Century Lumber Co., Inc.

CENTURY LUMBER CO. Century Lumber Company, Inc. and Truck Drivers and Helpers Local Union No. 696, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 17-CA-3154 November 15, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On August 15, 1967, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that Respondent cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Ex- aminer's Decision. He further found that Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended dismissal as to them. Thereafter, the Charging Party and the General Counsel filed ex- ceptions to the Trial Examiner's Decision and sup- porting briefs. 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as herein modified. 1. The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(1) of the Act by threatening employees with discharge and plant closing in reprisal for support of the Union and by engaging in coercive interrogation of employees concerning their union activity. However, contrary to the Trial Examiner, we find that Respondent further violated Section 8(a)(1) by promising and granting economic benefits to employees on February 15 and 16,1 respectively, to discourage membership in and support of the Union. In reaching this conclusion we note the fol- lowing: On February 15, 2 days after the Union's de- mand for recognition and bargaining, Vice Pres- ident McCoy told employee Lacey he would get a All dates are 1967 unless otherwise indicated Sewell was laid off along with the others on February 15 but was rehired on February 24 221 wage increase and also sought to obtain the name of the union leader from Lacey. When unsuccessful, McCoy rebuked Lacey for refusing to give this in- formation. On the same day, McCoy told employee Murphy that he would receive a wage increase. At the same time, McCoy said to Murphy that Respondent would even resort to illegal means (closing the plant) in order to defeat the Union. Rcspondent's established practice was to give in- dividual wage increases. It had never before given a general wage increase. However, on February 16, after making the above promises to employees Lacey and Murphy, Respondent effected a general wage increase resulting in raises not only for Murphy and Lacey but also for the remaining nine employees then in the unit. In view of Respondent's union animus, its promise of increases to Lacey and Murphy in the context of unlawful threats and inter- rogation, the timing of the increase in relation to the Union's demand for recognition, and the un- precedented nature of the general increase, we find that this conduct was an additional part of Respond- ent's overall plan to dissipate employee support of the Union. Accordingly, and as there is no showing that the new benefits were motivated by some fac- tor other than to destroy the Union, we find that Respondent violated 8(a)(1) by promising and granting wage increases. 2. The General Counsel excepts to the Trial Ex- aminer's failure to find that Respondent violated 8(a)(3) and (1) of the Act by terminating employees Ronald Lutz, Arthur Meredith, and Thomas Hen- kensiefken, Jr., and by laying off employee Dewey Sewel1.2 In dismissing these allegations, the Trial Examiner concluded that Lutz was terminated because of his unsatisfactory work record and that, with respect to Lutz and the remaining alleged dis- criminatees, the General Counsel had failed to sustain his burden of proving Respondent's knowledge of union support by any of the em- ployees allegedly discriminated against. We find merit in the General Counsel's exceptions. Employee activity on behalf of the Union began in January 1967. During this period employees openly discussed the Union and distributed authorization cards on Respondent's premises. Early in the campaign, Assistant Warehouse Foreman Russell advised employee Meredith that all the employees would be fired if the Union came in. Thereafter, by letter to Respondent dated February 10, the Union claimed representation of a majority of unit employees, requested recognition and bargaining, and offered to substantiate its claim of majority by an impartial card check. On or about February 15, Respondent's unlawful antiunion campaign intensified with Vice President McCoy questioning employees Lytle and Lacey concerning 168 NLRB No. 36 222 DECISIONS OF NATIONAL their union activities and the union activities of fel- low employees. In addition, McCoy, on February 15, called employee Murphy to his office and told him that before going Union, he would close the plant down, and that it was his intention to "get rid of the union element." On Wednesday, February 15, Respondent promised wage increases to Lacey and Murphy. That same day Respondent effected the mid-week termination of Lutz, Meredith, and Henkensiefken and laid off Dewey Sewell. The next day the wage increases, heretofore found to be unlawful, were granted to the remaining employees in the unit. On the issue of knowledge, we find, contrary to the Trial Examiner, that the record is sufficient to establish that Respondent was aware of union ac- tivities of all employees who were allegedly the sub- ject of discriminatory treatment. All four had signed authorization cards prior to February 9. During the organization drive, Respondent's blue collar work force consisted of no more than 18 employees. As indicated, the Union was openly discussed with cards solicited on Respondent's premises. Unde- nied testimony establishes that Assistant Warehouse Manager Russell was present while dis- criminatees Meredith and Lutz engaged in conver- sations concerning the Union. 