presented, that there is a "broad scope of inference open . . . on questions of motive and discrimination, where the evidence indicates a desire to thwart or nullify unionization effort, either generally or to a particular employee-organization." And where, as here, the employer has shown strong opposition of its employees' unionization "a very convincing case of discharge for cause would have to be made to make unreasonable a conclusion that [the] discharge was because of union affiliation." s This burden Respondent failed to establish. Furthermore, the shifting and unsupported grounds assigned by Respondent for terminating Arnold's employment are further persuasive Indi- cations that antiunion reasons rather than the reasons advanced by Respondent accounted for the action taken against Arnold Upon the entire record in the case, the undersigned finds that Respondent discriminatorily discharged Arnold in violation of Section 8 (a) (3) of the Act, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent as described In section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and, such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8 (a) (1) and (3) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discriminated in regard to the hire and tenure of employment and the terms and conditions of employment of Elvis C. Arnold, the undersigned will recommend that Respondent offer him immediate and full reinstatement to his former or substantially equivalent position,? without prejudice to his seniority and other rights and privileges. The undersigned will also recommend that the Respondent make Arnold whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during that period." 5 Dannen Grain and Milling Co. v. N. L. R. B., 130 F. 2d 321, 328 (C. A. 8). P The courts have frequently recognized that shifting explanations by an employer for the discharge of an employee may warrant an inference that the true reason was the employer's hostility to the union. See N. L. R. B. v. Crystal Spring Finishing Co, 116 F. 2d 669 (C. A. 1) ; N. L. R. B. V. Yale Towne Mfg. Co., 114 F. 2d 376 (C. A. 2) ; N. L. R. B. v. Condenser Corp., 128 F. 67 (C. A. 3) ; N. L. R. B. v. Eclipse Moulded Products Co., 126 F. 2d 576 (C. A. 7). And this is so even where the employer had "plausible grounds" for the discharge. United Biscuit Co. v. N. L. R. B., 128 F. 2d 771 (C. A. 7) 4 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB M. See Crossett Lumber Company, 8 NLRB 440. CHENEY FOREST PRODUCTS, INC . 143 Loss of pay shall be computed and paid in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. It is further recommended that the Respondent be ordered and directed to make available to the Board and its agents all its records pertaining to an analysis of the amounts due as back pay. The unfair labor practices found to have been engaged in by Respondent are of such a character and scope that in order to insure the employees their full rights guaranteed them by the Act it will be recommended that Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in their rights to self-organization. Upon the basis of the foregoing findings of fact, and upon the record as a whole, the undersigned makes the following: CONCLUSIONS OF LAW 1. Klamath Basin District Council, Lumber and Sawmill Workers, affiliated with American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Elvis C. Arnold, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. (Recommendations omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self -organization, to form labor organizations, to join or assist KLAMATH BASIN DISTRICT COUNCIL, LUMBER AND SAWMILL WORKERS , affiliated with AMERICAN FEDERATION OF LABOR, or any other labor 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 or protection , or to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to Elvis C. Arnold immediate and full reinstatement to his former or substantially equivalent positions without prejudice to any sen- iority or other rights and privileges previously enjoyed , and make him whole for any loss of pay suffered as a result of our discrimination against him. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain members of the above-named union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership, in or activity on behalf of any such labor organization. CHENEY FOREST PRODUCTS, INC., Employer. Dated--------------------- By ------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. FARMERS CO-OPERATIVE COMPANY and AMERICAN FEDERATION OF GRAIN MII.I.ERs, A. F. OF L. Case No. 18-CA-389. January 13,. 1953 Decision and Order On September 23, 1952, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner '2 with the following modifications and additions : 1. We adopt all the Trial Examiner's 8 (a) (1) findings, including his finding with respect to the statement of Assistant Manager Bolton to employee Nash that unionization of the Company would probably mean less take-home pay.3 Considering the unconcealed opposition of Respondent to the Union, the interrogations, threats of discharge, warnings about union "attitudes," and the actual discharge of the chief union advocate, we find that the remarks as to lessened earnings •' Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peterson]. ' We reject as lacking in merit the contention made by the Respondent in its brief that the Trial Examiner was biased or prejudiced against it. 6 The fact that the statement is couched in the form of an opinion is some evidence that it is not a threat of economic reprisal , but the Board has found that such evidence may be far from conclusive in this regard . J. S. Abercrombie Company, 83 NLRB 524. 102 NLRB No. 2.