Redwood Construction Co., Inc.

REDWOOD CONSTRUCTION CO., INC. 15 Redwood Construction Co., Inc. and Brotherhood of Teamsters, Warehousemen & Auto Truck Drivers l ocal No. 684, International Brotherhood of Team- ;sters, Chauffeurs, Warehousemen & Helpers of America. Case 20-CA-5881 July 9, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On February 26, 1971, Trial Examiner David E. Davis issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending, that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed limited exceptions to the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. The Trial Examiner found, inter alia, that Respon- dent engaged in an unlawful lockout on Monday morning, June 16,1969,1 when its employees were not able to work as a result of an employee meeting which was held at Respondent's plant with its "knowledge, acquiescence, and assistance." We disagree for the following reasons: ' Two employee meetings were held on Sunday, June 15. The first, which took place in the morning at a local restaurant, was attended by 30' employees3 among whom employee Grover circulated ' a petition addressed to Respondent President Chris Nicolos, stating that the "undersigned employees ... would like to continue our employee-employer relationship with you directly and not through organized labor representatives." In the afternoon, the Union held a meeting at its hall where employee Mike Durant announced to the 60-70 employees present that there would be a meeting at the shop early the next morning.3 According 'to-the credited` testimony of employee Bob Dement, the latter verified the an- nouncement on Sunday night by telephoning Jim Cyphers,4 who stated there would be a meeting at the shop at 4 a.m., and that "it was very important, and ... [Dement ] should be there." According to the credited testimony of employee Richard Kinney, Kinney arrived at Respondent's premises about 5:30 Monday morning to assume his driving duties and was told by employee Tommy Nicolos, the son of Respondent's president, to abandon his truck 30 feet from the main gate.5 The meeting' commenced in the shop about 9:30 a.m. with about 100 employees present .6 A grievance committee, which was selected by the employees, sought out Lowe and Cyphers who testified that they were parked outside the shop in a truck in order not to interfere with the employees' meeting. According to employee William Saltsman, the petition to President Nicolos was circulated while Glenn-Legg, a member of the grievance committee, told the employees that "everybody got to sign in order to get back to work." 7 The Trial Examiner concluded that it was clear "from the ;consensus of the testimony that,no drivers were permitted to work until management gave -the word." Accordingly, he found that Respondent locked out its employees by refusing to allow them to work during the morning of June 16. A careful examination of the record does not-reveal such a consensus of testimony that management made attendance at the shop meeting, compulsory, Thus, only one employee, Dement, testified that he was told by Cyphers that it was "very important" that Dement attend the meeting.. As indicated above, the shop meeting was requested and sponsored by two employees and was announced during the course of a union meeting, Although employee Kinney was forbiddenby employee Tommy Nicolos to operate his truck, there is no evidence that the latter was authorized to do so by Respondent's president. Nor is there any evidence to indicate that-employee Legg was authorized by. management ;to , condition the i Unless otherwise indicated, all dates below are for 1969. a The record shows that there were about 149 employees-in the unit. s Permission to use the shop for that purpose was granted on Sunday morning by Lloyd Lowe, Respondent's truck supervisor, at the request of two employees, Bob Dailey and Lowe's son, Ronald. 4 Cyphers and Lowe were supervisors within the meaning of the Act. 5 Lowe and Cyphers, who were present, interposed no objection to this 192 NLRB No. 4 order. 6 Two minor supervisors also attended. T The Trial Examiner made no credibility finding as to Saltsman's testimony. Although the Trial Examiner found that employee Herschel Lawrence testified that no one was permitted to return to work until he signed the petition, the record does -not support that interpretation of Lawrence's testimony, which is quoted in the Trial Examiner's Decision. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termination of the shop meeting and the resumption of work on the signing of the antiunion petition. Accordingly, in the absence, of.substantial^evidence that rmanagement compelled employee attendance- at ,,the shop meeting, we disavow the Trial Examiner's finding and his Conclusion of Law 3 that Respondent engaged, in a, lockout in violation of Section 8(a)(3) and (1) of the Act. We ,shall ,therefore make the appropriate revisions in the Order and the notice. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended,- the National Relations Board hereby orders that-Respondent, Redwood Construction Company, Inc., Arcata, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with a reduction in wages and'a reduction-in working hours in order to discourage adherence to and activities in behalf of Brotherhood of Teamsters,. Warehousemen and Auto Truck Drivers Local No. 684; International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. (b) Promising and conferring certain benefits, including seniority and overtime, and increasing the subsistence allowance of employees for the purpose of discouraging employees from- union adherence, and activity. (c) In any like or related manner interfering with, restraining; or coercing its, employees in the ^ exercise of the rights guaranteed to them by Section 7 of the Act. 2.r- Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at_itss offices in Eureka, Arcata, Dinsmore, Manila,, Big Lagoon, and Samoa, copies of the attached notice marked "Appendix.