Cascade Corp.

366 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Cascade Corporation ,and International Union, United Automobile, Aerospace and Argicultural Implement Workers of America, UAW. Case 9-CA-56_081 July 29, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING' AND BROWN '' On March 3, 1971, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its,entirety, as set,forth in the attached Trial Examiner's Decision. Thereafter the Charging Party filed, exceptions to the Trial Examiner's Deci- sion and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its power in connection with this case to a three-member panel. 4 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejuducial 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. ORDER, , Pursuant to Section 10(c) of, the National Labor Relations Act,' as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the'Trial Examiner and hereby orders that the complaint in Case 9-CA-5608 be, and it hereby is, dismissed in its entirety. I We hereby delete Case 9--CA-5683 from the caption of our Decision herein, as the Trial Examiner severed that case from the instant proceeding. No exceptions were taken from the Trial Examiner's Decision in this respect. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM W. KAPELL, Trial Examiner: These matters, proceedings under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, were heard in Springfield, Ohio, on December 8 and 9, 1970,1 i All dates hereafter refer to the year 1970 unless otherwise noted. 2 Based upon a charge filed on April 17 by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, hereafter referred to as UAW, and its Local Union No. 1689. The with all parties participating pursuant to due notice,upon a complaint2 in Case 9-CA, 5608 issued by the, General Counsel, on June 5, and a complaint3 in Case_9-CA-5683 issued on' September 18, which were consolidated, for hearing by order of the Regional Director dated October 14. The complaint in Case 9-CA-5608 alleges, in substance, that about April 7, Cascade Corporation, hereafter referred to as Respondent or the Company, harassed, interrogated, and- discriminatorily discharged Paul Pride because of his union,activities, in violation of Section•8(axl) and (3) of the Act. In its duly filed answer Respondent denied engaging in the alleged unfair labor practices. The complaint, as amended, in Case 9-CA-5683 alleges', in substance, that following an election the Board on April 28, issued a certification of representation to UAW, that since about April 30 UAW has, requested reeognition and bargaining, that since about May 6 Respondent has refused to comply with UAW's request, and that since about May 18 certain employees of Respondent have engaged in a strike caused and prolonged by Respondent's refusal to bargain, in violation of Section 8(a)(1) and (5) of the Act. In its duly filed answer, Respondent admitted the issuance of the certification, its refusal to comply with UAW's request to bargain, and the strike by certain employees, and affirmatively alleged, (1) that the UAW certification was invalid, and (2) that beginning about May 18 UAW has engaged , in coercive, acts against company employees involving mass picketing; shooting at employees,`and their homes and cars; threatening to inflict and inflicting physical injury on such employees; and damaging their cars and homes, as a result of which Respondent is not obligated to bargain with the Union. The record involving Case 9-CA-5683 was conditionally closed pending Board approval or rejection of a settlement agreement in Case 9-CB-1830 in which a complaint was issued based on alleged misconduct by UAW violative of Section 8(b)(1)(A) of the Act .4 As related above, such misconduct was also pleaded as anaffirmative defense in Case 9-CA-5683. Pursuant to arrangements made at the conditional close of the hearing herein, the record in Case 9-CA-5683 was to remain closed automatically in the event the Board approved of the proposed settlement agreement. If rejected by the Board, said record was to be reopened and the hearing resumed in connection with the Respon- dent's Motion To Consolidate Case 9-CB-1830 for hearing with Case 9-CA-5683, on which ruling had been deferred pending Board action on the proposed settlement. The Board, however, has not as yet acted on the proposed settlement. Nor does it appear if or when it will do so. The hearing in Case 9-CA-5608 has been completed, and its determination is not dependent on or in any way directly related to the disposition of Case 9-CA-5683. I conclude that it will serve no purpose to delay a decision therein. Accordingly, I hereby sever it from Case 9-CA-5683 and issue the within decision. When Case 9-CA-5683 has been complaint, however, omits any reference to the Local. 3 Based upon a charge filed on June 9 by UAW and its Local No. 1689. 4 Said agreement was offered in evidence by Respondent and adnutted without objection. 