Abitibi Corp.

National Labor Relations Board - Board Decisions

Jan 30, 1975

216 N.L.R.B. 373 (N.L.R.B. 1975)

ABITIBI CORPORATION 373
Abitibi Corporation and Clayton Porter . Case 11-CA-
5739
January 30, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
On October 18, 1974, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, General Counsel and
Respondent filed exceptions and supporting briefs,
and Respondent filed a brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Abitibi Corporation,
Roaring River, North Carolina, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard at Wilkesboro, North Carolina, on August
21 and 22, 1974,1 pursuant to a charge filed on May 16 by
Clayton Porter, an individual, and a complaint issued on
June 28.
The complaint , amended at the hearing,2 alleged that
Abitibi Corporation (herein referred to as Respondent)
violated Section 8(axl) and (3) of the National Labor
Relations Act, as amended (herein referred to as the Act),
by creating impressions of surveillance of its employees'
I All dates referred to are in 1974 unless otherwise stated.
2 The complaint was amended , without objection , to conform the dates
216 NLRB No. 65
union activities; interrogating employees concerning their
union activities; threatening employees with loss of their
jobs because of union activities; and discriminatorily
discharging and refusing to reinstate Clayton Porter
because of his union or concerted activities.
Respondent in its answer filed on July 5 denied having
violated the Act. The defense asserted in its answer that the
complaint was defective is rejected, since I find the
complaint clearly alleged a violation of the Act. Further, a
pretrial order issued by Administrative Law Judge Arthur
Leff ruling on Respondent's motion for a More Definite
Statement disposed of Respondent's contentions that
certain allegations contained in the complaint were
insufficient to allege a violation.
The issues involved are whether Respondent violated
Section 8(a)(1) and (3) of the Act by unlawfully interrogat-
ing, threatening, or creating impressions of surveillance of
its employees with respect to their union activities; and
whether Respondent discriminatorily discharged Clayton
Porter and denied him reinstatement because of his union
or concerted activities.
The parties at the hearing were afforded full opportunity
to introduce relevant evidence, to examine and cross-
examine witnesses, to argue orally on the record, and to
submit briefs.
Upon the entire record in this case and from my
observation of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,3 I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, has a plant located
at Roaring River, North Carolina, where it is engaged in
the manufacture of hardboard. During 1973, a representa-
tive period, Respondent in the operation of its Roaring
River plant, which is the only facility involved in this
proceeding, purchased and received goods and raw
materials valued in excess of $50,000 directly from points
located outside the State of North Carolina and manufac-
tured, sold, and shipped goods valued in excess of $50,000
directly from its Roaring River plant to points located
outside the State of North Carolina.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the International
Woodworkers of America, AFL-CIO-CLC (herein re-
ferred to as the Union), is a labor organization within the
meaning of Section 2(5) of the Act.
of alleged violations with evidence adduced at the hearing.
3 The Charging Party did not submit a brief.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ili. THE UNFAIR LABOR PRACTICES made of their earlier conversations.5
About December 2, 1971, Porter was promoted to the
newly created position of chief tester which Respondent
and Porter both contended was a supervisory position .6
Porter testified upon being promoted and informed of his
duties by Personnel Manager Swift and Quality Control
Superintendent Fred Wheeler, who was Porter's supervisor
throughout his employment with Respondent, Swift told
him he was going into the rough part of the plant where the
laboratory was 75 percent Union and for him to go out and
take care of them.?
While Swift denied and Wheeler doubted those specific
words were used , Wheeler acknowledged they had in-
formed Porter they had just gone through a union
campaign and learned they had to present the Company's
side of the argument and discuss with the employees they
did not want a union in the plant. Wheeler stated they told
Porter there were some employees in the laboratory who
they felt had not gotten the Company's side of the picture
in the past and they wanted to make sure Porter presented
it that way, mentioning the laboratory was a difficult place
and they knew some organizers in the past had talked to
the employees . Both Swift and Wheeler, who contended
those instructions were given Porter because of his
supervisory capacity, denied Porter's promotion was
related to the Union but claimed he was selected because
he was the best qualified employee. Porter's personnel
ratings as a tester support Respondent 's reasons for his
promotion.
