Carter Lumber, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1974

209 N.L.R.B. 929 (N.L.R.B. 1974)

CARTER LUMBER, INC. 929
Carter Lumber, Inc. and Teamsters Local Union 654,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 9-CA-7908
March 29, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
violation of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, herein called the Act. Respon-
dent filed an answer which, in relevant part denied that it
engaged in conduct violative of Section 8(a)(1) and (3) of
the Act.
A hearing in the above-captioned matter was held before
me at Springfield, Ohio on October 4, 1973. Briefs have
been received from counsel for Respondent and the
General Counsel, respectively, and both have been
carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
On December 28, 1973, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter. Respondent filed excep-
tions 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
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 brief
and has decided to affirm the rulings, findings,' 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 Respondent, Carter Lumber, Inc.,
Springfield, Ohio, its officers, agents, successors, and
assigns. shall take the action set forth in the said
recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's estahh' hed 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, 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
ELBERT D. GADSDEN, Administrative Law Judge: Upon
a charge of unfair labor practices filed on July 17, 1973, by
the Teamsters Local Union 654, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, against Carter Lumber,
Inc., herein called the Respondent, the General Counsel of
the National Labor Relations Board issued a complaint
against Respondent on July 18, 1973, alleging that
Respondent had engaged in unfair labor practices in
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation engaged in the retail
sale of lumber and related products at its Springfield, Ohio
place of business. During the past 12 months, Respondent
purchased goods valued in excess of $50,000 shipped from
firms located outside the State of Ohio to its location
within the State of Ohio. During the same period of time
it's gross volume of sales exceeded $500,000.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Dick Loye credibly testified that he is now and has been
the business representative of Local 654 of the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America and that prior thereto he was the
international representative; and that about 2,800 employ-
ees participate in its organization, which exists in whole or
part for the purpose of dealing with the resolution of
employer employee disputes regarding wages, hours, and
working conditions, by negotiating collective-bargaming
agreements, of which it has about 110.
The above evidence was not controverted and in view of
the highly probative nature of the same, I conclude and
find that Local 654 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers, is and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent, Carter Lumber, Inc., is an Ohio corporation
which operates several lumberyards including yard number
68, the yard which is the location of the subject matter in
dispute. William (Bill) F. Morris is the manager of yard
number 68 located in Springfield, Ohio. Dick Amalan is his
assistant manager who coordinates the office and yard
work and waits upon customers about 75 percent of the
time.
209 NLRB No. 163
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to May 1973', the Company (yard number 68) had
in its employ six yardmen, amongst whom was Michael
Driscoll, the alleged discrinnnatee. On July 6, the six
yardmen went on strike and employee Dnscoll, who was
working either in the capacity of a yard foreman or
yardman, refused to return to work when he was asked to
do so by Manager Morris. Since Driscoll continued to
refuse to return to work, although he was advised by
Manager Morris that he was a supervisor and was not
protected by the Act as were the other yardmen, he was
discharged for such refusal, allegedly because he was a
supervisor (yard foreman) and was not protected by
Section 7 rights of the Act 2
Thus, the principal subordinate issue presented for
decision is whether Driscoll was a supervisor (as yard
foreman), in fact, within the meaning of Section 2(11) of
the Act when he was discharged, and therefore was
unlawfully interrogated and threatened by Respondent
about his concerted or union activities, and ultimately,
discnmtnatonly discharged by Respondent in violation of
Section 8(a)(1) and (3) of the Act.
B. Duties and Responsibilities of Employee Driscoll
Employee Driscoll credibly testified that he is 22 years of
age and was 21 years old until March. He was first
employed by Respondent as a yardman in September 1972,
and he worked in that capacity until December 1972, when
he moved to Texas. He returned to Ohio and was
reemployed by Respondent as a yardman in February 1973
at a pay rate of $2 per hour. Respondent's lumberyard was
the first lumberyard in which Driscoll had ever worked. All
other yardmen were likewise paid $2 per hour. In about
March, Dick Amalan was made assistant manager to
Manager Morns.
