Oettinger Lumber Co., Inc.

National Labor Relations Board - Board DecisionsOct 25, 1965

155 N.L.R.B. 313 (N.L.R.B. 1965)

OETTINGER LUMBER COMPANY, INC., ETC. 313 The General Counsel argues that this action on the part of Respondent constituted an attempt "to interfere with Board process and to influence employees ' decisions on internal union affairs" in violation of Section 8(a)(1) of the Act . In support of this argument General Counsel cites Wix Corporation, 140 NLRB 924, which embraces a finding that the conditioning of reemployment on withdrawal of charges before the Board is an unfair labor practice . Such conduct cannot be equated with including in a proposed collective -bargaining agreement a provision to withdraw -charges such as those in the instant proceeding . There is no evidence that either of the above-mentioned provisions ( re withdrawal of charges and affiliation ) consti- tuted a condition precedent to bargaining or to the execution of a collective -bargaining agreement . It is quite common for representatives of management and unions to .attempt to resolve all their differences by an agreement which includes withdrawal of charges of unfair labor practices . a Considering the nature of the unfair labor practices herein , it would appear that the execution of the proposed collective- bargaining agreement , if it had be. .l satisfactory to the Union and its membership, would have obviated any significant need for the resolution of the issues in this proceeding. Therefore , it is concluded that by offering the aforesaid agreement Respondent did not violate Section 8 ( a) (1) of the Act. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. General Counsel has failed to prove by a preponderance of the evidence that Respondent interfered with, restrained , or coerced its employees within the meaning of Section 8(a)(1) of the Act by threats of economic reprisal, by unlawful interro- gation, by surveillance or creating the impression thereof, or by an unlawful promise of benefits , as alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. 9 The withdrawal would necessarily be subject to approval by the Board 's Regional Director, thus insuring that such a resolution of the charges would effectuate the policy of the Act. 'Oettinger Lumber Company, Inc., The Leon Corporation and Elm Trucking Co., Inc . and United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Local 2230. Case No. 11- CA-2644. October 25,1965 DECISION AND ORDER On August 17, 1965, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that Respondent's had engaged in and were engaging in certain unfair labor practices :and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondents filed exceptions to the Decision. 155 NLRB No. 32. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on February 8, 1965, and thereafter amended on February 11 and March 16, by United Brotherhood of Carpenters and Joiners of America, AFL- CIO, Local 2230, hereinafter referred to as the Union, the Regional Director for Region 11 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on March 25, 1965, against Oettinger Lumber Company, Inc., The Leon Corporation and Elm Trucking Co , Inc., referred to collectively herein as the Respondent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S C., Sec. 151, et seq.), herein called the Act. In its duly filed answer Respondent admitted certain allegations, including the commission of a violation of Section 8(a)(3) with respect to employee John Pinkney (infra), but denied the commission of any other unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Thomas F. Maher on May 17, 1965, at Greensboro, North Carolina, where all parties were represented by counsel and were afforded full opportunity to be heard, to present oral argument, and to file briefs with me. Briefs were filed on June 7, 1965. Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each witness appearing before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Oettinger Lumber Company, Inc, and Elm Trucking Co., Inc., are New Jersey corporations and The Leon Corporation, a New York corporation, all engaged in the production, sale, and distribution of lumber and millwork in Greensboro, North Carolina, where during the past 12 months they purchased and received at their operations, raw materials valued in excess of $50,000 directly from points outside the State of North Carolina. During the same annual period the Respondent sold and supplied from its Greensboro, North Carolina, operations, finished products valued in excess of $50,000 directly to points outside the State of North Carolina. Upon the foregoing agreed-upon facts and upon a stipulation of the parties that Respondent's operations constitute a single integrated enterprise, I conclude and find, as the parties have also stipulated, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is conceded and I accordingly conclude and find that the Union is a labor orga- nization within Section 2(5) of the Act. III. THE ISSUES 1. The pretextual nature of the employee layoffs. 