Porter testified while serving as chief tester Personnel
Manager Swift informed him Dee Mitchell , a tester on the
first shift, had applied for employment with Lowe's
Company and instructed him to get a change order signed
by Mitchell, who he said was sympathetic with the Union,
stating he was going to quit so they could force him out if
he did not quit . Personnel Manager Swift denied the
incident, claiming Mitchell had quit his job voluntarily to
go to work at the Lowe's Company.
Porter stated about April 1972 Swift told him to go to the
plant some night to see if he could catch Donnie Royal, a
tester on the third shift, asleep because he was afraid what
might happen since if a union man approached Royal prior
to the election he would vote for the Union and if a
company man approached him he would vote for the
Company. Swift acknowledged telling Porter to see if he
could catch Royal asleep but claimed the reason was
because he had received reports Royal was sleeping on the
job which was against company rules.
Although I credit Porter's testimony rather than Swift,
whom I have previously discredited, there was no evidence
Porter complied with either of those instructions or that
Mitchell or Royal were actually discriminated against
because of the Union.
Porter testified although he had helped Respondent in
the December 14, 1972 , election campaign he described his
assistance as being slight . Wheeler and Swift acknowledged
copy of the supervisor's handbook . Respondent, contrary to its position at
the hearing concerning Porter's supervisory status , had included his name
on the list of eligible voters for the December 14, 1972 , union election in
which Porter voted a challenged ballot.
I Porter's testimony does not establish how he was supposed to take care
of them.
A. Background
Official notice has been taken as requested of the Board
decision in Abitibi Corporation4 wherein Respondent was
found to have violated Section 8(a)(1) of the Act by
unlawfully questioning , pressuring , and threatening its
employees ; the results of a Board election held on
February 25, 1971, were set aside following the Union's
objections ; and a second election was directed to be held
for a unit comprised of all the production and maintenance
employees including testers . The second election which the
Union lost was subsequently held on December 14, 1972.
Clayton Porter , the alleged discriminatee, was employed
by Respondent from about August 30, 1971, until April 19,
1974.
The General Counsel contended that prior to becoming
active in the Union himself, Porter had assisted Respond-
ent in its efforts against the Union.
According to Porter a few days before the first union
election held on February 25, 1971, which was prior to his
employment , Respondent's personnel manager, Willard
Swift, solicited him to talk to his two brothers, Larry Porter
and Bill Porter, and Ivan Shepherd , who were all employed
by Respondent, to see what he could do because they were
leaning toward the Union and for him to tell his brothers
Swift would take care of them if they helped the Company.
On the day of the election Porter stated Swift informed
him his brother who they needed to vote had not reported
for work , and requested him to get in touch with his
brother and tell him Swift would fix him up.
Following the election Swift thanked him for what he
had done and suggested if he was ever interested in
employment to let him know and he would take care of
him.
Personnel Manager Swift denied making the statements
attributed to him by Porter, claiming it was Porter who
brought up the subject of the union election at the plant
and had asked him how his brothers stood. When Swift
replied he did not know , Porter volunteered to talk to them
and see what he could find out, whereupon Swift agreed.
Swift claimed the reason he called Porter on the day of
the election was to obtain his assistance in locating his
brother Bill Porter to inform him of the election hours and
for him to vote.
I credit the testimony of Porter who I find to be a more
credible witness than Swift. Apart from my observations of
the witnesses I do not find plausible Swift's version that
Porter broached the subject of the Union and the union
feelings of his two brothers who, unlike himself, were both
employed by the Respondent since it might jeopardize
their jobs.
