Crown Zellerbach Corp.

National Labor Relations Board - Board DecisionsAug 13, 1976

225 N.L.R.B. 911 (N.L.R.B. 1976)

CROWN ZELLERBACH CORPORATION 911 Crown Zellerbach Corporation and United Paper- workers International Union, AFL-CIO. Case 15- CA-5810 August 13, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On April 16, 1976, Administrative Law Judge Paul L. Harper issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and counsel for the General Counsel filed exceptions and supporting brief. Re- spondent filed an answering brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order to the extent consis- tent herewith. The complaint alleges and the Administrative Law Judge found that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Eugene Harper on August 29, 1975, because of Harper's ac- tivities on behalf of the Union.2 The Administrative Law Judge declined to find, however, that other con- duct alleged in the complaint, including the interro- gation of Eugene and Felton Harper and the grant of wage increases to woods crew employees, constituted independent violations of Section 8(a)(1) by this Re- spondent. For the reasons set forth below we dis- agree with the Administrative Law Judge's conclu- sions with respect to these additional violations of Section 8(a)(1). Respondent concedes that it was aware of union activity among its Joyce Managed Forest employees i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule 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 Respondent concedes that Eugene Harper was discharged, at least in part, because of his involvement in organizing activities Respondent argues, however, that at the time of the discharge Harper was a statutory supervisor and outside the protection afforded employees by the Act We agree with the Administrative Law Judge's finding that Eugene Harper was a rank- and-file employee and hence that his discharge for engaging in union activi- ty was unlawful for several months prior to the events that culminat- ed in the August 29 discharge of Eugene Harper and grant of pay raises to other company employees.' Harper testified that in March 1975 he mentioned to District Forester Wayne Horn that he had received a telephone call from a union representative. Harper's testimony indicates that he informed Horn of the telephone call because of a standing company ad- monishment to report any such contact to a supervi- sor. Shortly thereafter, in late March or early April, the Company called a meeting of salaried woodsmen, all of whom the Company apparently sought to des- ignate "supervisory" employees. At this meeting company officials voiced their opposition to the Union and urged employees to notify the Company if they were contacted by the Union. According to Harper, on the morning of this meet- ing he was called to the office of Respondent, Joyce Forest manager, Douglas Berlin, who asked for de- tails of his conversation with the union representa- tive. Subsequently, Harper was questioned by Berlin and Durwood Alford, Respondent's employee rela- tions manager. Harper testified that Alford asked "would I help with the Union, and asked would I give him names of the people, and I said, no, and he told me if he [the union representative] called back to pick him and find out what he was after-what he wanted, said, this is the kind of information we need, said, feed it back to your supervisor." Although Harper was contacted later by a union representative he did not report this to the Company. Rather, he became a union activist and was instru- mental in securing authorization cards in August from his fellow employees on the Chatham woods crew. Eugene Harper's brother, Felton, is employed by the Company on its woods crew at Tullos, Louisiana. Felton Harper, like his brother, was changed from a salaried to an hourly paid employee on June 1. On August 27, less than 2 weeks after Eugene Harper had signed a union card and solicited signed cards from the entire woods crew at Chatham, Felton was called into the Tullos office by District Forester Huey Lizanna. Assistant Forester Michael Bentley was also present. According to Felton Harper, Lizanna questioned him about his union sympathy and the union activi- ties of his fellow woodsmen. Lizanna drew from Fel- ton an admission that not only had he signed a union card but Eugene and the entire Chatham crew had signed cards. Felton was also questioned about a 3 Respondent's Joyce Managed Forest woods crews operate out of facili- ties located at Joyce, Chatham, and Tullos, Louisiana After June 1, Harper and other salaried woodsmen at these facilities were taken off salary and paid an hourly wage At the same time Eugene Harper was reclassified from "forest technician" to "leaderman " 225 NLRB No. 130 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union meeting among Tullos employees. Finally, in response to Lizanna's question concerning his motive for supporting the Union, Felton replied that he had been shown a sheet indicating higher union wages for the work he was doing. Respondent acknowledges that the day after this incident there was a meeting of company officials and supervisors at which the union activities of the Harper brothers was the topic of discussion. At this meeting it was finally decided to discharge Eugene, who apparently was considered the more active union proponent. The next morning, August 29, woods crew employees were assembled at the Chat- ham office where they were informed of new job titles and higher pay scales for all hourly paid woods crew employees. Eugene Harper was given the title "woods leader" and granted a pay increase of 75 cents an hour. At 4 p.m. the same day Eugene Har- per was discharged with the explanation, "you're not doing the job . . . you keep something stirred up all the time." As indicated previously, the Administrative Law Judge found that Respondent violated Section 8(a)(3) by discharging Eugene Harper. However, the Administrative Law Judge, apparently having over- looked Eugene Harper's direct testimony concerning his interrogation by company officials, stated that no evidence was offered in support of this 8(a)(1) allega- tion of the complaint and recommended its dismiss- al. Contrary to the Administrative Law Judge, and in- asmuch as the testimony of Eugene Harper set forth earlier herein is uncontroverted and plainly estab- lishes the