Driscoll's credited testimony established that in approxi-
mately April or May, while walking in the yard with
yardman, Doug Smith, Manager Morris asked them who
wanted to be in charge while he was on vacation, and he
(Driscoll) said "I would." On that same afternoon
Manager Morris told him "to make sure that everything
was put in and the trucks was unloaded and customers
waited on." Manager Morris did not have any further
conversation with him about his authority, duties, and
responsibilities, and he (Manager Morris) went on vacation
for I week. Dick Amalan was at work during Manager
Morris' vacation period. Driscoll was never given any
further explanation of his duties and responsibilities.
In describing his functions in the yard, Driscoll said that
customers go into the office, place their order with a
counterman who writes the order on a ticket and gives a
pink and yellow copy thereof to the customer. The
customer then comes out to the yard and gives the ticket to
a yardman, whom the customer follows to the shed where
the order is filled. The yardman then gives the yellow copy
of the ticket to the customer and delivers the pink copy to
the office. Driscoll does not collect or process the tickets.
He and other yardmen occasionally unload trucks or
boxcars and stack the stock on docks or in bins. No one
designates a yardman to wait on a particular customer but
the yardman does this on his own. Dnscoll had no
authority to hire or fire employees and he had never been
told by management that he had such authority. Nor had
he ever made any such recommendations regarding other
employees. He had no authonty to send men home early
from work for any reason and if he or any employee
wanted to leave work early, they had to obtain permission
from Manager Moms. He (Driscoll) could not grant such
permission and he had never been told he had such
authority. Manager Morris determined who and when
employees worked overtime and he (Driscoll) did not have
any special paperwork. All employees including himself
signed in and out on a timesheet on the desk in the front
office, and he had no jurisdiction over or responsibilities
for said timesheet. He had no authority to discipline
employees and if an employee was going to be absent, such
employee had to contact Manager Morris or Assistant
Manager Amalan, not Driscoll. If an employee were ill he
would call Dick Amalan and not Driscoll.
Driscoll said he volunteered to be foreman because his
fellow employees did not know the yard as well as he did;
that after Manager Morris told him he was to make sure
that everything was put away and the trucks unloaded, he
would ask, not tell, the other yardmen to put things away.
He was responsible for cleaning up the yard and seeing to
it that supplies and shipping materials were in bins and
trash in trash bins. If Manager Morris was not around, he
would designate which two men would unload and which
two would stack. Manager Morris was in the yard only I or
2 hours a day but work was assigned to the yardmen by
Dick Amalan, assistant manager. He (Driscoll) would go
and ask manager Morris what he wanted the men to do,
and he (Driscoll), in turn, would ask the men to do it. If the
men did not do it, as they did on a few occasions, he could
not say anything to them. He did not report them to
management because he did not believe he had any
authonty to report them. He said it was easy to ask them to
do something but he could not tell or order them to do it.
Harold Smouse credibly testified that he wws employed
as a yardman by Respondent from December 2 to
December 21, 1972, and from April 2 to September 19,
1973, when he quit. He said some yardmen made $2.10 per
hour and some made less than $2 per hour. His testimony
substantially corroborates Driscoll's testimony with respect
to Driscoll's duties and responsibilities. Specifically he said
Manager Morris never told him that Driscoll was his
supervisor (superior) or what authority Driscoll had. He
said if he wanted to go home early he would have to ask
Manager Morris or assistant manager Amalan. When
asked how did yardmen know what to do, he responded,
they were never ordered to do anything; that they would
go in (presumably the office) and see what needed to be
done and they would just do it; that sometimes Driscoll
might ask them or Manager Morris might tell them what
was needed to be done and they would do it. There was no
difference in the type of work done by Smouse from the
work that was done by Driscoll.
William F. Morris, manager for Respondent's Spring-
1 Hereafter all dates will refer to the year 1973 unless otherwise specified.
2 The facts set forth above are undisputed in the record.
CARTER LUMBER, INC.
field, Ohio yard X68, credibly testified that about the first
part of May he was contemplating going on vacation and
he needed a yard foreman. Driscoll volunteered and
insisted that he would clean up the yard and get the job
done, and I said "fine," and from that time on Driscoll was
foreman. The last yard foreman, prior to Driscoll, was
Laurel Macy.
Manager Morris further stated that as yard foreman,
Driscoll's duties were to keep the yard clean, wait on
customers, and put away or prepare stock for shipping.