` 8 Copies of said notice, on forms provided by the Regional Director for Region ; 20, after being` duly, signed by the Company's representative, shall be posted by the Company 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.'. - (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges an unlawful lockout, and other violations of the Act which-were not, found by the Trial Examiner. In the event that this Order is enforced-by'a`Judgnient of a United States 'Court of Appeals, the words-in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR.RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED' STATES COURT- OF APPEALS^ENFORCING AN-ORDER OF THE NATIONAL LABOR RELATIONS BOARD." , APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act protects employ- ees in their right to'form, join, or" assist labor unions, or to refrain from such activity. WE WILL NOT threaten employees - with' reduc- tion of wages or reduction of working hours in order' `to discourage them from adherence to or activities in behalf of Brotherhood ofTeamsters, Warehousemen & Auto Truck Drivers Local No. 684, International Brotherhood-' of Teamsters, Chauffeurs, Warehousemen & Helpers of America or any other-labor organization. WE WILL NOT promise or grant benefits to our employees in order to deter them from joining or supporting the above-named Union or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees' the exercise of their right to form, join, or assist a labor organization of their choice or `to refrain from such activity.` REDWOOD CONSTRUCTION CO., INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain^posted for 60 consecutive days from ,the day 'of posting and must not be altered, defaced, or covered by any other material., Any questions concerning this notice or compliance with its,provisions may be directed to the Board's Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID E. DAVIS; Trial Examiner: This case was tried REDWOOD CONSTRUCTION CO., INC. 17 before me at Eureka, California, on April 21 and 22, 1970, pursuant to a complaint issued on March 2, 1970,1 by the General Counsel of the National Labor Relations Board, herein called the - Board, based on a charge -filed on December 15, 1969, by Brotherhood of Teamsters, Warehousemen & Auto Truck Drivers Local No. 684,2 herein called the Charging Party or Union, against Redwood Construction Co., Inc., herein called Respondent.3 The, complaint, as amended at the -hearing, alleged that Respondent engaged in conduct violative of Section 8(a)(1) and (3) of the Act. Respondent's answer, filed on March 9, 1970; and amended at the hearing, admitted certain allegations of the complaint but denied the commission of any unfair, labor practices. At the hearing, the parties were represented by counsel who were afforded full opportunity to adduce evidence, cross-exam- ine witnesses, and argue upon the facts and law. Briefs filed by the General Counsel and counsel for Respondent have been carefully considered. The issues present in this case may be summarized as follows: I. DidRespondent threaten employees with a reduction in their working hours in the event the employees chose the Union as their collective-bargaining representative? , 2. Did Respondent grant or promise benefits to employees in order to discourage union adherence and thereby unlawfully interfere with the rights of employees guaranteed by Section 7 of the Act? 3. Did Respondent threaten employees with less desirable work assignments if they chose the Union as their collective-bargaining representative? 4. Did Respondent unlawfully lockout or unlawfully cause a loss of work opportunities and wages to employees on June 16, 1969? Upon the entire record4 herein and upon the demeanor of witnesses, I make the following: 5 FINDINGS AND CONCLUSIONS Accordingly, I find, as it is admitted, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and than it would effectuate the policies of the Act to assert jurisdiction herein. It. THE LABOR ORGANIZATION INVOLVED It is pleaded, admitted, and, I find, that the Union is a labor organization within the meaning of.Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Preliminary Findings 1. The supervisory status of Sam Brown One of the questions requiring initial resolution concerns the alleged supervisory status of , Sam Brown.7 From the evidence, it is clear ,that Brown, sometime in May 1969,8 succeeded Marvin Stockel as the dispatcher of chip drivers. Stockel, Respondent admits, was a supervisor within the meaning of the Act. Respondent contends that Brown, as an injured employee, was physically unable to do normal truckdriver's work and that to enable Brown to earn a living it assigned him to the dispatch of chip drivers but without any supervisory functions . It--is true -, that there is no evidence that Brown had the right to hire, fire, discipline, or, effectively recommend such action. However; the evidence shows that there were 1,5 chip drivers to whom Brown, ;made assignments and that Brown periodically visited areas where chip drivers were calling for loads and deliveries to check on the performance of their duties. I- conclude that Brown was a supervisor within the meaning of the Act in that he did not function as a chip - driver but rather performed duties requiring independent and responsible judgment in the direction and assignment of chip drivers. The, absence of the right to, hire, fire, or discipline to the extent Stockel, the predecessor supervisor, possessed does not detract from Brown's supervisory status under the Act., I. THE BUSINESS OF THE RESPONDENT The complaint alleged, the answer admitted, and I find that Respondent, a California corporation, with an office and place of business in Arcata, California,6 is engaged in the transportation of logs and related wood products; that during the past year it performed services valued in excess of $50,000 for Georgia-Pacific Corporation, an enterprise directly receiving goods' valued in excess of $50,000 and directly shipping goods valued in excess of $50,000 from and to points outside the State of California. i The hearing on the complaint in the above-entitled matter was consolidated with Case 20-RC-8860 involving objections to the election filed by Petitioner. Only July 15, 1970, after the consolidated hearing closed, the Trial Examiner issued an Order which granted Petitioner's motion to dismiss the objections filed by Petitioner, severed the cases, and remanded the representation case to the Regional Director with a recommendation that the results of the election be certified. The Board, on September 1, 1970, affirmed the Trial Examiner's Order. Accordingly, the issues remaining for decision by the Trial Examiner concern only allegations of unfair labor practices embodied in the complaint as amended at the hearing. 