unlawful nature of the interrogation con- ducted by Company Officials Berlin and Alford in late March or April 1975, we shall find and remedy that violation of Section 8(a)(1) as alleged in para- graph 9 of the complaint .4 Harper's uncontroverted testimony also establishes the existence of a company directive to employees to report to the Company any union contact. We find such a directive constitutes an additional violation of Section 8(a)(1) of the Act.5 See Value City Furniture of Springdale, Inc., 222 NLRB 455 (1976); Daniel A. Donovan, Charles Brennick and John Brennick, d/b/a New Fairview Hall Convalescent Home, 206 NLRB 688 (1973), enfd. 520 F.2d 1316 (C.A. 2, 1975), cert. denied 423 U.S. 1053 (1976). Because there is no fac- tual dispute as to the existence of the directive and its 4 Blue Flash Express, Inc, 109 NLRB 591 (1954), Hanes Hosiery, Inc, 219 NLRB 338 (1975) 5 In this connection we note the testimony of Respondent 's officials who acknowledged that such a directive was repeated at the conclusion of the company meeting attended by the Harper brothers and other company em- ployees in late March 1975 promulgation to employees, and because the issue was fully litigated and is intimately related to the subject matter of the complaint, we shall find and remedy this unlawful conduct even though it is not specifically alleged to be an unfair labor practice in the complaint. See Monroe Feed Store, 112 NLRB 1336 (1955); N.L.R.B. v. American Tube Bending Co., Inc., 205 F.2d 45, 46-47 (C.A. 2, 1953) (Judge Learned Hand); Ford Radio & Mica Corporation, 115 NLRB 1046 (1956), enfd. in pertinent part 258 F.2d 457 (C.A. 2, 1958). We also find a violation of Section 8(a)(1) predi- cated on District Forester Lizanna's August 28 inter- rogation of employee Felton Harper. Under the cir- cumstances here, even if we agreed with the Administrative Law Judge's suggestion that motive is a relevant consideration in the context of this alleged violation of Section 8(a)(1), we could not agree with the Administrative Law Judge's characterization of this incident as innocently motivated and isolated.' Were we to conclude otherwise we would have to ignore the fact that this incident was a blatant inter- rogation concerning not only the interrogated employee's union sympathy and activity but also the union activity of the employee's fellow workers. Nor can we be unmindful of the fact that this incident was the prelude to the events of August 29, which included the unlawful discharge of the employee identified during this interrogation as a leading union proponent.? We also disagree with the Administrative Law Judge's analysis of the circumstances surrounding the Company's August 29 grant of pay raises and with his ultimate conclusion that this action was not violative of Section 8(a)(1) of the Act. Thus, although the Administrative Law Judge suggests otherwise, we do not believe that we should discount the timing of these raises as a factor indicating Respondent's un- 6 In support of his conclusions , the Administrative Law Judge also re- marked on the absence of a specific threat or promise of benefit by Lizanna during his questioning of Felton Harper However , as this Board has point- ed out "the basic premise in situations involving the questioning of employ- ees by their employer about union activities is that such questions are inher- ently coercive by their very nature " P B and S Chemical Company, 224 NLRB No 1 (1976) 7 In passing we note that the sole defense to the allegations of unlawful interrogation raised by this Respondent is the claim that both the Harper brothers were supervisors within the meaning of the Act at the time these incidents took place Although the Administrative Law Judge found that Eugene Harper was not a supervisor when he was discharged on August 29, he failed to make a specific finding as to Eugene Harper's status prior to June I, 1975 Similarly, the Administrative Law Judge did not find it neces- sary to pass on Felton Harper's status on August 27 The alleged supervisory status of Eugene and Felton Harper was fully litigated by the parties and the record contains extensive testimony concern- ing their job functions, responsibility, and authority We have carefully ex- amined the record and we are satisified that at no time relevant hereto did either Eugene or Felton Harper possess or exercise any indicia of superviso- ry authority Accordingly, we find no merit in Respondent 's defense based on its claim that these two employees are or were supervisors within the meaning of the Act CROWN ZELLERBACH CORPORATION lawful motive merely because the Company "was quite aware of its employees' organizational efforts 5 full months" prior to the date of the wage increases. As the testimony of Respondent's officials makes plain, the Company harbored a longstanding concern about unionization and possessed general- ized knowledge of union interest among employees well before August 29. However, insofar as this rec- ord shows, only as a result of the unlawful interroga- tion on August 27 did Respondent learn that Eugene and Felton Harper and the entire Chatham crew had actually signed union authorization cards.8 Moreover, through this interrogation the Respondent also learned of the effectiveness of the Union's argu- ment that union adherence carried with it the prom- ise of higher wages. In these circumstances one would be hard put not to connect the events of Au- gust 27 with those of August 29, and to see in the grant of wage increases the Company's counter to the Union's organizational inroads. Nor does our finding that the grant of pay raises was unlawful rest solely on an inference drawn from the timing of the raises. As pointed out by the Gener- al Counsel, the August 29 raise deviated in almost every respect from the Respondent's usual practice. Thus in 1974 and 1975 the Company gave 30-cent across-the-board increases each June to the full com- plement of employees at its Joyce Managed Forest operation. Here, on the other hand, Respondent gave raises limited to the Joyce Forest woods crews, pre- cisely those employees being organized by the Union. Moreover, these raises averaged more than double the usual 30-cent across-the-board increase, amounting in some instances to as much as 82 cents per hour, and were announced at a special meeting of employees rather than, as in the past, by