192 NLRB No. 69 CASCADE CORP. 367 completed, a Supplemental Decision will be issued in that case. All parties were represented and were afforded an opportunity to adduce evidence, to examine and cross- examine witnesses, and to file briefs. Comprehensive and able briefs have been received from the General Counsel, Respondent, and the Charging Parties and have been carefully considered. Upon the entire record in the cases, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE Respondent, an Oregon corporation engaged in the manufacture of hydraulic cylinders at its plant in Springfield, Ohio, during the past calendar year had a direct outflow in interstate commerce of its products, valued in excess of $50,000, which itsold and caused to be shipped directly from its plant in Springfield, Ohio, to customers outside the State of Ohio. Respondent admits, and I find, that at all times material herein it has been engaged as an employer within the meaning of Section 2(6) and (7) of the Act. " II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that at all times material herein UAW and its Local 1689 have been labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Alleged Harassment, Interrogation, and Discriminatory Discharge of Pride Pride began working for the Company on October 10, 1964.5 He became active in the Employees' Independent Union and was elected president in March 1968. Thereaft- er, the UAW started'an organizational campaign among the employees, and Pride signed one of 'its authorization cards and became active in soliciting members. Following a Board-conducted' representation election on December 31, 1969, which was won by UAW, Pride was elected president of its Local 1689. Prior to that election and on December 29, 1969, Plant Superintendent Frank Warren called a meeting of employees on company time at which Plant Manager` Jack Hagen attempted to explain to 'the employees the Company's' position concerning'bargaining proposals' which he believed had been misrepresented by the Independent Union. Pride got up, said "he didn't have to listen, to this b--- s---," and left. According to Pride, Hagen began criticizing the UAW's campaign and when Pride requested equal time to talk to the employees he was told that this -was his (Hagen's) meeting and that if Pride didn't like it he could leave. Pride thereupon left, stating he s The quality and quantity of his production were considered above average and are not in issue herein. 6 Allegedly referring to a union flyer which had been posted, and distributed by Pride and another employee on April 6 calling for a UAW meeting on April 12 to vote on a strike call. 7 Pride explained that the girl in personnel had given his wife a hard time when she called in to report his absence, and that she thereupon refused "to listen to this b-- s---." About January 5, Pride was summoned by Plant Manager Hagen and warned that if he walked out of another meeting for which he was being paid he would be fired. On April 7, Plant Superintendent Warren approached Pride at his machine where he engaged him in conversation. Their versions, of the- conversation conflict on several points. According to Pride, he asked Warren how things were going, and in reply Warren stated"Lousy," and then continued to castigate him, stating, "Here you are calling a damn strike," 6 and accusing him of selling out-the men and of being nothing but a troublemaker since he came to work there. In reply, Pride said he would rather punch out and go home than continue to work under such conditions. When Warren persisted in talking and asked where he had been the preceding day, Pride told him he had been sick, to which Warren replied "That wasn't what your wife said when she called in." 7 Warren also told him that his machine was an expensive piece of equipment and they had to keep it clean, and "when you leave the plant, take your damn toolbox with you." Pride then removed his things from his locker, took his toolbox, punched out, and left the plant. Before leaving, he advised employee Clarence Settles he had been fired .8 According to Warren's version of the conversation, he asked why Pride was absent the preceding day. When Pride replied that he was sick, Warren told him that his wife had called in and reported -he was on personal business. He continued to press the matter, of his absence but,-Pride refused to discuss it further, stating he would punch out and go home. He thereupon told him that if he did so then to take his tools with him. He later saw Pride washing up, and he was ignored when he attempted to talk to him. Warren then left the plant without waiting to ascertain whether Pride had actually carried out his threat-to punch out. Pride visited the plant that night and saw Foreman Dan Reynolds. According to Pride, he asked why he had been fired by Warren, and Reynolds shrugged his shoulders. While there, Reynolds 'received a telephone call from Warren and upon completing it he told Pride he was right about being fired, but Reynolds didn't know why. According' to