2 Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. 3 Respondent was served on December 16, 1969. 2. Respondent's responsibility for the activities of Kay Paradise and Janice Williams Respondent's office force consisted of Jack Sellars, office manager and an admitted supervisor; Kay Paradise, payroll and insurance clerk; Janice Williams, general office'-clerk; and Kathy Bunt, office clerk. Williams, called as a witness by the General Counsel, testified that about a week prior to the ' representation election scheduled for July 21, she and Paradise decided as 4 Volume II of the transcript is supplemented' by a "Supplemental Transcript" of 27 pages enumerated as 261a to 261aa. The transcript is further corrected as follows: The name Nicolas, Nicholas, or Nicholos, appearing in the pleadings and transcript is-hereby corrected wherever it appears to read "Nicolos." 5 The record is further corrected as follows : p., 16, L 14 change employer to employee; p. 38,1.7, change addition to petition and p. 64,1.20, change June 1 I to July 11. 6, The evidence shows Respondent also operates out of Manila and other locations in California, Le., Samoa, Dinsmore, and Big Lagoon. 'General Counsel contended during the course of the hearing that Brown was a supervisor within the meaning of the Act. 8 Hereafter all dates will refer to the year 1969 unless otherwise stated. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a result- , of . a series of, conferences between themselves during breaks, 'lunch hour, and on the way home to contact the wives of employees in the voting=unit in order to clarify to the wives current company policies. Telephonecalls were made from their homes commencing on Friday afternoon, July 18 9 By Monday morning, Paradise and Williams had each contacted about 20 wives. Williams also testified that when she made a contact she identified herself by saying, "This is 'Janice at Redwood Construction." She would then ask if there was any questions concerning insurance coverage and the advance 10 system-provided by the Company. She also told the wives that the Company had been working on a pension plan for quite a while. On Monday, July 21, Williams arrived at work about 9 a.m. and told Sellars what she and Paradise had done. Williams further testified that that was the first notice that Sellars had received of this telephone campaign; Sellars only` replied, "Ho;" she did not tell' any of the wives to tell their husbands to vote against,the "Union although she, herself,, was opposed to the Union; she felt it, *as none of her business; and she just wanted to make sure the husbands voted so that it Would be a ' fair- election. Kay Paradise, called as a witness by Respondent, affirmed ' Williams' testimony in-general particulars but went into some detail concerning her conversation with' Orville Branscom,' one of 'Respondent's employees. Para- dise denied that she told-Bianscom that his name was on a list as being -for' the, Union saying 'that she- knew that Branscom was "more for the Union; and not against it." Paradise testified that she was a friend of Dorothy Kinney and had called Kinney on the Saturday or•Sunday preceding 'the election; she asked Kinney if she'had' any questions about' the election;- Kinney replied "no" that she was more against the Union; she talked about a`pension plan withKinney and told Kinney that'a pension plan for employees -had been discussed; and'-it consisted of equal contributions ' by the- Company and the employees which would be invested and paid to an employee when he left the Company. Asked whether she said the pension plan would take effect if the Union did not get in at Redwood, Paradise replied, "No, I don't-I don't know why I would say that, because it was a Company plan. It had nothing to do with the Union." Betty J. Lindblom testified that her husband was a truckdriver for Respondent during 1969; she received a phone call about 3 p.m. on a Thursday or,Friday prior to the scheduled election; the caller identified herself as Kay or Janice and, said- that she was one of the Respondent's office ' girls; and the office girls "had taken it upon themselves to phone the wives of the drivers to see if they could, have the wives 'convince their husbands to vote against the Union." Lindblom also testified , that the caller told her- that Nicolos was going to start a pension plan and would' match employees' contributions ; and in July the union contracts 9 Sellars told them on Friday that they could have the afternoon off as they were caught up with their work and there was turmoil in the office because voting booths were being set up for the election. ^10 Williams explained the advance- system, as one which provided extra cash to employees in case of emergency to be repaid by them in installments. would expire and if the employees went Union they might have to go on strike. Dorothy Kinney testified her husband was employed by_ Respondent in 1969 and that she received a telephone'call from Paradise about' 6:30 p.m. the evening before the election. Kinney was told that the girls from theoffice were calling the wives to