Z and L Lumber Co. of Columbus

Z AND L LUMBER CO. 75 Z and L Lumber Company of Columbus and United Brotherhood of Carpenters and Joiners of America, Local No. 2783, AFL-CIO. Case 9-CA-5065 October 13, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS as so modified below. Add the following as paragraph 2(b), and reletter the following paragraphs, accordingly: "(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." TRIAL EXAMINER 'S DECISION On July 22, 1969, Trial Examiner James T. Barker issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National 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 brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Z and L Lumber Company of Columbus, Columbus, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, 'We have carefully examined the record herein and find Respondent's allegation of bias on the part of the Trial Examiner to be unwarranted in the absence of exceptions thereto, we adopt pro forma the Trial Examiner's dismissal of 8(a)(3) allegation concerning the discharge of James Slaby, and the failure to find an 8(a)(l) violation concerning Manager McGowan's conduct at the meeting of February 14 'We note that the Trial Examiner's conclusion is based in part on the fact that Scurlock, Ault, Horn, and Syar had not been replaced at the time of their request for reinstatement It is immaterial whether these employees had been replaced, as unfair labor practice strikers they had an absolute right of reinstatement upon their unconditional application We also note that the Trial Examiner at some points found that Respondent unlawfully discharged Ault, Horn, Scurlock, and Syar However, the record shows that Respondent unlawfully refused to reinstate these employees These findings are accordingly corrected STATEMENT OF THE CASE JAMES T. BARKER, Trial Examiner This matter was heard at Columbus, Ohio, on May 13 and 14, 1969, pursuant to a charge filed on February 24, 1969, by United Brotherhood of Carpenters and Joiners of America, Local 2783, AFL-CIO, hereinafter called the Union, and a complaint and notice of hearing issued on April 11, 1969, by the Regional Director of the National Labor Relations Board for Region 9 The complaint alleges violations of Section 8(a)(1) and (3) of the National Labor Relations Act, hereinafter called the Act The parties timely filed briefs with me Upon consideration of the briefs and upon the entire record in this case, and my observation of the witnesses I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Ohio corporation engaged in the business of retail and wholesale sale of lumber and lumber-related products at its place of business in Columbus, Ohio During the 12-month period immediately preceding the issuance of the complaint herein Respondent purchased and caused to be shipped to its Columbus, Ohio, place of business goods valued in excess of $50,000 directly from other firms and suppliers located outside the State of Ohio. During the same 12-month period Respondent had total sales to consumers in excess of $500,000 Upon these admitted facts I find that Respondent is and has been at all times material herein an employer engaged in commerce and in operations affecting commerce as defined in Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, Local 2783, AFL-CIO, is admitted to be a labor organization within the meaning of Section 2(5) of the Act, and I so find III. THE UNFAIR LABOR PRACTICES A The Issues The complaint alleges that, (1) by and through its manager Howard McGowan Respondent unlawfully interrogated employees concerning their activities on behalf of and support of the Union and threatened employees with economic reprisals and loss of job 179 NLRB No. 11 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promotions for engaging in union activities, (2) on February 15 and 17, 1969 ,' respectively , Respondent discriminatorily discharged and refused to reinstate employees James Slaby and James Veeck, (3) on February 17 employees of Respondent engaged in an unfair labor practice strike which was terminated on February 19 by virtue of their unconditional offer to return to work, and (4) on February 19 Respondent discriminated against employees Albert Ault, Gary Horn, Robert Scurlock, and Charles Syar because of their strike activities The Respondent denies the commission of any unfair labor practices and contends , affirmatively, that Slaby and Veeck were terminated for cause , that Ault, Horn, Scurlock, and Syar voluntarily quit their employment and were not strikers , and that, in any event , Scurlock was a supervisor within the meaning of the Act B Pertinent Facts 1. Background In the month of January the Union commenced an organizational campaign at Respondent's Columbus, Ohio, plant. By letter dated February 13, the Union claimed to represent a majority of Respondent's employees and requested Respondent to engage in collective bargaining The letter was received by Respondent on February 14 and on February 19 the Union filed a representation petition in Case 9-RC-8054 Subsequently, the Union filed the instant charges on February 24, accompanied by a request that the representation petition be processed. On March 18, a representation hearing was held in Case 9-RC-8054 and on March 21 a decision and direction of election issued. The election was held on April 10 and a tally of ballots issued on April 25 revealing that four employees had voted for the petitioning labor organization, six votes had been cast against the petitioning labor organization and eight ballots had been challenged Thereafter, on May 1, the Union timely filed objections to the election.' 2. The alleged unlawful conduct a The interrogation On the morning of February 14 Howard McGowan, manager of Respondent's Columbus facility, spoke with employee Gary Horn at Horn's duty station at the service counter on the sales floor As McGowan approached Horn he said, "Did you sign a card to go Union" Horn answered that he had. McGowan then asked two other employees, Conrad and Lewis, who were working at the sales counter, if they had signed a card and they answered in the negative ' During the workday of February 14 McGowan spoke with James Veeck a truckdriver, forklift operator and yard man McGowan stopped Veeck as he was walking from his truck to the customer showroom proximate to McGowan's office McGowan requested Veeck to step into his office and after the two had entered the office 'Unless specifically indicated otherwise all dates herein refer to the calendar year 1969 'The foregoing is based upon the stipulation of the parties at the hearing and upon documentary evidence of record 'The foregoing is based upon the credited and uncontradicted testimony of Gary Horn McGowan asked Veeck if he had signed a card for the Union Veeck answered that he had and McGowan asked the reason Veeck asserted that he did not feel he was getting paid "what [his] job [was] worth." McGowan responded, "Well, do you realize that if the Union comes in the hours [of work] will be cut down to 40"" Veeck answered that