notices post- ed on the company bulletin board. We also find unpersuasive the Company's expla- nation that the August 29 increases were granted solely to keep pace with the rates paid by the Company's chief competitor, Olincraft Paper. Al- though Employee Relations Manager Alford, the company official purportedly responsible for wage comparability studies, testified that Olincraft granted large wage increases in June 1975, he was unable to testify as to the percentage increases which Olincraft allegedly granted its woodsmen or whether rates paid by Respondent to some of its hourly classification of woodsmen exceeded those paid by Olincraft. Nor did Alford explain why the Respondent waited 3 months before moving to meet the new Olincraft rates. Finally, we reject the Administrative Law Judge's 8 It appears from the record that the union campaign did not begin in earnest until early August Eugene Harper and his fellow woods crew em- ployees signed authorization cards on or about August 12 913 conclusion that the grant of pay increases here, even when coupled with the unlawful discharge of Eugene Harper, is not conduct that "tends to interfere with the free exercise of rights under the Act." We believe that by granting Harper along with its other employ- ees a pay raise on the morning of August 29 and then discharging Harper that same day in violation of Sec- tion 8(a)(3) of the Act, Respondent intentionally and irrevocably linked the raise and the discharge in the minds of its employees. Contrary to the Administra- tive Law Judge's suggestion, it is not always neces- sary for an employer to shout from the rooftops its power and willingness to reward or punish employees depending on their response to a union campaign. Indeed, we are satisified that only a remarkably ob- tuse employee would fail to see in this Respondent's grant of benefits and nearly simultaneous discharge of a leading union proponent the proverbial "fist in- side a velvet glove." N.L.R B. v. Exchange Parts Company, 375 U.S. 405, 409 (1964). In addition to modifying the Administrative Law Judge's recommended Order to conform with our ad- ditional findings of violations as explained above, we shall also rectify his inadvertent failure to make dis- criminatee Eugene Harper whole for any loss of other employee benefits, as well as pay. Further, in- asmuch as Respondent's conduct violates Section 8(a)(3), we shall enter a broad Order herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent Crown Zellerbach Corporation, Chatham, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging any employee because of mem- bership in and/or activity in behalf of United Paper- workers International Union, AFL-CIO, or any other labor organization. (b) Soliciting or directing employees to report union contact or activity. (c) Interrogating employees concerning their own union activities or the union activities of their fellow employees. (d) Granting wage increases to employees for the purpose of discouraging employees from exercising the rights guaranteed employees in Section 7 of the Act. However, nothing contained herein shall be construed as requiring Respondent to revoke any wage increase heretofore granted. (e) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed employees in Section 7 of the Act. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Jessie Eugene Harper immediate and full reinstatement to his job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privi- leges, and make him financially whole for any loss of pay or loss of other employee benefits resulting from the discrimination against him Such backpay shall be computed in accordance with the formula ap- proved in F W Woolworth Company, 90 NLRB 289 (1950), with interest computed in the manner pre- scribed in Isis Plumbing & Heating Co, 138 NLRB 716, 717-721 (1962). (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 this Order. (c) Post at its facilities in Chatham, Tullos, and Joyce, Louisiana, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's repre- sentative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 'In the event that this 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminatorily discharge any employee because of membership in and/or ac- tivity in behalf of the United Paperworkers In- ternational Union, AFL-CIO, or any other la- bor organization. WE WILL NOT interfere with the right of em- ployees to engage in protected concerted activity by interrogating them about union activity. WE WILL NOT grant wage increases to our em- ployees to discourage their exercise of the rights guaranteed them in Section 7 of the Act. WE WILL NOT solicit or direct employees to re- port if they are contacted by a union or to report union activity among their fellow employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer Jessie Eugene Harper immedi- ate and full reinstatement to his formerjob or, if that job no longer exists, to a substantially equivalent position, without prejudice to his se- niority or other rights and privileges. WE WILL make Jessie Eugene Harper finan- cially whole with interest for any loss of pay or loss of any other employee benefit suffered as a result of the discrimination against him. CROWN ZELLERBACH CORPORATION DECISION STATEMENT OF THE CASE PAUL L. HARPER, Administrative Law Judge: Hearing in this case was held January 26 and 27, 1976, in Monroe, Louisiana. Complaint was issued October 21, 1975, alleg- ing violations of Section 8(a)(1) and (3) of the National Labor Relations Act. All parties were represented and par- ticipated at the hearing Briefs have been filed by the Gen- eral Counsel and Respondent and have been duly consid- ered, as has the entire record, in reaching the findings and conclusions herein. Issues (1) Whether Eugene Harper is a supervisor within the meaning of the Act as contended by Respondent, or a rank-and-file employee as contended by the General Counsel and Union. If found to be the latter, Respondent concedes, pursuant to stipulation of the parties, that Har- per was terminated, at least in part, because of his union membership and activity, in violation of Section 8(a)(3) of the Act. If found to be a supervisor within the definition of the Act, all parties are in agreement that no violation of the Act has been incurred. (2) Whether or not Respondent engaged in interroga- tion of its employees concerning