Pioneer Lumber Treating Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1966

162 N.L.R.B. 487 (N.L.R.B. 1966)

PIONEER LUMBER TREATING CO. 487
Washington or its successor, Inland-Empire Chapter of the Associated General
Contractors of America agree that they will pay a sum equivalent to the initia-
tion fees and dues this Union would have received for each employee not
included in the bargaining unit in the event said employer-members subcon-
tract bricklaying or masonry work to another employer who is not party to
the contract.
WE WILL, upon request, bargain collectively with the employer-members of
the Eastern Washington Builders Chapter of the Associated General Con-
tractors of America, Spokane, Washington, or its successor, Inland Empire
Chapter of the Associated General Contractois of America, so long as said
employer-members are primarily engaged in the building and construction
industry and this Union continues to have building and construction employees
as members, in the appropriate unit named below, with respect to wages, hours,
and other terms and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement, without requiring
said employer-members, as a condition precedent to entering into a contract, to
agree that this Union be paid a sum equivalent to the initiation fees and dues
it would receive for each employee not included in the bargaining unit in the
event such employer-members subcontract bricklaying or masonry work to
other employers not parties to the contract.
The bargaining unit is:
All bricklayers, stone masons and marble masons (outside), blocklayers,
marble masons (inside), cleaners, caulkers and pointers, and apprentices,
employed by the employer-members of the Eastern Washington Builders
Chapter of the Associated General Contractors of America, Spokane,
Washington, or its successor, Inland Empire Chapter of the Associated
General Contractois of America, but excluding superintendents, assistant
superintendents, general foremen, master mechanics, civil engineers, time-
keepers, messenger guards, confidential employees, clerks or other office
employees, and supervisors as defined in the Act.
BRICKLAYERS & MASONS INTERNATIONAL UNION LOCAL No. 3,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
FRANK S. LLEWELLYN,
Secretary.
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 members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 327
Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4583.
Pioneer Lumber Treating Co., Inc. and Local 174, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent . Case 19-CA-3091. Decem-
ber 30, 1966
DECISION AND ORDER
On October 5, 1966, Trial Examiner David Karasick issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
162 NLRB No. 61.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Board has delegated its powers in connection with this
case to a three-member panel [Members Fanning, 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 Respondent's exceptions and brief, 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
This matter was heard before Trial Examiner David Karasick in Seattle, Wash-
ington, on June 7 and 8, 1966. The complaint I alleges that Pioneer Lumber Treat-
ing Co., Inc., herein called the Respondent , had engaged in unfair labor practices
within the meaning of Section 8(a) (1) and (3) of the Act.
Upon the entire record 2 in the case , including briefs 3 filed by each of the parties,
and from my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE RESPONDENT
The Respondent, a Washington corporation with its principal office located in
Seattle, Washington , is engaged in the processing and sale at wholesale of lumber
and plywood. During its last fiscal or calendar year , the Respondent sold products
valued in excess of $ 50,000 . All of the Respondent's annual sales were to various
contractors engaged in heavy and highway construction. The contractors to whom
such sales were made were members of Associated General Contractors of America,
Inc., Seattle Northwest Chapter, all of whom annually purchased goods and services
directly from points outside the State of Washington of a value exceeding $50,000.
I find, as the complaint alleges and the Respondent concedes, that the Respondent
is, and has been at all times material herein, an employer within the meaning of
Section 2(2) and (7) of the Act.
1 Complaint was Issued on March 7, 1966 , following the filing of a charge on January 5,
1966, by International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America , Independent , herein called the Teamsters.
2 Following the hearing , the General Counsel filed a motion to correct the transcript
and the Respondent filed an answer thereto, objecting to certain of the proposed correc-
tions . None of the suggested corrections changes the meaning of the transcript in any
significant way. Each has been examined and conforms to my recollection of the testimony
or to the notes which I had taken at the time. Accordingly , the objections set forth in
the aforesaid answer are overruled and the motion to correct the transcript is granted.
3 Apparently a substitution of counsel for the Respondent took place following the
hearing since the brief on behalf of the Respondent and its answer to the General Coun-
sel's motion to correct the transcript were filed by Erik Froberg, an attorney , of Seattle,
Washington.
PIONEER LUMBER TREATING CO.
H. THE LABOR ORGANIZATION INVOLVED
489
The Teamsters is a labor organization within the meaning of Section 2(5) of
the Act.
M. THE UNFAIR LABOR PRACTICES ALLEGED
A. The issues
The primary issues in this case are whether the Respondent violated the Act by:
(1) threatening to lay off employees if the Teamsters should win a representation
election to be conducted by the Board; (2) interrogating an employee as to how
he would vote; (3) threatening to bring in another union for the purpose of
destroying the majority status of the Teamsters,4 and (4) discharging Lester J.