this was a matter which McGowan would have to discuss with the Union Thereupon McGowan instructed Veeck to return to work and said that he would speak with Veeck later When Veeck returned to work in the yard he observed McGowan speaking with Albert Ault and Robert Scurlock ° McGowan had initially approached Scurlock who was working in the yard with employee Albert Ault McGowan asked Scurlock if he had joined the Union Scurlock asked the identity of the union to which McGowan had reference and McGowan answered "the Carpenters union " Scurlock thereupon answered that he had not joined the Union because he already belonged. McGowan then turned to Ault and asked him if he had joined the Union and Ault asserted that he had always been a union man McGowan then remarked to Ault that if the Union got in he would have to drive a forklift. Ault responded that that was all right and that he thought he could drive it as well as anybody else 5 As McGowan spoke with Scurlock, Veeck and Ault in the yard he had in his possession the Union's demand letter and during the conversation with Scurlock he proffered the letter to Scurlock who read it 6 After Ault and Veeck had left to return to their work tasks, McGowan requested Scurlock to come into his office and Scurlock and McGowan started toward McGowan's office Enroute they stopped in the yard and McGowan stated that he would close down the yard Scurlock responded this was his privilege as manager McGowan thereupon asked Scurlock if Andy Chapin, a stockboy, had signed a card and Scurlock stated, "I suppose he did." McGowan responded with a profane utterance in a loud voice. The two men proceded to McGowan's office In the course of their conversation in the office, McGowan asked Scurlock why the employees wanted a union and Scurlock asserted that they desired a union "because of their wages, and safety conditions, and etc " McGowan answered that the Company was going to build some new yards and that Scurlock would be made manager of one of them Scurlock answered, in effect, 'The status of Ault as a rank-and-file employee is not in issue but the Respondent , contrary to the General Counsel , contends that at pertinent times Scurlock was a supervisor 'Albert Ault made no reference in his testimony to the assertion by McGowan with respect to any prospective assignment to forklift duties However, both James Veeck and Robert Scurlock testified that McGowan made this statement and their testimony is not refuted Veeck speculated that upon his hire , Ault was assured that because of his age he would not be assigned to forklift duties However, the status of this testimony in the record is hearsay and is not independently corroborated 'The foregoing is based upon a composite of the credited testimony of Robert Scurlock, Charles Syar, Albert Ault, and James Veeck Syar testified that he observed McGowan with a piece of paper in his hand as he approached Scurlock in the yard , thus tending to support Scurlock's testimony that McGowan had in his possession the demand letter I do not credit the testimony of Robert Scurlock to the effect that as Veeck joined the conversation in the yard , McGowan asked him if he had signed a union card Veeck made no reference to such inquiry in his testimony and McGowan had inquired of Veeck concerning this matter just a few minutes earlier It is thus unlikely that McGowan would so soon again broach the subject I am convinced that Scurlock was in error in attributing to McGowan this inquiry of Veeck Z AND L LUMBER CO. 77 that the Company had not consulted with him concerning this eventuality and so he had acted [with respect to the Union] as he thought best In this connection, he asserted that the employees were "quite unhappy" and that he wanted a raise . The conversation ended when an employee entered the office and informed Scurlock and McGowan that he needed help in the yard As Scurlock departed from the office, McGowan followed him and as they proceded toward the yard McGowan asked Scurlock if he had been the "instigator of the Union " Scurlock answered that he had been and that he was the one who had had the cards signed McGowan then asked Scurlock to return to his office when he was through with the task at hand Scurlock did so and when the conversation resumed McGowan informed Scurlock that he was going to have to tell management in the home office at Pittsburgh that Scurlock had been the instigator of the Union and that it was going to cost Scurlock his opportunity of becoming manager of a new yard Scurlock answered that he "imagined" that this would be the result of what had transpired but that if management wanted "an answer" he would "give it to them " Thereupon, McGowan requested Scurlock to inform the employees that he wanted to meet with them in his office that evening Scurlock went into the yard and spoke with the employees and returned to McGowan's office Upon Scurlock's return the conversation between them was resumed and McGowan stated, "Well, about this union matter . we can't afford it" McGowan then showed Scurlock a small book and pointed out entries in the book which he asserted substantiated his contention. That evening at approximately 8 30 p.m., a meeting was held in the showroom in the Company' s sales department just outside the office of Howard McGowan Approximately 10 employees attended the meeting McGowan commenced the meeting by asking each employee individually to state those matters pertaining to his work with which he was dissatisfied As each employee did so McGowan recorded the items on a pad of paper The wage level and safety conditions were subjects of general complaint The inadequacy of the insurance program and other benefits also received some attention During the meeting McGowan asserted that he would investigate the wage level at other yards operated by the Company and would endeavor to adjust the wage level at the Columbus yard to that of the other facilities. McGowan also observed during the meeting that he wished the employees had come to him with their problems and had not resorted to the Union for collective-bargaining purposes to further their demands He also stated that in his opinion the Union could not offer the employees more than the Company was already offering.' 