their union membership and activity; and whether or not Respondent promised and then granted wage increases to its employees to induce them to refrain from becoming members of the Union or otherwise active in the Union, all in violation of Section 8(a)(1) of the Act. CROWN ZELLERBACH CORPORATION 915 FINDINGS OF FACTS 1. BUSINESS OF RESPONDENT Respondent is a corporate enterprise engaged in forestry and related activities. Respondent's Joyce operations of its Southern Timber and Wood Products Division, located at Joyce, Chatham, and Tullos, Louisiana, are the only opera- tions involved herein. Respondent has been so engaged since on or about July 1, 1974, when it bought out Tree- mont Lumber Company. During a representative period, Respondent has made out-of-state purchases and sales, each in excess of $50,000. Respondent admits, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Re- spondent also admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Discharge of Eugene Harper Eugene Harper was employed by the Respondent when it took over the operations of Treemont Lumber Company on or about July 1, 1974. He was discharged on August 29, 1975. As stated above, the sole issue regarding the dis- charge is whether or not Eugene Harper was a supervisor. Respondent contends that he was. The General Counsel and Union contend that he was not. According to Eugene Harper he had been under the su- pervision of Wayne Horn, area forester, about 3 years at the time of his termination. He was employed at the Chat- ham facility along with nine or ten other individuals. He first learned about his discharge around 7 a.m., on August 29. There had been no prior indications or warnings. He learned about his discharge from his supervisor, Wayne Horn, during a meeting with the other employees in the Chatham group. Harper testified as follows. That Horn told the group that the Respondent had been surprised upon learning about wage increases recently given by com- petitors in the area and therefore "we're coming up with new job titles and some raises.. ." Horn told Harper "you're now classified as woods leader, and you make $5.00. " (a raise of 75¢ from $4.25 an hour). Others were given raises and some were given new job titles. At the time of his discharge, according to Harper, there were seven hourly rated employees. The raises were announced on Friday to become effective the following Monday. Eu- gene Harper, however, was terminated about 4 p.m., the same day the raises were announced, i.e., on Friday, Au- gust 29, 1975. Lee Garr, assistant forester at the Chatham facility, was present with Wayne Horn and Eugene Harper at the discharge interview. Harper testified that Horn ad- vised him of his discharge stating "that it would be in the best interest of Crown Zellerbach" and when asked to ex- plain, stated it was Harper's "attitude," "you're not for Crown Zellerbach," "you're not doing the job," "you keep something stirred up all the time." Harper replied, "[W]ell, I know what it is. It's the Union." His termination notice (G.C. Exh. 2) carried the legend: "Unsatisfactory perfor- mance. Failure to properly perform his duties and func- tions." B. The Supervisory Question 1. Evidence in support of General Counsel's position In support of its position General Counsel presented the testimony of Eugene Harper, Lloyd Chatham, Roy Mos- ley, Lloyd Mosley, and Felton Harper. On or about June 1, 1975, according to Eugene Harper, his method of pay was changed from a monthly salary basis (with overtime provi- sions) to that of an hourly rate basis. At the same time benefits enjoyed while on a salary basis were reduced, in- cluding loss of dental insurance; 80 percent medical and hospital benefits instead of 100 percent as salaried; loss of privilege of certain stock purchase options granted to sala- ried employees; and about a $30 per month reduction in take-home pay. Harper also testified that at this time his duties and responsibilities changed "significantly." Thus, he stated "we started a new kind of cruise" and Mr Horn, his immediate supervisor, told him "that from now on, your job will be primarily cruising." During his last 3 months of employment with Respon- dent, from about June 1 when he was put on an hourly rate basis to his date of discharge on August 29, he spent all but about 1 week in the new cruising operations. Such cruising functions included briefly the following: Taking inventory of standing timber in a given area, including measuring tree diameters and heights, all with the use of maps, com- pass, angle gauges, loggers tape, and other instruments, and recording all such information on record forms of the employer. Usually in performing such functions Harper worked with one other employee, occasionally two. On ev- ery occasion District Forester Wayne Horn determined the area to be inventoried and furnished the maps, instru- ments, and records. According to Harper all Chatham, Louisiana, hourly rated employees reported to Wayne Horn or L.B. Mosley for sick leave, time off for personal reasons, and for supervision in general. Sometime in September 1974, long before he was placed on the cruising operation on an hourly rate basis, Harper testified he had an occasion to test any possible supervisory authority he might have thought he had. This occasion in- volved a crew member, Roy Mosley, who, towards the end of a workday, expressed his intention of leaving the job an hour or so before quitting time Harper apparently consid- ered himself in charge of the operation and told Mosley if he left the job he would fire him Mosley retorted that Harper "couldn't fire a box of matches." Nevertheless, Mosley remained until quitting time. Harper reported the incident to Horn after work the same day. Horn, according to Harper, told him he did not have authority to fire but he could make such recommendation to him and he would take the matter up with a higher authority. The next day Horn called a meeting of the Chatham employees and in- formed them that Eugene Harper had no authority to fire but could recommend such action to him and he would "check into it, and if I approve it, will be carried higher." In regard to receiving daily instructions from Horn the testimony of Eugene Harper is corroborated by that of Lloyd Chatham. Also with respect to the so-called argument between 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harper and Mosley the testimony of Harper is corroborat- ed by that of Mosley. Further, Roy Mosley testified, as did Harper, that Horn called a meeting the following day and told the employee group "that Eugene could not hire or fire anyone . . . he could recommend that you be fired, but it would be up to him, and Clocksm, Berlin and Quitta, if you were fired." Lloyd Mosley's testimony in this connec- tion corroborates that of the other employee witnesses. 