'In addition, Respondent's coercive interrogation sought not only information as to the union activities of the employees questioned but also the identity of others supporting the Union. Although Respondent's specific knowledge of the activities of Lutz and Meredith is amply demonstrated by Russell's presence during their discussions of the Union 3 we also find, on the basis of the small size of the plant, the nature of the interrogation, and the timing of the discharges in relation to Respondent's other unfair labor practices, an adequate basis for inferring that Respondent knew or had reason to believe that all the alleged discriminatees were union protagonists. But we also note that in the view we take of the case, even assuming that Respondent was unaware of the union membership of Henkensiefken and Sewell, our ultimate result herein would not be altered. For, as set forth below, we are satisfied that the record amply demonstrates that Respondent discriminated against all these employees to discourage union ac- tivity generally, and it is settled principle that where, as here, "an employer lays off a group of em- ployees, for discriminatory reasons, such conduct is unlawful as to all employees in that group, even as to those employees ... whose union sympathies are unknown to the employer."4 In finding that Lutz was unlawfully terminated, unlike the Trial Examiner, we reject as pretextual Respondent's contention that Lutz was discharged because he was an inefficient worker who had been LABOR RELATIONS BOARD the subject of creditors' complaints and the cause of bothersome phone calls from a former girl friend. Respondent conceded that its difficulties with Lutz were not of recent origin, but explained that Lutz was tolerated because his services were needed. However, there is nothing in the record, other than the advent of the Union, to indicate why Lutz was no longer needed at the time of his discharge. That union considerations were the true cause of his ter- mination is strongly suggested by undenied testimony that Vice President McCoy told Lutz that the Union was a factor leading to his discharge. Nor do we find merit in Respondent's assertion that the layoffs or discharges of Meredith, Henken- siefken, and Sewell were predicated upon legitimate economic considerations. Respondent presented no evidence to substantiate its alleged economic justifi- cation for a sudden layoff in the middle of the week and without prior notice to those affected. Respond- ent also makes no effort to explain its inconsistent action in granting wage increases simultaneously with its decision to reduce business losses by cutting the size of the employee complement. In this latter connection, it is significant that after the layoffs Respondent hired new men from Manpower Inc. to perform work which would otherwise have been performed by the separated employees. We also note that although witnesses for the Respond- ent indicated that layoff selections were made on the basis of seniority, the instant layoffs were made while other employees with less time on the job than the discriminatees were retained. In finding that Respondent's reasons for the ac- tion taken against all four employees were pretex- tual and calculated to mask its true intention of discouraging union activity and dissipating union support, we also rely upon the fact that the discharges and layoffs occurred contemporane- ously with similarly designed unfair labor practices, some of which indicated a disposition on Respond- ent's part to engage in discrimination for unlawful purposes. McCoy's admission to Lutz that a cut- back was necessary because of the Union is also corroborative of a calculated effort on Respond- ent's part to terminate a substantial segment of the unit in order to curb the effectiveness of the or- ganization campaign generally. In sum, we are satisfied and find on the basis of Respondent's avowed opposition to union organization, the timing of the discharges in relation to other unfair labor practices and to the demand for recognition, and the absence of any satisfactory explanation for Re- spondent's precipitate action in terminating four employees in mid-week and without prior notice, that Respondent's action in this regard was but a part of an unlawful pattern of conduct calculated to undermine the Union. Accordingly, we find that ' Rust Sales Company, 157 NLRB 1685, fn 7 4 Northwestern Publishing Company, 144 NLRB 1069, 1073, fn 14, and cases cited therein Rust Sales Company, supra CENTURY LUMBER CO. Respondent violated Section 8(a)(3) and (1) of the Act by terminating Lutz, Meredith, and Henken- siefken and by laying off Sewell. 3. The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(5) and (1) of the Act by its unlawful refusal to recognize and bargain with the Union. However, the Trial Examiner found the unfair labor practice as of March 24, 1967, the date Respondent affirmatively denied the Union's demand for recognition. We find merit in the General Counsel's contention that the 8(a)(5) violation should properly date from Respondent's receipt of the Union's demand for recognition on February 13, 1967. Thus, the record establishes that by February 10, 1967, the Union represented a majority of em- ployees in the unit. Respondent, shortly after receiving the Union's demand for recognition, em- barked on a course of conduct designed to un- dermine the Union, which included coercive inter- rogation, threats of reprisal, unlawful promises and grants of wage increases, and discrimination. It also appears that Respondent, after agreeing to a card check, conceded that the authenticated cards sub- stantiated the Union's claim of majority