Moody Chip Corp.

MOODY CHIP CORP. Moody Chip Corp., Division of Kerschner Enterprises, Inc. and United Paperworkers International Union, AFL-CIO. Cases -CA- 13202 and I -CA-13857 July 12, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On April 11, 1979, Administrative Law Judge Mor.- ton D. Friedman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Moody Chip Corp., Division of Kerschner Enterprises, Inc., Ashland, Maine, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order, as so modified: IWe hereby correct the following inadvertent errors in the Administrative Law Judge's Decision which in no way affect his Decision or our adoption thereof: In the last sentence of par. 15 of sec. IIl,C and the last sentence of par. 17 of sec. IlI.C, the name "Theriault" should be replaced with the name "Rushinal." 2 In his exceptions, the General Counsel asserts that two additional viola- tions of the Act occurred which were not passed upon by the Administrative Law Judge. We agree. Thus, on April 28. 1977, Mill Manager Perry Ells- worth told three employees that he "would be a hardnose" if the Union came in. This statement took place in the context of other unlawful remarks by Perry. We find Perry's statement to be violative of Sec. 8(a)( ) as a threat of more ardous working conditions in the event the employees selected the Union. We also find that Respondent's issuance of a written warning to employee Rushinal on June 1, 1977, violated Sec. 8(aX3). The Administrative Law Judge found that Respondent's unilateral promulgation of a written warning and disciplinary system violated Sec. 8(a)(S5) and (1). Respecting the issuance of the warning to Rushinal, he complained about the pettiness of such a procedure. In response, Mill Manager Ellsworth told Rushinal that if he wanted a union, he had to take what came along with it. In this context. Rushinal was a victim of discriminatory treatment as a result of the ongoing union activities. The Order and notice will be amended accordingly to reflect these additional violations. 1. Substitute the following for paragraph l(a): "(a) Threatening employees with reprisals, includ- ing possible discharge or more ardous working condi- tions, if they join, assist, vote for, or in any manner support United Paperworkers International Union, AFL-CIO, or any other labor organization." 2. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Remove from the personnel or other files of Ronald Rushinal all disciplinary letters or warnings issued on June 1, 1977." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act, and we have been ordered to post this notice. WE WILL. NOT threaten our employees with re- prisals, including discharge or more arduous working conditions, because they join, assist, vote for, or in any manner support United Pa- perworkers International Union, AFL-CIO or any other labor organization. WE WILL NOT refuse to discus., pay raises, bo- nuses, or any other terms or conditions of em- ployment with our employees in order to dis- courage their union support or membership. WE WILL NOT question our employees about their union activities or membership. WE WILL NOT threaten to prolong negotiations with the United Paperworkers International Union, AFL-CIO, or any other labor organiza- tion, so as to discourage our employees' support of or membership in the Union. WE WILL NOT interfere with our employees' union activities by offering benefits for the pur- pose of discouraging union support or member- ship. WE WILL NOT set up new work rules, vacation plans, or bonuses to discourage union support and/or membership, or establish new disciplin- ary proceedings to retaliate against our employ- ees for their union activities. WE WILL NOT make any changes in our em- ployees' wages, hours of employment, or work- ing conditions without consultation and negotia- tion with the above-named Union. 243 NLRB No. 36 265 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL remove from the personnel or other files of Ronald Rushinal all disciplinary letters or warnings issued on June 1, 1977. WE WILL bargain with the above-named Union before we take any steps to change our employee's wages, hours of work, or any other terms and conditions of employment. All our members are free to become or remain, or refrain from becoming or remaining, members of United Paperworkers International Union, AFL- CIO, or any other labor organization. MOODY CHIP CORP., DIVISION OF KERSCI- NER ENTERPRISES, INC. DECISION SIATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This case was heard in Presque Isle, Maine. upon a consolidated amended complaint issued December 22, 1977. which com- plaint was based upon a charge filed in Case I-CA-13202 on June 6, 1977, by United Paperworkers International Union, AFL CIO, herein called the Union and an original charge in Case -CA-13857 filed by the said Union on November 14, 1977, and an amended charge filed on De- cember 16, 1977. In substance, the complaint alleges that Moody Chip Corp., Division of Kerschner Enterprises, Inc., herein called Respondent or the Company, has vio- lated, and is violating, Section 8(a)(l), (3), and (5) of the National Labor Relations Act, herein called the Act. While admitting the jurisdictional allegations of the complaint, Respondent, in its duly filed answer, denies the commission of any unfair labor practices. All parties were represented at the hearing, and were given full opportunity to be heard and to present evidence. Thereafter, briefs were filed by counsel for the General Counsel and Respondent. Upon the entire record, and the briefs of the parties. and upon my observation of the witnesses, I make the follow- ing: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENTI Respondent, a Maine corporation with its principal office in the town of' Oakland, Maine, maintains a facility in the town of Ashland, Maine, the only facility involved in this proceeding, where it is engaged in the processing of logs and timber into chips for pulp and papermaking. Respon- dent has caused and causes large quantities of woodchips to be purchased and transported in interstate commerce from and through various states of the United States other than the State of Maine from its plant in Ashland, Maine. In the course and conduct of its business, Respondent annually performs services of a value in excess of $50,000 for compa- nies directly engaged in interstate commerce. It is admitted, and I find, that Respondent is engaged in commerce within the meaning of the Act. II. THE L.ABOR ORGANIZATION INVOLVE[) It is admitted. and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRAC(TICES A. Introduction and Issues The Ashland, Maine, mill of Respondent employs ap- proximately four rank-and-file employees who are engaged in the debarking and cutting wood logs into chips which are then sold to paper manufacturers for making paper pulp. The Ashland plant is relatively new, having begun in 1976 with the construction thereof and finished in the early spring of 1977. The Union began its drive to organize Re- spondent's four employees during February 1977. On April 25, 1977, the Union filed a petition for representation of Respondent's production and maintenance employees. Thereafter, a Board conducted election was held on May 26. 