When asked, was it Driscoll's responsibility to assign work
(loading or unloading boxcars) to the other yardmen,
Manager Morns responded:
A. I most generally asked him to get it done.
Q. And then what would he do when you told him
to get the job done?
A. He'd try to get it done.
Q. How would he do it?
A By asking people in the yard to help.
Q. Now was it customary for your yard foreman to
recommend the hiring or firing of individuals?
A. He could recommend hiring and firing, yes.
Q. Did Mr. Driscoll do that?
A. No.3
On cross-examination Manager Morris credibly testified
that Dick Amalan, his assistant manager, has authority to
hire and fire in his absence and that any employee has
authority to recommend (on an application) a person for
employment. His present yard foreman, David Lewis, was
hired September 18. In conclusion, Mr. Morris stated that
he believed employee Smouse was present during two of
the conversations he had with Driscoll on July 6?
Based upon the foregoing undisputed and credited
testimony of Manager Morris and employees Dnscoll and
Smouse, I conclude and find that Driscoll, as yard
foreman, did not have the authority to hire, fire, discipline,
adjust grievances of, or assign work to his fellow employ-
ees; that the work Driscoll and his fellow employees
performed was not only identical but routine in nature,
and did not require the exercise of independent judgment
on Driscoll's part: Driscoll's pay rate was $2 per hour as
was the rate of pay of the other yardmen; said work did
not require direction for its execution and Dnscoll did not
direct its discharge; Driscoll would simply ask his fellow
employees, either to do or assist him in doing what he was
advised or knew was needed to be done; he did not have
any jurisdiction over employees time and attendance
records; and, at most, he was a leadman and, consequent-
ly, not a supervisor within the meaning of the Act.
C. Union Activity and Discriminatory Discharge
Driscoll credibly testified that he was aware of and
participated in the union organizational campaign involv-
ing the Union (Local 654) for which he signed an
a I credit the respective testimonies of Manager Morris, and employees
Driscoll and Smouse, because they are essentially consistent and not in
dispute with respect to the duties and authority of Dnscoll as yard foreman.
All three witnesses appeared to be making an effort to be truthful and
accurate in their testimony
931
authorization card on June 14 at the union hall in
Springfield, Ohio. Six other employees of the Respondent
were also present at the union hall at that time and all of
them signed union authorization cards. Thereafter, on or
about July 5 he and the other employees went on strike
against Respondent and congregated around and blocked
its entrance gate. When Manager Morris arrived at the
yard and learned what was occurring, he called Driscoll
and Smouse into his office and asked them what was the
problem. He also asked Driscoll to come back to work and
Driscoll said "no." Later that afternoon Manager Morris
asked Driscoll to return to work because he was a yard
foreman and that yard foremen are not covered (protected)
by the Act. Driscoll nevertheless said "no" he would not
return to work. The strike lasted about 5 days and all seven
employees returned to work. Driscoll immediately went to
the office of Manager Morris and asked him if he could
have his job back and Mr. Morris said "no." Driscoll then
asked for his paycheck and Mr. Moms said he could not
have it until the checks came in. Driscoll denied that he
then used a four letter word and he denied that Laurel
Macy was yard foreman or ever assigned work to him.
Harold Smouse participated in the strike which actually
started on July 6, instead of July 5, as stated by Driscoll;
on July 6 at about 8 or 8:30 a.m. he accompanied Dnscoll
into Manager Morris' office when the manager wanted to
know what was the problem; they (he and Driscoll)
advised him that they were on strike because they needed
better working conditions and more help because they had
too much to do. Later on that morning or early that
afternoon Manager Morris called he and Driscoll to his
office and asked them about the Union. He wanted to
know who represented the Union and they told him they
had signed up for the Union but they were not the Union,
but rather, Local 654 of the Teamsters. Manager Morris
said he figured it was coming but he did not know when.
He then asked them what they wanted and after they told
him he said he would talk to the Company. Later that same
afternoon, Tim Griffith and Driscoll were asked by
Manager Moms who was responsible for the Union and
they told him all of them were; and that all of them went to
the Union together by mutual agreement. Manager Morris
felt they had something personal against him and they told
him it was not him (Morris) but the Company.