When Porter subsequently applied for a job in August
1971 and was hired by Personnel Manager Swift as a
quality control tester in the laboratory, no mention was
4 198 NLRB 1249 (1972).
S According to Porter, Swift mentioned the job of chief tester was
coming up and he could get the job.
6 Although the supervisory issue was not fully litigated , the evidence
established Porter supervised four testers who worked under him , received a
higher hourly rate of pay, attended supervisory meetings , and received a
ABITIBI CORPORATION 375
Porter, like the other supervisors , had supported Respond-
ent's position.
On January 2, 1973, Porter's job was changed from chief
tester to day technician with the same rate of pay.
Quality Control Superintendent Wheeler and Personnel
Manager Swift testified Porter 's job was changed because
of a continuous turnover in laboratory personnel, com-
plaints from other employees, and because Porter had
bypassed his responsibility in giving orders.
Porter testified Personnel Manager Swift had informed
him he was being moved to the day technician 's job to put
him in the voting unit so he would have the power to vote.
Porter also stated Swift told him to report to him about any
union meetings being held.
Personnel Manager Swift denied making such statements
but stated he had informed Porter as a day technician he
would no longer be a supervisor and would be in the unit.
While Swift denied telling Porter to report to him about
union meetings , he stated Porter did report such informa-
tion without being asked.
Inasmuch as there was no evidence of any union activity
at the time of the transfer or an election pending and
absent evidence to rebut those reasons given by Respond-
ent for transferring Porter to a job within the unit , I do not
find the transfer was discriminatorily motivated . Although
I credit Porter's version about his being asked to report on
union meetings , Porter did not testify concerning what
information, if any, was ever reported to Swift.
B. Unlawful Interrogations, Threats, and
Impressions of Surveillance of Employees' Union
Activities
The Union began an organizing campaign among
Respondent's employees about January 1974. Union
literature distributed to the employees at Respondent's
gate about January 9 invited employees to meet with the
union's representative at Room 7 of the Lowes Motel
which was located approximately 14 to 20 miles from the
plant.
Porter's union activities consisted of attending three
union meetings held on January 13, 14, and about the
middle of March at Lowes Motel ; signing a union
authorization card on January 14; and discussing the
Union with six or seven other employees. These discussions
occurred between about January 13 and the latter part of
March in Respondent's lunchroom.
Porter testified on January 14, after he had attended a
union meeting held the previous evening , Quality Control
Superintendent Wheeler in the presence of David Higgins
asked him if he had enjoyed the beer last night . According
to Porter and other witnesses presented by Respondent the
topic of the union meeting and free beer had been a topic
of discussion in the plant.
Wheeler, while denying he had addressed his remarks
solely to Porter , testified he had made a statement to
Porter, David Higgins , and Eric Rogers 8 together that he
hoped they would enjoy the beer . Regardless of whether
Wheeler singled out Porter in making his remarks , I do not
find such statements constituted a threat by Wheeler that
employees would lose their jobs because of the Union as
alleged in the complaint.
Porter stated about January 15 during a telephone
conversation with Personnel Manager Swift, Swift in-
formed him he had gotten word Porter had been in the
lunchroom talking about Room 7 and drinking beer and
told him that wasn't good for his employment. Porter, who
had previously been discussing with another employee in
the lunchroom about attending a union meeting, denied he
had heard anything about it.
Personnel Manager Swift acknowledged telling Porter he
had heard a discussion in the lunchroom about the Union
and free beer and a girl being at the motel but denied
telling Porter it wasn't good for his employment. Instead
Swift stated he told Porter somebody was going to get the
wrong idea about those things.
I credit Porter rather than Swift, whom I have previously
discredited, and find that Swift by his statements to Porter
threatened Porter with the loss of his job for engaging in
union activities . Inasmuch as Porter had been discussing
the subject of the union meeting in Respondent's lunch-
room, I do not find such remarks by Swift further
constituted an impression of surveillance of Porter's union
activities.
