Potlatch Corp.

Potlatch Corporation and Elizabeth Clapper and Lar- ry Herzog. Cases 7 CA-13915 and 7-CA-13928 June 5, 1978 DECISION AND ORDER BY MEMBERS PENELLO. MtRPHY. AND TRUIESDAI IE On February 22, 1978, Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, the General Counsel and Re- spondent filed exceptions and supporting briefs and Respondent filed a response to the General Coun- sel's exceptions. 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.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Potlatch Corporation, St. Joseph, Michigan, its officers, agents, successors. and assigns, shall take the action set forth in the said recommended Order. I Respondent has not excepted to the Administrative Las Judge's finding that it unlawfully discharged one of its employees, Elizabeth Clapper. be- cause of her announced intention to file grievances when she was cosered by the collective-bargaining agreement. Respondent has excepted. howueser. to the Administrative Law Judge's remedy ordering Clapper's reinstatement on the ground that, had she not been terminated, she would ha'se been laid off on July 1, 1977. and her right to be recalled under the collective-bargain- ing agreement would have expired on January I. 1978 The issues raised hb this exception are best left as matters for compliance DECISION STATEMENT OF THE CASE ROBERT E. MULLIN. Administrative Law Judge: This case was heard at St. Joseph, Michigan, on August 30, 1977, pursuant to charges duly filed and served.' The complaint was issued on May 3, 1977. In its duly filed answer, the | The charge in Case 7 CA 13915 was filed on March 25. 1977. and the charge in Case 7-CA 13928 was filed on March 30. 1977 POTLATCH CORPORATION Respondent conceded certain facts as to its business opera- tions, but denied all allegations that it had committed any unfair labor practices. At the hearing, the General Counsel and the Respondent were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses and to file briefs. A motion to dismiss, made by the Respon- dent at the close of the hearing, is disposed of as appears hereinafter in this Decision. The parties waived oral argu- ment and, on September 16, 1977, both the General Coun- sel and the Respondent submitted briefs. Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, with an office and plant in St. Joseph, Michigan, maintains other plants in California and Delaware. At its plant in St. Joseph, the only facility involved in this proceeding, the Respondent is engaged in the manufacture, sale, and distribution of paper plates and related products. During the year preceding is- suance of the complaint, a representative period, the Re- spondent's gross revenues exceeded $500,000. During that same period the Respondent purchased and had delivered at the St. Joseph plant paper and other materials valued in excess of $500,000, of which amount goods and materials valued in excess of $50,000 were shipped to the St. Joseph location from points outside the State of Michigan. Simi- larly, the Respondent's out-of-state sales of its products manufactured in St. Joseph exceeded $50,000 a year. On the foregoing facts. the Respondent concedes, and it is now found, that the Potlatch Corporation is engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Local Lodge No. 512, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, herein called Union or Machinists, is a labor organization within the meaning of Section 2(5) of the Act. 11H THE ALLEG(ED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The St. Joseph plant in this case has approximately 100 employees and has had collective-bargaining relations with the Union for many years. Under the Respondent's per- sonnel practice, a probationary employee may be dis- missed at any time prior to the expiration of the probation- ary period and this may be done without any warning. Once an employee has completed his probationary period. however, he is protected as an employee with tenure and union membership. and dismissal may only be effected be adherence to the terms of the collective-bargaining agree- ment between the Respondent and the Union. On March 236 NLRB No. 71 707 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7, 1977, the Respondent dismissed Elizabeth Clapper and Larry Herzog, two probationary employees. The General Counsel alleges that their termination was precipitated by the Respondent's desire to separate them from the payroll before the expiration of their probationary period so as to preclude the filing of grievances under the provisions of the collective-bargaining agreement. The allegation is denied by the Respondent in its entirety. B. The Alleged Violations of Section 8(a)(l) and (3); Findings and Conclusions With Respect Thereto 1. Elizabeth Clapper Clapper was hired as a machine tender on February 7, 1977. She had previously worked at the Respondent's plant for extended periods but. because of a substantial break in her service, it was necessary that she begin as a probation- ary employee and remain in that status for the first 30 days. On March 4,2 Clapper was called to the office of Terry W. Radde, employee relations manager for the plant. and told that she had been found unqualified for further work as a machinist tender but that, rather than terminating her the following week at the end of her probation period, the Respondent would offer her a choice of two other jobs. One was that of bailer and the other, janitor. After Clapper received this notice she talked with several coworkers who were active in the Union to ascertain her right to file a grievance. Darlene Schultz, recording secre- tary in the Local, told Clapper that the contract would not permit her to file a grievance until she became a member upon the completion of her probationary period. Schultz credibly testified that, early on the morning of March 7, Radde questioned her as to whether Clapper was going to file a grievance and she answered in the negative. Everett McCullom, one of the union stewards, testified that that same day Radde also asked him whether C'lapper had dis- cussed filing a grievance. Clapper elected to take the janitor's assignment. This re- quired that she pass a test on the operation of a forklift. Clapper reported to Larry Burkett, foreman in the shipping department, to take the test. She passed the examination, but during the period that she was undergoing Burkett's tests she made some comments which reflected her dis- gruntlement at having been found unqualified for machine tender work. LeRoy Zielke, her foreman, attempted to as- suage her feelings, but her only response to him was the