1977, which the Union won by unanimous vote. On June 6. 1977, the Regional Director for Region 1, of the Board certified the Union as the bargaining representative of Respondent's employees. The complaint alleges that during the period from the filing of the representation petition to the election, and thereafter, Respondent, through its officers and agents in- terrogated, threatened, granted wage increases, solicited grievances, refused raises, and committed other acts in vio- lation of the employees' Section 7 rights and thereby vio- lated Section 8(aX) ) of the Act. It also alleges that Respondent gave a verbal warning to an employee and thereafter discharged and refused to rein- state the said employee because of the employee's union activities and in order to discourage membership in the Union. The complaint further alleges that Respondent re-, fused to bargain with the Union in violation of Section 8(a)(5) of the Act by making unilateral changes in the em- ployees' wages, hours, and working conditions without con- sultation with, or notice to, the Union. Respondent denies all of the material, nonjurisdictional allegations in the complaint and contends that the so-called unilateral actions were made in the normal course of events in Respondent's business and without disregard of the Union's right of notice and bargaining, and also avers that the employee, allegedly discharged. quit his employment voluntarily and that, therefore, Respondent did not dis- criminate against the said employee. Furthermore, Respon- dent contends that it had no knowledge of the said employ- ee's union activities to any greater extent than it had knowledge of its other employees' union activities. Thus. the issues are joined. 266 MOODY CHIP CORP. B. The Facts All four of Respondent's employees involved herein were hired in either November or December 1976, by the Ash- land mill manager, Perry Ellsworth. At the time, the mill for the manufacture of woodchips was in its final stages of construction. At the time of hiring, each employee was in- formed by Ellsworth that there was to be no drinking of alcoholic beverages on the job and that anyone so doing, or anyone who stole or misused Respondent's property, would be subject to immediate discharge. According to Ellsworth, shortly after the four were hired, they were informed that the same procedures would be followed at the mill in ques- tion as were being enforced at other Kerschner owned fa- cilities. However, the record does not show that Ellsworth either enumerated, fully explained, or fully set out in any written form, what these rules of procedure and working rules were. In any event, it would seem that it did not take long for the four employees involved in this proceeding and Ells- worth to reach a stage of, at least, minor antagonism toward each other. Ellsworth, it would seem, was under pressure from the officers of Respondent, Robert L. Kersch- ner, Sr.,' president, and James O. Kerschner, the latter's son and treasurer, to finish the construction and to place the mill in operation to the point where it was producing wood- chips in sufficient quantity to make it profitable. The mill, being a new enterprise, the problems of starting up were evidently numerous. Because of the aforesaid pressure passed on by Ellsworth to the four rank-and-file employees, the antagonisms and the difficult working conditions grew to such proportions that in February 1977, employee Ron- ald Rushinal made contact with Andre Dionne, a business representative of the Union. On the telephone, Rushinal explained the problems. Shortly thereafter, a meeting be- tween Dionne and the four employees took place at Rushi- nal's home. At this meeting, all of the employees signed union designation cards.2 Although there were only four employees in the mill be- side Ellsworth, the mill manager and working foreman, nei- ther Ellsworth nor the two Kerschlsers testified they were aware of the actual union organizing campaign among their employees until they received notice from the Board soon after April 25, 1977, that the Union had filed a petition for representation. However, Ellsworth and each of the Kerschners admitted they had heard "scuttlebutt" to the effect that the Union was seeking to organize a number of plants in the area in which the Ashland mill is located. In connection with the foregoing, Rushinal testified credibly that while these organizing attempts were being made in the area, at approximately the middle of April, Ellsworth, in a conversation with Rushinal, stated that he hoped the em- ployees in the mill were not interested in any union at that 'The suffix "Sr." is omitted hereinafter when reference is made to Robert Kerschner, Sr. 2 From the uncontroverted testimony of employees Rushinal, Derrick Richards, Ronald Theriault, and business representative Dionne In connec- tion with the signing of the cards and the union organizational drive. Rushi- nal testified that when he was hired, Ellsworth stated that he hoped that Rushinal was not a union man. In testifying, Ellsworth denied that he made such a statement. In this respect. I do not credit Rushinal because none of the other employees so testified. time, and if they let the plant run without a union, Respon- dent would probably initiate a bonus system.' Additionally, on or about April 28, Ellsworth told Rushi- nal and employees Ronald Theriault and Derrick Richards that he knew that at least two employees must have signed union cards. He stated he was going to find out who they were. Ellsworth further asserted that if the Union came in, he would be a "hardnose" because he had been a supervisor at another plant where there was a union and he did not like the union at all.4 In connection with the foregoing, at about the same date, April 28, 1977, employees Ronald Theriault and Ronald Rushinal were engaged, while working, in a conversation concerning the Union. During this conversation, Ellsworth passed close to them and as he looked directly at Theriault, he declared, "I'll bet you're one of them that signed the cards." In reply, Theriault answered that it was not Ells- worth's business in any respect whether he, Theriault, had signed a card.' As stated above, the Union filed its petition on April 25, 1977, and, shortly thereafter, Respondent must have re- ceived the petition. Prior thereto, the employees had not taken coffeebreaks at any specified time, but only when for some reason production was interrupted by equipment breakdown, lack of material or spare parts, or some similar reason. However, the men had, from time to time, com- plained that coffeebreaks were not scheduled at a set time each morning. Finally, the men demanded that a regular coffeebreak be given each morning and threatened that if it was not, they were going to take one anyway. However, this threat became unnecessary. After the filing of the petition, on April 28, Ellsworth informed the men that they could have a coffeebreak of from 10 to 15 minutes each morning at 9:30 a.m. In connection therewith, Ellsworth testified that he was told by Theriault that state law required Respondent to give employees a specified coffeebreak and, Ellsworth, not being familiar with the law, and not knowing whether the statement by Theriault was correct, deemed it best to give the men the break. However, it should be noted as stated above, that this consent, despite the earliest grumblings, was not given until after the filing of the petition by the Union. On the night of May 16, 1977, at the invitation of the Kerschners, employees Rushinal, Richards, and Theriault visited the Kerschners' camp at Portage Lake, Maine. Pre- sent at this meeting, in addition to the employees were Rob- ert Kerschner and James Kerschner. As noted, the election was scheduled to be held on May 26, 10 days after the date 'This is neither alleged nor found to be a violation of the Act and is recited merely as background for the events which followed. 