3 The alleged unlawful discharges a James Slaby On February 15 employee James Slaby was terminated. Slaby worked in the employ of Respondent as a stockboy from January 6 until February 15 During the course of his employment Slaby worked with Andy Chapin, another stockboy. Slaby was a full-time student but worked approximately 40 hours each week at his duties which were comprised principally of marking merchandise by machine Slaby was terminated at the end of his shift on February 15. He was informed by McGowan who effectuated the termination that he would no longer be needed at the store because the marking machine had been broken and the merchandise would have to be priced by hand " McGowan testified that he terminated Slaby because, as a consequence of his conversations with other personnel, he had learned that merchandise was being marked incorrectly and because all marking machines had become inoperative obviating the need for Slaby's services McGowan testified that he had spoken with Robert Scurlock approximately a week earlier and had informed Scurlock that he was going to let Slaby go. He testified that Scurlock had indicated his agreement with this determination. McGowan further testified that, in substance, in terminating Slaby he endeavored to let Slaby "down easy" by ascribing his termination solely to the inoperative state of the marking machines rather than to the unsatisfactory nature of his work performance The marking machines which the stockboys use had frequently become inoperative and the hand marking machine which just prior to Slaby's discharge had become inoperative broke while being used by employee Chapin ' Slaby conceded that on occasion he had been reprimanded for falling behind in his work output Scurlock denies having conversed with McGowan concerning Slaby's work performance Andrew Chapin, a high school student who worked on a part time basis as stockboy, testified credibly that approximately 2 or 3 weeks elapsed from the termination of Slaby to the retention of a replacement for Slaby Slaby had signed a union authorization card prior to February 15 and had informally discussed the matter of unionization with Andrew Chapin and with Clarence Lewis, a salesman These discussions had transpired on plant premises Additionally, he attended the meeting of February 14 and in response to McGowan's inquiry had indicated that he felt that his job as stockboy "merited more than the minimum wage " b The termination of James Veeck James Veeck worked in Respondent's employ from late November 1968 until February 17. 'The foregoing is based upon a composite of the credited testimony of James Slaby , James Veeck, Robert Scurlock, and Gary Horn I do not credit that portion of the testimony of James Slaby which infers that during the meeting McGowan said that the Company could not afford to pay the wages that he believed the Union would demand and that more than likely the Company would close down if the Union got in No other witness made reference to this asserted statement and the statement attributed by Slaby to McGowan seems out of keeping with the conciliatory atmosphere which appears to have prevailed at the meeting The foregoing is based upon the credited testimony of James Slaby, as augmented in some respects by the testimony of Andrew Chapin and Howard McGowan I rely upon the testimony of Slaby as to the content of McGowan's discharge statement to him McGowan 's testimony in this regard was cast in conclusionary terms and is not inconsistent with the more definitive testimony of Slaby concerning this 'The credited testimony of Andrew Chapin establishes this latter finding and his testimony considered together with that of Robert Scurlock and James Slaby supports the finding concerning the frequency of machine breakdowns 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In early February, Veeck was dispatched to Wicke's Lumber, a lumber supply firm, to pick up a load of plywood This was Veeck's first dispatch to Wicke's Lumber He picked up 160 pieces of plywood which he counted, and signed an invoice which contained thereon a description of the merchandise but did not specify the quantity being delivered McGowan testified that he had placed an order for 240 pieces and that the difference in the billing cost of the quantity shown on the invoice to have been received and the quantity actually received amounted to approximately $900. McGowan testified that he observed the discrepancy while processing the invoice as part of his routine paper work duties which he was performing on Sunday, February 16 McGowan further testified that, as a consequence of this discovery, he determined that he had had "enough of [Veeck's] lackadaisical attitude of driving and picking up" and determined to terminate him. McGowan also testified that, as he had received a demand letter from the Union, he determined that he should receive advice concerning his legal rights As a consequence, at the beginning of the workday on February 17, he contacted James Rector, his labor relations consultant, and summarized for Rector the details of the lumber pickup and invoicing incident involving Veeck He pointed out to Rector also that the Union had made a bargaining demand upon him. Rector advised him that he was legally justified in terminating Veeck. Later in the morning, after conversing with James Rector, McGowan took the Wicke's Lumber invoice into the yard and spoke with Scurlock. McGowan asked to see the plywood which Veeck had picked up and asked Scurlock if he had checked it in. He requested that Scurlock count the plywood. Scurlock did so and found 160 sheets Thereupon, McGowan observed that while the employees wanted a union in the yard the Company could not afford to have men around that cost the Company $900 Scurlock suggested that McGowan could call Wicke's Lumber and speak with the director of inventory control and could thereby straighten out the matter. Contrary to McGowan, Scurlock testified that on the occasion of the Wicke's Lumber pickup McGowan had informed him that Veeck was to pick up 160 sheets of plywood He stated that he raised no question concerning the delivery when Veeck returned because he had the amount which McGowan had specified. Soon after McGowan spoke with Scurlock, Veeck returned to the yard from a run Veeck went to the showroom where he was approached by McGowan who requested that he step into the office. When Veeck entered McGowan's office James Rector was present McGowan commenced the conversation by asking Veeck if he had picked up the load at Wicke's Lumber Company and proffered to him the invoice which he had in his possession and which bore Veeck' s signature McGowan asked Veeck if he had checked out the load that he had picked up and Veeck stated that he had picked up the quantity he had been instructed to pick up. However, McGowan disputed this Thereupon Veeck recounted that he had been instructed to pick up 160 sheets of plywood The invoice charged the Company for 240 sheets Thereupon McGowan answered that he could not have an employee working with the Company who did not pay sufficient attention to his work to check on a load involving so substantial an amount of money as the one in question.10 The foregoing findings with respect to the content of the discharge On two prior occasions - the times of which are unspecified in the record - Veeck had been involved in incidents which caused a loss of money to the Company. On one occasion pieces of paneling blew off the truck and were lost to the Company because they had not been properly secured On that occasion Veeck stopped the truck but found that the paneling had been damaged and he left it lying in a field near the road where the wind had blown it. McGowan had set the loss incurred by the Company on this occasion at between $50 and $60. On a separate occasion Veeck