Parker.
B. The facts
Lester J. Parker first worked for the Respondent as a yardman for a period
of 2 years commencing in 1962. After he had been off for a period of a year, the
Respondent offered him a job again and Parker returned to work as a truckdriver
in August 1965. Legg, the Respondent's president, knew that Parker was a member
of the Teamsters at the time he was rehired .5
Shortly after he had returned to work for the Respondent, Parker, as well as
Gordon Nasby and John McKevitt, other employees of the Respondent, felt that
there was need for a union and discussed the matter among themselves. In the
evening of October 25,6 Nasby and William Legg, Sr.,7 an employee of the
Respondent and the father of the Respondent's president, went to the Teamsters
office where each signed a card authorizing that Union to represent him.
At about this same time, McKevitt told Legg that he wanted to leave because
he had worked for the Respondent for nearly a year and would lose the health and
welfare benefits to which he would be entitled as a member of the Teamsters unless
the Respondent had a contract with that Union. On an undisclosed date shortly
before October 26, Legg called the Teamsters and asked if the Respondent could
sign a contract with that Union. On October 26, the Teamsters filed a petition with
the Board, requesting that an election be held among the Respondent's employees.
A hearing on that petition was held on November 17.
Following the time that Legg had called the Teamsters and offered to enter into
a contract with that Union and before the hearing of the representation case was
held on November 17, the Teamsters offered to sign a contract with the Respondent
covering all of the employees. Legg objected, however, on the grounds that some
of his employees wanted to belong to another union and also because employees
at a number of the Respondent's competitors were represented by two separate
unions.8
In this same period of time, Doug Whitley and Grant Poindexter, two of the
employees who worked in the Respondent's yard, told Legg that representatives of
the Lumber Workers had spoken to them about joining that labor organization.
Thereafter a representative of the Lumber Workers spoke to Legg and the latter
met with him together with employees Whitley and Poindexter at a local restaurant
one morning where that union representative explained the benefits his organization
had to offer.
4 Although this incident was not alleged in the complaint as a violation of the Act em-
ployee John McKevitt's undenied testimony as to its occurrence was received without
objection and all parties were afforded full opportunity to litigate the issue.
6 Legg himself is a member of the Teamsters
6 All dates hereafter refer to 1965 unless otherwise indicated.
7 The Respondent's president and his father both are known as William Legg. The
latter has been referred to as "senior" to distinguish him from his son who is referred
to herein as Legg.
s Legg in his testimony referred to the fact that he regarded the Lumber and Sawmill
Workers Union, herein called the Lumber Workers, as the proper bargaining representa-
tive for the yard employees of the Respondent and the Teamsters as the appropriate
representative for the truckdrivers Legg further testified that he felt that he would be
put at a disadvantage if the Teamsters represented both his yard employees and his
truckdrivers because he had been informed that the Teamsters would not be able to
furnish him employees capable of operating equipment in the Repondent's yard.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 27 or 28, Nasby told Legg that he had joined the Teamsters and
Legg replied that he was sorry that Nasby had not come and talked to him before
he had joined.9
On or about November 10, Legg called together all of the employees 10 and told
them that he planned to build a lumber treating plant at Juanita and spoke to them
about the advisability of having the Lumber Workers represent the yardmen and
the Teamsters represent the truckdrivers. At this meeting, Parker stated that the
Respondent's plans, insofar as Juanita was concerned, had not yet materialized. In
addition, he expressed his preference for the Teamsters and stated that he did not
like the Lumber Workers and that the Teamsters should represent the employees
since they all drove some sort of vehicle, whether forklift or lumber truck.
On November 17, a hearing was held in the representation case, based upon the
petition which had been filed by the Teamsters. The Lumber Workers intervened
at that hearing and sought a unit limited to the employees of the Respondent's yard
while the Teamsters sought a unit of both yard employees and truckdrivers. Legg
took the position that he would prefer separate units for the yardmen and for the
truckdrivers. On November 29, the Regional Director issued a Decision and Direc-
tion of Election, holding that an overall unit of both yardmen and truckdrivers was
appropriate. An election in such a unit was scheduled to be held on December 23.
Shortly before Thanksgiving, Legg told employee John McKevitt that he would
rather see the employees represented by two unions and if the Teamsters did win
the election that Legg at his discretion could lay off the men that he did not actu-
ally need.
During the period preceding the election, Legg also stated to McKevitt that the
Teamsters at that time had a majority because employee Gordon Nasby had signed
up with that Union but that Legg would rather have Nasby in the Lumber Workers.
On one occasion during this period, McKevitt was told by Legg that the latter
could bring in the Lumber Workers and "overcast" the majority of the Teamsters."
In addition, between November 29, when the Decision and Direction of Election
issued, and December 22, when Parker was discharged , Legg questioned Parker as
to how he was going to vote.
