National Beauti-Log Cedar Homes, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Beauti-Log Cedar Homes, Inc. and John Lloyd Krueger. Case 20-CA-10636 May 6, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On January 25, 1977, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's 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 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 conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, National Beauti- Log Cedar Homes, Inc., Stockton, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The Respondent has 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. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On October 14, 1976, I conducted a hearing at Stockton, California, to try issues raised by a complaint issued on July 15, 1976, pursuant to a charge filed by Krueger on September 18, 1975.1 The complaint alleged that National Beauti-Log Cedar Homes, Inc.,2 violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (hereafter called the Act), by discharging Krueger because of his membership in or activities on behalf of Local 266, Delta I Read 1975 after all date references omitting the year. 2 Hereafter called the Company. I Hereafter called the Union. 229 NLRB No. 82 Yosemite District Council of Carpenters, AFL-CIO,3 or because Krueger engaged in other protected, concerted activities. The Company conceded it discharged Krueger but denied a discriminatory motivation and affirmatively alleged at times pertinent Krueger was a supervisor within the meaning of the Act and therefore not within its protection. The issue is whether Krueger was a supervisor at times pertinent and, if not, whether he was discriminatorily discharged. The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and the Company. Based upon my review of the entire record, observation of the witnesses, perusal of the briefs, and research, I enter the following: FINDINGS OF FACT I. JURISDICTION At times material the Company, a Pennsylvania corpora- tion, was engaged in the manufacture and sale of cedar precut homes in the State of California. The Company conducted its operations from a plant and office located in Stockton, California. The Company admitted in its answer that during the previous calendar or fiscal year it sold and shipped products manufactured by it, valued in excess of $50,000, directly to customers located outside the State of California. Based upon the foregoing, I find and conclude that at times material the Company was an employer engaged in commerce in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION In the course of the hearing, the parties stipulated that Local 266 was a member of the Delta Yosemite District Council of Carpenters, AFL-CIO, and that the District represented its local union affiliates for the purpose of bargaining on behalf of their members with the employers of those members concerning wages, rates of pay, hours, and working conditions. On the basis of the foregoing stipulation, I find and conclude that at all times pertinent Local 266, Delta Yosemite District Council of Carpenters, AFL-CIO, and the District Council were labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Facts The Company was formed in November 1972 and began production in April 1973. It was organized by Paul Purpura, its president and general manager, and Gilbert Hall, its secretary-treasurer. 4 Purpura previously was in the 4 I find at all times material Purpura and Hall were supervisors and agents of the Company acting on its behalf. 486 NATIONAL BEAUTI-LOG CEDAR HOMES, INC. same business in Windsor, California, and, when he commenced operations of the Company, brought Krueger over with him from the Windsor plant as superintendent of the Company's production operations. Krueger at all times was a working superintendent, performing the key function of layout man in addition to receiving materials, arranging deliveries of the finished products, and directing produc- tion activities.5 The Company utilized four or five employ- ees in its production operations, 6 including the matcher operator and layout man. In May 1974 Purpura relieved Krueger of his position as plant superintendent, replacing him with William Lamb- rich, the operator of the matcher. From that date on, Lambrich interviewed, hired and fired employees, and exercised overall supervision of production and shipping operations. He also authorized overtime or time off. Krueger continued to perform all layout work, to train new employees, to check the work of other employees, to see their work conformed with his layouts, to inspect the final product, and to direct the loading or unloading of trucks or boxcars. 