National Beauti-Log Cedar Homes, Inc.

National Labor Relations Board - Board Decisions

May 6, 1977

229 N.L.R.B. 486 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Beauti-Log Cedar Homes, Inc. and John
Lloyd Krueger. Case 20-CA-10636
May 6, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On January 25, 1977, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, National Beauti-
Log Cedar Homes, Inc., Stockton, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
October 14, 1976, I conducted a hearing at Stockton,
California, to try issues raised by a complaint issued on
July 15, 1976, pursuant to a charge filed by Krueger on
September 18, 1975.1
The complaint alleged that National Beauti-Log Cedar
Homes, Inc.,2 violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (hereafter
called the Act), by discharging Krueger because of his
membership in or activities on behalf of Local 266, Delta
I Read 1975 after all date references omitting the year.
2 Hereafter called the Company.
I Hereafter called the Union.
229 NLRB No. 82
Yosemite District Council of Carpenters, AFL-CIO,3 or
because Krueger engaged in other protected, concerted
activities. The Company conceded it discharged Krueger
but denied a discriminatory motivation and affirmatively
alleged at times pertinent Krueger was a supervisor within
the meaning of the Act and therefore not within its
protection.
The issue is whether Krueger was a supervisor at times
pertinent and, if not, whether he was discriminatorily
discharged.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine
and cross-examine witnesses, argue, and file briefs. Briefs
have been received from the General Counsel and the
Company.
Based upon my review of the entire record, observation
of the witnesses, perusal of the briefs, and research, I enter
the following:
FINDINGS OF FACT
I. JURISDICTION
At times material the Company, a Pennsylvania corpora-
tion, was engaged in the manufacture and sale of cedar
precut homes in the State of California. The Company
conducted its operations from a plant and office located in
Stockton, California. The Company admitted in its answer
that during the previous calendar or fiscal year it sold and
shipped products manufactured by it, valued in excess of
$50,000, directly to customers located outside the State of
California. Based upon the foregoing, I find and conclude
that at times material the Company was an employer
engaged in commerce in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
In the course of the hearing, the parties stipulated that
Local 266 was a member of the Delta Yosemite District
Council of Carpenters, AFL-CIO, and that the District
represented its local union affiliates for the purpose of
bargaining on behalf of their members with the employers
of those members concerning wages, rates of pay, hours,
and working conditions.
On the basis of the foregoing stipulation, I find and
conclude that at all times pertinent Local 266, Delta
Yosemite District Council of Carpenters, AFL-CIO, and
the District Council were labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
The Company was formed in November 1972 and began
production in April 1973. It was organized by Paul
Purpura, its president and general manager, and Gilbert
Hall, its secretary-treasurer. 4 Purpura previously was in the
4 I find at all times material Purpura and Hall were supervisors and
agents of the Company acting on its behalf.
486
NATIONAL BEAUTI-LOG CEDAR HOMES, INC.
same business in Windsor, California, and, when he
commenced operations of the Company, brought Krueger
over with him from the Windsor plant as superintendent of
the Company's production operations. Krueger at all times
was a working superintendent, performing the key function
of layout man in addition to receiving materials, arranging
deliveries of the finished products, and directing produc-
tion activities. 5 The Company utilized four or five employ-
ees in its production operations, 6 including the matcher
operator and layout man.
In May 1974 Purpura relieved Krueger of his position as
plant superintendent, replacing him with William Lamb-
rich, the operator of the matcher. From that date on,
Lambrich interviewed, hired and fired employees, and
exercised overall supervision of production and shipping
operations. He also authorized overtime or time off.
Krueger continued to perform all layout work, to train new
employees, to check the work of other employees, to see
their work conformed with his layouts, to inspect the final
product, and to direct the loading or unloading of trucks or
boxcars. 7
Lambrich was a working supervisor, since he operated
the matcher besides performing his duties as plant
superintendent.
While Krueger lost his position as plant superintendent
in May 1974, he continued to receive the same salary he
previously received and was neither placed on an hourly
rated basis nor required to punch a timeclock.8 Krueger
was not paid overtime after his demotion nor reduced in
salary for time absent from work due to illness, etc.
