Philo Lumber Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Philo Lumber Company and Local Union 3-469, International Woodworkers of America. Case 20- CA-10719 April 22, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On October 22, 1976, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, General Counsel, Charg- ing Party, and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel and Charging Party have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge concluded that Respondent did not violate Sec. 8(aXl) of the Act when, during the course of interviewing ex- employee Kossow for hire again on June 16, 1975, approximately 2 months pnor to the commencement of the union campaign, Foreman Clary asked Kossow whether he "had anything to do with that union deal" (refernng to a union campaign in 1974 which Kossow had mentioned during the course of the interview). The Administrative Law Judge reasoned that the question was occasioned by "conventional inquisitiveness rather than abided interrogatory intent." The Administrative Law Judge further concluded that Respondent did not violate Sec. 8(a)(l) of the Act when, on or about the second week of September 1975, Clary asked employee Hill whether he had posted a notice on the sawmill bulletin board informing employees of a union meeting scheduled for September 17. The Administrative Law Judge characterized this as "privileged Section 8(c) expression." We find it unnecessary to pass upon whether Respondent's conduct in these instances establishes a violation of Sec. 8(aXl) inasmuch as the incidents are isolated in nature and therefore would, in any event, be insufficient to support a Board order. Chairman Fanning does not agree with the above disposition of these allegations. He is satisfied that each of them constitutes a violation of Sec. 8(a)(1) and would issue the appropriate remedial order and notice. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Ukiah, California, May 25-28 and July 7-9, 1976, based upon a charge (with three amendments) originally filed October 17, 1975, and amended complaint issued May 14, 1976, alleging that Philo Lumber Company, called Respondent, violated Section 8(a)(1), (3), and (5) of the Act by interrogating an employee concerning his union activities, by discharging Craig Saunders, Charles Bass, and Steven Hill (after first demoting Hill only) because of activities on behalf of Local Union 3-469, International Woodworkers of America, called the Union, or because the named employees engaged in other protected concerted activities and by refusing to bargain collectively with the Union as assertedly exclusive representative of all employ- ees in an appropriate unit. Upon the entire record,' my observation of the witnesses, and upon consideration of briefs filed by each party, I make the following: Findings of Fact and Resultant Conclusion of Law The facility involved is one of several owned by Landis Morgan. 2 He oversees various locations (primarily within Mendocino County) from a central office in Ukiah. The Philo sawmill operates on day shift basis with approximate- ly 42 employees supervised directly by an onsite foreman.3 About July 8, Morgan received correspondence from the Loss Control Engineering Department of Lumbermens Mutual Casualty Company, advising of "Fire Prevention and Protection Recommendations resulting from our recent survey." Among these was an item urging control of employee smoking practices at the green lumber sorting table. A copy of this material was furnished Philo mill ' General Counsel's motions to correct par. IX of the amended complaint and certain transcript errors are both granted. 2 Respondent corporation has this sawmill in Philo, California, annually selling goods valued in excess of $50,000 directly to customers located outside California which constitutes it an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Sec. 2(5). 3 All dates and named months hereafter are in 1975, unless indicated otherwise. 229 NLRB No. 27 210 PHILO LUMBER COMPANY Foreman Bill Clary, who posted a typed notice dated July 20 near the timeclock reading, "Any employee caught smoking in the mill area or on the green chain is subject to dismissal." 