support. In the circumstances, we find that Respondent's con- duct from the date it received the Union's demand for recognition exhibited a rejection of the collec- tive-bargaining principle and an intention to un- dermine the Union's majority. Accordingly, we find that Respondent has engaged in an unlawful refusal to bargain since February 13, 1967,5 and we shall amend the Trial Examiner's Conclusions of Law accordingly. AMENDED CONCLUSION OF LAW 7. By refusing since February 13, 1967, to bar- gain with the Union as the exclusive representative of the employees in the aforesaid unit, the Company has engaged in unfair labor practices as defined in Section 8(a)(5) of the Act. ADDITIONAL CONCLUSIONS OF LAW Renumber paragraphs 8 and 9 in the Trial Ex- aminer's Conclusions of Law as paragraphs 10 and 11, and add the following as new paragraphs 8 and 9: 8. By promising and granting economic benefits to employees to induce them to withdraw from sup- port of and membership in the Union, Respondent has engaged in an-unfair labor practice defined in Section 8(a)(1) of the Act. 9. By discharging and laying off employees in reprisal for their support of the Union, Respondent has engaged in an unfair labor practice defined in Section 8(a)(3) and (1) of the Act. THE REMEDY 223 Having found that Respondent has engaged in certain unfair labor practices in addition to those found by the Trial Examiner, we shall order it to cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Among the additional violations, we have found that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Ronald Lutz, Arthur Meredith, and Thomas Henkensiefken and laying off Dewey Sewell to discourage union activi- ties. We shall therefore order that Respondent offer to those employees reinstatement to their same or substantially equivalent positions with full restora- tion of seniority or other benefits they would have enjoyed--had they not been discriminated against. We shall also order that Respondent make them whole for any wages lost because of the discrimina- tion, with backpay computed in manner set forth in F. W. Woolworth Company, 90 NLRB 289, plus in- terest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Century Lumber Company, Inc., Topeka, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees coercively as to whether they signed union cards or as to the identi- ty of employee leaders in union activity. (b) Threatening employees with discharge or with closing of the plant in reprisal for their par- ticipation in concerted activities in connection with representation by the Union. (c) Refusing to bargain collectively with the Union as exclusive representative of employees in the following appropriate unit: All production and maintenance employees of the Company including truckdrivers but excluding all other employees, guards and supervisors as defined in the Act, con- stitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. (d) Promising and granting economic benefits to employees to induce them to withdraw from sup- port of and membership in the Union; provided, however, that nothing in this Decision and Order shall require Respondent to vary or abandon any wage, hour, seniority, or other substantial feature which it has established for its employees or to prejudice the assertion by its employees of any 5 The Great Atlantic and Pacific Tea Company, Inc, 162 N LRB 1182 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights they may have derived as a result of the un- fair labor practices committed by Respondent. (e) Discouraging union activities by discharging or laying off employees or discriminating in any other manner in reprisal for their support of and membership in the Union. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and to refrain from any or all such activities. 2. Take the following affirmative action which the Board deems necessary and appropriate to ef- fectuate the policies of the Act: (a) Offer Ronald Lutz, Arthur Meredith, Thomas Henkensiefken, and Dewey Sewell im- mediate and full reinstatement to their former or substantially equivalent positions, without preju- dice to their seniority and other rights and privileges. (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make the above-named employees whole for any loss of earnings they may have suffered as a result of the discrimination against them in a manner computed in accordance with the formula set forth in the section of the Board's Decision and Order herein entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) On request, bargain collectively with the Union as exclusive representative of employees in the aforesaid appropriate unit with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understand- ing in a signed agreement. (f) Post at its office and warehouse at Topeka, Kansas, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms pro- vided by the Regional Director for Region 17, after being duly signed by the Company's 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 the Company to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 6 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain and we will, on request, bargain with Truck Drivers and Helpers Local Union No. 