7 Lambrich was a working supervisor, since he operated the matcher besides performing his duties as plant superintendent. While Krueger lost his position as plant superintendent in May 1974, he continued to receive the same salary he previously received and was neither placed on an hourly rated basis nor required to punch a timeclock.8 Krueger was not paid overtime after his demotion nor reduced in salary for time absent from work due to illness, etc. Following his demotion, Krueger's relations with Lamb- rich and the other employees became strained; Krueger from time to time ignored or defied Lambrich's directions, and either refused to answer other employees' questions about how to perform their work (telling them to see Lambrich) or misdirecting them; he also refused to take any responsibility for production problems or errors. He also caused a problem for Purpura with the lessor of the plant premises in March 1975, when the manager of the premises where the Company's office and plant were located discharged Krueger as night watchman for the complex and demanded that Purpura limit Krueger's presence on the premises to working hours.9 Purpura lent Krueger the $200 he paid to the tenant for his loss and was indulgent concerning Krueger's conduct s Including the hirng and training of production employees. 6 Cedar logs were run through a machine called a matcher which planed their surfaces and cut a tongue, groove and beveled edge; the layout man determined how many pieces were required to fill each order, and marked the logs for length and notches. The requisite number of logs were then cut to the desired lengths and notched. Gables, purlins (roof beams), windows, and doors were also cut and assembled for each order. When all the pieces were completed, they were inspected and, if correctly made, bundled together for shipment. I These findings are based on the undisputed testimony of Lambrich, whom I find at times pertinent was a supervisor and agent of the Company acting on its behalf. I The two or three production employees (other than Lambrich and Krueger) were hourly rated and punched a timeclock. 9 Krueger was discovered dismantling property belonging to another tenant within the premises, which was a 22-acre industrial complex containing numerous buildings. (The Company rented one-half of one building and offices in another.) Krueger settled the tenant's complaint by paying $200 to him and conveying certain property over to him. '0 Three weeks before Krueger's discharge Purpura responded to vis-a-vis Lambrich and his fellow employees over the May 1964-March 1965 period. He also testified that Krueger was highly skilled as a layout man and functioned well in that job. He and Krueger maintained a close and friendly relationship. 10 Employee interest in the Union began in late June or early July. Krueger was the Union's most active supporter among the employees, though he aroused resentment among the other employees 1" by stating that if they did not support the Union he would cause the loss of all their jobs by quitting. 2 The day prior to the election, Hall informed Krueger that he was not eligible to vote in the election. Krueger nevertheless voted and his vote was challenged by the Company.' 3 Purpura's resentment at Krueger's casting a ballot was expressed the following day when Purpura approached Krueger in the plant and told Krueger that if he didn't think he was a supervisor, Purpura did not have to rely on him for layout work either. The second day after the election (August 13) the employees (other than Krueger) sought out Purpura and expressed their resentment against Krueger. They told Purpura that Krueger should not have been allowed to cast a vote and that Krueger twisted their arms to secure their vote for the Union; 14 that Krueger refused to answer their questions concerning their work or misdirected its perfor- mance; and that they were not going to work until Krueger was discharged or things straightened out. After the employees left, Purpura consulted with Hall and instructed Hall to discharge Krueger. In accordance with Purpura's instructions, Hall went from the office to the plant, approached Krueger, and told Krueger to get his things together, he was no longer working for the Company, commenting "after all your friend has done for you, you have to bring the Union down on him." s When Krueger subsequently filed for unemployment compensation, the Company contested the claim on the grounds that Krueger was discharged for insubordination. This defense was rejected and payment of unemployment compensation to Krueger was directed. Analysis and Conclusions While Krueger continued in a salary status after his demotion, he ceased to interview, hire or fire employees, Lambrich's demand he be relieved of supervisory duties due to Krueger's noncooperation by telling Lambrich he would "straighten out" Krueger. "t Aubrey, Bernstein, and Van Hook. 12 Krueger took the position that without his services as layout man the Company could not operate. 13 All three employees who voted without challenge cast ballots for the Union. The Company's challenge to Krueger's ballot was overruled and a finding made that he was not a supervisor (Case 20-RC-12901). 14 While Bernstein wavered back and forth in his testimony, at several points stating that at some times he so advised Purpura several days after August 13, 1 credit his testimony, in response to my direct questioning, that he and Van Hook so advised Purpura on August 13, prior to Krueger's discharge. It would be natural to include Krueger's actions on behalf of the Union, which the employees resented, in a recitation of their grievances against Krueger. '5 I credit Krueger's testimony that Hall made the comment in question: Krueger was the first employee of the Company, his closeness to Purpura was well known by all those at the Company, and it is reasonable Hall would make some effort to explain the reason for the discharge. 