Following his demotion, Krueger's relations with Lamb-
rich and the other employees became strained; Krueger
from time to time ignored or defied Lambrich's directions,
and either refused to answer other employees' questions
about how to perform their work (telling them to see
Lambrich) or misdirecting them; he also refused to take
any responsibility for production problems or errors. He
also caused a problem for Purpura with the lessor of the
plant premises in March 1975, when the manager of the
premises where the Company's office and plant were
located discharged Krueger as night watchman for the
complex and demanded that Purpura limit Krueger's
presence on the premises to working hours.9
Purpura lent Krueger the $200 he paid to the tenant for
his loss and was indulgent concerning Krueger's conduct
s Including the hirng and training of production employees.
6 Cedar logs were run through a machine called a matcher which planed
their surfaces and cut a tongue, groove and beveled edge; the layout man
determined how many pieces were required to fill each order, and marked
the logs for length and notches. The requisite number of logs were then cut
to the desired lengths and notched. Gables, purlins (roof beams), windows,
and doors were also cut and assembled for each order. When all the pieces
were completed, they were inspected and, if correctly made, bundled
together for shipment.
I These findings are based on the undisputed testimony of Lambrich,
whom I find at times pertinent was a supervisor and agent of the Company
acting on its behalf.
I The two or three production employees (other than Lambrich and
Krueger) were hourly rated and punched a timeclock.
9 Krueger was discovered dismantling property belonging to another
tenant within the premises, which was a 22-acre industrial complex
containing numerous buildings. (The Company rented one-half of one
building and offices in another.) Krueger settled the tenant's complaint by
paying $200 to him and conveying certain property over to him.
'0 Three weeks before Krueger's discharge Purpura responded to
vis-a-vis Lambrich and his fellow employees over the May
1964-March 1965 period. He also testified that Krueger
was highly skilled as a layout man and functioned well in
that job. He and Krueger maintained a close and friendly
relationship. 10
Employee interest in the Union began in late June or
early July. Krueger was the Union's most active supporter
among the employees, though he aroused resentment
among the other employees 1" by stating that if they did not
support the Union he would cause the loss of all their jobs
by quitting. 2
The day prior to the election, Hall informed Krueger that
he was not eligible to vote in the election. Krueger
nevertheless voted and his vote was challenged by the
Company.' 3 Purpura's resentment at Krueger's casting a
ballot was expressed the following day when Purpura
approached Krueger in the plant and told Krueger that if
he didn't think he was a supervisor, Purpura did not have
to rely on him for layout work either.
The second day after the election (August 13) the
employees (other than Krueger) sought out Purpura and
expressed their resentment against Krueger. They told
Purpura that Krueger should not have been allowed to cast
a vote and that Krueger twisted their arms to secure their
vote for the Union; 14 that Krueger refused to answer their
questions concerning their work or misdirected its perfor-
mance; and that they were not going to work until Krueger
was discharged or things straightened out.
After the employees left, Purpura consulted with Hall
and instructed Hall to discharge Krueger. In accordance
with Purpura's instructions, Hall went from the office to
the plant, approached Krueger, and told Krueger to get his
things together, he was no longer working for the
Company, commenting "after all your friend has done for
you, you have to bring the Union down on him." s
When Krueger subsequently filed for unemployment
compensation, the Company contested the claim on the
grounds that Krueger was discharged for insubordination.
This defense was rejected and payment of unemployment
compensation to Krueger was directed.
Analysis and Conclusions
While Krueger continued in a salary status after his
demotion, he ceased to interview, hire or fire employees,
Lambrich's demand he be relieved of supervisory duties due to Krueger's
noncooperation by telling Lambrich he would "straighten out" Krueger.
"t Aubrey, Bernstein, and Van Hook.
12 Krueger took the position that without his services as layout man the
Company could not operate.
13 All three employees who voted without challenge cast ballots for the
Union. The Company's challenge to Krueger's ballot was overruled and a
finding made that he was not a supervisor (Case 20-RC-12901).
14 While Bernstein wavered back and forth in his testimony, at several
points stating that at some times he so advised Purpura several days after
August 13, 1 credit his testimony, in response to my direct questioning, that
he and Van Hook so advised Purpura on August 13, prior to Krueger's
discharge. It would be natural to include Krueger's actions on behalf of the
Union, which the employees resented, in a recitation of their grievances
against Krueger.
'5 I credit Krueger's testimony that Hall made the comment in question:
Krueger was the first employee of the Company, his closeness to Purpura
was well known by all those at the Company, and it is reasonable Hall
would make some effort to explain the reason for the discharge.