A. Oh, yeah. Well, Bill thought-he was mad that
day because all of us had done this, but Bill thought
that we were using him and he told me that he'd been a
nice guy to everybody and he said that he'd given
everybody a fair shake and fair break all the way along
the same thing as we turned around and stabbed him in
the back and he couldn't afford to do no more for
anybody and it didn't make no difference who it was.
Again, Mr. Moms told them he would find out what he
could do. Smouse said he believed they w--re later told by
Mr. Morris that the matter was in the hands of the
4 I credit the testimony of Manager Morns because he appeared to be
telling the truth and because his testimony is essentially consistent with the
testimony of Dnscoll and Smouse, with respect to how Driscoll was
designated yard foreman and as to what authority he had, and what his
duties and responsibilities were
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's attorney. After he and his fellow employees
decided they could not afford to stay off from work any
longer, they returned to work and requested permission
from Manager Morris to return. He advised them that he
would have to first contact the Company's attorney.
Smouse and the other strikers returned to the office of the
yard on Tuesday and the following conversation ensued:
A. Well, I went into the office with Bill and he said
his attorney had given permission for us to return to
work at 7:30 Wednesday morning with the exception of
Mike Driscoll. So I asked him why he couldn't return
and he said that Mike was fired because he was yard
foreman. So I told him at that point that I didn't know
if the rest of the guys would come back to work or not.
Bill asked me to talk to them . So I left the office and
went back and talked to them and we agreed to go back
to work that next morning.
Q. And you went back?
A. Yes, sir.
Smouse was not present when the conversation took
place between Driscoll and Manager Morris which resulted
in Dnscoll's discharge.
Manager Moms credibly testified that Dick Amalan is
the assistant manager and counterman who assists him in
coordinating the work for inside and outside, as well as
waiting on customers. In describing the event which
transpired at the yard on the morning of July 6, Manager
Morris testified as follows:
Q. Now in calling your attention to July 6, 1973,
would you tell the Court what occurred that morning.
A. Well, as I turned in the drive everyone was
parked out in the drive leaving dust one narrow
passageway through into the lumber company and they
were sitting on their cars and I really didn't know what
was wrong until I saw the assistant manager standing
underneath the roof of the plumbing building. So when
he come over, I asked him what was going on.
He said 'Well, we have a strike on our hands.'
So after I had driven in, the passageway that I had
driven through was sealed off with employees vehicles,
which is on company property.
Subsequently, Manager Morris called Respondent's
main office in Kent, Ohio, and reported the strike. He was
advised to talk with the Company's attorney, Mr. John O.
Daily, and he did. Mr. Daily advised Manager Morris to
call the Clark County sheriff and the latter followed his
advice. The remainder of Manager Morris' testimony
about the strike on the morning of July 6, is essentially the
same as the description given by the prior witness, Driscoll
and Smouse. However, with respect to having conversa-
tions on that same day with Dnscoll and Smouse, Manager
Morris' testimony varied as follows:
Q. Will you tell the Court the conversations, how
many conversations you had with him?
A. I had three that day.
Q. And what was the first?
A. The first was when I went out at approximately
8:20 and asked Mike to come into the office . He did so.
I told him at that time I said `Mike , I'd like for you to
come back to work.'
Q. Did you tell him why?
A.'" Right, he was told that under the Act, he was a
supervisor and was not covered , acting in a supervisory
capacity.
Q. What did he say to you?
A. He said no.
Q. Then what did he do?
A. He went back out on the picket line.
Q. Did you call him at a later time?
A. Right.
Q. And what was the conversation at that time?
A. Again at that time I asked him to come back to
work. I said 'I think you 're making a mistake , Mike, by
not coming back to work.'
Q. Did you tell him why he was required to come
back to work?
A. Yes.
Q. What did you tell him?
A. Pardon?
Q. What did you tell him?
A. I said 'Under the National Labor Relations Act,
the supervisory personnel is not covered .', and that he
was going to lose his job for not returning to work.
Q. What did he say at that time?
A. A four letter word and out the door he went.
Q. Did those four letters start with 'f' nd end with
'k'?
A. Yes, and his other word was 'it'.
Q. Did he leave at that time?
A. Right.
Q. And what happened at that conversation?
A. The third conversation was later in the after-
noon.
Q. And would you tell the Court what happened in
that conversation?
