United States Plywood Corp.

National Labor Relations Board - Board DecisionsMar 19, 1965

151 N.L.R.B. 794 (N.L.R.B. 1965)

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Plywood Corporation and International Wood- workers of America, AFL-CIO. Case No. 11-CA-2400. March 19, 1965 DECISION AND ORDER On December 9, 1964, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. 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 [Members Fanning, Brown, and Jenkins]. 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, the brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Order recom- mended by the Trial Examiner and orders that the Respondent, United States Plywood Corporation, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. In view of the fact that the Trial Examiner's finding of a violation was based upon the discriminatory enforcement or application of the no -solicitation rule, we find it unnecessary to pass upon the Trial Examiner 's statement with regard to Respondent's burden of going forward with the evidence in the absence of such discriminatory en- forcement or application . Further, we do not rely upon the fact that no other employee had previously been discharged for violating the no-solicitation rule inasmuch as the record does not demonstrate that there had been any other violations of this rule; nor do we rely upon the fact that one employee who, a year earlier, had been soliciting signatures for a petition , received only an oral warning inasmuch as this solicitation occurred during nonworking time, and the warning was directed only against the possible continuation of such solicitation during working hours. Further , we do not find Stone's relative ability to read and write or his erroneous understanding of the meaning of the Company's valid and unambiguous no-solicitation rule, which had been read to him, to be of probative value. 151 NLRB No. 90. UNITED STATES PLYWOOD CORPORATION 795 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on April 8, 1964, by International Woodworkers of America, AFL-CIO, herein called the Union, the Regional Director for Region 11 of the Na- tional Labor Relations Board, herein called the Board, issued a complaint on June 30, 1964, against United States Plywood Corporation, herein referred to as Respond- ent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act, by reason of its discharge of, and refusal to reinstate, William M. Stone, Jr., herein referred to as Stone, because of its belief that he joined or assisted the Union or engaged in other union activity or concerted activities for the purpose of collective bargaining or mutual aid or protection and/or to discourage its employees from joining or assisting the Union or from engaging in other union activity for the purpose of collective bargaining or mutual aid or protec- tion. In its duly filed answer Respondent denies the commission of any unfair labor practices, and admits that on or about March 18, 1964,1 it discharged Stone. Pursuant to notice a hearing was held before Trial -Examiner William W. Kapell in Orangeburg, South Carolina, on August 25. All parties were represented and afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. The General Counsel and Respondent presented oral argument and filed briefs which have been duly considered. Upon consideration of the entire record, the briefs, and upon my observation of the demeanor of the witnesses testifying before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE BUSINESS OF RESPONDENT Respondent is, and at all times material herein has been, a corporation with a place of business located in Orangeburg, South Carolina, where it is engaged in the manu- facture of plywood. During the past 12 months, which period is representative of all times material herein, in the course and conduct of its business operations, Respondent purchased and received at its Orangeburg, South Carolina, plant, materials valued in excess of $50,000 directly from points outside the State of South Carolina. During the same period, Respondent manufactured, sold, and shipped from its Orangeburg, South Carolina, plant, products valued in excess of $50,000 to points outside the State of South Carolina. Respondent admits, and I find, that during all times material herein it was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Woodworkers of America , AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICE A. Setting and issues On or about July 11, 1963, Respondent posted its plant rules, dated July 11, 1963, addressed to all employees, and also distributed copies to its supervisors, who read them to the employees. The posting contained a preliminary statement setting forth its purpose, followed by 34 plant rules. The preliminary statement and rule 25, the only relevant rule involved herein, are as follows: For the benefit of the many new employees that we have, and for review by our older employees, we are again distributing copies of our plant rules. As you know it is necessary to have certain plant rules, an infraction of which may some times require disciplinary action or discharge. We have a written warning system which affords an employee ample opportunity to correct the condition for which he was warned. A warning slip, however, need not be issued before an employee is discharged when that employee is guilty of inexcusable error in conduct-such as deliberate destruction of plant property, equipment, materials or assault upon a fellow worker or employee. 1 All the dates herein refer to the year 1964 unless otherwise noted. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are very fortunate at this plant in that only a very few of our employees ever place us in a position of having to take disciplinary action 25. Solicitation- Solicitation for membership, pledges. subscriptions or the unauthorized collection of money or circulation of petitions or conducting any outside business on the Company 's time without permission of the Superintendent. On December 9, 1963, Respondent posted and publicized to its employees a plant rule change as an amendment to plant rule # 25 on the list of plant rules of July 11, 1963, providing as follows Solicitation: There shall be no solicitation of any kind on Company property by persons not employed by the Company. There shall be no solicitation of any kind by employees of the Company which in any way interferes with the produc- tion of the Company. General Counsel contends that Respondent violated Section 8(a)(1) and (3) by invoking an alleged violation by Stone of its no-solicitation rule as a pretext to dis- charge him , when, in fact, he was terminated because of its belief that he was engaging in union organizing activity for the purpose of collective bargaining or mutual aid or protection , and/or for the purpose of discouraging union activity by other employees . Respondent asserts that Stone was discharged on March 18 for violating the no -solicitation rule during working hours by soliciting on behalf of the Union. B. The facts On or about March 11, during working hours, employees Stone and Willie Wanna- maker, while standing at their work stations, which were about 5 feet apart , and con- structing spacers (nailing three boards together to form a support similar to a pallet), were also carrying on a conversation . In this conversation , following a discussion on fishing and hunting , Stone asked Wannamaker if he had "heard anything about a union trying to come in out there ," 2 to which Wannamaker replied that he had not, and he "didn't want to hear anything about it, this is the way I make my bread and butter. " Stone also asked him "would he sign a union card " and Wannamaker said, "No, I don't want to sign any card " Supervisor Julius S. Gray , after observing Stone and Wannamaker carrying on their conversation for about 4 or 5 minutes, approached them and overheard Wannamaker say to Stone that he "wasn't going to sign nothing." At that moment Stone became aware of Gray's presence, and said to him in a joking manner that he was trying to get Wannamaker to join the Union Gray made no comment to either of them concerning the incident , and saw no union litera- ture available or in Stone 's possession.3 Gray reported the above -related incident to Edmund H. Durgin, director of personnel, who, 2 days later, interviewed Wannamaker and asked what Stone had said to him during their conversation. Wannamaker stated that Stone had asked him if he had signed a union card and he had replied that he had not, and he signed a state- ment to that effect. On March 18, Stone was summoned to Durgin's office where he met Durgin, Gray, and Plant Superintendent John Smoak. He was advised that an investigation was being conducted concerning his alleged violation of the no-solicitation rule in the incident involving his conversation with Wannamaker , and he was then questioned by Durgin, who read Wannamaker's statement to him. Stone acknowledged that the statement was true . 4 A statement was then prepared based on the information 2 Stone had heard a rumor about a union trying to come in , but did not know its identity , and had not engaged in any union activity. 3 These findings are based on the composite credited testimony of the individuals in- volved The only material conflict in their testimony pertains to whether or not Stone and Wannamaker had actually stopped working during their conversation They testi- fied that they continued working on their tasks during their conversation Gray stated that they had ceased working while he had been observing them I credit the testimony of Stone and Wannamaker, which was both convincing and forthright Also, in support of that finding is the testimony of Gray that, although it was customary to reprimand employees who stopped working during working hours, he, nevertheless, did not reprimand them , which raises an inference that they did not stop working Gray ' also 'testified that there was no company rule prohibiting employees from talking to each other while working 'At this meeting Stone denied that lie told Gray lie had tried to get Wannamaker to join a union as set forth in Gray's statement, but thereafter, following his discharge, recalled having made this remark UNITED STATES PLYWOOD CORPORATION 797 supplied by Stone, which he signed 5 Following this interview and the signing of his statement, Stone returned to his work station where shortly thereafter he was advised by Gray that "due to the evidence that we have against you, we're going to let you go," and he "punched out." The record also discloses that no other employee had ever been fired for violating the no-solicitation rule; that in October 1963 a warning had been given to an employee who, during his work break, had solicited other employees during their work break to sign a petition, because it tended to distract other employees working in the area; that Stone's ability to read and/or write English is so poor as to require assistance in those respects; and that he understood the no-solicitation i ule to apply to charitable collection drives and was entirely unaware of its possible application to union solicitation. Findings and Conclusions Respondent stresses the fact that it was unaware of Stone's union activity or of any union activity in connection with his discharge, and, therefore, could not have been motivated by any union animus when he was discharged. The evidence, how- ever, clearly demonstrates that Gray either suspected or actually was apprised of such activity when he approached Stone and Wannamaker after observing they were carrying on a