On December 6, while driving one of Respondent's trucks, Parker was involved
in an accident in which he struck the back of an automobile in which four women
were riding. Parker testified without contradiction that the accident occurred when
he was changing lanes to make a right turn on a wet road; that he had to stop
suddenly and that his truck slid into the back of the car ahead of him; that he got
out of his truck and inspected the back of the car which he had struck but could
not see any damage; that he returned to the cab of his truck for a piece of paper
on which he could write the address and phone number of the driver of the other
vehicle; that while he was so engaged, the other driver alighted, inspected the back
of the car which had been struck and, although Parker called to her that he would
join her in a moment, returned to her own car and drove away; that Parker did
not get the number of the woman 's driving license or any other information and
therefore did not consider that he had anything to report.
Two days later, on December 8, Legg first learned of the accident when he
received a call from the insurance company representing the other driver stating
that the four women in the car which had been struck claimed to have been injured.
On the day that the insurance agent called him, Legg spoke to Parker about the
matter and Parker explained that he had not reported the accident because it did
not appear to be serious enough to warrant it.
On December 10, Parker was involved in another accident in Everett, a city
located some 28 miles from Seattle. On that occasion, the trailer, which was more
6 The foregoing findings are based upon the testimony of Nasby , which Legg in effect
denied when he testified that he first learned on November 17 the names of the employees
who had designated the Teamsters to represent them I credit Nasby, both because the
conversation he recounted seems probable in view of Legg's admitted opposition to repre-
sentation of the employees in a single unit by the Teamsters and because Nasby , who was
still working for the Respondent at the time of the hearing , impressed me favorably as a
witness Legg on the other hand , appeared to be constantly aware of the effect his testi-
mony might have upon the Respondent 's position and his testimony itself was frequently
evasive and contradictory
to The Respondent on this date employed the following five persons . Lester Parker
Gordon Nasby , John McKevitt , Grant Poindexter , and Doug Whitley Legg, Senior, ap-
parently was no longer employed at this time
"The foregoing findings are based upon the uncontradicted testimony of McDevitt
PIONEER LUMBER TREATING CO. 491
lightly loaded than the truck, swung out of line as Parker brought the vehicle to
a stop and the rear of the trailer struck a parked car. On the same day the acci-
dent happened, Parker called Legg in Seattle and told him what had occurred.
Later the same day, when Parker had returned to Seattle, he spoke to Legg about
the accident and admitted that it might have been avoided if he had bled the air
out of the trailer braking system but that he had failed to do so because he did
not know that this was necessary at the time. Legg testified that he told Parker on
this occasion that he would have to be more careful on the truck and would "have
to pay a lot more mind to what he was doing or we was going to have to take
'him off it."
On December 20, Jack L. Arnold, herein called Arnold, the Respondent's insur-
ance broker, sent a letter to Legg in which Arnold stated that the company which
carried Legg's insurance had sent him a memorandum on October 14 in which it
said that since September 1960 the Respondent had incurred 18 losses, of which
9 represented property damage , 7 comprehensive , and 2 collision , and asked for
suggestions as to what steps might be taken to reduce the frequency of loss which
had been experienced . Arnold's letter went on to state that the insurance company's
memorandum had been called to Legg's attention by telephone and by memorandum
and that five of the nine property-damage claims had occurred during the past
year . 12 The letter then referred to the two accidents in which Parker had been
involved ; suggested that the Respondent institute close equipment checks, safety
,education , and a closer screening of drivers ; and stated that Parker's failure to
report the accident which occurred on December 6 was, in Arnold's opinion,
grounds for dismissal. The letter concluded with a request that Legg advise Arnold
in writing what steps Legg was taking to reduce the Respondent 's loss frequency
and stated that even then Arnold had no assurance that the insurance company
would not ask for cancellation of the Respondent's policy.13
Legg testified that he could not recall whether he had received Arnold's letter on
the day it was written or on the following day.
On December 22, the day before the scheduled election, Parker, at Legg's direc-
tion , sat in Legg 's office the entire day from 8 a.m. until approximately 9 p.m.,
with the exception of the time the two men went to lunch at a restaurant across
the street from the office and an additional period of approximately 4 hours in the
afternoon when Parker drove to Everett, Washington, and returned. Legg testified
that he was waiting to hear whether the insurance company was going to cancel
his policy and that he directed Parker not to drive that day "until he came up with
some kind of a reasonable explanation for the occurrences he had in accidents."
According to Legg, he told Parker to "come on in the office and see if you can
sit down and think about why you have had some of these accidents."