Porter also testified about February 27 Personnel
Assistant John Cox, in the presence of employee Jessie
Blackburn, came up, slapped him on the back, and said,
"Hello, car thief." According to Porter the previous night
he had used his brother's automobile to attend a meeting
held at Lowes Motel at which he and other employees had
discussed signing union authorization cards.
Personnel Assistant Cox's version was he had remarked
to Porter who he thought was trading automobiles that he
had heard Porter was not trying to buy a car but to find
some sucker and steal one. Cox denied having any
knowledge Porter had attended a union meeting.
Apart from Cox's denial assuming arguendo such a
statement had been made as Porter alleged, I do not find it
sufficient standing alone to establish a findings of an
unlawful impression of surveillance of Porter's union
activities as the complaint alleged.
Employee Holland Bauguess testified, on March 30
while talking to Personnel Manager Swift about his being
off work because of illness , Swift asked him how the boys
were in the finishing department. Upon replying they were
fine Swift asked him if the Union had died down out there.
Bauguess stated after informing Swift it had as far as he
knew he asked Swift if that was the reason he was writing
him up. Swift responded it wasn't but added, "If it was,
you would be like the boy on the day time, you would have
done been gone." Swift did not mention the name of the
employee he was referring to.
Personnel Manager Swift's version was upon telling
Bauguess unless his attendance record improved further
action would be taken, Bauguess asked whether that meant
he was going to lose his job. Swift stated, upon replying it
would not, Bauguess mentioned an employee in his
department had lost his job a few weeks ago while he was
out. Swift stated he told Bauguess if he had done what that
employee did he would have too.
s David Higgins and Eric Rogers did not testify.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit Bauguess who impressed me as a credible witness
rather than Swift, whom I have previously discredited, and
find that Swift by his statements to Bauguess coercively
interrogated Bauguess concerning his union activities and
threatened Bauguess with the loss of his job for engaging in
union activities . Further in crediting Bauguess the threat
made to him is consistent with Swift 's threat to Porter.
C. Events Leading Up To and Porter's Termination
Quality Control Superintendent Wheeler, Personnel
Manager Swift , and Plant Manager Ray Longevin all
testified they had previously discussed removing Porter
from his job as day technician in the laboratory because of
his work performance,9 however, because of an anticipated
plant expansion program announced in June 1973 whereby
jobs more suitable to Porter 's abilities might become
available, the decision was delayed.
Porter's personnel rating dated September 12, 1971,
which was prepared by Wheeler and signed by Porter,
reflected his production performance and the quality of his
work as a day technician as only fair and contained the
comment , "Clayton has certain abilities but they do not lie
in an area of technical application. I feel his ability could
best be applied in the general area of public relations."
Both Wheeler and Smith stated they discussed this rating
with Porter and the fact he wasn't suited for the job and
discussed moving him to other more suitable jobs which
might be created when the plant was expanded. According
to Wheeler, Porter told him he wasn't suited for the day
technician's job and had mentioned when they put
someone in a laboratory who didn't know what he was
doing he was going to get his head blown off .
Porter, who acknowledged he wasn't interested in the
day technician's job and was afraid of chemicals which the
work required, did not deny those discussions pertaining to
his rating.
Quality Control Superintendent Wheeler, Personnel
Manager Swift, and Plant Manager Longevin all testified
the decision to remove Porter from his day technician's job
in the laboratory and give him an opportunity to find
another job either inside or outside the plant occurred in
March 1974 after the plant expansion plans which had
been postponed indefinitely in November 1973 because the
energy crisis had been canceled. They denied their decision
had anything to do with the Union.
Porter stated on April 1 Quality Control Superintendent
Wheeler 10 informed him he had been thinking about it
over the weekend and thought it would be better if Porter
would leave the laboratory and seek employment else-
where. Porter stated when he mentioned he knew it was
because of his sympathy with the Union, Wheeler's
response was he had heard Porter was in sympathy with it
and they were actually worried about him at one time.