damaged some copper tubing on a construction site as he was being directed in backing his truck by a construction employee. McGowan testified that Veeck voluntarily informed him of this latter incident and that, pursuant to Veeck's explanation, he had not given him "too strong" a reprimand. However, McGowan further testified that he learned that, with respect to the damaged molding and paneling which had blown off the truck, Veeck had returned to the plant, picked up substitute material, and delivered it to the customer. With respect to the consequences of the lost paneling, Veeck testified as follows A Well, I don't know about the policy [of picking up material dropped from the delivery truck] If it was something real important, I think he'd have jumped on me for not bringing it back He didn't say anything about not bringing it back He didn't ask me why I didn'g bring it back. So I don't think it was important. It probably was important but it didn't seem to him it was important, so I ', didn't worry about it. If it was important, he'd have asked me to go back up and get it. Veeck testified that he had signed an union authorization card 4 The walkout Immediately after being informed by McGowan of his discharge, Veeck went back into the yard and informed Scurlock that he had been terminated. Scurlock suggested that he return to the office and endeavor to obtain his paycheck Veeck did so immediately He spoke to McGowan and requested that he be given his paycheck McGowan answered that the paychecks came from the home office in Pittsburgh and Veeck retorted with an obscenity and insisted that he wanted his paycheck "now " McGowan agreed to pay him and did so after calling the home office to obtain the deductions from which to calculate Veeck's net pay." interview between McGowan and Veeck is based principally upon the credited testimony of James Rector as augmented by that of James Veeck and Howard McGowan The testimony of Rector more accurately reflects the actual exchange that transpired between McGowan and Veeck I am of the opinion that the testimony of both Veeck and McGowan was more conclusionary and terse than the actual conversation was I do not credit Veeck's testimony to the effect that he specifically informed McGowan he had counted the plywood after returning from Wicke's I do, however, specifically credit Veeck's testimony to the effect that he informed McGowan that he had picked up the quantity of merchandise which he had been instructed to pick up "Howard McGowan testified credibly concerning the content of this conversation However, I credit the testimony of Veeck to the effect that after conversing with McGowan and being informed of his termination he spoke with Scurlock in the yard But, contrary to the testimony of Veeck, I credit Scurlock to the effect that he suggested Veeck return to the office Z AND L LUMBER CO. 79 After Veeck received his paycheck he returned to the yard and informed employee Syar and Ault of his termination. Scurlock joined the conversation and the group discussed the fact that Slaby and Veeck had been terminated, that each of them had signed a union card and that they, like Slaby and Veeck were vulnerable to discharge The employees agreed to leave work and seek advice from the Union.' 3 Without being specifically designated by the group Scurlock took it upon himself to inform McGowan of the employees' intention He entered the building with Veeck. Scurlock went to McGowan's office while Veeck stopped at the counter where employee Horn was working and informed Horn of his termination Horn obtained his coat and left the building." While Veeck stopped at the service counter to converse with Horn, Scurlock proceeded to McGowan's office. He entered the office and found McGowan conversing with Rector Scurlock stated to McGowan merely, "We're going home " Thereupon Scurlock and Veeck left the sales area and McGowan followed them directly to the yard. There he obtained the keys to the warehouse from Scurlock.' for his pay Veeck 's testimony that he decided to return of his own volition is not credited "The testimony of Scurlock and Syar, which I credit, reveals an intention and purpose on the part of the four employees to seek union guidance concerning what they discerned as a developing threat to their own job tenure The testimony of Veeck and Syar reveals , but none too clearly, that following the termination of Slaby but prior to Veeck's termination , the employees had discussed a possible course of action in the event of a subsequent termination of a card signer "The foregoing findings are based upon a synthesis of the testimony of James Veeck, Robert Scurlock, Gary Horn, Charles Syar, and Albert Ault I have considered the testimony of James Rector concerning the sequence of events which transpired between the time Veeck was terminated and Veeck and Scurlock returned to the office as an incident of Scurlock advising McGowan of the employees' intentions Contrary to the testimony of Veeck and Scurlock, Rector's testimony indicates that Veeck first informed Scurlock of his termination on the sales floor near the office during the interlude when he returned to the office to obtain his paycheck The testimony of Veeck and Scurlock with respect to the time, place and manner in which Veeck advised Scurlock of his termination is convincing and mutually corroborating and the testimony of Horn concerning the sequence of Veeck 's entry and exit, as well as his presence in, the sales office area of Respondent ' s premises is similarly convincing While I do not reject the thrust of Rector's testimony revealing that Scurlock and Veeck did, in fact, converse in the office concerning matters pertaining to Veeck's termination I am convinced he was in error concerning the substance of their discussion Further, while Rector is credited in his testimony revealing that Scurlock used the telephone I am convinced that this occurred when Scurlock entered the sales area with Veeck for the purpose of informing McGowan of the employees ' intentions Moreover, while the testimony of Rector accurately recalls Scurlock informing Veeck to meet him outside in the yard, I am convinced that this too transpired during the time span when Scurlock entered the sales area to inform McGowan of the employees intentions "The finding with respect to the statement of Scurlock concerning the intentions of employees is based upon the testimony of Robert Scurlock I have considered the testimony of Howard McGowan and James Rector concerning his remarks and contrary to their testimony find that he did not in specific terms use the word "quit" or "quitting" to define the actions and intentions of the employees I am convinced upon a consideration of the testimony of the employee participants in the incident that they planned to take defensive action as a protest against what they construed to be discriminatory personnel actions by the Respondent While the testimony of employee Horn reveals that he considered this defensive action to encompass the necessity of him obtaining a new