Warren, he telephoned Reynolds that night to asceraain whether Pride had, in fact, left the plant as he had threatened to do. Reynolds replied that Pride was sitting next to him and wanted to know whether he still had ajob. He (Warren) then asked what Pride had said about Iris job and when Reynolds stated that Pride didn't know, Warren upon learning that Pride had left the plant during his shift, replied that he did not have a job. According to Reynolds, Pride came to his office to find out :;whether he 'still had a job, and he (Reynolds) replied that he had been told by Warren that he had not fired him. He then received a telephone call from Warren who asked whether Pride had in fact left the plant during his shift. When he was advised that he had,, and that he was sitting in the office inquiring stated "personal business" because she had to give a reason. , S It was stipulated that if employee Ralph Richards were called to testify he would state that, while walking towards his locker , Pride passed the area where he was working and told him he had just been fired. It was further stipulated that if employee Ron Stacy were called to testify he would also state that Pride told him he had just been fired. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether he still had ajob, Warren replied "I'm afraid'not " Upon hearing, that, he no longer had a job, Pride-left but returned shortly with his tools. They then went upstairs-and continued talking over a cup of coffee during which Pride stated, "I need a vacation anyway. 1, am going- to file charges and be back.9 It's a dam, shame that he let his feelings get tohim over a,man's union activities." Reynolds then asked, "Paul,,were you talking about union activities," and Pride replied."No, we weren't but you know that is why I was fired." lo After-.Warren informed Hagen about the incident with Pride, both Warren and, Pride were, summoned to Hagen's office onthe following day where each was asked to relate what had happened. According to Hagen, Warren stated that when he tried to discuss, Pride's absence, Pride became irate and refused to listen and said he was going to punch out, and he (Warren) told him that if he did so,, to take his toolbox with him; and Pride stated that Warren had berated an accused him of trying to cause labor unrest, and had fired him. After hearing their versions of the incident, Hagen informed them that he would investigate the matter further' before deciding what to do, and closed the, meeting. He later contacted Reynolds and was toldthat-when Pride had visited him the night of April 7, he stated he did not know whether he had been fired.' Hagen then decided to accept Warren's version of, the incident-andsent a letter to Pride-dated April 9, confirming his termination, stating, in part: "In view of the, other recent incident involving insubordination,on your part and the fact that you walked off the job I have no alternative but, -to confirm your termination." B. Pride's Alleged Misconduct. on the Picket Line Even assuming arguendo that Pride had been discrimina- torily discharged, Respondent contends he would not be entitledp,to reinstatement because he engaged in facts of violence and intimidation on the picket line. The following evidence was introduced with respect to such conduct. , Cecil Clary, a company^employee, testified that on May 19 or 20 he drove a company pickup +truck to work and when he started to,turn in at the centerdgate of the plant he found about.10 or 15 pickets,' including Pride, standing in the entrance. The pickets refused to get out-of-the way and about 1,0 of them grabbed hold of the truck, shaking and bouncing it. Pride, who did not touch the truck, asked him why he wanted to come in and, scab to which he replied that he, w,going,to work for what he believed in and to do so in anF o erly manner, Pride then told him, "Clary, you better get 'home before you get hurt and hurt•bad." Thereupon, Clary, , backed out, drove away, and. entered the , plant through another, entrance. Pride testified in connection with this incident that he had asked Clary not to cross the picket line to which Clary replied that he had, to go inbecause he needed the money„ and that then Clary pulled away with his truck. Ronald Massie, a company employee, testified that on 9 He subsequently filed a grievance. to It was stipulated" 'that if Pride were, called upon 'rebuttal he would deny Reynolds' -assertion that-he (Pride) stated that in his conversation with Warren he had not talked'about the Union 12 Evidence adduced as to his alleged excessive absenteeism was May 20 he drove to work in his, car and pulled up behind ,a few cars waiting to enter the plant. When the driver in front of him, a foreman, was permitted to enter, he began ;driving in. Robert Goodfellow, a picket, yelled "stop him,,", and a group of men, rushed to his car and someone yelled "Let's turn it over." The pickets, including Pride, started lifting and rocking the carand the left rear tire blew,-out.,, The pickets then dropped the car and scattered. Pride testified that he was present at this incident on-the picket line and admitted having his ha#ds on the car but denied rocking it. Pride also testified at he followed-a truck as it left the plant to go to the premises of Commercial Trucking Company where he and five,other individuals set up a picket line in front of the truck, carrying a placard for a period of about 3 hours. 