During the morning, according to the credited testimony of Parker, between
frequent interruptions while Legg spoke on the telephone and otherwise conducted
the Respondent's business, the two men discussed the accidents in which Parker
had been involved on December 6 and 10, a citation issued to Parker by the State
highway patrol on December 6 for an overload of lumber which Parker maintained
should be paid by the Respondent but which Legg refused to pay, and the question
of the union election. With respect to the latter subject Legg again referred to his
plans to build a lumber treating plant at Juanita and tried to convince Parker that
the Respondent needed the Lumber Workers, while Parker continued to express a
preference for the Teamsters.
12 Arnold's letter stated that the five property-damage claims in question indicated
driver error None of these claims, however, were attributable to the Respondent's drivers.
Legg testified that his wife was ins oived in one of the five accidents in question , one was
incurred by an office employee of the Respondent, two others involved an employee other
than a driver , and the last occurred when an individual who was not an employee of the
Respondent was transporting a racing boat which belonged to Legg with one of the Re-
spondent's vehicles and was involved in an accident in Montana
The parties stipulated that through April 9, 1966, the insurance comnany had is,ncd
three settlement drafts in the total sum of $1,879 40 to three of the parties who were
involved in the accident of December (i and that one bodily injury claim was still out-
standing. Two of the three drafts were dated in February 1966 and one in April 1966.
The parties also stipulated that the insurance carrier had made payments of $195 80
and $224 02 to claimants for property damage which had occurred as a result of the
accident on December 10 The record does not show the date or dates upon which these
payments were made. Presumably, however, they were made after December 22.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Legg and Parker were having their lunch , employee Grant Poindexter joined
them and the discussion regarding the two unions continued . Legg drew a diagram
consisting of two rectangles on the left side of the page, which he indicated repre-
sented Grant Poindexter and Doug Whitley as supporters of the Lumber Workers,
and three rectangles on the right side of the page, which he indicated represented
John McKevitt , Gordon Nasby , and Lester Parker as Teamsters supporters. Legg
stated that since the Teamsters thus had a majority, the Respondent would have
a Teamsters ' contract and further stated that he would not be able to get men from
the Teamsters to run a planer and other mill equipment for a treating plant. He
then erased the rectangle representing Parker and placed it in the middle of the
page, saying that, if Parker did not vote for either union, both sides would then win
since each side would get the union it wanted and the Respondent would get the
type of men it needed , whereas the other way no one would be happy and they
would have to go through the whole thing again . Legg concluded by addressing the
query to Parker , "Now you wouldn 't want to do that , would you?" Parker, how-
ever, continued to express his disagreement . After lunch was concluded , Parker
and Legg returned to Legg's office and continued their discussion relating to the
two accidents in which Parker had been involved , the overload citation , and the
union election.14
After they had finished lunch, Legg and Parker returned to Legg's office where
they continued discussing the same matters they had talked about during the morn-
ing. About 3 p.m. Legg sent Parker to Everett 15 to pick up a load of lumber.
On that occasion , Parker drove the Respondent 's newest tandem-axle truck.16
While Parker was gone, Legg received a telephone call from a representative of
the insurance company, stating that he was going to recommend cancellation of
the Respondent 's insurance . Parker returned to the Respondent 's yard at 6 or 7
14Legg denied that during the lunch hour or at any other time on December 22 he
ever drew a diagram as described by Parker , although he admitted having said that after-
noon that " if we had a tie vote , it would probably be best that we sign with both unions
and they would both be happy and we would go on about our way." He later admitted,
however , that he had drawn a. diagram similar to the one described by Parker in his testi-
mony , but testified that this occurred 2 or 3 days before at a time when Gordon \ashy
and Parker were present . Legg admitted that on this occasion he had stated that "if you
have two on one side and two on the other with no vote in the middle , maybe they will
both want to bargain with us and for once we will have both unions and they will both
be happy." Poindexter appeared as a witness on behalf of the Respondent but was not
questioned about what had occurred at lunch on December 22. He admitted , however, that
what was discussed in Legg's office that evening " was basically said in such a way that
Pioneer Company and its employees could all benefit by two unions ." In regard to what
occurred on December 22, as well as in other respects , I find Legg's testimony to be con-
tradictory and confusing . Despite the fact that he testified that he had instructed Parker
to sit in his office during that morning for the purpose of arriving at it reasonable ex-
planation for the accidents , Legg further testified that during the course of the morning
he and Parker discussed other matters relating to the business but did not actually talk
too much about Parker ' s driving record although on occasion Legg would interject that
Parker "ought to be thinking about some kind of reason for having as many accidents as
what he had ." Legg also testified that his conversation with Parker that morning was
frequently interrupted and that they " probably talked more at lunch time than we did
prior to that ." Later, however , he testified that he did not recall what they talked about
while having lunch "other than we were talking about business matters, I mean Grant
[Poindexter ] and I were talking about lumber." As between Legg' s version of what
occurred on December 22 and that of Parker, I regard the testimony of the latter as
more accurate and reliable and I find that Legg did draw the diagram as Parker described
both at the time the men were having lunch and later that evening and that Legg did
make the statements attributed to him by Parker in the latter ' s testimony , as above set
forth.