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as exclusive representative of em- ployees in the following appropriate unit: All production and maintenance em- ployees including truckdrivers but exclud- ing all other employees, guards and super- visors as defined in the Act. WE WILL reduce to a signed memorandum of agreement any understanding reached as a result of such bargaining. WE WILL NOT interrogate employees as to whether they have signed cards for the above- named or any other labor organization. WE WILL NOT threaten employees with discharge or with closing of the plant in reprisal for their support of the above-named or any other labor organization. WE WILL NOT promise or grant economic benefits to employees to induce them to withdraw their support of and membership in the above-named or any other labor organiza- tion. WE WILL NOT discharge or lay off employees because of their support of or membership in the above-named or any other labor organiza- tion. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, or to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities: WE WILL offer Ronald Lutz, Arthur Meredith, Thomas Henkensiefken, and Dewey Sewell immediate and full reinstatement to their former or substantially equivalent posi- CENTURY LUMBER CO. tions without prejudice to seniority and other rights previously enjoyed. WE WILL make Ronald Lutz, Arthur Meredith, Thomas Henkensiefken, and Dewey Sewell whole for any loss of earnings they may have suffered as a result of the discrimination against them. CENTURY LUMBER COM- PANY, INC. (Employer) Dated By (Representative) (Title) Note: We will notify the above-named em- ployees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 374-5181. TRIAL EXAMINER'S DECISION WILLIAM J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the "Act," came on to be heard on June 14 and 15, 1967,' at Topeka, Kansas. The original charge of unfair labor practices was filed February 20 by the above-indicated Charging Party, hereinafter sometimes referred to as the "Union"; the complaint herein was issued April 18, by the Regional Director of the National Labor Relations Board for Re- gion 17 . It alleged , in addition to jurisdictional matter, and the duly filed answer of the above-indicated Respondent, hereinafter sometimes referred to as the "Company," de- nied the commission of unfair labor practices defined in Sections 8(a)(1), (3), and (5) of the Act. At the hearing the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues. Briefs were not filed by any par- ty. On the entire record2 herein and on the basis of my ob- servation of the witnesses , I make the following: Dates hereinafter relate to the year 1967 except as otherwise noted 2 After the hearing the General Counsel filed a motion to correct the transcript in 14 specified instances Unopposed by any other party the motion is granted and the transcript amended in the particulars therein specified In addition the following corrections are ordered p 157, 121. should read "TRIAL EXAMINER Was it proved"", p 159,1 7, 8, should read "There is nothing more independent of his father than a first year college student ", p 244, I I should read "Mr Rose , I think that I am disposed to ", p 246,1 24 should read "the 8(a)(I) allegatuns are important not only in themselves, of ", p 256,1 17 should re,d "July 20 Briefs will be due on July 20 If you need more time " 1 FINDINGS OF FACT 225 t. THE BUSINESS OF THE RESPONDENT-COMPANY The pleadings and evidence indicate and I find that the Company is a corporation organized and existing under and by virtue of the laws of the State of Kansas and operates a wholesale lumber facility in Topeka, Kansas, in the course of which it annually purchases from sources outside the State of Kansas, goods and services valued in excess of $50,000 while annually receiving in excess of $50,000 for sales or services rendered outside the State of Kansas. I find, as the Company concedes, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The pleadings and evidence indicate and I find that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Introduction and Summary of Events The Company's operations consist of the receipt, warehousing, sale, and delivery of lumber products. Its supervisory staff at material times included President Harry Foster, Vice President Edward McCoy,' Warehouse Foreman Adrian "Bud" Alexander, and Assistant Warehouse Foreman Dean Russell. Attorney Hiatt is the Company's secretary. In addition to sales and office personnel, the Company employs warehousemen, forklift drivers, a door and hardware employee (Howard Harder),4 and truckdrivers; all the foregoing work under the supervision of Alexander and Russell. The warehouse employees and the drivers are hourly paid with their start- ing wage dependent on their experience, they wear regu- lar work clothes, punch the same clock, use the same sanitary and lunch facilities, and enjoy the same vacation and insurance benefits. The warehouse employees work 5-1/2 days; the drivers do no Saturday work, need Kan- sas chauffeurs' licenses and must meet I.C.C. require- ments; they deliver one load a day within a 165 mile radius, make no overnight stops except in case of emer- gency and when not engaged in loading, unloading, or driving work alongside warehouse employees. Employee discussion of self-organization commenced sometime in January and in February employees designated employee Thomas Murphy to obtain union authorization cards. Murphy obtained twelve signed union authorization cards from drivers and warehousemen in the period February 8-10 and under date of February 10 the Union wrote the Company claiming to represent a majority of production and main- tenance employees including truckdrivers, requesting recognition and bargaining and offering to substantiate its majority claim by card check before a disinterested party of the Company's choice. The Company replied by letter ,i McCoy's term of office as vice president terminated on or about March I and at the time of the hearing he was only a stockholder " Harder, when not engaged in putting lights in doors, loads and unloads trucks, operates the forklift and does some city, but no over-the-road driv- ing 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dated February 27 referring to the union claim and to the unit and stating that it desired to check the cards against the company payroll. In the interim between the union letter and the company reply, employees Arthur Meredith, Ronald Lutz,5 Dewey Sewell, and Thomas Henkensiefken had been laid off and an unfair labor prac- tice charge filed by the Union in connection with their layoffs. Between 5 and 6 o'clock on March 2 there was a meet- ing between union and company representatives at the Company's office. The Union was represented by Attor- ney Rose, Assistant Business Agent Glenn, and Thomas Murphy; company representatives included Attorney Hiatt, President Foster and Treasurer Fulton. Glenn and Murphy testified, and no company witnesses were called in refutation of their testimony which I credit, that on this occasion Hiatt checked the signatures on the 12 union authorization cards (G.C. Exhs. 9 through 20 inclusive) and advised the meeting that the Union appeared to have a majority of employees signed to cards, and that the Company would get in touch with the Union within a week or so. On March 22 Rose wrote to Hiatt, referred to the March 2 meeting, and demanded a meeting for the pur- pose of collective bargaining. On March 24, Hiatt replied that inasmuch as the matter was in the hands of the Board it would be necessary to await the Board's determination of the matter. The complaint herein alleged and the Company's answer denies that in the period between February 15 and 24, McCoy and Russells engaged in various activities constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act, that on Februa- ry 15 the Company discharged three employees and laid off another because of their activity on behalf of the Union and that on March 6 the Company increased the work quota of Murphy in reprisal for his union activity. The complaint also alleges that the Company unlawfully refused to bargain with the Union as representative of production and maintenance employees including truckdrivers. The Company's answer denies the ap- propriateness of the above-mentioned unit and denies committing any unfair labor practices; it affirmatively al- leges that it filed a representation petition on or about March 21 and that the Regional Director refused to con- duct a hearing thereon and refused also to investigate charges against the Union. B. Interference, Restraint , and Coercion 1. Interrogation The complaint alleges and the answer denies that McCoy interrogated employees concerning their union "and/or other protected activity" on or about February 15 and 16. David Lytle, a driver who signed a union card on February 8, testified that in late February, McCoy asked if he had signed for the Union. Lytle replied that he had and McCoy, according to Lytle's account, stated that 5 The complaint refers to this employee as "Rodney" Lutz Company payroll records, his signature on a union authorization card, and his testimony indicated his correct name to be Ronald Lutz 6 The complaint also alleges that William Foster, a student and part- time employee and the son of President Foster, as an agent acting on be- half of the Company interrogated employees concerning their union ac- tivity on or about February 14 The evidence indicates that young he was not going to have anything to do with the Union. James Lacey, a lift driver who signed a union card on February 8, testified that on or about February 15 McCoy called him into the office and in the course of a conversation about impending layoffs, referred to the Union and asked Lacey if he knew who had started it. Lacey admitted that he knew but refused to reveal the name due to fear of reprisal against him. McCoy then stated that Lacey had been with the Company for 4 years and should have informed him when union activity started. McCoy did not testify and I find Lytle and Lacey to be thoroughly credible witnesses. The questioning attributed by them to McCoy does not appear to be set in circum- stances indicating innocence of purpose in the inquiries and I find that by McCoy's questioning of Lytle as to whether Lytle had signed a card and of Lacey which plainly was in effect as to who had started the Union, the Company engaged in unfair labor practices defined in Section 8(a)(1) of the Act. 2. Threats The complaint alleges and the answer denies that on or about February 15 McCoy and Russell threatened em- ployees with reprisals, including closing of the lum- beryard, to discourage support of the Union. Murphy testified that on the afternoon of February 15, McCoy called him to the office and said, among other things, that before they would go Union he would close the place down. Arthur Meredith, a union supporter and an alleged discriminatee, testified that some time in January, Russell said that the people in the office said that all the em- ployees would be fired if the Union came in. Ronald Lutz, a union supporter and alleged discriminatee, testified that 2 or 3 days after his layoff, Russell told him that McCoy had said that before he would let the Union in he would close the doors and run the place himself. Russell did not testify and McCoy did not deny the statement attributed to him by Murphy nor the statement referred to by Lutz.7 I credit the testimony of Murphy, Meredith, and Lutz and find that by the statements of Russell and McCoy the Company engaged in unfair labor practices defined in Section 8(a)(1) of the Act. 3. Promises