4 On August 21 employees grouped at breaktime formulat- ed the collective intent to achieve higher wages. Watson assumed the initiating role and spoke to Morgan who was present nearby at the time. Once so begun, about 10 more employees were emboldened to gather around. Reacting to this, Morgan inquired if anyone was spokesman. Saunders replied that he wasn't, but discussion continued as the group's purpose became apparent. Morgan stated a 6- percent wage increase might be accorded soon, although adding (as he read off a small notebook) that several comparable mills had recently closed for unprofitability. As group conversation progressed, Saunders was heard to say a 6-percent increase, if granted, would not match the national rise in cost of living. The employees then dispersed to resume mill functions. Largely stemming from this episode (in which he was passively present), Charles Bass contacted the Union that day and arranged an organizing meeting at his home for August 27. This was held with various interested employees in attendance. Authorization cards were signed by those present and blank ones taken for circulation to other employees. Such activity proceeded at and around work premises, in subsequent meetings at the nearby Bass home and during a meeting of interested employees at the Philo Cafe on September 17. On September 18 Bass, accompa- nied by Steven Hill, handed a paper to Clary saying it was a list of 10 persons (himself and Hill included) who intended organizing for the Union on their own time.5 The Union made a written recognitional demand on Respon- dent dated September 24 (concededly received "in due course") and on September 25 filed a representation petition docketed 20-RC-13078 with supporting authoriza- tion cards for showing of interest.6 On June 16 Rick Kossow, Jr., was hired as a strippuller by Clary. Kossow testified that in the course of interview Clary alluded to past employment by inquiry asking if he had "anything to do with that union deal." 7 Kossow negatived saying he must have been erroneously connected with the father's advocate role upon which Clary remarked, 4 This notice reiterated previously existing, little-enforced prohibition against smoking at work in combustible areas. Additionally, several signs around mill premises forbade smoking in the interest of fire prevention. I reject testimony that such notices were not traditionally present, since sufficient witnesses including not only Clary but employees Ray Blanken- ship, Ramon Watson, and Craig Saunders recalled such. However, this objective was largely ignored pnor to mid-summer 1975 as Clary and employees so choosing smoked at will. It is credibly established that Clary ceased smoking at work after July 20 and embarked on a policy of frequently cautioning employees against high-nsk smoking. Blankenship testified that Clary once "chewed him out" for smoking and that "two more warnings" would result in his dispatch (discharge) "down the hill," while James Price recalled that Clary once asked employees to "watch your smoking." On a related facet I reject Clary's assertion he painted a green outlined smoking area at a time in July. since more convincing recollections show this did not appear until late September. 5 The following day Bass, Hill, and Patrick Roebling traveled to another Morgan-owned sawmill at Laytonville, where they located a receptive employee who in turn assisted with further contacts resulting in several signed union cards for that facility. At about the same time news releases to Ukiah's daily paper and Philo's weekly one publicized organizing efforts at the Philo mill, as did a Ukiah radio station broadcast interviewing Bass on the matter. "Okay - Go to work." This exchange, flatly denied by Clary, was corroborated by Bass, who recalled Clary's question to be "something like" whether Kossow had "a part in that union business." Kossow also testified that in early September, while alone with Clary as a truck passenger, the latter answered "Yes" to Kossow's inquiry of whether he thought Morgan would shut down the mill if the Union came in. Clary testified that this instance occurred during conversation after he had offered Kossow a ride home from work, but recalled his response to the particular question was "not [knowing] what would happen." Hill testified that after posting bulletin board notice of then-planned Philo Cafe meeting in September, Clary had inquired whether he did so adding, "Well you're making a big mistake. The Union can't do anything for you. You might get a 6-cent raise or something like this. They really can't do anything for you." Clary remembered asking whether Hill "was the one that had posted [notice of] the Union meeting," but he denied any further utterance at the time. Clary testified that on August 29, and against a background of several smoking warnings to each, he discharged Saunders and Grady Wilhite for smoking on the green chain and associated horseplay.8 Saunders admitted he was smoking at the time, adding that other unaffected employees had also smoked at work that day. Respecting Bass, a rough lumber grader on the green chain, Clary testified that against a background of two recent warnings about smoking he saw this employee in the act on September 22 from his office window. He effected immediate discharge, recording it with explanation that "at least 6" warnings had occurred, Bass had "started [a] fire" the prior week and seemed "unconcerned."9 Bass testified he was discharged in mid-morning