job, this consideration does not appear, by the testimony of other participants, to have permeated the intentions of the other employees Moreover, I am not convinced that in light of the previous ground work that had been laid through the discussions of the employees among themselves , Scurlock, an After the employees departed the premises on February 17, McGowan, his stockboys and his salesmen manned the yard McGowan contacted the Respondent's home office concerning his need for assistance and employees of the Company from other yards were dispatched to Respondents Columbus facility For at least a week following February 17 the Columbus facility was manned by personnel from other yards working in conjunction with McGowan and his contingent of salesman and stockboys.' S After leaving Respondent's premises Veeck, Scurlock, Horn, Syar and Ault proceded to the union hall where they spoke with George Guist, business representative of the Union. Pursuant to Guist's instructions Scurlock, Horn, Syar, and Ault returned to Respondent's yard at approximately I p.m. on February 19 Scurlock spoke to McGowan in the presence of the other employees and informed McGowan that the employees desired to return to work and that while they did not like the manner in which Slaby and Veeck were discharged they were willing to put that aside until the Union and Company had resolved their bargaining efforts McGowan answered that he had nothing to say to the employees and that they did not have a job.' 6 Scurlock testified that during the year of his employment by Respondent it was "customary procedure" for an employee who was quitting to return certain designated uniform clothing. Scurlock testified that he did not return his. There is no evidence that Horn or Ault did SO.'' 5. The duties of Robert Scurlock Robert Scurlock worked in the employ of Respondent from March 1968 to February 15, 1969 He commenced working for Respondent in the capacity of a salesman but at the request of McGowan in June 1968 he transferred to the yard In September, incident to a leg operation, he resumed his duties as a salesman One Bucklin assumed Scurlock's duties in the yard In January 1969, Scurlock returned to the yard to resume his former duties at the request of McGowan who urged him to assume the job in order to straighten out the warehouse. At the time of his hire in March 1968, Scurlock was informed that he would receive a monthly bonus commencing after the third month of his employment He received this bonus during the period he worked as a salesman as well as during his tenure in the yard Like Scurlock Bucklin received a bonus while working in the yard. All salesmen received a monthly bonus Scurlock's duties while employed in the yard were to check materials in and to oversee the loading of materials to assure that they were loaded correctly. He worked with other employees in the yard but when he observed work individual possessed of a degree of sophistication in labor relations matters , would have stated in positive terms that the employees were quitting their jobs I am convinced that he was conscious of the significance of their action and would have avoided the resort to and use of the term "quit " "Howard McGowan so credibly testified "The foregoing is based upon the testimony of Robert Scurlock and Gary Horn I have considered also the testimony of Charles Syar and Albert Ault with respect to this meeting The testimony of each of the four witnesses varies with respect to precisely what was said at the meeting but the foregoing findings reflects the substance of the exchange between McGowan and the employees "St'ar's testimony reveals that during the 30-day span of his employment no uniform was issued to him 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that needed to be done and he was otherwise occupied he requested another employee to perform the work 18 Scurlock had no authority to hire or discharge employees and he could not independently grant time off to them " During the term of his employment he made two recommendations concerning the hire of employees He recommended his uncle for hire but his uncle did not seek employment and was not hired He also recommended the hire of Andy Chapin who was retained Scurlock made his recommendation of Chapin when McGowan asked Scurlock if he knew the identity of anyone desiring employment as a stockboy During his tenure in the yard, at the request of McGowan, Scurlock consulted employees concerning their work schedule and as a result of these consultations the schedule of hours of work for each employee in the yard was drawn up McGowan would dispatch his instructions concerning work to be performed to and through Scurlock If he had a question concerning an invoice which pertained to yard jurisdiction he would speak with Scurlock concerning the matter Scurlock's daily hours of work were alternately 8 am to 6 p m and 10 a m. to 8 pm These hours coincided with the hours of other yard men Scurlock worked with two or three yard men depending upon the level of employment at any given time Scurlock punched a timeclock and was compensated on the basis of $120 per week plus overtime If he was absent from work he would receive no compensation Employees in the yard were paid at an hourly rate At the time of Scurlock's knee operation in June 1968, McGowan informed him that he had done a good job for the Company and that he would like to groom him for the job of assistant manager. Scurlock was never elevated to this position Scurlock signed a few purchase orders while serving in the yard and was reprimanded for doing so He was told that he had no authority to do so. He could not recall ever signing a purchase order as assistant manager 20 Conclusions The Supervisory Status of Scurlock I find upon the evidence of record that Robert Scurlock did not possess the authority of a supervisor and was at all times pertinent a rank-and-file employee By virtue of his superior knowledge of lumber and his greater degree of experience in working in the lumber trade, Scurlock was used by Respondent in the capacity of a leadman to routinely direct the work of employees with whom he labored and to serve as a conduit of instructions to employees from McGowan who, by virtue of his frequent visits to the yard and warehouse as well as by his continual presence on the plant premises in his nearby office, exercised effective supervision over the small complement of yard and warehouse employees. The work of the yard and warehouse was operationally well defined "That he had this responsibility and authority is underscored by the testimony of Albert Ault "Albert Ault testified that on his behalf Scurlock took up with McGowan the matter of a few days leave which Ault was granted "All the foregoing is based principally upon the credited testimony of Robert Scurlock considered in conjunction with that of Howard McGowan I have considered the testimony of Howard McGowan and that of other witnesses to the effect that they considered Scurlock to be the warehouse foreman I have also