4 From credited testimony of Rushinal and Richards. Although I have in one respect, above, not credited Rushinal, his testimony was supported in this respect by Richards who was a very credible witness. In connection with these and other credibility resolutions. I rely. in part. upon the accepted evidentiary rule that it is not uncommon "to believe some and not all of a witness' testimony." N.L.R.B. v. Universal Camera Corporarion, 179 F.2d 749, 754 (2d Cir. 1950). 5 From credited testimony of Thenault. In testifying, Ellsworth did not specifically deny this particular incident. His testimony with regard to any reference to union cards, or who had signed them, was that he never asked any employees if they had signed union cards. Accordingly, I find Thenault's version of what had occurred to be accurate. 267 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the meeting at the camp. Both Robert Kerschner and James Kerschner spoke to the employees at various times during that evening. The meeting seems to have been called for a dual purpose. Primarily, according to the Kerschners, it was called to find out what could be done to increase production at the Ashland mill. There is no doubt that there were production problems at the time and that the Kerschners were anxious to correct whatever caused the lagging production in order to render the mill feasible eco- nomically. Accordingly, during the meeting at the camp, the employees were asked for suggestions as to what could be done to increase production. However, the secondary purpose, the upcoming election and the union matter, was also discussed. At one point dur- ing the evening, Robert Kerschner stated that it was really too bad that a union had come in and was involved at the plant. Union representation was foolishness when there was only a four-man crew. He further stated the election of the Union would end the closeness which Kerschner desired to have with his employees. James Kerschner, in talking to the men, inquired as to who had signed union cards, but before any employee could answer, he stated that it did not make any difference. In discussing the union matter, evidently upon advice of counsel, Robert Kerschner stated that the employees at that time could not get raises. Also, James Kerschner stated that there could not be a raise or a bonus given at that time because of the pendency of the "union vote." It should be noted that at the time the employees were hired, as above set forth, they were told that there would be a possible bonus system if production warranted the same. In discussing the possibility of union negotiations in the event the Union won the election, reference was made by Robert Kerschner to the effect that negotiations could drag on. In connection therewith, he spoke of another employer, a LeBuff, whose firm had been organized by a union and had been bargaining for approximately 6 months. Addi- tionally, Robert Kerschner, on that evening, during the dis- cussion of the possible protracted negotiations, stated that negotiations could take as long as 2 to 5 years. Also in the group discussion, James Kerschner told the employees that from an economic point of view, it was un- fortunate that the Union might come in at that time, that in view of all else, Respondent did not know if it could afford a union at that time inasmuch as the plant was new and was not meeting production quotas; therefore, more flexi- bility was required. In the discussion on that night of the problems at the mill, the employees themselves brought up the subject of Mill Manager Ellsworth, and their complaints regarding him. During that discussion, Robert Kerschner referred to a logbook, stating that employee Rushinal had, at one time, threatened Ellsworth at the plant. At the end of the meeting at the camp, Robert Kerschner said that they would have a meeting in the near future to discuss the matter of the mill manager with the men. The Kerschners did not delay the discussion, however, and on the following day, May 17, held a meeting with the employees in the office at the Ashland mill. Present in addi- tion to the Kerschners was Mill Manager Ellsworth. The three employees, Rushinal, Theriault, and Richards, who attended at the camp the night before, were present, as was employee Richard Gillman, evidently at that time the fourth employee. However, Gillman was present only dur- ing the latter part of the May 17 meeting. Again the diffi- culties in production were discussed and the men, especially employees Rushinal and Theriault, suggested that equip- ment maintenance at the mill was poor and that Respon- dent's credit in the area was not sufficient to enable the supply of material as needed. Again, Robert Kerschner as he had stated the night before, reiterated that he hoped the Union would not get in because if the Union was success- ful, it could create hard feelings between Respondent and the employees. He again stated that it could take from 2 to 5 years to negotiate a contract. Evidently, the subject of strikes came up. Robert Kersch- ner mentioned the fact that if the men should walk out in the event that the Union could not negotiate a contract or for other union reasons, Respondent had supervisors upon whom it could call to run the Ashland mill, if necessary. He further stated that by the following Monday morning, he could have the mill running with or without the men; that he and James Kerschner, Ellsworth, and Don Whitmore, another supervisor or engineer, could run the plant. Additionally, during the meeting, Robert Kerschner told the employees that if the Union was successful, it was pos- sible the workweek would be limited to 40 hours, just as was the workweek at the nearby International Paper Com- pany plant. There would be no overtime. It should be noted in connection therewith, that when the employees were hired, they were promised a workweek longer than 40 hours.6 On May 24, at the plant, Robert Kerschner continued in the same vein in a conversation with employee Theriault. Evidently referring to the election which was scheduled for 2 days hence, Kerschner told Theriault that they would be finding out in a couple of days who was "full of bullshit and who ain't." Kerschner repeated what had been stated at the May 17 meeting to the effect that if the Union was success- ful in the election, on the following Monday, Kerschner could have a new crew at the plant. He added that although he really did not want a night shift, if he was being pres- sured by the companies he was supplying to produce more chips, he could do it without the employees presently em- ployed, evidently referring again to his ability to work him- self, his son, and perhaps employees or supervisors from either the Ashland mill or other chip mills owned by the Kerschners.' The day after the election, May 27, in the debarker room of the Ashland mill, Robert Kerschner demonstrated with a piece of paper upon which was written the sum of $4.50 multiplied by 40, for a total figure of $180. Kerschner told employee Rushinal that if the Union had not won the elec- tion, these would have been the wages the employees would I The above factual statement with regard to the meetings of May 16 and 17, constitutes an amalgam of credited portions of the testimony of the two Kerschners, Ellsworth, and employees Theriault, Rushinal, and Richards. 