16 As noted above, Everett is approximately 28 miles from Seattle.
16 When asked why he had sent. Parker out with a load at this time when he had told
him at 8 o'clock that morning that he was not going to permit him to drive , Legg testified
that he had been expecting to hear from the insurance company during the course of the
day whether or not it would continue the Respondent ' s insurance and Legg thought that
by this time "if the insurance company was really going to pull our insurance from us,
they surely would have called us before."
PIONEER LUMBER TREATING CO. 493
p.m. While on this trip, he received a citation from the State highway patrol for
carrying an excessive load of lumber and upon his return he and Legg discussed
the matter.17
Following this , Grant Poindexter entered the office and the discussion turned to
the union election . Legg again drew a diagram similar to the one he had drawn at
lunch that day and indicated that he wanted Parker to vote for neither union so
that the votes would be equally divided between the Teamsters and the Lumber
Workers. Parker again stated , however, that he would vote for the Teamsters.
The discussion then turned again to the overload tickets which Parker had
received . Both Legg and Pointexter told Parker that they had told him on many
occasions previously not to haul overloads . Parker grew angry because both Legg
and Poindexter had specifically told him on prior occasions to carry lumber in
amounts exceeding legal limits. At this point Legg stated , "Lester J . Parker, you
are now terminated from Pioneer Lumber Company ." Parker thereupon left. After
he had arrived home , he received a telephone call from Western Union transmitting
a telegram sent by the Respondent in which it notified Parker that he had been
terminated.ls
C. Concluding findings
The General Counsel and the Charging Party contend that Parker 's discharge
was discriminatorily motivated while the Respondent contends that he was termi-
nated for cause. At the opening of the hearing, the Respondent contended that one
of the reasons that Parker had been discharged was because on various occasions
he had overloaded his truck . Legg, who was solely responsible for the decision to
terminate Parker, testified , however, that Parker was discharged because "the insur-
ance company was going to pull our insurance due to the fact that he hadn't
reported an accident" and that Parker's termination "wasn't due to any overload
or any other factor ." 19 Thus, the Respondent contends that Parker was terminated
as a result of the threatened cancellation of the Respondent 's insurance policy
which occurred following the two accidents in which Parker was involved on
December 6 and 10.
Parker was not responsible for any of the 18 losses referred to by the insurance
company in its memorandum to Arnold of October 14. All of these losses had been
incurred by other persons . And although his two accidents in December had not
precipitated the insurance company's threat to cancel the Respondent 's policy,20
it is nonetheless true that their occurrence , and his failure to report the earlier one,
complicated the problem and increased the likelihood of cancellation . There can be
17 Legg admitted that a permit authorizing the amount of lumber Parker had carried
on the Everett trip previously had been secured by the Respondent but that Legg himself
had been at fault in not placing the permit in the truck
18 Legg denied that he had orally stated to Parker while the latter was in his office that
he was discharged Poindexter , though he appeared as a witness on behalf of the Respond-
ent was not questioned with regard to this matter In addition , Legg in effect denied
Parker ' s testimony that he had specifically asked Parker to carry lumber in excess of
legal limits . Parker had testified that on one occasion he had carried an overload of lum-
ber from the Solie Construction Company. Legg denied that the load on that occasion
was an excessive amount. Poindexter , who during this period together with Legg regularly
instructed and dispatched Parker and other drivers in their duties , in substance cor-
roborated Parker's testimony and admitted that the load in question exceeded legal limits
by from 3 to 5 thousand pounds and further admitted that on the occasion in question he
had instructed Parker to haul the amount in question and had assured him that the Re-
spondent would be responsible for any fine should Parker receive a citation . On the basis
of the foregoing evidence and on the record as a whole , I do not credit the denials of
Legg and find that the latter had instructed Parker on various occasions to haul overloads
of lumber in the manner testified to by Parker and did tell Parker on the evening of
December 22 that he was discharged in accordance with the latter 's testimony , as above
set forth.
li The conclusion set forth hereafter with respect to the termination of Parker would
remain unaltered even if overloading were considered as one , among other , asserted fac-
tors in the discharge for I do not believe that the avidence supports the Respondent's
position in that regard
20 On November 4, the insurance company sent a memorandum to Arnold in which it stated
that it had received no reply to its earlier memorandum of October 14 and that it could not
continue coverage of the Respondent unless a solution to the problem was found.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no doubt that this was a matter of serious concern to the Respondent and that it
would be justified if it discharged Parker for that reason, without regard to whether
or not Parker was at fault in either accident or was warranted in his belief that
under the circumstances he need not have reported the first of these accidents. The
only issue of concern here is the Respondent's motivation in discharging Parker.