talk to them about the election. According to Kinney, Paradise then said that she was calling to make sure the husbands voted in the election and Paradise added, "We cannot tell you to vote for the Company and against, the Union .... Naturally, you know, that's how we would want it to be,,but wecannot tell you that." Kinney further testifed that Paradise said, "If the Union goes in, we cannot afford to pay overtime, " The General Counsel argues that Respondent's failure to repudiate the activities of Paradise and Williams, after Sellars learned of it on the morning of July 2 1,11 constituted ratification of such conduct sufficient to establish agency under Section 2(13) of the Act. Under such circumstances, the General Counsel contends, Respondent should be held liable for all the statements made by Paradise and Williams. I disagree. While I am inclined to credit Lindblom's and Kinney's versions of their telephone conversation with Paradise and Williams, I find that Paradise and Williams were not Respondent's agents within the meaning of Section 2(13) of the Act. Their conduct was not authorized, was not ratified, and Paradise and Williams did not hold themselves out as spokeswomen for Respondent. Only, a hint of condonation can be drawn from Sellar's silence when he was told of Paradise's and Williams' activities. In my opinion, it is insufficient to warrant a conclusion, of agency. In the absence of other probative evidence of agency or - even, knowledge of the girls' ,-activities by Respondent's hierachy, I conclude that - the - General Counsel has failed to establish the agency of Paradise and Williams by a preponderance of°the evidence and therefore Respondent has not committed any unfair labor practices by virtue of the activities of Paradise and Williams.12 B. Interference, Restraint, and Coercion 1. Events prior to employee's meeting of June 16 Ben Dement, employed by Respondent for approximate- ly 3 years as a truckdriver, testified that he was^active in`the organizational campaign, of the Union prior to the election of July 21 by securing 20 to 25 signatures of employees on applications-for membership in the Union; he commenced his union activity about June 9 and continued for 2 or 3 weeks thereafter; he contacted fellow employees at jobsites and after work; at that time the workday for Respondent's truckdrivers was 12 to 16 hours per day; on June 13 Respondent posted a notice on the bulletin board that the 11 It was stipulated that the election was conducted on July 21 from 4 to 7 a.m. and 5:30 to 6: 15 p.m. ' I 1 12 Electro-netic Products Corporation, 183 NLRB No. 59; see also Smith's' Transfer Corp., 162 NLRB 143, 157, which may be distinguished because the activities were carried on with the knowledge and acquiescence of supervisors. REDWOOD CONSTRUCTION CO., INC. 19 work hours would be cut to 8 hours per day, 40 hours per week; he saw the notice 13 about 6:30 p.m. on Friday, June 13, and he asked dispatcher Jim Cyphers, an admitted supervisor, if they would be working 8 hours per day or work until they had completed 40 hours and Cyphers replied that he had not figured that out as yet. Dement further testified that a meeting of employees was scheduled for the morning of 'June 15 at Sambo's Restaurant in Eureka, California, and a union meeting was scheduled for the afternoon of June 15 at the labor temple in Eureka; at the morning meeting, employee14 Grover had a petition to which all the driver's names were typed to the effect that the employees were satisfied with the -working conditions at Redwood Construction Inc.; Grover circulated the petition-15 for signatures; the morning meeting lasted about one-half hour and was attended by approximately 30 employees; the union meeting held in the afternoon was attended by 60-70, employees; during this meeting, Mike Durant, an employee, made an announcement that there would be a meeting at the shop at 4 a.m., Monday, June 16; on the night of June 15, about 10 p.m., Dement called Cyphers to verify the meeting; and Cyphers confirmed that there would be a meeting at 4 a.m. at the shop and said that it was very important to be there. Dement testified that, prior to the 8-hour notice on the bulletin board, he would have under ordinary circumstances reported at 4 to 5 a.m. on Monday, June 16; on the morning of June 16 the employees gathered in the shop, while Supervisors Lloyd Lowe and, Cyphers were, in their offices which were adjacent to the main shop in the same building; Lowe's office had a large plate-glass window which looked into the shop; Cyphers and Lowe were in Lowe's office talking; and the shop supervisor, "Lardy" Gamble,16 was present in the main shop and participated in the meeting of employees ,which ensued that morning. Herschel Lawrence, a truckdriver employed by Respon- dent since June 1968, testified that he was assigned to Respondent's Dinsmore location in May and worked from that location until August; Dinsmore is about 75 miles from Eureka; and he had a mobile home at Dinsmore and on weekends would come into Eureka where he maintained his home. Lawrence came into Somoa on Saturday night, June 14, with a load of logs. On Sunday morning about 10 a.m., he drove together with his wife to Respondent's premises to inquire whether he could get his truck unloaded so that he could return to work at Dinsmore, Monday morning. He met Lloyd Lowe near the gate and asked Lowe if he could get his truck unloaded. Lowe replied that he did not know but advised Lawrence to go to Samoa and check with the Georgia Pacific superintendent.17 Lawrence went to the superintendent who told him that he had about 30 or 40 trucks to unload and if he unloaded Lawrence's truck he would have to unload all the others. As a result, Lawrence did not have his truck unloaded on Sunday. Lawrence further testified that, during his 1s G. C._ Exh. 4. 14 The transcript erroneously refers to "employer" Grover. 15 G. C. Exh. 5. 