comment "just wait until I can talk." Clapper began her new assignment as a janitor on the night of March 6. When she finished work on that shift on the morning of March 7 she returned to her home. Shortly thereafter the personnel office notified her that she was being terminated, effective at once. This was the 29th day of her employment. Clapper testified that in a telephone conversation with Radde later that morning the latter told her that she was terminated for having made the statement to Foreman Zielke "just wait until I can talk." 2All dates hereinafter are for the year 1977. unless specifically noted otherwise. Radde testified that, at a management meeting on March 3, Clapper's inadequacies as a machine tender were carefully reviewed and that all present were in accord that she should not be kept on in that assignment. According to Radde, others at the meeting wanted her terminated then, since that was the customary disposition of a probationary employee's case when the probationer proved unsatisfac- tory. Radde testified, however, that Clapper had been a good employee, she had never been absent or tardy and she had been a willing worker. According to the employee relations manager, as a result of all these factors he pre- vailed upon the other management representatives to agree that rather than dismissing her at the end of her probation period she should be tried at another assignment, and she was then given the job of janitor. Radde acknowledged that on Monday, March 7, at another management meet- ing, her comment "just wait until I can talk," made to Foreman Zielke, and later repeated to him, was the basis for reconsidering the offer to keep Clapper on the payroll as a janitor and led to the decision that Clapper be termi- nated immediately. Clapper's belligerent assertion "just wait until I can talk" was obviously a declaration that as soon as she had com- pleted her probationary period and had begun to accrue seniority under the collective-bargaining agreement she would assert her right to file grievances and dispute any management action with which she disagreed. That this also was the construction which Radde placed on Clapper's remark is borne out by the fact that on March 7 he questioned both Schultz and McCollum, two officials in the Local, as to whether Clapper had attempted to file a grievance. It is well settled that an employee who seeks to file a grievance under a collective-bargaining agreement is en- gaged in protected concerted activity because, by this ac- tion. he or she attempts to implement the concerted activi- ty which gave rise to that agreement. N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d 495, 500 (C.A. 2, 1967); H. C. Smith Construction Co., 174 NLRB 1173, 1174 (1969), enfd. 439 F.2d 1064 (C.A. 9, 1971); New York Trap Rock Corpo- ration, Nvtralite Aggregate Division, 148 NLRB 374, 375- 376 (1964). Morover, it is well established that this protec- tion extends even to probationary employees who solicit the union's assistance in asserting rights under the collec- tive-bargaining agreement. Amole, Inc., 214 NLRB 67, 68- 69 (1974); Loose Leaf Metals CompanY, 181 NLRB 202, 206 (1970). On the basis of the findings set forth above it is now found that the real reason for Clapper's termination was her announced intention to file grievances when she would be covered by the collective-bargaining agreement. Conse- quently, her dismissal was for engaging in protected con- certed and union activity, and, therefore, was a violation of Section 8(a)(3) and (1) of the Act. Lafferty Trucking Co., 214 NLRB 582, 584 (1974): Awrey Bakeries, Inc., 197 NLRB 705, 711 (1972); Loose Leaf Metals Company, supra. 2. Larry Herzog Herzog was hired as a janitor on February 7, 1977. He had worked for the Respondent earlier and had been laid 708 POTLATCH CORPORATION off during a business slowdown in 1976. On one occasion during his earlier employment Herzog had been admon- ished by LeRoy Zielke. the night supervisor, when the lat- ter found him sitting on a chair rather than standing at his station along the production line. According to Herzog. Zielke ordered him off the chair and then threw the chair at him. Zielke denied throwing anything at Herzog, but acknowledged that he had sternly admonished the employ- ee for his indifferent and careless attitude. In any event, it seems that thereafter Herzog sought, but without success, to have the night-shift steward file a grievance on his be- half. Herzog testified that on being rehired Radde told him that "I better watch my attitude." Radde conceded that during the employment interview in February he cautioned Herzog about having given the union representatives difficulty when on one occasion they told him he did not have any grounds for filing a grievance. According to Radde, "I told him I did not want to infringe upon his right to file a grievance. But that the attitude he had developed against his peer group was causing prob- lems." Herzog was terminated on March 7. According to the employee, Radde told him that he was being discharged for "reckless driving and my attitude and [because] the stew- ard didn't want to be bothered by me talking to her." Radde's version was slightly different. According to the employee relations manager. Herzog was dismissed for "in- subordination and careless operation of the lift truck." Radde testified that it was not until the afternoon of March 4 that he learned about the complaints as to Herzog's operation of the lift truck and thereafter made some inquiries. According to Radde, during the course of his investigation one of the foremen and several employees reported that in more than one instance Herzog had driven the forklift truck about the plant at a high rate of speed and that he had ignored a number of warnings that this performance was endangering his coworkers. Radde testi- fied that that same afternoon he cautioned Herzog that there had been complaints charging him with careless oper- ation of the forklift, but that the employee "lightly fluffed [them] off...." According to Radde. thereafter he learned from Foreman Zielke about an insubordination problem which Zielke had had with Herzog earlier that week. At the hearing, Herzog acknowledged that during the week before his dismissal he had had a sharp exchange with Zielke, his supervisor on the night shift, when the lat- ter ordered that he sweep the floor of the shipping depart- ment. Ziekle testified that when he first spoke to Herzog about the sweeping job the employee refused to do the work on the ground that the shipping department was out- side the area that was regularly