considered the testimony of James Clark who testified that he replaced Scurlock and that he had authority during his tenure to hire and discharge employees and to schedule truck deliveries and required the exercise of limited judgment only in carrying out the established procedures of the yard The direction which Scurlock might give to fellow employees in the unloading and stacking of lumber, collecting of loads for dispatch and delivery and the handling of orders and invoices in the yard to facilitate such loading and deliveries required the exercise of only routine judgment and is not of the nature encompassed by the statute as constituting an individual a supervisor. As the recommendations which Scurlock made to McGowan concerning the prospective employment of personnel were merely those which any other employee could be expected to proffer it may not be found that Scurlock possessed the authority to effectively recommend personnel actions The record is void of any evidence revealing that Scurlock possessed any authority to hire or discharge employees or to grant them time off The change which was made in the previously established work schedule for yard employees was not one which Scurlock devised but was merely one reached by the employees themselves through Scurlock's leadership which eminated from the directions of McGowan himself. That employees looked to Scurlock for guidance in the performance of their routine work tasks is attributable not to his intrinsic authority but to his greater experience and knowledge of the tasks being performed. The bonus which Scurlock received is not alone sufficient to render him a supervisor within the meaning of the Act, and on the record before me suggests a remuneration accorded an experienced employee for services rendered and is consistent, in this context, with the status of Scurlock as a leadman As Scurlock was required to use a timeclock and because he was not compensated for time not worked, his manner of compensation was, in fact, essentially an hourly rated one In light of the foregoing I find that the conversations which McGowan conducted with Scurlock at pertinent times were with Scurlock in his capacity as a rank-and-file employee and that his other activities pertinent to the issues in this case were taken by him in the same capacity The Interrogation of Employees In agreement with the General Counsel I find that Respondent violated Section 8(a)(I) of the Act when, on the day it received the Union's letter demanding recognition and bargaining, Respondent, through its agent Howard McGowan interrogated employees Horn, Veeck, Scurlock and Ault as to whether they had signed union authorization cards Additionally, Section 8(a)(1) of the Act was violated when McGowan questioned Scurlock as to his knowledge of whether or not employee Chapin had signed a card and by similarly questioning employees Conrad and Lewis in the presence of Horn These pointed querys directed to a substantial segment of the employee complement were not isolated and were not specified as inquiry designed to assist in the evaluation of the Union's claim of majority. Rather the interrogation involving Veeck, Horn and Scurlock was accomplished with a manifest display of displeasure, additionally underscored with respect to Scurlock, by a profane exclamation To Veeck, Scurlock and Ault the inquiry was augmented by threats to their employment benefits and/or status. That the questioning had an inhibiting and coercive effect in these circumstances is here found, notwithstanding each employee answered McGowan's inquiry concerning their card signing in the affirmative 21 21 Garland Corporation , 162 NLRB 1570, 1573-74 Z AND L LUMBER CO. Thus, in further amplification of the foregoing I further find that the interview which McGowan conducted with Scurlock in his office in close time proximity to the card signing interrogation above found, similarly violated Section 8(a)(1) of the Act The threat which McGowan made to Scurlock during this interview that the Company would close the yard in the face of a successful union effort to organize and his interrogation of Scurlock as to why he had not brought up the matter of the Union with him similarly violates the Act as did McGowan's direct inquiry of Scurlock during the interview as to whether he had been the instigator of the Union Similarly, during the same interview, McGowan also violated Section 8(a)(l) of the Act by the threats uttered to Scurlock concerning his loss of future consideration for a supervisory position at any of the new facilities planned by the Company He conveyed to Scurlock that this loss of consideration was attributable solely to his involvement in the union effort In like manner McGowan's statement to Scurlock that he would inform the home office of Scurlock's status as the union instigator threatened Scurlock and violated Section 8(a)(1) of the Act In a related vein McGowan threatened employees Veeck, Slaby, Scurlock and Ault by statements directed to them concerning adverse effects upon their employment or conditions of employment Thus, McGowan's statement to Scurlock to the effect that the yard would close down if the Union were successful in its organizational efforts violated Section 8(a)(I) of the Act as did the threat by McGowan to Veeck that he would lose overtime hours if the Union came in While the record evidence concerning the statement of McGowan to Ault to the effect that he would be assigned to a forklift if the Union came in is not precisely drawn, and in its pure record context is reliant, to a degree, upon hearsay testimony, the meaning and impact of McGowan's statement is given dimension by observations of Albert Ault which I made at the hearing as he testified as a witness and which reveal him to be a man of frail stature and advancing age These factors lead to the conclusion, which I make, that McGowan's statement constituted a threat of an assignment to a more onerous work task conditioned solely upon his position with respect to union represenation On the other hand, I do not find that Respondent violated the Act by gathering employees on nonwork time for the purpose of a meeting. Although McGowan conducted the meeting he made no effort to poll or otherwise ascertain the union sentiments of the employees in attendance nor did he convey any promises of benefits to the employees for foregoing union representation. His stated wish that the employees had come to him rather than turning to the Union was not accompanied by any threat for the only comment succeptible of being construed as such was McGowan's stated opinion that the employees could not gain more through representation than they had already received from the Company. This statement carried no connotation of a rejection of the collective-bargaining principal and I find no violation of the Act flowing from the occurrences at this meeting The Alleged Discriminatory Discharges James Veeck I further find that the General Counsel established by the preponderance of the evidence that the discharge of 81 