1s It was stipulated that his correct name was Donald Gamble, and that he was shop foreman and a supervisor within the meaning of the Act. 17 Georgia-Pacific, the evidence shows, was Respondent's principal customer. Respondent's truckdrivers customarily delivered logs to the conversation with Lowe, Lowe said that "If they went union that they may have to cut back on the hours to 8 hours." On the morning of June 16, Lawrence arrived at 5:30 or 6 a.m. and found that the gate at the main entrance 18 was partially closed and that the south gate was entirely closed, that a truck was facing the gate and partially blocked the entrance. Lawrence said he could not get into the lower gate because he had his pickup with material which he was to return to Dinsmore, so he went to the other gate. There he learned there was to be a meeting that morning and the meeting started about 9:30 a.m. That when he first arrived, there were about 15 or 20 employees present but when the meeting started about 9:30, there were about 100. Richard Kinney testified that he was employed by Respondent as, a truckdriver since 1964; on the morning of June 16 he arrived at Respondent's premises about 5:30 a.m.; and he got into his truck and started toward the main gate when Tommy Nicolos, son of Chris Nicolos, president and principal stockholder, jumped on the truck's running board and said, "Hey, there fellow, you might as well shut her off. You're not going anywhere." Kinney complied and left the truck about 30 feet from the gate. Kinney expressed the opinion that his truck was so placed that another truck could not enter the premises but thata pickup truck could. Kinney stated that, when he was driving toward the gate, Lloyd Lowe was standing near the shop to Kinney's right while Nicolos was on his left; Lowe was 20 feet away; Lowe saw him abandon the truck but said nothing to him; and Lowe customarily arrived at the shop about 7:30 a.m. and it was unusual to see him there at 5:30 a.m. Lloyd Lowe, Respondent's truck supervisor, testified that on June 16 he came through the north gate about 7 a.m.; one side of the gate was wide open and the other partially open; and he talked with Cyphers for a few minutes telling Cyphers that the truckdrivers were having a meeting and that he didn't think they should be around while the meeting was going on. Cyphers and Lowe thereupon left and went to a nearby restaurant where they remained for about 30 minutes. Upon returning in the pickup, they entered through the south gate which, according to Lowe, was wide open. Lowe saw a truck parked about 40 feet from the gate.19 Cyphers parked the pickup nearer the south gate.2° Lowe and Cyphers remained in the truck until, about 10 a.m. when someone told them that the employees' meeting was over. Lowe further testified that he learned on Sunday night that there would be a meeting on Monday, June 16; Lowe's son, Ronald, and Bob Bailey, both employed by Respon- dent as truckdrivers, stopped him as he was leaving Respondent's premises after his conversation with Law- rence; and Bailey and Ronald Lowe asked him and received permission to use the shop for the meeting on Monday morning.21 I do not credit Cyphers' denial of Dement's testimony that Cyphers told him on Sunday night premises of Georgia-Pacific in Samoa, a town a few miles outside of Eureka. 1s Identified as the north gate. 19 At point X on Resp. Exh. 3. 20 Point Y on Resp. Exh. 3. 21 Lowe testified that his meeting with Bailey and Ronald Lowe occurred about 10 a.m. Accordingly, I find that Lowe knew about the (Continued) 20 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD about the June .16 meeting and to be sure to, be there. Lowe admitted that he had given permission for the meeting on Sunday morning and I infer that Lowe had communicated this information to Cyphers. From the consensus of the testimony, it is clear that no drivers were permitted to work on the morning of June 16 until management gave the word. It is rather obvious that the large truck halted near the south gate was allowed to remain there in order to discourage and to make it difficult if not impossible for a loaded truck to leave the premises. Cyphers and Lowe, two of the' Respondent's top supervisors, saw that the truck partially obstructed the normal exit route and did nothing about it. Indeed Cyphers testified that the truck was in an unusual-position and he would have had it moved if June' 16 was an "ordinary" day. I credit Kinney's testimony that Lowe saw Tommy Nicolos order Kinney to halt and to abandon ' the truck in its unusual position. I conclude, therefore, that the meeting of ' June 16 was held with Respondent's knowledge, acquiescence, 'and 'assistance. Inasmuch as the charge was filed on December 15, I make no unfair labor practice findings concerning any event that transpired prior to June' 15.22 2. Events of June 16 Kinney testified that although he arrived at 5:30 a.m. and started'his truck when he was stopped by Tommy Nicolos, as described above, it was not until, 12:30 or I p.m. when he moved his truck and went to work. He further testified that he signed -the petition,23 that was circulated by Grover 24 and that he had, seen similar petitions circulated at Redwood Construction in the years 1965, 1966, and 1967. Kinney stated that no one wentback to work until after the employees' grievance committee discussed, the seniority listing and Cyphers had straightened out the board. William 'Saltsman, employed by Respondent , as a truckdriver for about 2 years, testified that he saw the notice concerning the 8-hour day on June 13 and was one of the drivers who asked Cyphers about it; that Cyphers replied that he didn't know how it would work. One June 16, about 5:30 a.m., Saltsman was called by Bailey and told about the meeting. Saltsman was scheduled to go out about 1 I a.m. but as a result of Bailey's call reported at 6 a.m. Saltsman stated that on June 16 "after about 3 hours of doing nothing," Glenn Legg, the number one25 truckdriver, said that "They wanted to get this straightened out ... and there is this petition here, and everybody got to, sign in order to get , back to work." The drivers nominated a grievance committee consisting of John Porter, Andy Bell, Ben Dement, Glenn Legg, Clayton Foster, and several others who met with management. The chief demand of the employees concerned seniority; other demands dealt with paid holidays and a retirement plan. The grievance committee, according to Saltsman, conducted a secret ballot election on whether the employees wanted the Union. The vote was against the Union. Lawrence testified that after the employees' grievance committee met with Lowe and Cyphers they reported that employees' meeting for Monday on Sunday morning rather than Sunday night. 