and grants of benefits The complaint alleges in paragraph X(d) that McCoy, on February 15 and 16, promised and granted economic benefits to discourage membership in and support of the Union. In this area the General Counsel in oral argument pointed to testimony of Lacey and Murphy and to G.C. Exhs. 2 and 3. Lacey testified that in the course of a second discussion on February 15 McCoy stated that he was going to give him a 25-cent raise which he in fact received on the next payday. Murphy also testified that on the same day, February 15, in the course of their discussion above mentioned, McCoy said he was giving him a 10-cent hourly raise but that he wanted more work Foster's only connection with management is that he resides in his father's home and the Examiner sustained objections designed to elicit unfair labor practices through his agency Although Lutz' testimony was that Russell had told him that McCoy made t,a statement in question, and the testimony has some of the aspects of hears -,V, the Company is responsible for the coercive utterance since both Rus-_•II and McCoy are supervisors CENTURY LUMBER CO. out of him. It appears from G.C. Exhs. 2 and 3(b) that 11 employees received increases on February 16, and that the Company has a practice of granting sporadic in- dividual wage adjustments. It also appears that Lacey, the senior employee in the unit, had not received a wage increase since April 20, 1966, and was overdue for one as compared to numerous other employees. In the case of Murphy the adjustment of February 1967 was clearly geared by McCoy to expectancy of increased productivi- ty. It would appear to be a matter of suspicion and conjec- ture, rather than a conclusion bottomed on a preponder- ance of evidence, to conclude that McCoy's promises and subsequent adjustments were motivated by a purpose to discourage membership in and support of the Union and I conclude that the allegations of the complaint in this regard are not supported by a preponderance of the evidence. C. Discrimination The complaint alleges and the answer denies that the Company, on February 15, discharged employees Ronald Lutz, Arthur Meredith, and Thomas Henkensief- ken, Jr., and laid off employee Dewey Sewell until February 24 in reprisal for their support of the Union; it also alleges and the Company denies, that Murphy's work quota was increased on or about March 6 in reprisal for his union activity. Ronald Lutz was hired May 25, 1966, at $1.50 and worked initially as a boxcar unloader progressing thereafter to the jobs of forklift helper and a forklift driver. He received a 25-cent wage increase soon after his hire and a 10-cent hourly increase in October 1966. He signed a union authorization card on February 8, but does not appear to have been active in soliciting others to sign. He appears to have been unsatisfactory in several respects, concedes that McCoy criticized him for his slowness and errors, one of which could, if not caught in time, have resulted in a delivery of $3,000 more cedar sid- ing than the customer's order called for. The evidence also establishes that on one occasion he ran the forklift off the dock and on another ran it into and punctured a customer's tire. Lutz conceded that he was deficient in learning the location of materials in the warehouse and in fact often found it necessary to inquire of Foreman Alex- ander, Order Desk Man Abbott and rank-and-file fellow workers as to the location of materials. There is some basis for uncertainty as to whether Lutz was discharged or laid off. His account is that McCoy called him to the office on February 15, told him that the Company had to lay off some employees due to business losses and to the fact that the advent of the Union would mean higher wage costs and then laid them off. Company records on whether Lutz was discharged are ambivalent; G.C. Exh. 3 B bears a notation that he -was laid off on February 15, whereas G.C. Exh. 2 bears a "T," presumably for "Termination" penciled in over an erased "L/O." Whether discharged or laid off he had not been re- called or reemployed as of the date of the hearing. It is clear that at the time of the card check of March 2, 8 Murphy, the principal union protagonist, appears to have instructed card signers to return signed cards to the glove compartment of his car, presumably parked in a company parking lot ° Sewell was rehired February 24 at a 10-cent hourly increase ° Meredith testified that he had gone to the union hall to get cards but 227 the Company knew of Lutz' support of the Union. To establish knowledge as of the time of the lay off or discharge the General Counsel, conceding the absence of direct evidence of knowledge, relies on the "small plant" theory and on testimony offered to establish that the warehouse-office-dock complex was interconnected with an intercommunication system whereby the office group of supervisors could eavesdrop on conversations held else- where in the plant. But there is no evidence that any ex- tensive union solicitations or other activity were carried on in the plant" much less adjacent to any one of the inter- com boxes nor is there evidence as to the size of the plant which, although relatively few in number of employees could, as a substantial lumber warehousing operation conceivably, and most probably would occupy a substan- tial area. I can see no basis in the evidence for concluding that it preponderates in favor of a finding that the Com- pany had knowledge of the union activities of any particu- lar employee prior to the March 2 card check, although McCoy and other officials knew of the union claim by its letter of February 