487 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assign overtime, and process requests for time off. His direction of the work of other employees after the demotion was also no more than that of a working leadman. I therefore find and conclude he was not a supervisor after May 1974.16 While the record establishes that Krueger was unpopular with both management and the production employees at the time of his discharge, the record also establishes Purpura was resentful of Krueger's casting a ballot at the August 11 election and his taking the position that he was not a supervisor. It is reasonable to presume that resent- ment increased when Purpura learned on August 13 that Krueger used his status to bludgeon the employees into voting for the Union. Therefore I find and conclude that Purpura discharged Krueger on August 13 not only because Krueger was causing friction, dissatisfaction, and production problems in the plant, but also because he was instrumental in the success of the Union's organizational drive. Since Purpura was so motivated, I further find and conclude that by discharging Krueger the Company violated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW I. At times pertinent the Company was an employer engaged in commerce in a business affecting commerce and the Union was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 2. At times pertinent Purpura, Hall, and Lambrich were supervisors and agents of the Company acting on its behalf. 3. At times pertinent Krueger was not a supervisor and agent of the Company acting on its behalf. 4. The Company violated Section 8(a)(1) and (3) of the Act by discharging Krueger for engaging in concerted activities protected under the Act. 5. The above unfair labor practice affects commerce within the meaning of the Act. THE REMEDY Having found the Company engaged in an unfair labor practice in violation of Section 8(a)(1) and (3) of the Act, I shall recommend the Company be directed to cease and desist therefrom and to take affirmative action designed to effectuate the purposes of the Act. Having found that Krueger was discharged on August 13 for engaging in concerted activities protected under the Act, I shall recommend the Company be directed to offer Krueger immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges, and that he be made whole for any wage losses he may have suffered by payment to him of the sum of money he would have earned from the date he was '6 A contrary holding would produce a situation where three production employees had four supervisors. fT 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. discharged to the date he is reinstated, less any net earnings he has received in the interim. His lost wages shall be computed in accordance with the formula described in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at 6 percent per annum, computed in accordance with the formula described in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommend- ed: ORDER '7 National Beauti-Log Cedar Homes, Inc., Stockton, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise disciplining its employees for casting a ballot in a Board-conducted election in the belief they are entitled to do so and encouraging other employees to cast ballots for the Union. (b) In any other manner interfering with its employees in the exercise of their rights under Section 7 of the Act to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer John Lloyd Krueger reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Krueger whole for any loss of earnings he may have suffered as a result of his discriminatory discharge, in the manner set forth in the section of this Decision entitled "The Remedy". (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to compute the backpay due under the terms of this Order. (d) Post at its Stockton, California, facilities copies of the attached notice marked "Appendix." 8 Copies of said notice to the Company on forms provided by the Regional Director for Region 20, shall be signed by an authorized representative of the Company, posted immediately upon receipt thereof, and maintained for at least 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 ensure such notices are not altered, defaced, or covered by any other material. "1 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 488 NATIONAL BEAUTI-LOG CEDAR HOMES, INC. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Company has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discipline our employees for forming, advocating, supporting, or assisting Local 266, Delta Yosemite District Council of Carpenters, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to engage in self-organization, to form, join, support, or assist the above or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Since the Board has determined we discharged John Lloyd Krueger because he supported the above-named labor organization and advocated its support among his fellow employees: WE WILL offer John Lloyd Krueger immediate and full reinstatement to his former job, or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileg- es, and WE WILL make John Lloyd Krueger whole for any loss of wages or other benefits he may have suffered by reason of our discriminatory discharge of him. NATIONAL BEAUTI-LOG CEDAR HOMES, INC. 489