22 However, evidence of events occurring prior to June 15 may be considered for background purposes. "Lloyd Lowe, Jim Cyphers, and Chris had agreed upon it, that everything was satisfactory so we signed our book and went to work." Lawrence explained his 'reference to "signing the book" as follows: ,Well, we signed our names to the fact that if the board was changed, and everything was up to standard, that was the main object of signing. And we didn't want the Union. That's what this was for. Lawrence further testified that General Counsel's Exhibit 5 was the "book" he was referring to. Dement testified that, after the grievance committee meeting with Lowe and Cyphers, the notice posted on June 13 about an 8-hour day was taken down as it was agreed that they would go back to the old system. Cyphers thereupon corrected the schedules on the dispatch board. Lloyd Lowe testified that about 10 a.m. while he. and Cyphers were in the pickup truck, as described above, one of the employees told him that the employees' meeting was over and "we had a grievance committee that wanted to negotiate with us." Thereupon, Lowe and Cyphers went into Nicholos' office and the grievance committee came in. Lowe and Cyphers were told that the truckdrivers had selected the committee to represent them and there were,a few grievances to iron out. The main grievance- was the dispatch board and secondly the notice of 8 hours that was posted on the bulletin,board. Lowe and Cyphers were informed that they would be "real happy with their jobs and everything if they got the dispatch board straightened out which'was promised, by Jim." Concerning the 8-hour notice, Lowe told the committee that he "did not have authority to do it, but get along and everything,-, I would take it on temporarily until I could get in touch with Mr. Nicolos." Lowe thereafter took the 8-hour notice down. Lowe further testified that he reached Nicolos by telephone later,in the day and told him what he had' done. About 4 or 5 p.m., he saw Nicolos in the office and Nicolos said it was all right; that "during the weekend, things looked a little betterin this line of business. Cyphers recalled that the meeting , with the employees' grievance committee concerned discussions about the dispatch board, "the way the board was supposed to have been run," paid holidays, and show-up time, The meeting commenced shortly after 10 a.m. and was concluded about noon. When the meeting broke up, Cyphers went to the dispatch board, asked each driver "what haul he wanted." He proceeded to set-up the dispatch board in accordance with seniority and made two, possibly three, changes from the previous assignments, the other 97 or 98 assignments remained as they had been. Chris Nicolos testified that he was president and chief executive officer of Respondent; that he directed the posting of notice of June 13 setting up 8-hour shifts. He, said he decided to curtail overtime in order to continue the employment of all his drivers rather than lay off some of them, He decided it'was necessary to do this after he had a discussion with a Georgia-Pacific official who told him that they were cutting down, that mills all over the country were 23 G. C. Exh. 5, 24 Kinney, however, did not know from whom he received the petitio n. 25 Number one in seniority. ' REDWOOD CONSTRUCTION CO., INC. shutting down and there was -an oversupply of logs in the local area; ' that over that weekend, he talked again with these ' officials and was informed that they had made arrangements "with the Brightwood Mill to do some custom sawing for them; and that would pick up the 200,000' board feet 26 per day production that we were planning on curtailing." Nicolos testified that when Lowe talked with him on the telephone about the removal of the 8-hour notice he said it was all right and would explain later to him. Later that day, he told Lowe about his conversation with the Georgia-Pacific officials. On cross-examination, Nicolos testified that prior to posting the 8-hour notice on June 13 he` had discussed the matter for 2 or 3 weeks, that the market had been bad then and continued to be bad to the present time; the amount of board feet Brightwood supplied would amount to 40 truckloads per day; and he employed at that-time about 140 truckdriverswho averaged three trips per day. Nicolos further testified that he mailed the original or a copy of General Counsel's Exhibit 5 to the National Labor, Relations Board, Regional Office, in June 1969. There is substantial agreement between Respondent's and General Counsel's witnesses concerning the events of June 16. The evidence shows that a grievance committee was selected by the employees; the grievance committee met with Lowe,and Cyphers to iron out some differences; the employees signed the petition disclaiming a desire for unionization; there was a poll of employees which resulted in a majority voting against union representation; and management agreed to revise seniority on the dispatch board and to -restore the overtime previously curtailed by the, June 13 memorandum. All, of these proceedings were conducted in the presence and with the active participation of Gamble, one of Respondent's admitted supervisors, and Sam