A. Right. I called him in and I had a formal
termination laying on my desk and I asked him-I told
him at that time, I said 'Mike , I asked you to come to
work and you refused, so the next thing , you know
what it means to be terminated .', I said 'How about
signing this for me and I've already signed it.'
He said 'I'm not signing a damned thing.' and away
he went.
Q. Then he left?
A. That was our last conversation.
Q. Now since that time , have you hired someone
else in his position?
A. Right.
Q. Who is that?
A. David Lewis.
Q. And what is his capacity?
A. Yard foreman.
Q. And what does he do?
A. He assigns work, is responsible for cleanliness
CARTER LUMBER, INC.
of the yard, seeing that the customers get waited on for
incoming and outgoing freight.5
Laurel Macy, a 59-year-old self-employed housebuilder,
credibly testified that he has worked for Respondent
periodically as a yardman and from 1967 to late 1970 or
early 1971, as a yard foreman; and that he has worked in
the building construction industry for the last 35 years and
is pretty familiar with lumber and building materials.
Based upon the undisputed and credited testimony of
employees Driscoll and Smouse, and Respondent's Man-
ager Morris, I conclude and find that on June 14,
employees Driscoll, Smouse, and five other employees of
the Respondent engaged in concerted or union activity by
signing union authorization cards; on or about July 6,
Driscoll and the other six organizing employees went on
strike against Respondent; on the morning of July 6,
Respondent (Manager Morris) learned about the strike
and held conversations with Driscoll and Smouse regard-
ing their reasons for the strike, and questioned them about
who was responsible for the organizing efforts and the
strike; such questioning about who was responsible for
organizing a union and going on strike constituted an
interference with, as well as restraining and coercive action
by Respondent against, the employees exercise of their
Section 7 rights in violation of Section 8(a)(1) of the Act;
Respondent's (Manager Morris') undisputed statement to
Driscoll, Griffith, and Smouse that he would no longer give
everybody a fair shake and fair break because of their
concerted activity was comparable to stabbing him in the
back, is threatening, coercive, and restraining conduct in
violation of Section 8(a)(1) of the Act; Respondent had
knowledge of Driscoll's concerted or union activity on July
6; Respondent asked Driscoll to return to work and
advised him that he was supervisor and could be fired for
striking because supervisors are not protected by the Act;
Driscoll returned to work with the other employees when
the strike was over but he was the only one discharged for
striking, on the contention that he was a supervisor and
therefore not protected by the Act; and since Driscoll was
not a supervisor within the meaning of the Act, Respon-
dent's discharge of him was based upon his union activity
and, therefore, he was discriminatorily discharged in
violation of Section 8(a)(3) of the Act.
Analysis and Conclusions
Section 2(11) of the Labor Management Relations Act,
as amended, provides as follows:
The term `supervisor' means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign , reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority is
5 I credit the testimony of Manager Moms because it is essentially
consistent with the testimonial account of Driscoll and Smouse . except for
the profane language attributed to Driscoll, but which I credit as having
been said by Driscoll. At this juncture in the proceeding, counsel for the
Respondent , on his insistence, was permitted over the objection of the
General Counsel to interrogate Manager Moms about the duties of his
933
not of a merely routine or clerical nature, but requires
the use of independent judgment.
A careful review of the evidence of record very readily
reveals that the manner in which Driscoll was designated
yard foreman by Manager Morris was both casual and
unspecific. Not only did the designation of Driscoll as yard
foreman appear to be for temporary duration (while
Manager Moms was on vacation for I week), but it was ill
defined and without any further elaboration on explana-
tion as to duties and authority. Specifically, it is particular-
ly noted that nowhere in the record does it appear that
Manager Morris ever conferred upon or delegated to
Driscoll, any of the supervisory authorities described in the
above-cited Section 2 of the Act. Moreover, the evidence of
record clearly establishes that Driscoll did not ever exercise
any of the above-described authorities over or against his
fellow employees. At most, the evidence shows he was told
by Respondent to ask the other employees to do or assist
him in doing what he knew or was advised needed to be
done (such routine tasks as loading or unloading boxcars
or trucks and putting away stock). Aside from that single,
very limited, and unclear authority given him, Driscoll's
principal duties were to wait upon customers (fill orders for
lumber and related products and materials, occasionally,
load and unload trucks and boxcars, put away stock, and
clean up the yard as needed).