7 From credited testimony of Theriault. Although, in rebuttal, Robert Kerschner could not remember the exact conversation, he placed some of the conversation at an earlier date than the one testified to by Theriault. How- ever, to an extent, at least, with regard to the night shift, Kerschner testified in much the same vein as did Theriault. 268 MOODY CHIP CORP. have received, but that now his hands were tied and he had to wait until negotiations were completed to increase wages. Kerschner repeated this information to employees The- riault and Richards. stating he had shown Rushinal the pa- per which indicated that if the Union had not won the elec- tion, Respondent would have paid employees $4.50 an hour for a 40-hour week.8 On the same day, and at approximately the same time, Kerschner told the same group of employees that he had a business to run and would like to run it in a businesslike way; if the employees did not like their jobs they could leave or to use his words "go home."9 Ronald Rushinal was employed on November 14. 1976. As in the case of the other employees, he was laid off during the period which began sometime in early 1977, when the plant was shut down for the purpose of installing a screen- ing process necessary to eliminate sawdust and undersized chips from the final chip product. When the plant was ready to be reopened, Rushinal was called back. However, because he was working on the construction of a new home. he initially declined to return to Respondent's employ. Be- cause Respondent considered Rushinal an excellent debark- er. James Kerschner visited Rushinal and ultimately per- suaded the latter to return to work for Respondent. Thus, there is no doubt that insofar as the quality of Rushinal's work is concerned, he had been at all times considered a valued employee. However, as noted above. Rushinal, because of his dis- content and the discontent of the other three employees, with the manner in which Ellsworth was supervising them, made contact with the Union early in February, 1977. The first meeting with the Union was held at Rushinal's home. In connection with Respondent's knowledge thereof, the Kerschners testified, as did Ellsworth. that although they heard "scuttlebutt" that the Union was organizing in the area, they were not aware that their own employees, includ- ing Rushinal, had, in fact, been active with the Union until notice was received from the Board's Regional Director that the Union had filed a petition for representation of Respondent's employees. It is very possible that the employees' difficulty with Ells- worth was a contributing factor to the poor production of the Ashland chip mill. Whatever the cause, however, inci- dents occurred which led not only to words, but almost to violence during the arguments between the employees and Ellsworth. In fact, at one time after the reopening of the plant following the installation of the sawdust screen, Ells- worth and Theriault engaged in a verbal altercation which resulted in Theriault's leaving the plant stating "Well, I don't have to take this." However, when Theriault had pro- ceeded some distance from the plant in his car, he came to a hault to think the matter over. Ellsworth drove up behind him. Thereupon, Ellsworth apologized for his part in the incident explaining that in working under pressure, such as that to which Ellsworth and the other employees were sub- jected, they all made mistakes. Ellsworth then asked The- riault to return to the plant to work. After thinking over the matter, Theriault did so. Theriault's absence during that From the credited. uncontroverted testimony of Rushinal and Theriault. 9 From credited portions of the testimony of Rushinal and Thenault. period was in excess of an hour, hut he was paid for the time of his absence and was not in any manner disciplined for the same.'0 The antagonism between the several employees and Ells- worth continued on through and after the period of the Union's organizational drive and the election. Additionally, of course, as above-related, Ellsworth from time to time expressed his dislike for the Union to the employees. Ac- cordingly, by reason of the pressures of the work and Ells- worth's difficulty in adjusting to the unionization of the plant, together with the weather turning warm, the difficult work of the plant became even more difficult, and tempers evidently were short. On May 30, Rushinal was working at the bottom of the mill shoveling debris. The weather was hot. Rushinal and the other employees stopped briefly during the afternoon of that day to rest and have a cold drink. Ellsworth entered the grinding room where the employees were resting and asked Theriault to give him a hand at some task, but The- nault desired to wait, evidently to finish his cold drink. Ells- worth, sensing the refusal as somewhat rebellious, told the men to wait a minute while he went to get James Kersch- ner. Several minutes thereafter, James Kerschner and plant engineer Whitmore entered the room. Kerschner stated that he had been in touch with his legal counsel who told him it was not necessary to give employees afternoon coffee- breaks. Kerschner, in an attempt to get production going. stated that he wanted the men to go back to work and to forget the whole matter. With that, Kerschner and Whit- more left the room and employees Rushinal and Theriault left the room with Theriault in front, Rushinal following him, and Mill Manager Ellsworth following behind Rushi- nal. At that time. Rushinal reached into his pocket for the purpose of getting his handkerchief. He then began to wipe the perspiration from his forehead and neck. There is some dispute as to what happened next. Ells- worth evidently touched Rushinal on the arm to hurry the latter along. Rushinal turned around to Ellsworth and re- marked "Listen, boy." Ellsworth evidently took umbrage to this remark and, in his testimony stated that he merely touched Rushinal on the arm and stated to him "Come on Ron, let's get back to work," wherefrom, Rushinal turned around, pointed his finger at Ellsworth and said "Listen, boy" at which point Ellsworth asked "What did you call me?" Rushinal answered "I called you boy. You're not a man yet." In view of my disposition of this case as hereinafter set forth, I find it unnecessary to dispose of which version of the "Listen, boy" incident is correct, because, in any event, Ellsworth asked Rushinal as a result of the incident to come to Ellsworth's office so that Ellsworth could speak to Rushi- nal. Rushinal replied, in substance, that he was not going to the office. Some shoving then occurred and again, there is a question as to who shoved whom. However, Theriault who was present stated, "Ronnie, if I was you I wouldn't go in the office." Ellsworth turned to Theriault telling the latter that this was none of his business and again told Rushinal to proceed to Ellsworth's office. Theriault responded to the effect that he would make it some of his business and that 10 From credited portions of the testimony of Theriault and Ellsworth. 