conversation; that 2 days later Durgin questioned Wannamaker about Stone's union solicitation during his interview; and that on March 18, Durgin inter- rogated Stone about soliciting for the Union in the presence of Gray and Plant Superintendent Smoak, immediately prior to his discharge. Respondent's no-solicitation rule is presumptively valid as to its promulgation, and would be presumptively valid as to its enforcement in the absence of evidence that the rule was unfairly or discriminately applied. Walton Manufacturing Company, 126 NLRB 697, 698. In order to sustain its contention that Stone was lawfully dis- charged for violating that rule, Respondent must establish, in the absence of evidence that the rule was unfairly or discriminatorily applied, that Stone actually solicited for the Union, and that such solicitation interfered with production. I find that the credible evidence establishes that Stone did not solicit Wannamaker to join the Union but was engaging in casual conversation during which they dis- cussed various subjects, such as fishing, hunting, and whether Wannamaker had signed or would sign a union card. Stone apparently was prompted to inquire about Wannamaker 's union intentions because he had heard a rumor about a union coming into the plant. He neither solicited nor intended to solicit for a union whose identity was unknown to him, and of which he was not a member at that time.6 Moreover, conversations between employees while working was not only not prohibited but, in fact, was customarily carried on practically all day long, and was not incompatible with the nature of their work. I find further that, even assuming, arguendo, that Stone was soliciting for the Union as claimed, it did not interfere with production. As related above, I credit the testimony of Stone and Wannamaker that they continued working throughout their conversation. The extent of any interference with production resulting from their conversation was not even a matter of concern to Respondent . During its investigation of the incident, Stone was never accused of interfering with Wanna- maker's work or of stopping work himself. In fact, neither Stone nor Wannamaker was questioned about it when interviewed by Durgin. Apparently, Respondent's action was prompted primarily by the suspected union aspect of Stone's activity rather than by any concern over its possible disruptive effect on production. I also find that, even assuming Stone violated its no-solicitation rule, Respondent did not enforce or apply the rule in a nondiscriminatory manner or in accordance with its announced practice of giving a rule violator a written warning, except when guilty of inexcusable conduct, such as deliberate destruction of plant property or assault upon a fellow worker, to afford him an ample opportunity to correct the con- dition for which he was warned. The alleged violation of the no-solicitation rule was at most de minimis, and certainly not comparable to plant rule infractions in which no warning slip was to be issued prior to a discharge. Admittedly, no warning was given to Stone, and no explanation was advanced by Respondent for its failure to do so Also, it appears that during October 1963 a warning had been given to 5 The statement sets forth that while at work on March 10, he was discussing the Union with Wannamaker, and heard him say "That he was not going to sign anything because he got his bread and butter from here. Further, that he had a good trade but did not depend on that but depended on this Company down here for a living" 60n March 17, the day before his discharge, he signed a union membership card. In view of the absence of any evidence to indicate that Respondent was aware of his mem- bership in the Union, no significance is attached to the sequence of these events. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an employee who was soliciting other employees to sign a petition . I, therefore, con- clude that , even assuming Stone violated the no-solicitation rule, Respondent discriminatorily enforced or applied the rule, and thereby unlawfully interfered with, restrained , and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act. I find further that Stone and Wannamaker were engaging in protected activity when discussing the Union , and that the good faith of Respondent in discharging Stone, even in the mistaken belief that he violated the no-solicitation rule, is no defense to a charge of violating Section 8(a)(1). See N.L .R.B. v. Burnup & Sims, Inc., 379 U.S. 21, "Over and again the Board has ruled that Section 8(a)(1) is violated if an employee is discharged for misconduct arising out of a protected activity , despite the employer 's good faith , when it is shown that the misconduct never occurred ." Furthermore , even assuming Respondent acted under the erroneous impression that Stone was soliciting for the Union and discharged him in the mistaken belief that he engaged in organizational activity on behalf of the Union , it never- theless would constitute a violation of Section 8(a)(3). Cf. N.L.R.B. v. Industrial Cotton Mills (Division of I. P. Stevens Co.), 208 F. 2d 87, 89, 91 (C.A. 4), where the employer's refusal to reinstate a striking employee because of an honest but mistaken impression that the employee had engaged in strike misconduct , whereas, in fact, he had engaged in protected activity , was found to be violative of Section 8(a) (3). See also Marydale Products Company, Inc., 133 NLRB 1232-1233, footnote 4, where the Board stated : "The good faith of a respondent concerning an employee 's wrong- doing is no defense to an allegation of discrimination if it is affirmatively shown in the record that in fact the employee did not engage in such activity " Accordingly, I And that Respondent engaged in conduct in