10. Lutz appears to have been a source of annoyance on other bases than his inability to learn materials locations; the unrefuted testimony of McCoy is that the office was in receipt of frequent telephone calls about difficulties Lutz had with creditors and a girl friend. It also appears that Lutz frequently left trucks unloaded, refusing to work overtime. McCoy testified that he would have discharged Lutz long prior to the actual date of dismissal but for the fact that the Company was in need of drivers. While the timing of Lutz' release gives a basis for suspi- cion, the evidence indicates no more than an employee with a longstanding record of unsatisfactory service was released shortly after receipt of a union demand for recog- nition. It does not appear to indicate any basis for knowledge or even suspicion that Lutz was related to the union effort and in fact his connection with the Union ap- pears to be merely that of a card signer. The majority of card signers were not released. I conclude that the evidence does not preponderate in favor of the conclusion that Lutz was discharged or laid off in reprisal for his sup- port of the Union. Employees Meredith, Henkensiefken, and Sewell were laid off on February 159 allegedly in reprisal for their union activity which consisted merely of their signing of cards. 10 Sewell and Henkensiefken were warehousemen as of the date of their separation while Meredith had transferred from warehouseman to truckdriver on December 22, 1966. Dewey Sewell was hired August 25, 1966, and worked at a rate of $1.25 per hour as a laborer loading boxcars; he received an increase of 25 cents per hour in October 1966 after he asked for it. At the time of his layoff there were four warehouse employees (including Murphy and Hen- kensiefken) junior to him.I I McCoy's testimony is that on February 15 he determined to lay off the junior em- ployees, got a seniority list from the bookkeepers and laid off the four junior warehousemen. In fact Meredith, Sewell, and Henkensiefken were senior to employees Stotts and Blair who were not laid off at that time but found that Murphy had preceded him there He then signed his card and delivered it to Murphy at the latter's home " Two part-time student-help employees, William and Jack Foster, were also junior They were also laid off on February 15 336-845 0 - 70 - 16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since Stotts and Blair also signed cards for the Union any significance to layoff out of seniority disappears. There is no basis in the evidence for concluding that the Company had knowledge of the union support of Sewell, Meredith , and Henkensiefken. While the events sur- rounding and reasons for their layoff are considerably un- clear , any such lack of clarity cannot suffice to make out a case of discriminatory discharge but necessarily operates against the General Counsel who has the burden of proof. Murphy testified that after February 15 the Company engaged the services of employees supplied by Manpower ; this testimony does not indicate the number of men , the classifications in which they worked , nor the duration of their services . The evidence in my judgment, cannot reasonably be said to preponderate in favor of the conclusion that Sewell , Meredith , and Henkensiefken were laid off in reprisal for their union activities. With respect to the allegation of discrimination against Thomas Murphy in the nature of an increase in his work quota on or about March 6, the sum total of the evidence is that on February 15, McCoy, after telling him about the layoff of other employees, said that they would give him a 10-cent increase but wanted more work out of him. Company records confirm that he got the increase on the following day. There is no reason to believe that the state- ment of McCoy that the Company wanted more work out of Murphy in return for the wage increase amounted to an increase in his work quota in reprisal for his leadership in union activity particularly since there is no basis for infer- ring company knowledge of his activity until the date of the card check of March 2 when he appeared not only as a card signer but as a principal in the Union's organiza- tional efforts . I recommend dismissal of the allegations of the complaint respecting discrimination against Thomas Murphy. D. The Refusal To Bargain The complaint alleges the commission of an unfair labor practice defined in Section 8 (a)(5) and (1) of the Act in the Company's refusal from and after February 10 to bargain on request with the Union as exclusive represent- ative of its employees in a unit composed of all produc- tion and maintenance employees including truckdrivers, but excluding all other employees, guards and super- visors. Respondent's answer admits receipt of the Union's request for bargaining , denies the appropriate- ness of a unit including truckdrivers with production and maintenance employees , denies the majority status of the Union and affirmatively alleges that on March 21, it filed a representation petition which was dismissed by the Re- gional Director on March 28 as not meriting further proceedings. 