at a time when not then smoking, although having done so earlier. Hill was employed in May, working successively as strippuller, spotter, and trimmerman. The last classification was one broken into gradually over several weeks until assumption on regular assignment around early August. Morgan testified that he observed Hill improperly operat- ing the trim saws and spoke to him concerning job performance about three times. Quality Control Inspector Miles Buck testified that he first altruistically encouraged s The parties stipulated an appropriate bargaining unit at the Philo facility to be all production and maintenance employees excluding salesmen, truckdrivers, grading inspectors, office clerical employees, managerial employees, guards and supervisors as defined in the Act. I Kossow, son of a Philo attorney, had bnefly worked for Respondent on two former occasions. In 1974, a representation proceeding involving Respondent's production and maintenance employees was filed, which reportedly resulted in Kossow, Sr. "trying to prosecute" Morgan. Kossow described such legal services as "case processing against Philo Lumber for terminating some of the employees for union activities." h The green chain transports planed lumber to be segregated by quality or length. 9 Bass recalled prior warnings from Clary were, respectively, when an insurance investigator (early summer) and fire marshal (late summer) were at the mill. He concedes that "smoldering" occurred near his workplace about September IS and opines it probably resulted from his toss of a cigarette butt. Clary testified that on this occasion he had put out the smoldering and upon cautioning Bass heard him reply "so solly." Bass' recollection of the interchange was that Clary enigmatically shook his finger without a conversational exchange, but subsequently Bass expressed contrition by telling Clary he was "sorry" for the occurrence. 211 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hill, then came to feel he appeared a slow learner of the trim function, and ultimately concluded from his numerous observations that Hill was unsatisfactory. He conveyed this opinion to Morgan. Clary testified that he found Hill an average worker who he once complimented for doing a "good job." Acting on Morgan's instructions he removed Hill from the trim saw operation because of composite management appraisal that "we were getting too much short lumber." An assignment to debarker cleanup was made September 29 and Hill performed the active physical duties of this job until October 10 when assigned for that day as replacement operator on the retrim (hula) saw.' 0 Clary observed Hill "behind in his work all day" and spoke to him thusly at end of the shift, adding he had been talking excessively during his prior assignment to debarker cleanup. Clary testified that with this Hill cast down his coat saying, "I have had enough of your goddamn bullshit." Clary fired him on the spot, rejecting an apology tendered moments later for "blowing my cool." Hill testified that lumber came fast all that day and didn't slack off until the last half hour of the shift. Upon finishing, he had the same number of accumulated boards as when the day began. When he stepped away from the work station, Clary approached saying, "Pretty tough job, isn't it" to which Hill answered, "Not really ... it could be learned." Hill's continuing version is that Clary then said, "I've got to send you down the road" to which Hill protestingly asked why and was told, "you haven't been doing a good job." In angry exasperation Hill threw his coat on the ground saying, "This is a bunch of bullshit" and he knew "what was going on." He then asked Clary outside to escape existing noise and there apologized for his reaction. Clary remained adamant, ultimately recording "insubordi- nation" on Respondent's payroll change record as reason for Hill's discharge. This essentially constitutes General Counsel's case, one which primarily brought to litigation whether pretextual reasons were advanced for the three discharges at issue. I first find that no independent 8(a)(1) violation is present. The allegation so pertaining relates to the Clary-Kossow dialogue of June." Although I discredit Clary's seemingly evasive denial of so speaking, cross-examination of Kossow undercut the necessary thrust of such an exchange. This refinement to Kossow's testimony shows Clary's opening inquiry as the innocuous, "Why did you leave [before]" to which Kossow then volunteered the probability of misiden- tification based on resemblance to his father's name. The critical point is that this version, which I am persuaded is the more accurate reconstruction of respective utterances, shows mere conversational inquisitiveness rather than J0 This operation is cutting lumber to lengths indicated by grading marks made after primary trimming. i" While Bass' testimony paralleled certain of the claimed phrasing, he had only passing exposure to what was said when his attention "perked up" at the words "union business' as the spirited Kossow vaulted down a stairway without break in the dialogue. 