2. Evidence in support of Respondent's position In support of its position that Eugene Harper was, at all times material herein, a supervisor within the meaning of the Act, Respondent presented the testimony of Wayne Horn, district forester of the Chatham area and immediate supervisor of Eugene Harper, Duane B. Clocksin, general manager of the Southern Timber Wood Products Division, James Quitta, chief forester of the Joyce Managed Forest supervising the three forest areas herein involved- name- ly, Chatham, Tullos, and Joyce, all towns within the State of Louisiana-and Durwood Alford, employee relations manager for the southern wood products group. Horn testified that, having learned of the Union's orga- nizational efforts among the employees in the woodlands section of the three areas (Chatham, Tullos, and Joyce) under the Joyce Managed Forest Division of Respondent, a supervisory meeting was held sometime in March 1975. Some 20 or so supervisors attended. Eugene Harper was present. At this time he was on a straight monthly salary. The supervisors at this meeting were instructed regarding their proper roles during the union campaign, specifically "that they could not join and could not push the union." On or about June 1, 1975, the wage basis of a number of salaried employees in the Joyce operation was changed to an hourly rate basis. Horn and Chief Forester Quitta met with Harper and "informed him of the change, and that his duties would not change." His title, however, according to Horn, was changed from "forest technician" to "leader- man." Harper's job description (Resp. Exh. 1) t was pre- pared in part by Harper and in part by Horn and main- tained in the latter's office files. In conjunction with such job description, Horn testified Harper's duties included su- pervising timber marking and checking on independent contractors (cutting poles, logs, and pulpwood). He also testified Harper had the authority "to instruct the contrac- tor in what he should do" and that he supervises burning operations during which he would ordinarily have "four to six men" under his supervision Horn recalled the incident involving Roy Mosley. Mos- ley had wanted to leave the job early and Harper refused permission. The following morning Horn called a meeting of the Chatham crew and told them the reason he "had it [the meeting] in front of the whole crew was because Roy Mosley had seen fit to disobey his supervisor in front of all of them, so I felt like he should be called down in front of the crew . . . [so] that Roy Mosley would not again dis- obey a supervisor. If he was, he would be fired, but that Eugene Harper did not have the authority to fire him, but if he brought him in again, he would be fired." Horn testi- fied that after the March 1975 meeting of supervisors Eu- gene Harper made it known to Respondent's officials that he had been contacted by Union Representative Shelby Phillips, but it was not until sometime in August 1975 that the Respondent learned Eugene Harper "was actively or- ganizing the men in his crew." Harper was discharged on August 29, 1975, admittedly, in part, because of such activ- ities. Duane B. Clocksin, general manager of Respondent's Southern Timber Products Division, testified that it was his decision to reclassify certain positions, including that of Eugene Harper, from a salary to hourly base; that he did so for cost control purposes and no other reason; and that the duties and responsibilities of those individuals affected were not altered in any manner. Further, that an effort was made to see that nobody was "financially injured" in mak- ing the transition from salary to an hourly wage basis. In describing the supervisory hierarchy, Clocksin testified that the forest technician ranked higher than the woods leader; that the title "woods leader" was adopted to replace that of "leadermen" in order to erase the confusion between the woodland and mill groups since there was a "leader" posi- tion in existence in the mills; that Eugene Harper had been reclassified on or about June 1, 1975, from "forest techni- cian" to "leaderman" and at the same time changed from a salary to an hourly rate basis; that on August 29, 1975, Eugene Harper was again reclassified from "leaderman" to that of "woods leader," but his wage rate was raised from $4.25 to $5 an hour, without change of duties or responsi- bilities; and that about 4 p.m., on the same day, i.e., Au- gust 29, 1975, Eugene Harper was discharged. James Quitta, chief forester at the Joyce Managed For- est, is the immediate supervisor of the area or district for- esters (Joyce, Chatham, and Tullos). With respect to the March 1975 supervisory meeting at which the "duties and responsibilities of supervisors were discussed, with particu- lar reference to their attitude toward unions," Quitta's tes- timony corroborates that of Clocksin and the other wit- nesses presented by Respondent. In regard to the change from salary to hourly wage basis of payment Quitta testi- fied he, along with District Forester Horn, discussed this changeover with Eugene Harper, explaining to him "his responsibilities would be the same as they had been earlier in years past." Quitta acknowledged that he had prepared the typed "final copy" of Harper's job description; that in preparing this job description he had "the benefit of a handwritten job description . . . submitted by Mr. Eugene Harper"; that he supplied certain portions of the document that Harper had omitted, namely, "basic function of posi- tion," the average percentage of time spent on each func- tion, contacts with "logging system supervisor," "timber marking crew chief," "crew chief," and "adjoining land- owners." The "final copy" prepared by Quitta carried the notation regarding the number of employees supervised as "Eight: During planting season-25 temporary." Concluding Findings 1 Resp Exh 4 is a typewritten description of Harper's