James Veeck was discriminatory within the meaning of Section 8(a)(3) of the Act. The opposition of McGowan to the unionization of the yard is established rather conclusively by the evidence of record, and he knew that Veeck had signed a union card I am convinced by the evidence adduced that McGowan determined to counter the employees' effort to unionize by terminating one of the proponents and selected Veeck because he considered his work performance to have been sufficiently sullied to accord a plausible explanation in the event he was called to account for his actions. That Veeck had earlier accorded McGowan a valid basis for terminating him is well memorialized in the record, and if the latest work episode which preceded his termination had been convincingly shown to have been the fault of Veeck, that dereliction added to his prior ones would have insulated his discharge from the reach of the Act. However, it is not shown that in obtaining the lumber for which McGowan assessed fault, Veeck deviated from instructions The credible evidence of record suggests that he did not and McGowan in his testimony revealed a certain lack of clarity in his own mind as to just what Veeck's instructions had been. In any event, while young Veeck showed a lack of judgment in signing a blank form for the merchandise which he received, the record - including the testimony of Scurlock who was experienced in the lumber business - reveals that the matter would have been readily adjusted by a telephone call and that the purported loss of $900 was a theoretical one not one actually incurred. I am thus convinced that in taking the ultimate disciplinary action of discharging Veeck for a clearly nonegregious lapse of judgment McGowan was overreaching for an excuse to cloak his true purpose of eliminating from his work force a union advocate Finding as I do that his motive in terminating Veeck was a discriminatory one within the meaning of Section 8(a)(3) of the Act, there is no incursion here upon the principle than an employer is free to terminate an employee for any nondiscriminatory reason Nor does this determination serve to limit Respondent's freedom to have done so with respect to Veeck's earlier work errors. James Slaby On the other hand, I conclude and find that the General Counsel did not establish by the requisite preponderance of the evidence that the termination of John Slaby was discriminatory. Slaby's identification with the Union had not been prominent and McGowan had not questioned him about his card signing. While, on the sales floor proximate to the office, Slaby had indicated his union affinity to a member of the sales force, the General Counsel undertook no showing that this conversation was communicated to McGowan, and neither the situs of the discussion, the declared opposition of the nonunit employee to the Union nor the small plant doctrine, in my opinion are sufficient to supply the requirement of knowledge requisite to finding discrimination While at the employee meeting conducted by McGowan, Slaby displayed a desire for increased compensation, this was a common urging on the part of the employees present and not one which appears to have invoked displeasure on the part of McGowan Added to these considerations is the fact, conceded by Slaby, that he had been warned that his work performance as an employee left something to be desired, the finding which I have made, adverse to the General Counsel's evidence, that McGowan had communicated to Scurlock prior to the Union's 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining demand his intention to terminate Slaby, and the evidence revealing the inoperative condition of the marking machine and the related apparent lack of urgent present need for stockboy services.22 While the timing of the discharge created a suspicious circumstance demanding careful scrutiny of the record, as I view the evidence pertaining to the discharge, even in conjunction with the evidence revealing that Respondent had no compunction against pursuing discriminatory coercive action to undermine the Union, I am convinced that the timing in relationship to the Union's demand was wholly fortuitous and that, as McGowan testified, he terminated Slaby with civility for cause at the end of a workweek at a time when the workload permitted. Accordingly, I shall recommend that the allegation of the complaint pertaining to the discharge of James Slaby be dismissed The Refusal to Reinstate While employees Scurlock, Veeck, Ault, Horn and Syar were, I find, incorrect in their early assessment of the discharge of Slaby as being discriminatory, the discharge nonetheless caused them to formulate a course of action should, as subsequently occurred, Respondent depose one of their number. The discharge of Veeck firmed up their resolve to take counteraction and they did so concertedly, after consultation together, and with an intent to seek union support or intervention of a nature to them, at that point, still undefined The employees who together left their work accurately assessed Veeck's termination as an unlawful one, and their principal purpose was to protest this discharge of a fellow employee. Such concerted action is, of course, protected activity under the Act.S3 The four employees became, I find, unfair labor practice strikers. There is little of substance in the record to support Respondent's contention that the employees quit their employment. Their exodus transpired soon after the termination of a known card signer and was participated in by other known union adherents. No event of significance, save the precipitous discharge of Veeck, had transpired which reasonably could have caused McGowan to speculate as to the motivating reason for the abrupt departure of employees in mid-shift In any event, in seeking to return, Scurlock on behalf of the four employees informed McGowan that their walkout had related to the terminations of Veeck and Slaby, and in thus declining to give the employees further employment McGowan acted with knowledge of the employees' avowed motives. The sequence of events was such that McGowan had no illusions as to the nature of the employees' departure from the plant, and knew that they had done so in protest and not as quits This latter finding and the finding here made concerning the protected nature of the concerted activity of the four employees is negated neither by the subjective interpretation of Horn concerning the technical status of the walkout in which he participated nor the filing of the charge herein by the Union defining the status of the participating employees as constructive dischargees. It is clear, as found, that the "Slaby was not replaced for 2 or 3 weeks "Cone Mills Corporation 169 NLRB No 59, Summit Mining Corp. 119 NLRB 1668, 1672-73, enfd. 260 F 2d 894, 897 (C.A 3) As these decisions reveal, the concerted action of the four employees would have been similarly protected activity under the Act even though they had been incorrect in their assessment of Veeck's termination as being unlawful and