If it discharged him because of the accidents in which he had been involved, or
even if it discharged him with the knowledge that he had not been responsible for
either of those accidents but in the belief that this would forestall cancellation of
its insurance policy, the Respondent's action would be justified.
A number of considerations point to a contrary conclusion, however. Legg did
not tell Parker on December 22 that the latter's continued employment depended
in any way upon what position the insurance company might take regarding the
Respondent's insurance policy. And indeed, the implication that the insurance com-
pany was demanding Parker's discharge is not borne out by the evidence. Nor is
there any evidence that the Respondent's insurance policy actually was canceled
It is true that the Respondent's insurance broker, in his letter of December 20,
expressed his opinion that Parker's failure to report the accident of December 6
was grounds for dismissal.21 But the insurance company, not the broker, was the
one to decide whether the policy should be canceled. And though the broker may
have so expressed himself, there is no evidence that the insurance company took
such a position or that it considered the discharge of Parker as a solution to the
problem.
Legg himself did not regard this to be the position of the insurance company,
for by his own admission he had instituted safety meetings and secured some new
equipment as a means of meeting the insurance company's criticism in an attempt
to forestall cancellation of his policy. If Legg believed that the termination of
Parker would provide the answer to the continuation of his insurance, he failed to
explain why he did not remove Parker from the payroll when the second accident
occurred on December 10 since prior to that date he had been informed that the
insurance company was contemplating cancellation. Instead, however, he waited
until the day before the election and took such action only after he had attempted,
but failed, to convince Parker not to vote for the Teamsters.
Nor does the record support the view that, regardless of the position taken by
the insurance company, Legg himself considered the two accidents in which Parker
had been involved and his failure to report the earlier one as sufficiently serious to
warrant his discharge. At the time of the second accident, Legg knew of the threat-
ened cancellation of his insurance policy for he testified that prior to that time he
had been told by Arnold that the insurance company was contemplating such
action. Yet, when Parker informed him of the accident on the day that it occurred,
Legg merely admonished Parker to be more careful, stating that otherwise he would
have to remove him from driving the truck.
In addition to the foregoing considerations, I cannot believe that if Legg dis-
charged Parker because of the threatened cancellation of his insurance or because
of the two accidents in which Parker was involved, or for both those reasons,
that he would have sent Parker to pick up a load of lumber from Everett on the
afternoon of December 22, after having told him earlier that day that he did not
want him to drive again until Parker was able to furnish a reasonable explanation
for the accidents in which he had been involved. Legg knew no more about the
reasons for the two accidents when he dispatched Parker to Everett at 2:30 or 3
that afternoon than he had known at 8 o'clock that morning when he had first
directed Parker to sit in his office. Moreover, I find unconvincing Legg's explana-
tion that he dispatched Parker to Everett that afternoon because of Legg's belief
that if the insurance company was going to cancel the insurance it would have
called him before that time. If, as Legg testified, he was expecting a telephone call
from the insurance company that day, he failed to explain why he should have
expected the call to have been received by him that hour of the afternoon rather
than later in the day.
Finally, if as Legg testified, he had decided to discharge Parker when he received
the telephone call from the insurance company on the afternoon of December 22
while Parker was driving to Everett, I cannot understand why he did not take such
action at once when Parker returned from Everett that evening . Instead , however,
21 Legg expressly disclaimed any intimation that he had solicited the letter which he had
received from his insurance broker on December 20. Speculation alone would support such
an inference. There is no reliable evidence on which such a conclusion could be reached and
on this record the letter must be regarded as bona fide
PIONEER LUMBER TREATING CO. - 495
he did not discharge Parker until he had again attempted, and failed, to convince
him to vote for neither union at the election scheduled for the following day. If
Legg had already decided to discharge Parker by that time, his discussion regard-
ing the union election and the manner in which Parker would vote would have
been meaningless. Yet the evidence shows it was only after Parker had returned
from Everett and had again indicated that he adhered to his original position and
would vote for the Teamsters on the following day that Leg told him that he was
discharged and followed his statement with a telegram sent to Parker's home. And
neither in his oral declaration nor subsequent telegram did Legg state that Parker
was terminated because of the accidents or the possibility that his insurance would
be canceled. Upon these facts, I cannot believe that the accidents in which Parker
had been involved or the threatened cancellation of the Respondent's insurance
policy, separately or together, constituted the real motivation for Parker's discharge.
Instead, I am convinced, and find, that these reasons asserted by the Respondent
were but pretexts which Legg utilized to conceal his true motive in removing Parker
from employment.