12 I believe Bass' accentual and inflectional manner of speaking resulted in semislurred phoneticism more resembling "solly" than "sorry" as a behavioral component of the smoldering episode; a moment not lost on Clary as he drew together a final assessment of this employee's smoking habit. 13 Clary's remark to Hill concerning the notice of meeting did not go beyond privileged Sec. 8(c) expression. The doctrinaire portion of what he abided interrogatory intent. Finally, Bass added that Kossow had persevered in the mill's hiring practice by coming early on several previous mornings trying to get a job. Since no factor was known to have impinged on June 16 other than that Clary chose to add a worker that particular day, it is unrealistic to say this discourse reasonably tended to coerce Kossow (or Bass) in Section 7 rights. Cf. Blackstone Corporation, 225 NLRB 172 (1976); The William Carter Company, Inc., 225 NLRB 550 (1976). A substantial portion of this record related to smoking practices, engagement in which claimedly led to justifiable discharge of both Saunders and Bass. There is some certainty on the subject, and much uncertainty. I first give ordinary weight to July reemphasis on safe smoking practices. The fire insurer's proposals were of common business origin, and no union activities existed at the time to view summary warnings against smoking as clever components of anticipated pretextual action. An express cautionary notice particularly addressed smoking at the green chain, and each dischargee was (or immediately had been) smoking at the time. In Saunder's case the offense was compounded by intolerable roistering, while Bass absorbed unheeded warnings and only scant days before had ignited sawdust.12 Concern for accidental combustion in sawmill operation cannot be gainsaid, and although renewed enforcement was not uniform the general sanction is obvious. General Counsel theorizes that Saunders' outspokenness on August 21 was influential, but this remains only speculative without some evidentiary connec- tion and given the effective employment continuity of the more vocal Watson. Bass' case intrigues more compelling- ly, with discharge timing at the height of the union campaign and only days following his diversified, overt activism. Here the countervailing factor is failure to show hostility toward these activities as instead button-wearing, list furnishing, and community publicity evoked no modification to Clary's simple equanimity during Septem- ber.13 Evaluation of Hill's discharge requires a threshold finding of verbal sequence immediately at the end of his October 10 shift on retrim work. I am satisfied that Clary did not, as Hill believed, announce his discharge prior to the act of throwing. Given noisiness at the spot and Clary's bucolic vocal style, I believe it more accurate to hold, as Clary credibly testified, that he spoke reprovingly to Hill but did not escalate the matter to discharge until the unsettling (and to Clary's mind unprovoked) reaction had occurred. This actionable behavior was the sole cause of Hill's discharge and was so recorded. A contrary conclu- sion would require postulating that Clary either lured Hill into such conduct or exploited the incident as it unfolded. uttered is common employer-oriented rhetoric, while the reference to a 6- percent wage raise did no more than recount what Morgan had earlier predicted in response to collective employee pressure. I discredit Kossow's testimony that while in Clary's truck, the latter plainly predicted closing of the mill in the event of unionization. Here Clary is persuasive in his contrary testimony that the subject arose, but he parred it by disclaimer of knowledge. Neither incident supplies a showing that Respondent harbored retaliatory intent likely to manifest with deliberate discharge of employees, nor do later credibly described remarks that Clary would "show all these guys" by harsh behavior "nothing more than" what they were already exhibiting with "bad mouths" necessarily mean violative purpose. Cf. Ernst Construction, Division of Ernst Steel Corporation, 212 NLRB 78, 84-85 (1974). 