violation of Section 8 (a) (1) and (3) . IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the Respondent set forth 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 thereof. V. THE REMEDY In view of the findings set forth above that Respondent has engaged in unfair labor practices defined in Section 8(a)(1) and (3) of the Act, I shall recommend that Respondent be required to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act Having found that Respondent discriminatorily discharged Stone, I will recom- mend that Respondent offer him immediate and full reinstatement to his former or substantially equivalent employment and make him whole for any loss of pay he may have suffered by reason of the discrimination practiced against him by payment to him of a sum equal to that he would normally have earned from the date of the discrimination to the date of the offer of reinstatement, less his net earnings during said period. The backpay provided for herein shall be computed in accordance with the Board formula se* out in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. I also recommend that Respondent cease and desist from discriminatorily enforcing or applying its no-solicitation rule or in any other manner interfering with or infringing upon the rights guaranteed to employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 7 Respondent's contention that there is no evidence that It was motivated to dis- criminate against Stone or any other employee is without merit. Specific proof of intent to discourage union membership is presumed, as in the instant case, where the discouragement of union membership is the foreseeable consequence of the employer's conduct. The Radio Officers' Union of the Commercial Telegraphers Union (A. H. Bull Steamship Company) v N.L.R B., 74 S. Ct. 323, 328 [347 U.S. 17] ; Republic Aviation Corporation v. N.L.R.B., 65 S. Ct. 982, 984 [324 U.S. 793]. UNITED STATES PLYWOOD CORPORATION 799 2. International Woodworkers of America, AFL-CIO, is a labor organization within the meaning of the Act. 3. By discharging Stone, thereby discriminating in regard to his hire and tenure of employment, in order to discourage membership in and activity on behalf of the above-named labor organization , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the Act, I recommend that Respondent, United States Plywood Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of International Wood- workers of America, AFL-CIO, or any other labor organization of its employees, by discharging any employee or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment. (b) Discriminatorily enforcing or applying its no-solicitation rule or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above- named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Offer William M. Stone, Jr., immediate and full reinstatement to his former or substantially equivalent employment and make him whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of America of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training Act of 1948, as amended, after discharge from the Armed Forces. (c) 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 backpay due and all other rights under the terms of this Recommended Order. (d) Post in conspicuous places at its plant in Orangeburg, South Carolina, includ- ing all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for Region 11, shall, after being duly signed by Respondent's representatives, be posted by it immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps Respondent has taken to comply herewith.9 B 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 the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order" 0In the event that this Recommended Order be 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." 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, we hereby notify our employees that: WE WILL NOT discourage membership in International Woodworkers of America, AFL-CIO, or any other labor organization, by discriminating as to hire, tenure, or any other term or condition of employment of any of our employees. WE WILL NOT discriminatorily enforce or apply our no-solicitation rule. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to organize; to perform, join, or assist a labor organization; to bargain collectively through a bargaining agent chosen by themselves; to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection; or to refrain from any such activities. WE WILL offer to William M. Stone, Jr., immediate and full reinstatement to his his former or substantially equivalent position (without prejudice to seniority or other employment rights and privileges) and WE WILL pay him for any loss suffered because of our discrimination against him. All our employees are free to become or remain members of any labor organization. UNITED STATES PLYWOOD CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if 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 of 1948, 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. Employees may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone No. 723-2911, if they have any questions concerning this notice or compliance with its provisions. Franklin Brass Products and United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Cases Nos. 11-CA-2413 and 11-RC-195.1. March 19, 1965 DECISION AND ORDER On January 12, 1965, Trial Examiner David London 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 within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respond- ent filed exceptions to the Decision and a supporting brief.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has 1 We find without merit Respondent's contention that its pretrial and hearing motions for a bill of particulars were improperly denied. 151 NLRB No. 98.