The evidence shows that Legg was opposed to having the Teamsters represent
the Respondent's truckdrivers and yard employees in a single unit because he felt
that this would place him at a competitive disadvantage and that he was desirous
of achieving a tie vote in the election scheduled for the following day; that he knew
that three of the employees, including Parker, would vote for the Teamsters and
two would vote for the Lumber Workers; that Legg attempted to convince Parker
to vote for neither union so that the vote would result in a tie; that Parker ada-
mantly refused and told Legg that he intended to vote for the Teamsters; and that
Legg decided to discharge Parker because of this and only after he had failed to
convince Parker that he should cast a neutral vote. By thus discharging Parker, the
Respondent violated Section 8(a)(3) and (1) of the Act.22 Although the Respond-
ent would have been justified if it had terminated Parker because of the accidents
in question or because of the threatened cancellation of its insurance , the fact is
that it did not do so. The existence of justifiable ground for discharge affords the
Respondent no defense since it was not the "moving cause." 23
In addition, I find that the Respondent violated Section 8(a)(1) of the Act by
Legg's statement to employee John McKevitt shortly before Thanksgiving that Legg
would rather see the employees represented by two unions, and that if the Team-
sters did win the election, Legg could lay off the men that he did not need,24 and
by his further statement to McKevitt that he could bring in the Lumber Workers
and "overcast" the majority of the Teamsters.25 I also find that Legg's questioning
of Parker between November 29, the date the Decision and Direction of Election
was issued, and December 22, the date Parker was discharged, as to how Parker
was going to vote also violated Section 8(a)(1) of the Act. I cannot agree with
the Respondent's contention that, even if such interrogation occurred, it did not
constitute a violation of the Act for this conduct on the part of Legg occurred in
a context of other unfair labor practices and therefore cannot be regarded as an
isolated event or interrogation which might under other circumstances be regarded
as warranted. Cf. Blue Flash Express, Inc., 109 NLRB 591. In arriving at the fore-
going conclusions , I have not relied upon the testimony of Parker that, in May
1963, Legg stated that he would never sign a Teamsters contract and would close
the door first , since I regard such evidence in the circumstances of this case as too
remote in time.
IV. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, 1
will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
22 Cf. N.L R.B. v. Stafford Trucking, Inc., 359 F.2d 829 (C.A. 7).
23 NLRB v. Texas Independent Oil Company, Inc, 232 F.2d 447 (CA 9)
24 McKevitt's testimony at this point was that Legg had said, "that he would rather see
two unions in there and that he could, if the Teamsters did win the election at his dis-
cretion he would lay off the men that he didn't actually need " I have construed this testi-
mony in a light most favorable to the Respondent and have found that Legg in effect said
that he could, rather than would, effectuate such layoffs. Despite Legg's statements that
he would rather see the employees represented by two unions , his efforts were directed to-
ward securing a tie vote which would effectively neutralize both labor organizations in-
volved and forestall representation of the employees by either union.
25 See footnote 4, supra.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel and the Charging Party contend that the Respondent should
offer reinstatement to Parker either as a truckdriver or as a yardman, the latter
job being the one be held at the time of his original employment. As above set
forth, I have found that Parker was not discharged because of the accidents in
which he was involved or because the insurance company threatened to cancel the
Respondent's policy, that the reasons so advanced by the Respondent were but pre-
texts and that the real reason for Parker's termination was his expressed insistence
upon voting for the Teamsters in the election scheduled for the following day.
Under such circumstances , I cannot regard reinstatement of Parker to a job other
than the one he held at the time the discrimination occurred as an adequate means
of remedying the unfair labor practices here found. I could adopt the suggestion
proffered by the General Counsel and the Charging Party only if I were to consider
that the accidents in which Parker was involved and the threatened cancellation of
the Respondent's insurance policy played a part in his termination , or that rein-
statement to his job as a truckdriver would infringe upon the exercise of the
Respondent' s business judgment. Under the circumstances present in this case, I
cannot so consider the matter for I am convinced by the evidence that these were
not factors which entered into the Respondent's decision to discharge Parker. They
were matters which were known to the Respondent before Parker was discharged
and since it did not then consider them sufficient, they may not be considered now
as a justification for depriving Parker of his right to be reinstated to the job from
which he was wrongfully removed. Accordingly, I shall recommend that the
Respondent offer Lester J. Parker immediate and full reinstatement to his former
or substantially equivalent position of employment, without prejudice to his senior-
ity and other rights and privileges, and make him whole for any loss of pay suffered
because of the discrimination against him, by payment to him of a sum of money
equal to that which he would have been paid by the Respondent from the date of
the discharge to the date of the Respondent's offer of reinstatement, less his net
earnings , if any, during the said period. The loss of pay under the order recom-
mended shall be computed in the manner set forth in F. W. Woolwoith Company,
90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716.
As the unfair labor practices of the Respondent found herein goes to the heart
of the Act, it will be recommended that the Respondent cease and desist from
infringing in any manner upon the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Teamsters is a labor organization within the meaning of Section 2(5)
of the Act.