Wheeler refused his request to prepare a change order
showing he had asked him to quit.
9 Quality Control Superintendent Wheeler stated the discussion occurred
prior to September 12, 1973, while Plant Manager Longevin thought it had
occurred at the end of 1973
10 Porter testified in March after he had mentioned to Wheeler that one
or two foremen who were for the union while working at another company
Wheeler, who denied the statements attributed to him by
Porter, testified on March 29 he informed Porter he could
no longer support him in the laboratory and wanted him to
find something else either in the plant or outside the plant
within the next couple of weeks. Wheeler stated when he
said they had previously discussed trying to fit a square peg
in a round hole and it was not working out, Porter replied
he had told him all along he was not suited for that kind of
work mentioning when they put someone who didn't know
anything about chemistry in a nitroglycerin plant he was
going to blow his head off. According to Wheeler, Porter
then brought up certain matters such as Personnel
Assistant Cox having called him a car thief and that a
union representative had visited his home but denied
anything had happened. Wheeler informed Porter that was
his own business . Wheeler stated he advised Porter he
wasn't going to make it known it was his decision to move
Porter out of the laboratory and Porter could say what he
liked but to let him know what his story was so he could
corroborate it.
Wheeler then instructed Porter to see Personnel Manager
Swift.
I credit Wheeler who I find to be a more credible witness
than Porter. Further the reasons given by Wheeler are
consistent with the undisputed testimony about the initial
decision to move Porter and his personnel rating which
occurred prior to the most recent union campaign and
Porter's admitted lack of interest and fear of his day
technician's job.
Porter testified the following day Personnel Manager
Swift informed him he should be seeking work elsewhere
and looking for another job as quickly as possible because
they wanted him out of the laboratory. Porter stated when
he told Swift he felt it was because of his sympathy with the
Union, Swift made no reply. Swift also informed him not
to tell anybody he and Wheeler had asked him to quit.
Personnel Manager Swift's version was upon asking
Porter whether he agreed with Wheeler's decision, Porter
replied he had told him before he just wasn't suited for that
kind of work. Swift stated after asking Porter if he wanted
to accept a job with some other department they talked
about various openings explaining to Porter when he
transferred from one department to another department he
would go to the bottom of the seniority in that department
and he would have to accept a utility position on whatever
shift was open from which position he could work his way
up to the day shift and different positions. Swift told him
he would not lose his plant seniority which is used for
layoffs and vacations and his insurance and hospitalization
benefits would remain the same . When Porter asked what
his pay would be, he informed him that depending on the
shift differentials of 10 cents an hour for the second shift
and 12 cents an hour for the third shift his rate of pay
would be approximately $3.26 or $3.28 an hour.ii Swift
stated when he informed Porter he would give him 2 weeks
to decide Porter indicated he was exploring the possibility
of going into business for himself, mentioning opening a
had gotten to come to the finishing department , he had commented to
Wheeler that it looked like the only way to get something was to be for the
Union and it looked like he was going to be for the Union. Wheeler denied
the incident.
Ii Porter was earning approximately $3.71 an hour as a day technician.
ABITIBI CORPORATION 377
gas station 12 but said he really didn't know and wanted to
think about it. Swift denied Porter had mentioned the
Union.
According to Porter about April 10 Swift again reminded
him he wasn 't a laboratory man and it wasn 't working out
and told him he did not like it because Porter had gone
over the plant telling them Wheeler had asked him to quit
after he had told him not to.
Personnel Manager Swift testified after the 2 weeks were
up upon asking Porter if he had made a decision, Porter
informed him he had not obtained a license to open a
service station and had talked to people in other depart-
ments about jobs , including Superintendent of Manufac-
turing Al Burkenbine13 and Finishing Foreman Alfred
Wagner ; 14 however, they didn't have any openings on the
day shift . 15 Swift stated he told Porter they had openings in
the manufacturing department , finishing department, and
the woodyard and they could put him in a utility position
in any of those departments but he would have to start at
the bottom and take a second or third shift . Swift at his
own suggestion gave Porter another week to make up his
mind when Porter indicated maybe by then he could
decide something.