212 PHILO LUMBER COMPANY Neither theme has validity from probative evidence as a whole, as contrasted with bare suspicion or an impression that supervisory authority was exercised arbitrarily. The issue of Hill's discharge must be taken in larger context that of proven commonality of discharge and rough-hewn employee relations. The separate allegation respecting Hill's "demotion" (no change of wage rate was involved) from trimmerman equally fails ofprimafacie persuasion, as here the observations of Morgan, and more significantly the highly credible Buck, led to managerially justified reassignment.s Overall General Counsel reconstructed a classic organizational drive, identified key adherents, and sought to associate a series of discharges with unlawful motive. The totality of evidence does not warrant adding inferential findings essential to a pretext case. Determination of majority status is based initially on General Counsel's Exhibit 3 containing 64 employee names (including two handwritten) for the period August 1- October 15, plus Respondent's Exhibits 5, 6, 8, and 10 showing pertinent payroll record changes during that period, supplementing General Counsel's Exhibit 3 to which Respondent's counsel withdrew earlier stipulation of accuracy. The resultant total of 67 employees requires point-in-time analysis, and several classifications or indivi- duals are in dispute. Express exclusionary stipulations cover Clary, Buck, and Cecil Ball. My conclusions regarding Saunders, Bass, and Hill eliminate them from any count upon their respective discharge dates. All persons employed as cleanup nightwatchman (including Robert Rackliff, hired September 25) are excluded upon sufficient showing that the primary duty of this classifica- tion is to guard Respondent's premises within the meaning of Section 9(b). The particular duties of these employees, performed during nonoperating hours, are more akin to West Virginia Pulp and Paper Company Hinde & Dauch Division, Detroit Plant, 140 NLRB 1160 (1963), than to Arkley Lumber Co., 169 NLRB 1098 (1968). Cf. Larand Leisurelies, Inc., 222 NLRB 838 (1976). Employee Carl (William) Witheral (Witherell), crane operator during the logging season, experiences temporary layoff during winter months with clear expectancy of recall warranting his inclusion. Joseph Doughty's testimony that permission was granted for his absence from work, beginning September 24, was uncontradicted, mandating a conclusion that he remained a bargaining unit employee until reappearing for work on September 26 and being discharged on that date. " Hill himself recalled one critical comment from Morgan and about three from Buck. I reject Hill's equivocation on this point dunng rebuttal. is I treat September 25, for purposes of comprehensiveness, as the likely date on which the Union's written claim of majority was received by Respondent. Notably, General Counsel does not assert a majority existed until September 30. Michael Smith's hire as a saw filer on September 29 was unqualified from the evidence, and the fact that he quit a week later does not, without more, remove him as a unit employee. Michael Santana was a yard employee engaged essentially in storage and shipping tasks of a physical nature. His access to the mill office and occasional document preparation does not disturb a primary showing of equipment operation for lumber handling, storage and shipment, a function closely similar to forklift operator Danny Johnson and otherwise reflective of common employment interests with the basic bargaining unit. Gordon Hicks worked comparably to Ball, the latter excluded by stipulation as Respondent's certified grader. Their functions were to grade lumber following main trimming and mark pieces for further processing. Their work stations were close together and they occasionally interchanged respecting flow-through of boards. Hicks was shown to be experienced in grading, but not possessor of a formal certificate as was Ball. Mindful of this similarity I nevertheless conclude Hicks' actual duties, which intimate- ly involved him in the sequence of mill processes, outweigh any significance attached to the parties' agreed exclusion of Ball. I therefore include Witheral, Doughty, Smith, Santa- na, and Hicks within the unit. The documentary evidence identified above lists 67 names overall. Of these, 16 terminated or were discharged (including Saunders and Bass) prior to September 25. Stipulated individual exclusions (3), coupled with the guard exclusion (4), reduce the working number to 44 as of September 25 (Smith and Michael Heath were at that point not yet employed). Individual inclusionary resolutions are dovetailed into final adjustment yielding bargaining unit complement/showing of interest ratio at 42/19, 42/20, and 41/19 on September 25, September 30 (date of card signing by Dennis Scovell and Vester (Lee) Simms), and October 15, respectively. The Union thus did not represent a majority of included employees in the appropriate collec- tive bargaining unit at any material time.' 5 Accordingly, I render a conclusion of law that Respon- dent has not violated Section 8(aXl), (3), or (5) as alleged, and issue the following recommended: ORDER '6 The amended complaint is dismissed in its entirety. 16 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 213