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assign overtime, and process requests for time off. His
direction of the work of other employees after the
demotion was also no more than that of a working
leadman. I therefore find and conclude he was not a
supervisor after May 1974.16
While the record establishes that Krueger was unpopular
with both management and the production employees at
the time of his discharge, the record also establishes
Purpura was resentful of Krueger's casting a ballot at the
August 11 election and his taking the position that he was
not a supervisor. It is reasonable to presume that resent-
ment increased when Purpura learned on August 13 that
Krueger used his status to bludgeon the employees into
voting for the Union.
Therefore I find and conclude that Purpura discharged
Krueger on August 13 not only because Krueger was
causing friction, dissatisfaction, and production problems
in the plant, but also because he was instrumental in the
success of the Union's organizational drive. Since Purpura
was so motivated, I further find and conclude that by
discharging Krueger the Company violated Section 8(a)(1)
and (3) of the Act.
CONCLUSIONS OF LAW
I. At times pertinent the Company was an employer
engaged in commerce in a business affecting commerce
and the Union was a labor organization, as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
2. At times pertinent Purpura, Hall, and Lambrich
were supervisors and agents of the Company acting on its
behalf.
3. At times pertinent Krueger was not a supervisor and
agent of the Company acting on its behalf.
4. The Company violated Section 8(a)(1) and (3) of the
Act by discharging Krueger for engaging in concerted
activities protected under the Act.
5. The above unfair labor practice affects commerce
within the meaning of the Act.
THE REMEDY
Having found the Company engaged in an unfair labor
practice in violation of Section 8(a)(1) and (3) of the Act, I
shall recommend the Company be directed to cease and
desist therefrom and to take affirmative action designed to
effectuate the purposes of the Act. Having found that
Krueger was discharged on August 13 for engaging in
concerted activities protected under the Act, I shall
recommend the Company be directed to offer Krueger
immediate and full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent job,
without prejudice to his seniority and other rights and
privileges, and that he be made whole for any wage losses
he may have suffered by payment to him of the sum of
money he would have earned from the date he was
'6 A contrary holding would produce a situation where three production
employees had four supervisors.
fT In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
discharged to the date he is reinstated, less any net earnings
he has received in the interim. His lost wages shall be
computed in accordance with the formula described in F.
W. Woolworth Company, 90 NLRB 289 (1950), with interest
at 6 percent per annum, computed in accordance with the
formula described in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I issue the following recommend-
ed:
ORDER '7
National Beauti-Log Cedar Homes, Inc., Stockton,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise disciplining its employees
for casting a ballot in a Board-conducted election in the
belief they are entitled to do so and encouraging other
employees to cast ballots for the Union.
(b) In any other manner interfering with its employees in
the exercise of their rights under Section 7 of the Act to
self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer John Lloyd Krueger reinstatement to his former
position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Make Krueger whole for any loss of earnings he may
have suffered as a result of his discriminatory discharge, in
the manner set forth in the section of this Decision entitled
"The Remedy".
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records necessary to compute the
backpay due under the terms of this Order.
(d) Post at its Stockton, California, facilities copies of the
attached notice marked "Appendix." 8 Copies of said
notice to the Company on forms provided by the Regional
Director for Region 20, shall be signed by an authorized
representative of the Company, posted immediately upon
receipt thereof, and maintained for at least 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Company to ensure
such notices are not altered, defaced, or covered by any
other material.
"1 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
488
NATIONAL BEAUTI-LOG CEDAR HOMES, INC.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps the Company has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discipline our
employees for forming, advocating, supporting, or assisting
Local 266, Delta Yosemite District Council of Carpenters,
AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights to engage in self-organization, to form, join, support,
or assist the above or any other labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.
Since the Board has determined we discharged John
Lloyd Krueger because he supported the above-named
labor organization and advocated its support among his
fellow employees:
WE WILL offer John Lloyd Krueger immediate and
full reinstatement to his former job, or, if such job no
longer exists, to a substantially equivalent job, without
prejudice to his seniority and other rights and privileg-
es, and WE WILL make John Lloyd Krueger whole for
any loss of wages or other benefits he may have
suffered by reason of our discriminatory discharge of
him.
NATIONAL BEAUTI-LOG
CEDAR HOMES, INC.
489