if, contrary to my finding here, Veeck 's discharge had been in fact a lawful one employees feared a series of reprisals but it is also clear that they acted concertedly in protest over the termination of two employees. In these circumstances, as Scurlock, Ault, Horn and Syar had not been replaced and as they made application for reinstatement the refusal of Respondent to reinstate them constituted discrimination which was violative of Section 8(a)(1) and (3) of the Act 24 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged James Veeck, Albert Ault, Gary Horn, Robert Scurlock and Charles Syar because of their union and concerted activities, I shall recommend that Respondent offer each employee immediate and full reinstatement to his former or substantially equivalent position of employment, without prejudice to his seniority or other rights and privileges and make each of them whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equivalent to that which he normally would have earned in Respondent's employ Said sum shall be calculated in the manner established by the Board in F W Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Company, 138 NLRB 716 Backpay for James Veeck shall be calculated from the date of his termination on February 17 while backpay for Messrs Ault, Horn, Scurlock and Syar shall be calculated from February 19, on which date they made an unconditional request for reinstatement. Upon the basis of the foregoing findings of fact and conclusions and upon the entire record in this case, I make the following CONCLUSIONS OF LAW I Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2 United Brotherhood of Carpenters and Joiners of America, Local 2783, AFL-CIO , is a labor organization within the meaning of Section 2(5) of the Act. 3 Respondent discharged James Veeck because he engaged in union or concerted activities and refused reinstatement to Albert Ault, Gary Horn, Robert Scurlock , and Charles Syar because they engaged in protected concerted and union activity in protest over the termination of James Veeck and by the aforesaid action Respondent violated Section 8 (a)(1) and (3) of the Act. "N L R B v J I Case Co. 198 F 2d 919 (C A 8), Colonial Fashions. Inc, 110 NLRB 1197, Hornick Building Block Co, 148 NLRB 1231 Z AND L LUMBER CO. 4. By interrogating employees concerning their union activity and the union activities of fellow employees and by threatening reprisals against them for engaging in union activities Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6 Respondent did not violate the Act by terminating James Slaby. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, I recommend that Z & L Lumber Company of Columbus, its officers, agents, successors, and assigns, shall. 1. Cease and desist from- (a) Discouraging membership of any employee in United Brotherhood of Carpenters and Joiners of America, Local 2783, AFL-CIO, or any other labor organization of their own choosing, by discharging or in any like or related manner discriminating against any employee with regard to his hire or tenure of employment, or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act. (b) Interrogating employees concerning their union activities or the activities of fellow employees, or threatening them with reprisal because of their union activities. (c) In any like or related manner interfering with, restraining, or coercing its employees in the right to self-organization, to form their own labor organization, to join or assist the Union, or any other labor organization, to bargain collectively with representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or for other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Offer James Veeck, Albert Ault, Gary Horn, Robert Scurlock, and Charles Syar reinstatement to their respective positions of employment which they held at the time of their discharge, or to substantially equivalent positions of employment, without prejudice to their rights and privileges of employment, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them, in the manner set forth in the section entitled "The Remedy " (b) Preserve and, upon request, make available to the Board or its agents all records necessary for the computation of backpay which may be due them under this Recommended Order. (c) Post at its Columbus, Ohio, place of business and at all other places of business where notices to employees are customarily posted, copies of the attached notice marked "Appendix."" Copies of the notice to be furnished by the Regional Director of Region 9, shall, after being duly signed by a representative of the Respondent, be posted 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 Respondent to ensure that said notices are not altered, 83 defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days of the receipt of this Decision, what steps have been taken to comply herewith 16 "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 offer immediate and full reinstatement to James Veeck, Albert Ault, Gary Horn, Robert Scurlock, and Charles Syar and make them whole for any loss of pay they may have suffered because of our discrimination against them. WE WILL NOT discourage membership in United Brotherhood of Carpenters and Joiners of America, Local 2783, AFL-CIO, or any other labor organization of our employees, by discharging any of our employees for their concerted or union activity; or in any like or related manner discriminate against them in regard to their hire or tenure, or any term or condition of employment. WE WILL NOT interrogate our employees concerning their union activities or the union activities of their fellow employees WE WILL NOT threaten to close down the yard, reduce the working hours of our employees, the assignment of more difficult work tasks to our employees or the loss of employment opportunities to our employees by reason of their activities on behalf of the Union, or in the event the Union is successful in organizing our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL NOT discriminate in regard to the hire or tenure of employment, or any term or condition of employment against any employee because of membership or activities on behalf of any labor organization. All our employees are free to become, remain, or refrain from becoming or remaining members of the 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above-named labor organization or any other labor States of their right to full reinstatement upon application organization in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, Z AND L LUMBER after discharge from the Armed Forces COMPANY OF COLUMBUS This notice must remain posted for 60 consecutive days (Employer) from the date of posting, and must not be altered, Dated By defaced, or covered by any other material. (Representative) (Title) If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407 Note. We will notify the above-named employees if Federal Office Building, 550 Main Street, Cincinnati, presently serving in the Armed Forces of the United Ohio 45202, Telephone 513 684-3663