269 2L0DECISIONS OF NATIONAI. LABOR RELATIONS BOARD Rushinal did not have to go to the office. Rushinal, at that point returned to his work of shoveling debris. Although Respondent had never before given any em- ployees written warnings, evidently as testified by Ellsworth and James Kerschner, they discussed the matter of the inci- dent involving Rushinal and decided that by reason of the fact that the plant was now unionized, it would be, perhaps, a better procedure to give Rushinal a written warning with regard to the latter's behavior. Accordingly, on the next day, June 1, 1977, Ellsworth handed Rushinal a written warning and informed Rushinal that if the latter did not like it, this was the way it had to be because if the Union was in, it was necessary to play such games. Rushinal read the warning, became upset and, in substance, told Ellsworth that he had worked in a number of places, but had never had to put up with "so much fool- ishness and kid games." Whatever Ellsworth exactly re- plied, he again repeated, in substance, that Respondent was forced to play these games. Thereupon, Ellsworth left, but shortly thereafter returned to the place where Rushinal was working. Rushinal there- upon accused Ellsworth of having pushed Rushinal from behind the day before. When Ellsworth denied this, Rushi- nal informed Ellsworth that there were three witnesses who saw Ellsworth shove Rushinal. Rushinal thought over the matter for about 10 minutes and then told Ellsworth, "I'm going home, Perry, for the rest of the day."" With that, Ellsworth instructed Rushinal to go back to work. Rushinal replied something to the effect that if he stayed, there would be trouble. He again repeated that he was going home. Ells- worth thereupon warned Rushinal that if he touched the clock, or punched out, this might result in the cessation of employment between Respondent and Rushinal. Rushinal, nevertheless, walked out of the building to his parked pick- up truck. Upon Rushinal's punching out, Ellsworth immediately summoned James Kerschner and the two of them pro- ceeded to where Rushinal was sitting at the wheel of his pickup truck. Kerschner approached the pickup truck and asked what had happened. Rushinal answered that he was leaving, saying "I'll see you in the morning." Ellsworth thereupon again warned Rushinal that the latter would be fired for leaving. Nevertheless, Rushinal left. It should be noted that before Rushinal left, Kerschner requested that they talk about the matter, but Rushinal refused and drove off.l2 On June 8, Ellsworth telephoned Rushinal and requested the latter to come to Respondent's office because James Kerschner wanted to talk to him. Rushinal proceeded to Respondent's office where he found Ellsworth, James Kerschner, and fellow employee. Richards, who was, at that time, the shop steward. Ellsworth asked Rushinal why the latter did not come back the day after Rushinal left. Rushinal replied that he had been fired. Kerschner and Ellsworth began discussing the matter with Richards and Rushinal in what the General Counsel contends was an u There is some question as to whether Rushinal stated he was going home for the rest of the day, or whether he was quitting. as testified by Ellsworth. However, there is no question about what ensued from that. 1" The foregoing from credited portions of the testimony of Rushinal, The- riault, Ellsworth, and James Kerschner. attempt by Kerschner and Ellsworth to get Rushinal to ad- mit that he had quit. However, at that point, Richards, acting as union steward, spoke up and told Rushinal that they were all there together, and that Rushinal should ask Ellsworth for his job back. Before Rushinal could comply with this suggestion, Ellsworth responded that he had hired Rushinal's replacement. Although the exact date is not established by the record, somewhat near the first part of June 1977, after the Union successfully won the election, Respondent, without consul- tation with the Union, installed the timeclock above re- ferred to, at the Ashland plant. Prior to that time, Ellsworth had kept a record of the employees' time in a timebook. Also, at about the same time, Respondent posted at the Ashland mill a written set of working rules and regulations which had never before been posted. This writing set forth the workweek, the standard workday, the responsibility of each man to punch his own timecard, the obligation to do the job, the method of notification in the event of sickness, notice of time off, and other working rules. It reiterated also what the employees had been told when they were hired, that they were not to bring liquor, drugs, or any other in- toxicants to work with them, or be drunk on the job; that they could not fight, be involved in theft, or damage com- pany property. However, other items were added for the first time. It also provided for a vacation plan not previ- ously established as a working condition. As heretofore stated, although in the main, most of these rules and regulations could be regarded as mere common sense working rules which would be applicable in almost any plant in any industrial organization, I do not credit Ellsworth's statement to the effect that these work rules were all given verbally to each employee when the employ- ees were hired. In fact, Respondent's representatives admit- ted, in testifying. that it was because of the Union that they felt it necessary to post written regulations. In support of this, introduced into evidence, were written rules and regu- lations which Respondent had posted at another one of the Kerschner enterprises. This set of rules and regulations were, for the most part, entirely similar to the rules and regulations posted by Respondent at Ashland. Addition- ally, James Kerschner testified that insofar as the timeclock was concerned, Respondent had always intended to install a timeclock at the Ashland mill but because of the expense of the same, and because of the pressure of other matters, Respondent had not been able to obtain a timeclock before the first part of June 1977. Finally, during the week of July 30, 1977, a wage increase of 50 cents an hour was implemented for the employees at the Ashland mill. It is noteworthy that employee Theriault had quit on the second week of July 1977, and employee Richards had left Respondent's employ on July 1, 1977. Both of' these quittings were voluntary. However, James Kerschner testified that the reason for the 50-cent per hour increase in wages being initiated at the end of July 1977, was twofold. In the first instance, Respondent had, in fact, promised its employees a bonus increase when as, and if, the plant was operating profitably. Second, according to Kerschner, the increase was given in