The record amply shows that all yardmen, including
Driscoll, performed the same duties, signed in and out on
the same timesheet, received substantially the same hourly
rate of pay, and worked the same hours. Moreover, the
evidence clearly shows that Driscoll is only 22 years of age
and has worked in a lumber yard for a cumulative period
of less than 1 year. He was not delegated nor did he
exercise any authority to hire and fire, transfer, promote,
allow employees to leave work early or to be absent from
work, or to discipline his fellow employees. Finally, it is
clear from the evidence that any instructions or directions
which Driscoll may have given to the other employees were
merely of a decidedly routine and repetitious nature, not
requiring the exercise of independent judgment.
Consequently, when the evidence is viewed in its
entirety, it is unequivocally demonstrated that Driscoll,
even if considered a leadman , was a part of the work unit
of his fellow employees and was not a supervisor within the
meaning of the Act. This conclusion is supported by the
Board's decision in UTD Corporation (Union-Card Divi-
sion), 165 NLRB 346, and numerous other cases , including:
United States Gypsum Company, 118 NLRB 20, cited by the
General Counsel, in which the Board said:
It is also necessary to note that Congress, in defining
the term "supervisor" did not include "employees with
minor supervisory duties." Congress, distinguished
between straw bosses, leadmen, set-up-men and other
minor supervisory employees on the one hand, and the
supervisor vested with such genuine management
present yard foreman (hired in September). Although this line of
questioning was permitted, I feel now , as I did then, that what the present
yard foreman's duties and authority are, is of no probative value in
establishing, as a fact , what Dnscoll's duties and responsibilities were as
yard foreman.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prerogatives as the right to hire or fire , discipline, or
make effective recommendations with respect to such
acts.
Counsel for the Respondent contends that Driscoll was a
supervisor within the meaning of the Act because in cases
involving other lumberyards of the Respondent , the Board
and Regions 25 and 29 found that the yard foreman in
those cases were supervisors within the meaning of the Act.
In support of this position , counsel for the Respondent
cited and appended to his brief , a copy of a certification
for representation , Case 25-RC-4820 . However, a careful
review of that case readily reveals that the evidence therein
established that Yard Foreman Kane held a key to the
Respondent 's premises ; he (Kane) had recommended the
discharge of a number of employees who were in fact
discharged , Kane was assumed by the yardmen to be a
supervisor ; Kane was sometimes given the discretion by
Respondent to assign work to the yardmen ; Kane alone
had interviewed and had hired an employee ; and Kane
gave work instructions , announced wage increases to the
yardmen , told yardmen he was yard foreman and
supervisor of other yardmen whom he actually supervised;
and all of the foregoing evidence was uncontroverted and,
therefore , Kane was found to be a supervisor within the
meaning of the Act.
The record in this case is barren of any such evidence as
described in the above -cited RC case and , therefore, it is
not only inapplicable to, but also not controlling of, the
facts (Driscoll 's authority and duties) in the instant case.
The undisputed and credible evidence that Respondent's
(Manager Morris) interrogation of Driscoll and Smouse as
to who was responsible for the employees ' organizational
efforts, their strike, and Moms' statement to the effect that
he was no longer going to treat the employees fairly
because of their concerted or union activity , all constituted
threatening , restraining , and coercive interference with
employees Section 7 protected rights, and were therefore
violative of Section 8(a)(1) of the Act.
Respondent 's (Manager Morris') interrogation of Dris-
coll and Smouse about their organizational activities and
the identity of who was responsible therefor , also estab-
lished Respondent 's knowledge of Driscoll 's and his fellow
employees ' concerted or union activity . Consequently,
since the Respondent admitted and the credible and
undisputed evidence established that it discharged Driscoll
for participating in a strike against Respondent, on the
premise that Driscoll was a supervisor , the discharge of
Driscoll was discriminatory and violative of Section 8(a)(3)
of the Act , since it is well established by the evidence that
Driscoll was not a supervisor within the meaning of
Section 2( 11) of the Act.