Brown whom I have found above to be a supervisor within the meaning of the Act. During the entire morning of June 16, Lowe and Cyphers were also present and about Respondent's premises. It is established they knew that the employees were having a meeting. Indeed according to Lowe's and-Cyphers' own testimony, they went to breakfast and parked in the small `truck so as not to interfere with the employee's meeting ' which was - not over until 10 a.m. Although there is, no direct evidence that they sponsored, directed, 'or ordered the various activities, the circum- stances clearly warrant an inference that Lowe and Cyphers, anticipating the meeting of employees and results of it, held -themselves in readiness to confer with the representatives of the employees. The quick accord reached by the grievance committee with Lowe and Cyphers is indicative that return of seniority and restoration of overtime was understood as a _ quid pro quo for the renunciation by the - employees of a desire for union representation. The signatures of Lowe,Cyphers,Brown,and Gamble on the petition (G.C. Exh. 5) is a further indication that discontinuance of union support was a factor in the transaction. Lawrence's credited testimony that no one was permitted to return to work until they signed the "book" 27 sheds further light on the events of June 16. I also hold as recited above that Kinney was prevented from driving his 26 Nicolos initially testified to 200,000 logs. In cross-examination, he testified to 200,000 board feet. 21 truck from Respondent's premises by Tommy Nicolos with the knowledge and acquiescence of Lowe and Cyphers. I credit Richard A. Flannery's testimony that Supervisor Sam Brown solicited his signature to General Counsel's Exhibit 5. It is my conclusion under all the- circumstances that the posting of the notice of June 13 which curtailed overtime effective June 16, the revision of the seh iority list, and the restoration of overtime on June 16 were each part and parcel of a plan by Respondent to deter and discourage union adherence which was to be demonstrated by employees' affixing their signature- to General' Counsel's Exhibit 5. Chris Nicolos' testimony that overtime' was restored because of the information he received from° Georgia- Pacific officials over the weekend hardly justifiesRespon- dent's complete restoration of overtime. It is clear that employees` were working a minimum of 10-12 hours per day and upon withdrawal of the June ' 13 notice continued after June 16 to work the same overtime hours. Nicolos' testimony showed that there were about '140 truckdrivers employed at that time. The addition of 40 truckloads per day by the Brightwood Mill at an average of one truckdriver making three trips per day, as Nicolos' testified, would mean about 130 hours of additional work. On the other hand, the termination of all overtime for 140 truckdrivers on June 16 would mean the-loss of 2 to 4 hours per day for 140 men or the loss of 280 to 560 work hours per day. When considered in this posture, I,ampersuaded that Nicolos' decision to restore overtime was largely influenced by the result of the employees' meeting as` reported to him by Lowe rather than what he learned from Georgia-Pacific officials. Moreover, I- am convinced that Lowe had prior authorization from Nicolos to restore overtime if the employees agreed -to forego unionization. It' is inconceiva- ble to me that Lowe could take it upon himself without prior authorization to obligate Respondent to continue 280 to 560 hours of daily overtime unless he 'had a prior understanding with Nicolos. Under all-the circumstances, 3 do not credit the Brightwood Mill story recited by Nicolos: I regard it as an afterthought designed to justify the restoration of overtime. 3. Events of July 10 Dement testified that about July 9, Respondent placed a notice on the bulletin board reading as follows: Dear Fellows: We have worked for Redwood Construction Compa- ny (Chris Nicolos) for many years. We have found him' fair, generous and a man of his word-when he says he will do something, he does it! He-is the only one that can say how much to pay you and how many hours you can work! Now we ask you-wouldyou rather take orders from him or from the representatives of a man who is now boarding and rooming in a'federal institution? I note that this notice 28 was signed by Lowe, Cyphers, and Gamble, admitted supervisors, and Sam Brown. Right above this notice was posted a picture of James Hoffa. On 27 Lawrence identified the "book" as G. C. Exh. 5. 28 C. P. Exh.1. ` 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 10, Lowe, using Respondent's radio facilities to communicate, with Big Lagoon,29 told the truck boss 30 to load Demerit's truck immediately for town and to tell Dement to see Lowe at the office. When Dement appeared in Lowe's. office, Lowe told Dement that the above- described notice had disappeared and that it was up to Dement to return it as he was on the committee. He also told Dement that the sheriff had been called and somebody could go to jail .for it. Continuing the discussion, Lowe told Dement that if , the drivers went Union they would, be "damaged" in, that they would no longer receive overtime and that their rate of pay would be cut as Sal Burke, the 'business representative of the Union, had contacted Lowe and informed him that he would sign an agreement for $3 per hour.31 Leaving Lowe's office, Dement discussed his conversation with Lowe with several truckdrivers who thought that he had been, discharged because of his ,union activities. Lowe testified that on July 10 he told Cyphers that he wanted to see Dement in his office and that Cyphers used the radio to summon Dement; when Dement arrived he told him some notices were missing from the bulletin board and he wanted Dement, to return them; Dement said he knew nothing about -them; and, he then told Dement, `Ben this is the same as stealing property" and "I could call,the sheriff in on the