assigned to him. According to Zielke, it was only after he told Herzog that the job needed to be done and that he was giving him a direct order that had to be obeyed that the employee complied and swept the floor. Radde testified that he concluded that Zielke's account of his difficulties with Herzog in getting him to clean the warehouse, coupled with what had been learned about the employee's allegedly careless operation of the forklift, "more than warranted the dismissal of Mr. Herzog." The General Counsel produced evidence that, on the morning of Herzog's discharge. the employee spoke to Eve- lyn Arrans, a coworker who was also a union official, about his bumping rights. It appears that Arrans talked with Zielke about the prospect of Herzog transferring to another shift and that Zielke told Herzog that, as a proba- tionary employee, he did not have any bumping rights. There is a reference to this fact on the "change of status" card for Herzog which the Company prepared after his discharge along with a reference to his insubordination and his "attitude." From this the General Counsel contends that the real reason for Herzog's dismissal was his resort to the Union and his attempt to use concerted activity in bet- tering his position with the Respondent. Herzog's demeanor while on the stand and throughout his examination was one of intransigeant belligerence. Nor did he, even while testifying on direct examination, appear either frank or convincing in his recital of what had oc- curred during the period in question. Consequently, it is now found that, insofar as there are any conflicts between the testimony of Herzog and Radde, the testimony of the latter is more credible. The General Counsel contends that the real reason for Herzog's termination was his concerted activities rather than the reason which the Respondent offered at the hear- ing. It is true that prior to his dismissal Herzog had been in contact with the union steward and other union officials and had solicited their help. In so doing he was engaging in protected concerted activities. On the other hand, such ac- tivities did not accord him any immunity from the rules which applied to all other employees. As the Board stated of the complainant in another case, "[He] was a union leader, and the Respondent may well have welcomed the opportunity of getting rid of him, but neither his activities nor the Respondent's attitude gave him privileges greater than those of other employees." Llovd A. Fry Roofing Com- pany, 85 NLRB 1222, 1224 (1949). Counsel for the General Counsel vigorously prosecuted this matter and submitted a thorough brief to support his theory of the complaint. In view of the above findings, however, it is my conclusion that the General Counsel has not established by a prepon- derance of the evidence that Herzog was terminated for his protected concerted activities. Instead, it is found that he was discharged for cause. Accordingly, it will be recom- mended that the complaint be dismissed insofar as it alleg- es that Herzog was terminated in violation of the Act. CONC i SO()NS OF LAW 1. Respondent is engaged in commerce and the Union Is a labor organization, all within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of Elizabeth Clapper, thereby discouraging concerted or union activities, the Respondent has engaged, and is en- gaging. in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The General Counsel has not proved by a preponder- ance of the evidence that the Respondent engaged in any 709 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violations of the Act other than as herein specifically found. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I will recommend that the Re- spondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily ter- minated Elizabeth Clapper, I will recommend that the Re- spondent be ordered to offer Clapper immediate and full reinstatement, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings that she may have suffered from the time that the Respondent discharged her on March 7, 1977, to the date of the Respondent's offer of reinstatement. The backpay for the above-named employee shall be computed in accor- dance with the formula set forth in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), with interest thereon computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 3 It will also be recommended that the said Respondent be required to preserve and make avail- able to the Board or its agents, on request, payroll and other records to facilitate the computation of backpay due. Since a discriminatory discharge of an employee "goes to the very heart of the Act" (N.L.R.B. v. Entwistle Manu- facturing Company, 120 F.2d 532, 536 (C.A. 4, 1941) ), it will be recommended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7. Upon the foregoing findings, conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent, Potlatch Corporation, St. Joseph, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, or otherwise discriminating against, any employee in regard to his or her tenure of employment because of concerted or union activity. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities. 2. T'ake the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer to Elizabeth Clapper immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges and make her whole in the manner set forth in the section of this Deci- sion entitled "The Remedy." (b) Preserve and, upon request, make available to the personnel records and reports, and all other records neces- sary, or appropriate, to analyze the amount of backpay due under this recommended Order. (c) Post at its plant in St. Joseph, Michigan, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's au- thorized representative, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed inso- far as it alleges unfair labor practices not found herein. See. generally, Isis Plumbing and Heating Co., 138 NLRB 716 (1962) 4 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. In the event 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTI E To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage concerted or union activi- ties by terminating or otherwise discriminating against out employees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Elizabeth Clapper immediate and full reinstatement to her former job or, if that job no lon- ger exists, to a substantially equivalent position, with- out prejudice to her seniority or other rights and privi- leges, and make her whole for any loss of pay suffered as a result of the discrimination against her, plus inter- est. POTLATCH CORPORATION 710