2. Threats, interrogation , and direction to employees not to engage in union activi- ties as instances of interference , restraint , and coercion. OETTINGER LUMBER COMPANY, INC., ETC. 315 IV. THE UNFAIR LABOR PRACTICES A. The petition and the layoffs Shortly after he was hired as a truckdriver on January 14, 1965, Johnny Cureton helped to start a union organizing campaign among Respondent's employees and enlisted the active support of employee John Pinkney, another driver. After some discussion among themselves and other employees Cureton and Pinkney prepared a petition, the substance of which was a request for higher wages, a vacation pro- gram, workmen's compensation, insurance, and "for the Union." 1 This petition was circulated among the employees on the morning of February 1. Among those who signed it in addition to Cureton and Pinkney were Otis Bradley and Earl Troxler, also truckdrivers, and Steven Loflm, Marcelius Schenk, and John McCrimmon, employees in the door shop. Thereafter, in the early afternoon, Pinkney credibly testified to having signed up other employees in the door shop but did not identify them by name. Meanwhile he approached Foreman Wills and asked him to sign, saying that if his signature appeared on the petition the employees would readily join in. Wills, after examining all three sheets of the petition, refused Pinkney's request and walked off in the direction of the office. Shortly after lunch Shipping Manager Jerry Keen came up to Pinkney and directed him to report to the office. There, in addition to Keen, he was confronted by Assistant Manager Albert Paiewonsky and General Superintendent Julius Daves. Paiewonsky opened the conversation by ask- ing Pinkney "what the story was on this petition that he had been circulating." A discussion of the merits of the employees' complaints followed, and Paiewonsky told Pinkney that "if there was any petition related to the union that it should be done by proper channels, and not having people signing during working hours and going to the foreman and bothering people that were working." Thus Paiewonsky himself described what transpired at the meeting. Pinkney's version, which I credit, included a further statement by Paiewonsky in the course of discussing the merits of the employees' petition that "they would close the plant down, sell it, put their money in the bank." Pinkney was thereafter laid off, at 2 or 2:30 p.m., for a com- bination of reasons supplied at the hearing, one of which was admitted to be his union activities.2 Thereafter, at the close of the day, as each returned from his trip, drivers Cureton, Bradley, and Troxler were likewise laid off. It is Respondent's contention, to be discussed in detail hereafter, that these three drivers, as well as Pinkney, had the least seniority and had been selected for layoff due to a seasonal slump in business. On the following day a reduction-in-force occurred in the door shop where interior doors were manufactured for local sale and where, it is claimed, inclement weather and lack of business was causing overproduction. First to be selected for layoff was Steven Loflin, a recently hired college student working between terms who had planned to return to his studies shortly thereafter. In addition, Paiewonsky selected four other employees for layoff upon the advice of Foreman Wills. These were John McCrimmon, Marcelius Schenk, Marion Bowden, and an employee named Kales.3 Paiewonsky testified that unlike the practice followed as to the drivers, seniority was not a factor in determining who would be laid off in the door shop, but that they simply sought to retain their best men. All of the employees laid off at this time were thereafter recalled to work by Respondent on February 26, 1965. B. The Respondent 's curiosity and agitation No sooner had Pinkney commenced to circulate his petition when Respondent's supervisors and managerial staff began their own activity. Thus when Keen learned of Pinkney's activity he reported it immediately to Paiewonsky. Meanwhile General Superintendent Daves observed employee Loflin sign the petition in the door shop, 'Copies of the petition were not available for inclusion in the record The description above is a synthesis of the credited testimony of employees Loflin , Cureton , and Pinkney, the latter particularly described it as a "petition for the union. " Foreman Wills, to whom Pinkney showed the petition , described it as a number of papers, each with the inscription "AFL-CIO" Included on the letterhead. 2 Counsel for Respondent conceded at the bearing that this was one of the reasons for Pinkney ' s layoff and Respondent ' s answer to the complaint was amended accordingly. 3 Neither Bowden nor Dales were alleged in the complaint to have been discriminatorily laid off nor is there evidence that they had signed Pinkney's petition. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked him why he had signed it and who else had done so, and likewise reported the matter to Paiewonsky.4 As a result of this preliminary investigation Paiewonsky sent for Pinkney and he, as previously noted, was also questioned about the petition. Paiewonsky's statements made in the course of this meeting have already been detailed (supra). Later in the day Paiewonsky approached Loflin and asked him what he had signed. Meanwhile employee Cureton came upon Foreman Wills in the door shop and overheard him tell two employees that if they signed the petition, they would be fired. When Cureton protested to him that this would be against the law Wills replied that they could find reasons for firing them.5 About the same time Manager Harry Larkin sent for Gus McCoy, "supervisor over the glazing room," and asked him if he "had heard anything about the Union that they were getting up." When McCoy told him that he had, Larkin stated, "You tell the boys that they are only hurting themselves. If they get a union in here we will only be buying and selling. We won't be making anything." In this conversa- tion Larkin was referring to the possibility that the Company would be buying in the open market what is referred to as preglazed sash and doors and selling these to- its customers, instead of continuing its usual practice of selling its own manufactured products.6 Following out Larkin's instructions McCoy met with the men in his department and repeated Larkin's message to them.7 In the course of the hearing counsel for the General Counsel adduced considerable testimony bearing upon McCoy's supervisory status. I find it unnecessary to con- sider this subject here. I have credited testimony to the effect that Manager Larkin made the above-quoted statements to McCoy, who in turn repeated them to at least two employees. It makes very little difference, it seems to me, whether I finally decide that the statements were made by Larkin to McCoy, as Respondent's employee, or whether they were made to him and then relayed to other employees by him in the role of Respondent's agent,8 or its supervisor. The simple fact is that the state-- ments were made by the Employer to the employee, and I so conclude and find. C. Analysis and conclusions The most reasonable analysis I can make of the foregoing facts is to summarize them: On the morning of February 1 a petition was circulated by one employee among the others. By the end of the day he and four of the others were laid off without previous notice. By the end of the next day five more were laid off, simi- larly without notice, three of them also being established as signers, the status of the remaining two being undisclosed. I can think of no better example of cause and effect. Respondent adduced considerable testimony to support its contention that the layoff was the result of overproduction and underconsumption of its product due to the inclemency of the weather . Respondent 's witnesses and its cross -examination of * The credited testimony of Loflin , corroborated by Paiewonsky. 6 Both Wills and Paiewonsky testified at considerable length in corrorboratinn of many of the facts supplied in the testimony of Cureton , Pinkney , Loflin , and Schenk which I have relied upon in my findings above. But each of the two officials denied, except for Pinkney's situation , that they knew who had signed the petitions , that they had made the threats attributed to them, or warned employees not to sign under penalty of dis- charge or close down of the operations. Upon my observation of Wills and Paiewonsky and upon a critical review of their testimony as it conflicts with that of credible witnesses , I am not disposed to accept their- denials of the conduct attributed to them, their disavowal of union implications in Re- spondent's actions, or their claimed lack of knowledge of who signed the petition. Indeed* I consider particularly incredible Wills ' testimony that be saw no names on the petition which he admittedly inspected . The whole pattern of Respondent's agitation over the- circulation of that petition rebuts the claimed lack of attention or the detachment, which- ever it may be, of one of its foreman most closely involved in the petition matter itself. Glazing is the customary term for the process of inserting glass in windows , doors, etc. v The credited testimony of McCoy and employees Watson and DeBerry who heard him. Larkin was not questioned concerning his statement to McCoy to the effect that the men would be hurting themselves . He denies, however , having a conversation with McCoy In, which the selling of preglazed windows and doors-was mentioned , stating that this sub- ject was covered in a speech to employees at a later time. To the extent that they- conflict with the corrorborating testimony of credited witnesses I reject Larkin 's denials. s Cf. Newton Falls Paper