order to prevent the loss of valued employees. It is established beyond doubt that this increase was given without consultation with the 270 MOODY C(HIP CORP. Union. Kerschner testified, however, that during the later negotiations for a contract. which negotiations were still proceeding at the time of the hearing herein, he had in- formed the Union of the raise and there had been um, objec- tion raised by the Union's negotiators.l C. Dis cuxsioI ad C('o, lldilng Ftndl,g.v Although Robert Kerschner prefaced his remark about the possibility of the negotiations taking from 2 to 5 years before a contract would be reached b referring to the expe- rience of another employer in the area. I nevertheless con- clude that such statement constituted a threat to the em- ployees that if they selected the tinion, such an election would be fruitless and would not benefit the employees. The repitition of this. by the senior Kerschner and hb James Kerschner at other times was of equal force as a threat. As such, these statements constituted interference and coercion within the meaning of Section 8(a)( I) and constitute a vio- lation thereof. The record shows that the possibilities of a bonus were discussed before the advent of the Union. While it is true that Respondent's representative at the Ma 6 meeting at the Portage Lake camp stated that they could not discuss the matter of raises or bonuses, such statement was made in connection with the statement that the employees would probabhl not be able to get a raise from 2 to 5 years because negotiations could he protracted for that period of time. This rendered the statement that bonuses could not be given. a violation of Section 8(a)(I) because the logical in- terence therefrom was that the raise would not he given because of the advent of the Union. and it the employees would not support the Union then they would receive ho- nuses. Accordingly I find and conclude that this statement also constitutes interference in iolation of Section 8(a)( I) of the Act. On April 28, or within that time just subsequent to the receipt by Respondent of the notice of the Union's repre- sentation petition, Mill Manager Ellsworth told the em- ployees that he would find out who the emploNees were who signed at least two of the cards. This constituted a threat of reprisal which clearly was coercive and iolative of Section 8(a)( I) of the Act. I so find. On the same day, Mill Manager Ellsworth told employee Theriault that he bet the latter was one of those who signed a union card. This constituted a further act of interference and a veiled threat in violation of the employees' Section 7 rights, and therefore constituted a violation of Section 8(a)( I ) of the Act. The establishment, after the filing of the Union's petition. of a 10 to 15-minute coffeebreak each morning beginning at 9:30 a.m.. is contended by Respondent to have been the result of the men taking breaks at odd times which inter- fered with production. The mere fact that the Union had filed a petition a few days prior thereto and that. at that 13 All of the foregoing from portions of the credited testimon of the ndi- viduals aove-named. Insofar as the ultimate separation of Rushinal from his job, the facts surrounding the leaving hb Rushinal on June I. the unilat- eral posting of the ork rules and vacaiion plan, the installation of the timeclock, and the giving of the 50-cent per hour 'age increase ere all admitted by Respondent's Aitnesses. time, Respondent had knowledge of the employees' union activities, does not render the establishment of the coffee- break a per se violation of either Section 8(a I ) or 8(a)(5) of the Act. I find that the cofleebreak was instituted ftr the purpose of giving the men a uniform cofleehreak which would not interfere with the operation of the mill. I con- clude therefore, that this did not constitute a violation of either Section 8(a)( 1) or (5) of the Act. Nor do I find suffi- cient evidence in the record to conclude that on or about May 16, as alleged in the complaint. Respondent's pres- ident. Robert Kerschner, threatened the emploNees with more arduous working conditions. Although Robert Kerschner did state that it Was foolish for a four-liman crew to join a union. andi I conclude and find that the Kerschners and Ellsworth representing Re- spondent. did vigorouslN oppose the Union coming into the plant, nevertheless I do not find that the mere request to the employees that they make suggestions as to hovw to in- crease production constitutes a solicitation of griexsances as alleged in the complaint and contended b counsel tor the G(eneral Counsel. he mere fact that Robert Kerschner wanted to know w hat the probhlems were in the mill and that the emploees in answer to that request comilplainLed about the acti ities of Plant Manager El[lsworth, did not render this desire for suggestions ol how to increase pro- duction, a solicitation of grievances in order to discourage the employees from supporting the nion. I therefore do not find that this constituted ia violation of Section 8(a (I) of the Act. While it is true that other staitements nlade at the camp meeting of Ma, 16, and at the meeting the Iollow,- ing morning in the plant on Mla 17. might hae been coer- cive and ioliatise of the Act. and this request for sugges- tions for increasing production came at approximatel the same time during those meetings, the request did not consti- tute a solicitation for personal grievances of the emplovees which otherwise would hase been the duty of a bargaining representatie to pursue on behalf of the emplovees. I therefore dismissed this allegation at the hearing herein and do herebh affirm that dismissal. Although Respondent contends that when, on May 24. i] his conversation with employee Theriaull. Robert Kersch- ner stated that on the following Monday he could have a new crew in the plant. in the context in which the statement was made and because of the timing thereof I find aind conclude that the statement constituted a threat of retali- ation or discharge should the employees vote the I iion in. This is so because during the sanie conversation Robert Kerschner stated. "We're going to find out in a couple of days who's full of hullshit and who ain't." Durine the same conversation. Robert Kerschner also stated that he did not really want to have a night shift and that if the employees were to vote in the lnion. and because of the pressure to get out more work, he could do it with or without employ- ees. The representation election, it should he noted, was due to be held only 2 days later on May 26. Accordingly. I find and conclude that the statement that Respondent could have new employees in the plant on the following Monda. even i Kerschner referred only to superisors to replace the employees, constituted a threat of reprisal in iolation of Section 8(a)( I) of the Act. Regarding the alleged discharge of employee Rushinal. and the events leading up thereto. it is established that the 271 DECISIONS ()1: NA'lIONAI IABOR RELATIONS BOARD plant was relatively new. and that the Union had just re- cently been chosen by Board election as the bargaining rep- resentatie of' Respondent's employees and had not yet, at that time,. made a formal request for bargaining. Equally well established