1. The appropriate unit The facts with respect to the identities and disparaties of interest as between warehousemen and drivers are set forth above. It seems clear that the factors of common su- pervision , identical fringe benefits , use of common plant facilities, progression from warehouse work to driving, warehouse work performed by drivers and the absence of identifying uniforms for drivers warrant the inclusion of truckdrivers in a unit with production and maintenance employees where no separate representation is sought by a labor organization . I find that the unit in which the Union seeks representation is an appropriate one. Marks Oxygen Company of Alabama, 147 NLRB 228. In this connection it is noted that the Company on receipt of the Union's initial request for bargaining on February 11, which clearly specified the unit as one embracing produc- tion and maintenance employees including truckdrivers, raised no question as to the appropriateness of the unit but proceeded, as hereinafter related, to a card check of production and maintenance employees and truckdrivers. 2. The Union's majority status At the time of the Union's initial request for bargaining and its assertion of majority status in the appropriate unit, which request appears both from common experience with intracity mail delivery and from the testimony of McCoy, to have been received by the Company on February 13, the Union had received signed authoriza- tion cards from 12 employees in the unit. These cards are in evidence as G.C. Exhs. 9-20 inclusive. The cards are unambiguous authorizations for representation by the Union12 and in the case of each card it is authenticated either by the signer or by Murphy, the chief employee spokesman for the Union. It also appears that the 12 union authorization cards were shown by Glenn and Murphy to company representatives at the March 2 card check in the company offices and that the Company acknowledged the authenticity of the cards and conceded the Union's majority status. The total number of em- ployees in the unit is shown by G C. Exh. 2 to have been 18 at most. The evidence is abundantly clear that the Union at all material times was the representative of a majority of employees in the appropriate unit and entitled to recognition as the exclusive statutory representative of employees . In this connection it is noted that Sewell was rehired on February 24. There is also uncontradicted evidence that following the layoffs of February 15, the Company engaged the services of Manpower to fulfill its labor requirements and I conclude that the layoffs of Meredith and Henkensiefken were under circumstances such that they would also have a normal expectancy of re- call. In any event the evidence clearly establishes that at the March 2 card check the Company conceded the majority status of the Union, and raised no question of the inclusion of Lutz, Meredith, Sewell, and Henkensief- ken in the unit. It appears that the filing of a representa- tion petition thereafter resulted from an afterthought and as part of a second look at the prospects of bargaining with the Union. On the basis of all the foregoing I con- clude that the Company has unlawfully refused to bargain with the Union at all times from and after March 24, the date of the company communication putting it up to the Board to make its determination in the matter. 12 The card signed by Meredith does not name the Union as his representative , but, apparently in error , contains the words "Authoriza- tion for Collective Bargaining Representative " in the blank spaces pro- vided for insertion of the union stamp This does not appear to have been any obstacle to the Company's acknowledgement of the validity of his card in the March 2 card check Furthermore, although the cards bear an invalid restriction or revocability this feature does not appear to be any element of significance in this case See Southbridge Sheet Metal Works, Inc , 158 NLRB 819, enfd 380 F 2d 519 (C A 5) CENTURY LUMBER CO. 229 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICIES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with the operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY In view of the findings set forth above to the effect that the Company has engaged in unfair labor practices affect- ing commerce, I shall recommend that it be required to cease and desist therefrom and from like or related unfair labor practices and take such affirmative action as ap- pears necessary and appropriate to effectuate the policies of the Act. 13 Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By coercively interrogating employees as to whether they had signed cards for the Union and as to who among employees had started the union campaign the Company has engaged in unfair labor practices defined in Section 8(a)(1) of the Act. 4. By threatening employees with discharge of all em- ployees and the closing of the plant in reprisal for em- ployee support of the Union the Company has engaged in unfair labor practices defined in Section 8(a)(1) of the Act. 5. All production and maintenance employees of the Company including_truckdrivers but excluding all other employees , guards and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 6. Since on or about February 10 the Union has been and is now the exclusive representative of employees in the aforesaid unit for purposes of collective bargaining. 7. By refusing from and after March 24 to bargain with the Union as exclusive representative of employees in the aforesaid unit the Company has engaged in unfair labor practices defined in Section 8(a)(5) of the Act. 8. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 9. Except as specifically found herein , the Company has not engaged in unfair labor practices alleged in the complaint. Union Business Agent LaRue Moore identified Union Exh I as a type of relief appropriate in the instant case The Examiner rejected this copy of an agreement negotiated and in effect between the Union and a exhibit on the ground that it was not material to the issues in the instant wholesale-retail lumber company in the Topeka area as bearing on the case