3. By threatening to bring in one union for the purpose of destroying the major-
ity status of another labor organization ; by threatening employees that voting for
a union of their preference might lead to loss of employment ; and by unlawfully
interrogating employees as to how they intend to vote at a Board election, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discharging Lester J. Parker because he refused to refrain from voting for
the union of his choice , Respondent has engaged in an unfair labor practice within
the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7') of the Act.
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this proceeding , there is issued the following:
RECOMMENDED ORDER
Pioneer Lumber Treating Co., Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening to bring in one union for the purpose of destroying the majority
status of another labor organization.
(b) Threatening employees that voting for a union of their choice might lead to
loss of employment.
PIONEER LUMBER TREATING CO. 497
(c) Unlawfully interrogating employees as to how they intend to vote at a union
election.
(d) Discouraging membership in the Teamsters , or any other labor organization
by unlawfully discriminating against any of its employees in regard to their hire
or tenure of employment, or any term or condition of employment.
2. Take the following affirmative action:
(a) Offer Lester J. Parker immediate and full reinstatement to his former or
substantially equivalent position of employment , and make him whole for any loss
of pay he may have suffered by reason of the Respondent 's discrimination against
him in the manner set forth in the section above entitled "The Remedy."
(b) Notify Lester J. Parker if he is presently serving in the Armed Forces of
the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act,
as amended , after discharge from the Armed Forces.
(c) Preserve and make available to the Board or its agents on request, for exam-
ination and copying , all payroll records , social security records , timecards, per-
sonnel records and reports , and all other records necessary to analyze the amount
of backpay due and the right of reinstatement under the terms of this Recom-
mended Order.
(d) Post in conspicuous places, including all places where notices to employees
are customarily posted , at the Respondent 's place of business in Seattle, Washing-
ton, copies of the attached notice 26 marked "Appendix." 27 Copies of said notice
to be furnished by the Regional Director for Region 19 of the National Labor
Relations Board , after being duly signed by the Respondent , shall be posted by it
immediately upon receipt thereof and maintained by it for a period of 60 consecu-
tive days thereafter. Reasonable steps shall be taken by the Respondent to ensure
that such notice is not altered, defaced , or covered by any other material.
(e) Notify the Regional Director for Region 19, in writing , within 20 days from
the receipt of this Decision , what steps the Respondent has taken to comply
herewith.26
20 Since notices are customarily framed in the language of the statute and because of
their technical nature are often difficult for employees to understand , I am recommending
that the notice in this case embody the simplified form which appears in the Appendix.
a+ 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 is enforced by a
decree of a United States Court of Appeals , the words " a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
If this Recommended Order is adopted by the Board , this provision shall be modified
to read : "Notify 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 reinstate Lester J . Parker to his job as truckdriver and pay him
for all back wages lost as a result of his discharge on December 22, 1965.
WE WILL NOT threaten to bring in one union for the purpose of destroying
the majority of another labor organization.
WE WILL NOT threaten employees that voting for a union of their choice
might lead to loss of employment.
WE WILL NOT unlawfully question employees as to how they intend to vote
at a union election.
WE WILL NOT unlawfully discharge or unlawfully discriminate against
employees , or interfere with them in any way , because of their union activity.
264-047-67-vol . 162-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to join and support, or refrain from joining or sup-
porting, any union except that the right not to join a union may be affected by a
valid contract requiring membership in a union as a condition of employment.
PIONEER LUMBER TREATING Co., INC.,
Employer.
Dated----------- -------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act, as amended , after discharge from the Armed Forces.
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, 327
Logan Building , 500 Union Street, Seattle , Washington 98101 , Telephone 583-4583.
K-Mart, a Division of S. S. Kresge Company; Gallenkamp Stores
Co.; Mercury Distributing Company; Acme Quality Paints;
F & G Merchandising ; Hollywood Hat Co.; and Besco Enter-
prises, Inc. and Retail Clerks Union Local #770, Retail Clerks
International Association , AFL-CIO. Case ?1-CA-6937. De-
cember 30, 1966
DECISION AND ORDER
On June 17, 1966, Trial Examiner William E. Spencer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices 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, exceptions and supporting briefs were
filed by the Respondent K-Mart, a Division of S. S. Kresge Com-
pany (hereinafter called K-Mart) ; by the Respondents Gallenkamp
Stores Co., Mercury Distributing Company, Acme Quality Paints,
and F & G Merchandising; and by the Respondent Hollywood
Hat Co.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its pow-
ers in connection with this case to a three-member panel [Chairman
McCulloch and Members Fanning 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 supporting briefs, and the
entire record in this case , and hereby adopts the findings, conclusions,
162 NLRB No. 41.