is the fact that Ellsworth, on prior occa- sions, had not instituted any written warning system. In fact, in the case of the ahove-recited incident with The- riault, when tempers were high and Theriault walked out temporarily, no disciplinary measure of any kind was taken. Therefore. it must be concluded that the unilateral installa- tion of tile w ritten warning notice to employee Rushinal on June I, constituted a unilateral establishment of a formal disciplinary procedure. This constituted a violation of Sec- tion 8(a)(5) and (I) of the Act because it affected the work- inu conditions of employees and Respondent failed to noti- fy the Union thereof or discuss the same before instituting the same. Nor is this a minor matter so unimportant as to disregard as a violation. he formal written disciplinary proceeding is a condition of employment which can affect an employee's sltatus and therefore cannot he deemed to he so minor as to not be worthy of consideration. I lowever. I cannot come to the same conclusion with regard to the installation of the timeclock without consulta- tion of the Union. The requirement to punch in and punch out on a timeclock created no additional burden to the em- ployees because theN were and are hourly paid and their time was iormierly kept by their supervisor. The fact that hours worked was now more easily computed by Respon- dent by use of the timeclock had no effect upon the employ- ees' wages. hours, or working conditions. Accordingly. I do not find this to be a violation of the Act, even though the clock w\as instituted without prior consultation with the em- ployees' bargaining representative. I shall therefore recom- mend a dismissal of the allegation of the complaint which alleges the installation of the timeclock as a violation of Section 8(a)( I ) of the Act. On the other hand, some time during the early part of June, Respondent, for the first time, posted at its Ashland mill premises work rules, the breach of which could consti- tute reasons for immediate dismissal, and which the record does not establish were known to the employees prior thereto, except in certain minimal respects. The posting of these rules constitutes a matter which could affect the work- ing conditions and employment status of the employees. Therefore, these rules were matters which required consul- tation with the employees' bargaining representative. Ac- cordingly, I find and conclude, that the posting and institut- ing of these rules and regulations unilaterally was, and is, a violation of Section 8(a)(5) and (I) of the Act in that it constitutes a refusal to bargain. The mere fact that Respon- dent had established at other times, and in other plants owned by the Kerschners, similar rules and regulations. does not in any way modify the effect of what was done for the first time at the Ashland chip mill. In the same posting of the work rules. was included a vacation plan for the employees. This plan was established unilaterally and without consultation with the Union. Be- cause this plan, unilaterally established, had a direct effect upon wages, hours, and working conditions, it constituted a violation of Section 8(a)(5) and (I) of the Act. Respondent freely admits that it established and gave to its employees a 50-cent wage bonus increase at the end of July 1977. without consultation with the Union. I find this to be a violation of Section 8(a)(5) of the Act even though Respondent had discussed the possibility of the same prior to the advent of the Union. The mere fact that the Union consented to the same after the fact does not detract from the conclusion that the act was unilateral. affected the wages of the employees, and that the Union was not con- sulted to begin with. Quite naturally, the Union could not he expected to have requested the Employer to withdraw the wage increase even though it was granted unilaterally. Accordingly, I find the granting of this increase to have been a violation of Section 8(a)(5) of the Act. Although one of the purposes of the increase might well have been, as contended by Respondent. to prevent the loss of valued employees, nevertheless, the Union having been certified, Respondent was under the duty to inlform the Union of the desire to increase the employees' wages. This effect of the increase was to demean the Union in the eyes of the em- ployees. We come now to the alleged discharge of employee Ron- ald Rushinal. In coming to the conclusion hereinafter reached. I have considered the General Counsel's argument that the numerous unfair labor practices above-recited, the fact that Rushinal was the individual who originally made contact with the Union and at whose home the four union designation cards were signed, the additional fact that The- riault had committed an equally egregious act in walking out after an argument with Mill Manager Ellsworth and. finally. the written warning given to Rushinal which was a clear change from Respondent's former policy with regard to disciplinary proceedings. Nevertheless, even considering the impact of' the foregoing, and considering Respondent's definite antiunion attitude as exemplified by its earlier un- f'air labor practices. I cannot reach the conclusion that The- riault was either directly discharged for his union activity or that there was a constructive discharge by planned treat- ment of Rushinal for the purpose of forcing the latter to quit. In coming to this conclusion, I note particularly that Ells- worth wIas at odds at various times with all of the employ- ees. Second, I note that although there were only four em- ployees and Respondent would, ordinarily, under Board precedent" infer knowledge on the part of Respondent by reason of the very small employee complement. I further note that neither the initial telephone call by Rushinal to the Union nor the meeting of the employees at his home was anywhere near the plant. There is no evidence of any discussion at the plant by the employees that the Union was coming into the plant. The first formal notice of union ac- tivities came only after the Union had filed its representa- tion petition on April 25, 1977. While the Board's "small plant" doctrine of inferring knowledge is normally appli- cable in situations somewhat similar to that presented by the facts of the instant case, I find that there is little to support such finding beside the fact that the plant employee complement was very small and that there had been some 14 Weiew Plow Welding C(o. In., 123 NLRB 616 (19591. 