duties, at some but significant variance with Resp Exh I Section 2(11) of the Act defines the term "supervisor" as CROWN ZELLERBACH CORPORATION "any individual having authority, in the interest of the em- ployer, 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 connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." (Emphasis supplied.) It is clear that in the case of Eugene Harper it is essential to deal only with the emphasized portion of the above stat- utory definition of "supervisor." Composite testimony in this record clearly establishes that Harper has met no other indicia of supervisory status. Thus, the question to be re- solved is whether, in performing his duties and responsibil- ities, he could or did effectively recommend a change in status of employees under his direction, thereby lending responsibility to such direction, if in exercising such au- thority it was not of a routine or clerical nature but re- quired the use of independent judgment. Respondent contends that Harper's duties and responsi- bilities remained the same throughout his tenure with the Employer. The facts, however, belie such contention. The evidence establishes that on or about June 1, 1975, Harper's status was materially altered. His wage rate was changed from a salary to an hourly rate basis of pay; his net take-home pay was admittedly reduced by about $30 per month; his title was changed from forester technician to that of leaderman or leadman; and his benefits and priv- ileges previously enjoyed were considerably reduced, e.g., dental benefits lost entirely, medical reduced from 100 per- cent coverage to 80 percent, and use of the company vehi- cle for personal use was lost completely. There is also no question but that Harper lost the last vestiges of superviso- ry authority, if indeed he possessed any beforehand, which I doubt. Even according to the testimony of Respondent's chief executive officer of the Joyce operations, Duane Clocksm, the job of "leaderman" is subordinate to that of "forest technician," despite the contradictions in this re- spect contained in his testimony. Also it is noted here, ac- cording to Clocksm, the change in title from "leaderman" to "woods leader" and the hourly wage increase made on August 29, the day Harper was discharged, did not consti- tute a promotion or any change of Harper's duties or re- sponsibilities. Clocksin testified as follows: Q. So, the woods leader would report to the forest technician, not the other way around. A. Oh, yeah, that's true. The woods leader would report to the technician if that case were open. Moreover, Clocksin testified that the chief timber mark- er, who also operates with a crew of several employees, is not considered a supervisor although he acknowledged the operation of timber marking is "an important job"-"it is practically our bread and butter of our operations." Clock- sin also testified that the responsibilities of chief timber marker and woods leader are "parallel" but in a showdown the woods leader would have the greater responsibility. Horn testified that the chief timber marker, as in the case of the woods leader, "is responsible to see that the crew does not sit down, that they work " Furthermore, according to the testimony of Harper, he 917 was told at the time of such changes, or on or about June 1, that he would thereafter perform mostly "cruising" opera- tions; that, in fact, during the period from June 1 to his termination on August 29, except for about 1 week, he actually performed only such duties; and that in perform- ing such duties, he normally worked with only one other individual. Sometimes, if that other individual was more experienced and senior in job tenure, that other person would be in "charge" of the operation. Conversely, if the other person was junior in seniority and experience, Har- per would be in "charge." Wherever Respondent' s witness- es testified that such changes, which are documented and largely admitted, did not also alter Harper's duties and/or responsibilities, such testimony is discredited. Based on all the testimony of record, I find that Eugene Harper, prior to June 1, 1975, did perform a multitude of duties, including marking timber to be cut into logs, poles, and pulpwood; supervised the burning of certain areas of woodland designated by the district forester and recorded on area maps; inventoried certain woodland areas (cruis- ing operations) including measuring of tree diameters, height, and condition; planted and supervised the planting of trees; and performed other incidental functions. In per- forming such duties Harper was accompanied and aided by a crew of several employees. While I do not consider Harper's duties and responsibili- ties prior to June 1, 1975, controlling of the issue of wheth- er or not he was a supervisor at the time of his discharge on August 29, 1975, I find that during the period he was em- ployed by Respondent from on or about July 1, 1974, when Respondent took over from Treemont Lumber Company, to June 1, 1975, when Harper's status was materially al- tered, he possessed none of the indicia of a supervisor as defined in the Act. I base this finding on the fact that Harper's direction of other employees, the little, if any, that existed, was entirely routine in nature, being merely con- ductive of instructions given him by his immediate supervi- sor. During his entire employment with Respondent there was only one significant incident that occasioned any test of Eugene Harper's alleged supervisory authority. This was the episode between Harper and Roy Mosley sometime in September 1974 when Harper, apparently at that time thinking he was vested with supervisory authority, told Mosley he would be fired if he left the job before quitting time. Although Mosley remained until quitting time Har- per reported the incident to Horn who, the next day, called a meeting of the employees. Harper, corroborated by Mos- ley, testified that Horn told the group Harper did not have authority to fire but could recommend such action which would then be taken up with higher authority. Horn testi- fied that he told the group the same thing but added that if such an incident occurred again Mosley would be fired, indicating Harper could at least effectively recommend such action, and that he addressed the group in this man- ner as a reprimand and warning to Mosley. Mosley testi- fied