At or near the conclusion of this proceeding , counsel for
the Respondent requested the Administrative Law Judge
to disqualify himself from further conduct of the proceed-
ing on the grounds of prejudice, and he requested a copy of
every recommended decision (NLRB) ever written by the
Judge to substantiate his allegation . Since counsel's
allegation of prejudice is unsupported by the record and
his motion for disqualification of the Judge was not made
in accordance with NLRB Rules and Regulations and
Statements of Procedure (Section 102 .37), it was not
granted during the proceeding and it is now herein denied.
Since all final decisions , opinions , and orders of the
Board are matters of public record and are available to the
public for inspection and copying , all recommended
NLRB decisions by me as Administrative Law Judge may
be obtained by counsel for Respondent in accordance with
the procedure outlined in Section 102 . 117 of the Board's
Rules and Regulations and Statements of Procedure.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies of
the Act.
It having been found that Respondent interfered with,
restrained , and coerced Michael Driscoll and its other
employees in the exercise of their Section 7 protected rights
in violation of Section 8(a)(1) of the Act, and it discharged
Michael Driscoll in violation of Section 8(a)(3) of the Act,
the recommended Order will provide that Respondent
offer him reinstatement to his job , and make him whole for
loss of earnings within the meamng and in accord with the
Board's decisions in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716,
except as specifically modified by the wording of such
recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any manner
interfering with, restraining , and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
N. L. R. B. V. Entwhistle Mfg. Co., 120 F.2d 532 , 536 (C.A. 4,
1941).
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Carter Lumber , Inc., the Respondent, is an employer
engaged in commerce within the meamng of Section 2(6)
and (7) of the Act.
2. Teamsters Local Union 654, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , is and has been at all times material
herein, a labor organization within the meaning of the Act.
3. By discriminating in regard to the tenure of
employment of Michael Driscoll , thereby discouraging
membership in the Union, a labor organization , Respon-
CARTER LUMBER, INC.
dent has engaged in unfair labor practices condemned by
Section 8(a)(3) and (I) of the Act.
4. By interrogating its employees Driscoll and Smouse
about their past and current union affiliation, and by
conducting a surveillance of their organizational efforts,
Respondent violated Section 8(a)(1) of the Act, except to
the extent that such rights may be affected by lawful
agreements in accord with Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) 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:
ORDERS
Respondent, Carter Lumber, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, coercing, or discriminat-
ing against employees exercise of their Section 7 protected
rights, by interrogating employees about their union or
concerted activities or threatening to treat them differently
on account thereof.
(b) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment, because of protect-
ed concerted activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Michael Driscoll immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position without
prejudice to his seniority or other rights previously
enjoyed, and make him whole for any loss of pay suffered
by reason of the discrimination against him with interest at
the rate of 6 percent, in the manner described in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of the recommended Order.
(c) Post at Respondent's Lumberyard #68 at Spring-
field, Ohio, copies of the attached notice marked "Appen-
dix.", Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing,
935
within 20 days from the date of receipt of this Order, what
steps the Respondent has taken to comply herewith.
6 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.
7 In the event the Board 's Order is enforced by a Judgment of the 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
WE WILL NOT coercively interrogate employees
about their and other employees' union membership,
activities and desires.
WE WILL NOT threaten to treat employees differently
on account of their concerted or union activity.
WE WILL NOT discourage membership in Teamsters
Local Union 654, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by discharg-
ing employees or otherwise discriminating in any
manner in respect to their tenure of employment or any
term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise and
enjoyment of rights guaranteed to them by Section 7 of
the National Labor Relations Act, except to the extent
that such rights may be affected by lawful agreements
in accord with Section 8(a)(3) of the Act.
WE WILL offer Michael Driscoll, immediate and full
reinstatement to his former position, or if such position
no longer exists, to a substantially equivalent one,
without prejudice to the seniority and other rights and
privileges enjoyed by him, and make him whole for any
loss of pay he may have suffered by reason of his
discharge, with interest at the rate of 6 percent per
annum.
All our employees are free to become, remain, or refuse
to become or remain, members of said Union or any other
labor organization, except to the extent that such rights
may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
CARTER LUMBER, 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 date of posting and must not be altered, defaced,
or covered by any other material.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any questions concerning this notice or compliance with Federal Office Building, Suite 3003, 550 Main Street,
its provisions may be directed to the Board 's Office , Cincinnati , Ohio 45202, Telephone 513-684-3686.