272 2'7 activity by the nion in other plants in the area. T'here is nothing. however, to show that even if Respondent had some suspicion that the Union was organizing its plant. there is no supportive evidence that Respondent knew through whom, when. or where the Union made its ap- proach to the Respondent's employees. Accordingly. I can- not find that Respondent had knowledge that Rushinal was the union initiator and was, therefore. sought out by Re- spondent for retaliation. In fact. the record supports a contrary conclusion. As noted above. Ellsworth at one time accused Theriault. not Rushinal. of being one of those individuals who signed a card in support of the Union. Moreover. it was Theriault who for the most part. had the earlier arguments. and dis- cussions with regard to conditions in the plant with the Kerschners and Ellsworth. Additionally. it was Richards of whom Respondent would more likely have been suspicious. because he was known to Respondent to have been the union steward in the shop. Accordingly. I find and conclude that Respondent did not have knowledge that Theriault was the individual who initiated the Union movement in the shop.' In addition, above all of the foregoing. is the fact that the argument on May 30. which preceded Rushinal's walking out, was an argument brought on by the temper of the individuals the poor working conditions because of the heat. the order to go back to work, the pressures of produc- tion, all of which led to Rushinal's calling Ellsworth "Boy." Ellsworth having become angered by what he considered a demeaning expression to him, talked the matter over with James Kerschner, and they decided to then initiate a policy of written warning which heretofore has been found to have been violative of the Act. But, I cannot conclude that this was part of a plan or scheme to force Rushinal to quit. There was undoubtedly some insubordination on Rushi- nal's part which led to the warning. The next day, June I, when Ellsworth gave-Rushinal the written warning regarding the insubordination by Rushinal the previous day. a conversation ensued which had some overtones of union animus by Ellsworth. Nevertheless. when, after thinking the matter over. Rushinal decided to leave and was warned not to leave, he did so. despite the warning that he could be discharged. This was a further act of disobedience and insubordination by Rushinal. Moreover, James Kerschner came out of the office when Rushinal was seated in his truck to find out what the prob- lem was. He asked Rushinal to come back to work. This would indicate that there was no desire on the part of Re- spondent to seek out Rushinal for discharge in retaliation for the union activity or to discourage membership in and support of the Union. It matters not whether Rushinal said "I quit," whether he said "I will return tomorrow." or whether Ellsworth then discharged him. The refusal to work, even after James Kerschner's initial request that he return, removed from Rushinal any protective blanket af- forded by the Act. Accordingly. I shall recommend dis- missal of that allegation of the complaint which alleges that Rushinal was discriminatoril? discharged " (f. 4B(' Body 14Work Inc, 201 Nt.RB 833 (1973) I\. 111- iH-i-( I ()I IliI t Ni siR I ABOR PR\( I 1(i IS ()N ( ()OSIMI R( I The activities of Respondent. set forth in section III. above, occurring in connection with its operations de- scribed in section 1. above, have a close. intimate. and suh- stantial relationship to trade, traffic. and commerce a.roni the several States and tend to lead to labor disputes hurden- ing and obstructing commerce and the free flow of conm- merce. \. 11i11 RI MII ) Having found that Respondent has engaged in. and is engaging in unfair labor practices within the incaning of Section 8(a)( I) of the Act. it will be recommended that Re- spondent be ordered to cease and desist therefrom. Having found that by unilateral actions Respondent has violated Section 8(a)(5) of the Act, it will be recommended that Respondent cease and desist therefrom. and take cer- tain affirmative action designed to effectuate the policies of the Act. However, nothing herein or in the recommended Order is to be construed as requiring Respondent to rescind any benefit it has granted to the emploxees. Co( I ONS (OF LANw 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. and it will effectuate the policies of the Act to assert jurisdiction. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees including crane operators and debarket operators. but excluding sales employees, office clerical employees. guards. professional employees, and supervisors as defined in the Act. constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union is the Board certified, exclusive collective- bargaining representative of the employees in the aboxe- described unit. 5. B making threats of reprisal and promises of benefit, by interrogating employees regarding their union member- ship, by predicting extremely protracted negotiations with its employees' bargaining representative, and by telling its employees they did not get a raise because they selected the Union as their bargaining representative. Respondent has violated, and is violating Section 8(a)( I) of the Act. 6. By making unilateral changes in the wages, hours, and working conditions of its employees and thereby hbpassing the Union named above. Respondent has violated, and is violating Section 8(a)(5) and (I) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of the Act. 8. Except as set forth above, the General ('ounsel has not established by a preponderance of the credible ex idence that Respondent violated the Act as alleged in the com- plaint herein. tIpon the foregoing findings of ;lict. conclusions off law, and the entire record in this proceeding. and pursuant to Section IO(c) of the Act. I hereby issue the fOllowing recom- mended: MOODY ('llP ('ORP. DECISIONS OF NATIONAL. LABOR RELATIONS BOARD ORDER'6 The Respondent, Moody Chip Corp., Division of Kerschner Enterprises, Inc., Ashland, Maine, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisals, including pos- sible discharge, if they join, assist, vote for, or in any man- ner support United Paperworkers International Union, AFL CIO, or any other labor organization. (b) Refusing to discuss wages or other terms and condi- tions of employment to discourage union activity. (c) Interrogating employees regarding their union mem- bership. (d) Threatening employees that if they select the afore- said Union or any other labor organization as their bargain- ing representative, Respondent could prolong negotiations indefinitely, thereby preventing any possible benefits the said employees might gain from unionization. (e) Granting employees benefits in order to discourage union activity. (f) Instituting new, formal disciplinary procedures be- cause of its employees' union activities. (g) Refusing to bargain with the Union, above-named, by unilaterally and without notice to, or consultation with, the Union, promulgating new work rules, instituting formal '' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. disciplinary procedures and new vacation plans, and/or wage increases. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Notify and bargain with the aforesaid Union as bar- gaining representative of its employees in the unit hereto- fore found appropriate regarding any proposed changes in wages, hours, or working conditions of the said employees. (b) Post at its Ashland, Maine, woodchip plant, copies of the attached notice marked "Appendix."' 7 Copies of the no- tice on forms provided by the Regional Director for Region 1, after being duly signed by its authorized representative, shall be posted by it 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 it to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. I1l Is FURTHER ORDERED that those allegations in the com- plaint as to which no violations have been found are hereby dismissed. 1' In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 274