he did not consider Horn's remarks, as he recalled them in his testimony, to be a reprimand or warning. On the contrary he seemed to emphasize that portion of Horn's remarks in expressing the limitations of Harper's assumed authority. The testimony of Harper and Mosley, 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which I credit over Horn's, is also buttressed by the fact that Harper's discharge followed the exact pattern de- scribed in their testimony. It was Clocksin, in consultation with only top management officials, who made the deci- sion to discharge Harper. Supervisory authority cannot be estimated by such a single incident. Moreover there were several other minor incidents where Harper made recom- mendations which were either disregarded entirely or car- ried no weight with management officials. Respondent argues in its brief, correctly, that a person with authority "responsibly to direct" other employees, without having other supervisory authority, is nevertheless a supervisor, citing Ohio Power Co. v. N.L.R.B., 76 F.2d 385, 387-388 (C.A. 6, 1949). I find this case factually dis- tinguishable from the subject case. In the cited case the court stated. "Each control operator is charged with the responsible direction of the generating unit and the men under him. With some minor exceptions he handles the entire operation of the plant " "That power responsibly to direct exists here is uncontradicted. [Not so in the subject case.] The control operator at all times responsibly directs the assistant control operator and the auxiliary equipment operator. He has authority in time of emergency to requisi- tion any men on the spot, in fact, to direct the activities of substantially all the employees at the Tidd Plant, and has on various occasions used this authority." The following portion of the testimony of record in Ohio Power is quoted at 386: Q. And it is necessary for him to make decisions on the spot9 A. Particularly when there are emergencies, but in a routine way as to various adjustments. Q. But he has to do those things on his own initia- tive? A. He makes those decisions on his own initiative. Q. And the decisions which he makes are such as to control the operation of the entire unit9 A. That is correct. Q. And thereby they control the entire output of the plant as it is now constituted? A. That is correct It is thus clear that the control operators in the cited case were invested with considerably more responsible direction of other employees than was possessed by Eugene Harper either as forest technician when he routinely directed the activities of several employees, or as leadman during the last 3 months of his employment with Respondent when he worked with only one other individual with even less au- thonty, if any at all, to direct others. Respondent continues its argument in this respect, stat- ing in its brief that Respondent, in the management of its 70,000-acre forest, "must employ some professional forest- ers and technicians who never actually direct the manual labor of the men in the field." Thus, it would seem Respon- dent agrees that Eugene Harper, when employed as a forest technician prior to June 1, "never actually direct[ed]" the work of other employees. On June 1 Harper's title was changed from "forest technician" to that of "leaderman" or "leadman." However, all of Respondent's witnesses em- phasized in their testimony that, notwithstanding the change from salary to hourly rate, etc., Harper's duties and responsibilities remained unchanged. Therefore it is clear that on June 1 he was not given any more authority than he already possessed. Following up its argument noted above, Respondent, in its brief, stated "It is equally clear that the woods leaders, such as Felton Harper, supervise the manual labor in the field, dust as Felton was supervising the planting crew at the time of the hearing." There are several fallacies to this part of Respondent's argument as well. In the first place the testimony does not establish that Felton Harper and Eugene Harper had identical duties and responsibilities. In fact the contrary is more nearly the truth of the matter. However, even if it had been established that Felton Har- per was a supervisor, it still would not necessarily follow that Eugene Harper was also a supervisor Furthermore, notwithstanding Respondent's contention that Eugene Harper's responsibilities remained unchanged on both June 1 and August 29, it is clear that he had no opportunity to function as a "woods leader" since he was fired on the same day he was given the title as well as the 75-cents-an- hour raise in pay. Based on the above considerations, I find that Eugene Harper, at all times material herein, was not a supervisor within the definition of the Act, and therefore entitled to all the rights and protection of the Act. I find that prior to June 1, 1975, Eugene Harper did, in fact, perfunctorily di- rect the work of other employees, but that such direction was of a routine or clerical nature, mostly merely trans- mitting directions from higher authority, and that such routine direction did not require the exercise of indepen- dent judgment. I further find that on June 1, 1975, Eugene Harper's status with Respondent was significantly altered, i.e, his method of pay was changed from a salary to an hourly rate basis; fringe benefits in a significant manner were reduced and some of them lost completely; certain privileges normally accorded supervisory personnel abol- ished; and his net earnings reduced From such undisputed facts I find that whatever alleged supervisory authority Eu- gene Harper may have possessed before June 1, 1975, such reduction in status noted above effectively divested him of the last vestiges of such alleged authority. Therefore, dur- ing the last 3 months of his employment while performing "cruising" duties and working with only one other individ- ual and not directing the work of any other employee, it is clear, and I find, that Eugene Harper possessed no indicia of supervisory authority within the definition of the Act. Accordingly, I find that by discharging Eugene Harper, an employee, on August 29, 1975, admittedly, in part, because of his membership in and/or activity on behalf of the Union, Respondent thereby violated Section 8(a)(3) of the Act. C. The Alleged Violation of Section 8(a)(1) General Counsel contends