deal." " Lowe denied, that he told Dement that ,a union representative said he would sign a contract for $3 per hour but admitted he told Dement that a union representative talked about an 8-hour day. The General Counsel alleges and contends that Lowe by his conversation with Dement on July 10 violated Section 8(a)(1) of the Act by threatening employees with a reduction in working hours if the Union was selected as their collective-bargaining representative and by threaten- ing them, with a reduction in wages. Under all the circumstances, I credit Dement's testimony in preference to that of Lowe., I ,therefore find that Lowe did make the statement attributed to him by Dement and thereby Respondent engaged by each of these statements in conduct violative of Section 8(a)(1) of the Act 32 4. The subsistence increase at Dinsmore Lawrence testified that he, like the other drivers assigned to Respondent's Dinsmore location, received 25 cents per hour above the customary hourly, rate because of the distance from their homes and the requirement to maintain themselves away from home during the week. The Dinsmore drivers had a meeting and decided to request a Subsistence allowance rather than the 25-cent-per-hour differential. The request was submitted to Marvin Stockel, their 'immediate supervisor at Dinsmore about June 18.33 The evidence shows that the request was for a subsistence allowance of $7 per day. About June 24, Stockel informed the drivers that their request had been granted. It was stipulated that the change to $7 per day subsistence allowance was reflected in paychecks for the pay period 29 Big Lagoon is 33 miles from Respondent's headquarters. 30 Employed by Georgia-Pacific. 31 The rate of pay at that time was $3.55 per hour. 32 I make no finding concerning the threat of economic harm alleged in par, VI(f) of the General Counsel's complaint. I believe the findings and remedial provisions herein with respect to the allegations of the specific commencing July 1. The General Counsel contends this resulted in doubling the amount of the differential for those working out of the Dinsmore location and was designed to discourage union adherence and, activity. Inasmuch as Respondent was fully aware of the Union's organizational campaign, the prompt increase in subsistence ' upon the employees' request demonstrated to the employees that union representation was unnecessary. Having in mind that the election was held on July 21; I find' that Respondent's grant of the increase , was at the very least motivated inpart by a desire to discourage union adherence and activity. Accordingly, 1, find that Respondent by the grant of the subsistence allowance violated Section 8(aXl) of the Act. Concluding Findings The General Counsel alleged that Stockel threatened employees' who, supported the Union with less desirable working assignments. I find the evidence adduced in this regard insufficient and that the General Counsel has failed to sustain his required burden of proof.34 Accordingly, this allegation-35 is dismissed. For the reasons discussed above, I find' that by the restoration of overtime on June 16, and by the correction of the seniority list, Respondent conferred benefits upon its employees in order to dissuade them from unionadherence and support. Accordingly, I find that each of these acts constituted a violation of Section 8(a)(1) of'the-Act. , " As detailed above, 'I find that Respondent -did not provide work for its truckdrivers on June 16, 1969,' and thereby engaged in an unlawful lockout in that the refusal to permit its truckdriverr to commence their workday until 12- or 1 p.m. was for the purpose of -discouraging' their adherence to and activities in behalf of the Union. Accordingly, I find that Respondent `violated Section 8(aX3) and (1) of the Act by locking out employees on June 16. CONCLUSIONS OF LAW 1. Respondent by threatening employees with reduction in wages and reduction in working hours in, order to discourage adherence to and activities in behalf of the Union has engaged in, unfair labor practices affecting commerce within the meaning of Sections 8(axl) and 2(6) and (7) of the Act. r 2. Respondent by promising and conferring, certain benefits, involving seniority and overtime, and by increasing the subsistence allowance of certain employees for the purpose of discouraging and dissuading employees from union adherence and activity, has engaged in unfair labor practices affecting commerce within the, meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 3. Respondent, on June 16, 1969, discriminated against its employees by locking them out for several hours in order to discourage and dissuade them from union adherence and activity, thereby, engaging in unfair labor practices affecting threats are sufficient. 33 Stockel's supervisory status was conceded by Respondent. 34 Lawrence was the only witness with respect to this allegation. His testimony on this matter, in my opinion, was vague and uncertain. 35 Par. VI(C) of the complaint. REDWOOD CONSTRUCTION CO., INC. 23 commerce within the, meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. 4. Allegations. of the complaint not found herein to constitute violations of the Act are hereby dismissed. TnE REMEDY For the various infractions of Section 8(a)(1), I shall recommend rthe conventional remedy , of posting appropri- ate notices. For the violation of Section 8(a)(3) found above, I shall recommend that Respondent shall make its employees whole for any loss of wages that they may have suffered on June 16, 1969, by virtue of their unlawful lockout with interest at the rate of 6 percent per annum. The type of unfair labor practices engaged by the Respondent indicate an opposition 'by Respondent to basic principles of the Act. I deem it necessary, therefore, to order Respondent to cease and desist from in any manner infringing upon the rights guaranteed its employees in Section 7 of the Act. [Recommended Order omitted from publication.]