Mxll, Inc., 144 NLRB 1470 , 1478 ; Barker's East Main Cor- poration and Barker's Supermarket, Inc., 136 NLRB 494, 495, 513. OETTINGER LUMBER COMPANY, INC., ETC. 317 General Counsel's witnesses satisfy me that there is economic justification for a seasonal reduction in force. Thus it truly had been cold and snowy, residential and commercial "starts" had been at a minimum for the area, and Respondent's inven- tories were larger than usual. But neither Respondent's witnesses, its argument, nor the record generally satisfy me that this is why it suddenly selected for layoff seven of its employees as soon as they engaged in union or concerted activity calculated to better their working lot and their relations with the Company. My findings of fact detailed above provide ample support for the conclusion that Respondent's economic basis for the layoff of the named individuals was but a pre- text for its reprisal against the mas petition signers. Thus it admittedly laid off Pinkney for that reason, albeit it claimed there were also economic considerations; it interrogated a substantial number of its work force about the petition, its contents and its signers; and it threatened its employees that they would be discharged for signing the petition and that if the Union did come in there would be a substantial curtailment of production and that Respondent would henceforth engage merely in the sale of its mill products. This is not the action of an employer whose sole con- sideration is economic necessity. On the contrary it is apparent to me that not only with respect to Pinkney, against whom discrimination is conceded, but as to the other signers, employees Bradley, Cureton, Loftin, McCrimmon, Schenk, and Troxler as well, Respondent laid them off primarily because they had engaged in a concerted activity guaranteed them by Section 7 of the Act. By such conduct I conclude and find that Respondent not only thereby discriminated against them in violation of Section 8(a)(3) but likewise interfered with, restrained, and coerced them in the exercise of their statutory rights in violation of Section 8(a)(1).0 And additionally, by interrogating its employees, threatening them with discharge for engaging in the foregoing activities, and threatening to curtail the plant production if the Union got in, I conclude and find that Respondent engaged in further interference, restraint, and coercion in violation of Section 8(a) (1).10 V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in con- nection with its business operations described in section 1, above, have a close, inti- mate, 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. VI. THE REMEDY Since it has been found that Respondent, by laying off certain named employees, discriminated against them in violation of Section 8(a) (3) of the Act and has other- wise interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act, I shall recommend that Respondent cease and desist therefrom and from infringing in any other manner upon the rights of employees guaranteed in Section 7 of the Act.1' It appears from the record that each of the employees whom I have found to be discriminatorily laid off were unconditionally offered reinstatement to their former employment by Respondent, effective February 26, 1965. I therefore find it unneces- sary to recommend affirmatively that they be reinstated. I do recommend, how- ever, that they be made whole for any loss of earnings they may have suffered as a result of their discriminatory layoff, such compensation to be computed in the cus- tomary manner by access to the Respondent's books, records, and accounts, and in the customary manner,12 with interest added thereto at the rate of 6 percent per annum.13 9 J. M. Lassing, et al., d /b/a Consumers Gasoline Stations, 126 NLRB 1041; E. E. Majeroni, etc., d/b/a Home Restaurant Drive-In, 127 NLRB 635. 10 The record discloses, upon the testimony of Assistant Manager Paiewonsky, that Respondent also laid off Marion Bowden and an employee named Kates, neither of whom have been shown to have signed the petition. As it was specifically alleged and I have specifically found that it was the selection of individuals for layoff that was discrim- inatorily motivated, I need not make the further finding that the layoff itself was dis- criminatory. Accordingly I have no basis for concluding in the absence of allegation and proof that these two were discriminatorily laid off in February 1965. 11 N.L R.B. v. Express Pubhahing Company, 312 U S. 426, 437. 12 F. W. Woolworth Company, 90 NLRB 289 Is Isis Plumbing & Heating Co ., 138 NLRB 716. 