0. Conclusions During the hearing, Respondent asserted that Pride's discharge was based exclusively upon his insubordination in leaving the plant on April 7 , during his shift11 The testimony of Warren and Pride of their conversation preceding Pride's alle ed discharge differs on two _pivotal points: (1) Did Warren upbraid Pride for engaging in union activities, and (2) did Warren discharge him at that time. According to Pride, W irren castigated him about his union activities, then badgeted him about his absence on the preceding day, and he (Pride) stated he would punch out and • go home rather than work under such 'conditions. Warren denied even mentioning Pride's union activities and asserted that Pride not only declined to discuss his inconsistent reason' for his absence but threatened to punch out and go home if he ((Warren) persisted in discussing the matter further, and, in reply to his threat to leave the plant, he told Pride that if he did, then to take his toolbox with him.12 I find it significant that although Pride claims he was fired before he left,,th premises and had so advised two fellow employees on his way out, his testimony does not state that Warren act4lly told him at the time that he was fired. All his testimony shows, ,on that point is that Warren told him that he ' was operating an expensive piece of equipment, that they h d to keep it clean, and that "When you leave the plant, t e-,your damn tool box with you," which Pride proceeded to do. Pride's testimony, also conflicts with that of Dan Reynolds as to ,why he returned to the plant that night.,He claims he returned to find out why; he was fired,13 whereas according to Reynolds, Pride wanted to know if he still had his job. They are in, agreement that, , while they were conversing„ Reynolds received a telephone call from Warren.; I find Reynol s' testimony more. convincing and persuasive that, Pride r turned to find out whether he still had, his job, that W en thereupon asked whether Pride had, in fact, left the p ant during his shift, and that upon learning he had, Warr stated he was discharged. Shortly after Pride heard that li^ had been discharged, he attributed his 'difficulties with Warren to his union activities. admitted not to be a factor in a discharge. 12 It was stipulated that rren told Mr. Ross (a`leadman) that if Pride left the plant for him to check his toolbox. 13 have difficulty in Crediting this testimony m'view of what he asserts Warren told him when he was) allegedly fired. CASCADE CORP. However, when Reynolds asked whether they had been talking about union activities, Pride replied "No, we weren't but you know that is why I was fired." Based on the demeanor of the, witnesses and the plausible sequence of events, I credit Warren's version of his conversation with Pride and his warning to Pride that if he did leave the plant to take his toolbox with him. His version is also corroborated on several points by the testimony of Reynolds.14 In view of his extensive union activities, of which Respondent was aware, Pride may have believed that he was discharged because of those activities, and he indicated as much to Reynolds. However, the credited evidence sustains the conclusion that he attempted to browbeat Warren, by threatening to punch out and go home unless Warren stopped discussing his absence. Warren,-however, accepted the challenge and made it clear to him that he would be discharged if he carried out his threat. His subsequent discharge was caused solely by his insubordina- tion in carrying out his threat despite Warren's warning, and I so find. I, accordingly, conclude that the General Counsel failed to sustain his burden of proving that 14 The record also reveals that Pride had favorably alluded to Reynolds' veracity in their dealings before Reynolds testified. 15 In view of this finding, it becomes unnecessary to determine whether 369 Respondent's discharge of Pride was motivated by discriminatory reasons rather than for just cause,15 or that Respondent unlawfully harrassed or interrogated Pride. CONCLUSIONS OF LAW 1. Respondent is an employer whose operations affect commerce within the meaning of Section 2 (6) and (7) of the Act. 2. UAW and its Local No. 689 are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in conduct constituting unfair labor practices within the meaning of Section 8(a)(1) or (3) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint in Case 9-CA-5608 is dismissed in its entirety.' or- not Pride's alleged misconduct on the picket ]me would preclude his reinstatement.