that the raises and reclassifi- cations on August 29, 1975, were made by Respondent for the purpose of discouraging the employees of the Joyce Managed Forest from supporting the Union. Apart from the admitted fact that such raises and reclassifications were made, the General Counsel produced no evidence to sus- CROWN ZELLERBACH CORPORATION 919 tam the allegation of unlawful conduct. The thrust of Gen- eral Counsel's theory is that "the timing, the excessive amount, the deviation from established past patterns, the special announcement meeting, the narrow application of these changes to the employees being organized, and the suddenness of the changes, are all factors which indicate that the pay increases of August 29, 1975, were violative of Section 8 (a)(1)." In advancing such a theory, counsel for the General Counsel apparently assumes his assertions are bottomed on evidentiary proof thereof. I find, however, no such eviden- tiary proof in the record. As to the timing, the record shows that at least as early as the meeting on March 27, 1975, Respondent was quite aware of its employees' organiza- tional efforts and instructed its supervisory personnel ac- cordingly. This was 5 full months before the alleged unlaw- ful raise and reclassification action. I find no merit to this contention by the General Counsel. Regarding deviation from established past patterns, there is nothing in the record beyond the bare assertion in General Counsel's brief. Of course, the August 29 raises were selective in nature and therefore in that respect differ- ent from the across-the-board raises made earlier. But there is no evidence in the record to show that the different na- ture of the raises on dust these two occasions had anything to do with the employees' organizational activities. Nor does the selection of those persons raised and reclassified reveal any connection with the Union. The Respondent effectively explained its reasons to grant such increases, i.e., its effort to bring in line its pay rates to more nearly conform with that of its competitors. Even in those cases cited by the General Counsel to sup- port its theory, e.g., Burkley Envelope Company, 165 NLRB 43, 47 (1967), the Board stated, inter alia, "the test which is applicable is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of rights under the Act." Here the record is absent evidence of any such alleged conduct. Even in its discharge of Eugene Harper, Respondent acted with dis- cretion, taking the precaution not to publicize in any man- ner the real reason for its action, i.e., the union activities of an individual it considered to be one of its supervisors, thereby insulating any possible impact such action may have had on other employees Again, in Spotlight Company, Inc, 188 NLRB 819 (1971), also stated by the General Counsel, the Board stated that the illegality of the timing of pay increases hinged on the presence of other acts of interference, which is totally lack- ing in the subject case. I find the evidence in this record insufficient to support the allegation contained in para- graph 10 of the complaint that Respondent, on or about August 29, 1975, offered, promised, and granted to its em- ployees substantial wage increases for unlawful purposes. Accordingly, I recommend this portion of the complaint be dismissed. Paragraphs 8 and 9 of the complaint allege unlawful in- terrogation on or about August 27 and April 16, respective- ly. Apparently the General Counsel has abandoned its con- tention of unlawful conduct with respect to paragraph 9 of the complaint since no mention is made of this allegation in its brief and no evidence was offered in support of this allegation. Accordingly, I recommend that paragraph 9 of the complaint be dismissed. The only remaining alleged unlawful interrogation con- cerns a conversation between Felton Harper and his super- visor, Huey Lizanna, on or about August 27, 1975, in Lizanna's office. According to Felton Harper, Lizanna asked him if he had signed a union card and when Harper replied in the affirmative, asked who else had signed such cards. Harper told Lizanna that his brother, Eugene, had signed a card and "all the Chatham crew had signed." Li- zanna responded that he thought Harper "was agin the union," whereupon Harper stated that he was until he had seen a document shown him by Union Representative Phillips, revealing the union pay scale There is no evidence that Lizanna made any threats or promises to Harper; nor is there any evidence Lizanna thereafter utilized such infor- mation for any purpose, much less an unlawful purpose. Account must also be taken of the fact that the work units involved herein are quite small and closely knit and most employees and supervisors are friends and acquaintances of long standing. Moreover, the record clearly establishes that the Respondent took cautionary measures to guard against this very type of conduct on the part of its supervi- sors, and this one conversation is clearly an isolated inci- dent. It must also be noted that at the time of the conversa- tion Lizanna was under the impression he was discussing such matters with another supervisor. Based on the above considerations, I find this one isolat- ed incident of simple interrogation, in the context of all the circumstances involved herein, not to constitute coercive interrogation in violation of Section 8(a)(1) of the Act. Re- spondent considered Felton Harper, as well as his brother, Eugene Harper, a supervisor and as such a part of the management team. This fact, in my view, somewhat molli- fies what might otherwise be considered an unlawful inten- tion on the part of Lizanna. Even so, assuming there is no question concerning Felton Harper's status and that he is an employee, I find nothing coercive, no threat of reprisal or promise of benefit, in the content of Lizanna's remarks. Accordingly, I recommend paragraph 8 of the complaint be dismissed. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization , all within the meaning of the Act. 2. By discriminating in regard to the tenure of employ- ment of Jessie Eugene Harper, the Respondent has en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. The Respondent has not violated the Act as alleged in paragraphs 8, 9, and 10 of the complaint, or in any manner not specifically found herein 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.]