31S DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended , I recommend 14 that the Respondents , Oettinger Lumber Company, Inc., The Leon Corporation and Elm Trucking Co., Inc., their officers, agents , successors , and assigns , shall: 1. Cease and desist from: (a) Unlawfully interrogating employees concerning their union membership , activ- ities, or desires. (b) Threatening its employees that they would be discharged for engaging in concerted activities and that production would be curtailed if a union came into the plant. ( c) Directing employees not to engage in concerted activities. (d) Advising employees that they were laid off because of their union and con certed activities. (e) Laying off or otherwise discriminating against employees in respect to hire and tenure of employment for the purpose of discouraging union membership or engag- ing in concerted activities. (f) In any other manner interfering with, restraining , or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following action which will effectuate the policies of the Act: (a) Make whole Otis Bradley, Johnny Cureton , Steven Loftin , John McCrimmon, John Pmkney , Marcelius Schenk, and Early Troxler for loss of pay in the manner set forth in the section of the Decision 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, time- cards, personnel records and reports, and all other records necessary to analyze the amount of reimbursement due under the terms of this Order. (c) Post at its place of business in Greensboro, North Carolina , copies of the attached notice marked "Appendix." lei Copies of said notice, to be furnished by the Regional Director for Region 11, shall, after having been signed by Respondent's representative , be posted by it immediately upon receipt thereof, and be maintained 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 11, in writing , within 20 days from the date of the receipt of this Decision , what steps the Respondent has taken to comply herewith.16 14 In the event that this Recommended Order is adopted by the Board , the word "Rec- ommended" shall be deleted from Its caption and wherever else it thereafter appears ; and for the words "I Recommend " there shall be substituted "the National Labor Rela- tions Board hereby Orders." 11 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words " the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals , the words "a Decree of a United States Court of Appeals , Enforcing an Order " shall be substituted for the words "a Decision and Order." 16 In the event that this Recommended Order is adopted by the Board this provision shall be modified to read: "Notify the said Regional Director , in writing , within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act , as amended , we hereby notify our employees that: WE WILL NOT unlawfully interrogate employees concerning their union mem- bership, activities , or desires. WE WILL NOT threaten our employees that they will be discharged for engag- ing in concerted activities and that production will be curtailed if a union conies nto our plant. WE WILL NOT direct our employees not to engage in concerted activities. BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 319 WE WILL NOT advise our employees that they were laid off because of their union and concerted activities. WE WILL NOT lay off or otherwise discriminate against our employees in respect to hire and tenure of employment for the purpose of discouraging union membership or for engaging in concerted activities. WE WILL make whole for loss of pay suffered as a result of our discrimina- tion against them the following: Otis Bradley John Pinkney Johnny Cureton Marcelius Schenk Steven Loflln Earl Troxler John McCrimmon WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise guaranteed them by Section 7 of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. OETTINGER LUMBER COMPANY, INC., THE LEON CORPORATION AND ELM TRUCKING CO., INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Tele- phone No. 724-8356. Building and Construction Trades Council of New Orleans, AFL- CIO and Markwell and Hartz, Inc. Case No. 15-CC-201. Octo- ber 25, 1965 DECISION AND ORDER Upon charges duly filed by Markwell and Hartz, Inc., herein called Al & if, the General Counsel of the National Labor Relations Board by the Regional Director for Region 15 issued a complaint dated January 10, 1964, against the Building and Construction Trades Coun- cil of New Orleans, AFL-CIO, herein called Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of a hearing before a Trial Examiner, were duly served upon the Respondent and the Charging Party. On January 17, 1964, Respondent filed its answer admitting certain allegations of the complaint, but denying the commission of any unfair labor practices. On March 17, 1964, the Respondent, the Charging Party, and the General Counsel entered into a stipulation of facts and motion of transfer this proceeding directly to the Board for issuance of a Deci- sion and Order after the filing of briefs and without further hearing. The stipulation states in substance that the parties waive their rights to a hearing before a Trial Examiner and to the issuance of a Trial Examiner's Decision, and that the charge, amended charge, complaint, 155 NLRB No. 42.