Porter stated on Thursday, April 18, Swift asked him if
he had another job and informed him his decision had to
be made by Friday. Swift then offered him a utility job on
the second shift in the Woodyard or a new job on the third
shift in the finishing department . Porter stated Swift, in
response to his inquiries , informed him he would lose his
seniority , have to start at the bottom of the ladder, and
would receive a 50-cent-an-how drop in pay and would be
doing odd jobs. Swift also told him the new job offered
would involve the continuous lifting and turning of boards
for 8 hours . 16 Under cross-examination , however, Porter
denied Swift had told him he would lose his company
seniority and acknowledged he had previously heard when
an employee was transferred to a different department he
had to start at the bottom.17
The last day Porter worked for the Respondent was on
April 19.
Porter testified when Swift asked him that day if he had
considered any of the jobs offered he told Swift under the
circumstances he couldn't take them . Swift's response was
they could no longer tolerate him in the laboratory and
during the conversation mentioned Porter should not have
told the people at the Company Swift had asked him to
quit but that he was actually leaving on his own.
Personnel Manager Swift's version was upon asking
Porter whether he had made up his mind and wanted to
accept one of the jobs offered, Porter asked whether if he
quit could he come back and accept one of the jobs in
about a week . Swift's response was he could hold the jobs
open that long but if Porter didn 't want to quit he was
12 Porter acknowledged he had mentioned to Swift the possibility of
going into business for himself operating a store or selling gasoline.
13 Under cross-examination Porter acknowledged he had asked Superin-
tendent Burkenbine about a job in the manufacturing department.
14 Finishing Foreman Wagner testified he had informed Porter pursuant
to his inquiries there were no openings on the first shift.
15 Porter also stated he had asked Steam Plant Supervisor Roger Meade,
on behalf of another employee, whether there was an opening in his
department , whereupon Meade informed him there was no opening. While
Meade contended he had informed Porter there was an opening as a utility
going to have to request a leave of absence if that's what he
needed to make up his mind . Swift stated Porter replied if
it was all right with him and if he could still come back in a
week he would go home and think about it and if he
decided to come back he would call him. Swift stated
during the conversation he told Porter he had heard Porter
had been telling people Swift had asked him to leave or
find another job outside the laboratory and it would have
been better if Porter had indicated it was his desire to
change rather than to imply Wheeler didn't want him to
stay there any longer as he was only hurting himself by
telling people that.
According to Swift after Porter left he did not hear from
him again.
While the versions of the discharge conversations
between Porter and Swift differ in certain respects it is not
disputed that Porter, upon being removed from the day
technician's job, was offered at least two other jobs which
he refused , thereby resulting in his termination of employ-
ment.
Respondent presented several witnesses who testified
Porter had told them he didn't know the reason Wheeler
had asked him to leave unless it was because of run-ins he
had had with engineer John Sims or that was the reason he
was seeking a transfer or quitting . However, these
statements occurred after Porter had been notified about
his being moved from the day technician's job and Wheeler
denied Porter's inability to get along with Sims had
anything to do with the decision to remove Porter from the
laboratory. Under these circumstances, I do not find as
Respondent urged in its brief such statement, never
conveyed by Porter to Swift or Wheeler, constituted an
admission by Porter that Sims was the reason he had left
Respondent's employment.
Porter on direct examination claimed his reason for
refusing to accept the jobs offered him 18 was because they
involved continuous lifting which he was unable to
perform because of a back injury suffered in an automobile
accident in January 1966. However, employment applica-
tions filed by Porter with Respondent in July 1968 and
August 1971 listed no physical defects as required by the
application form, and his employment physical examina-
tion record for August 1971 listing a previous disability
because of his back injury disclosed an examination of his
back had revealed no limitation of motion. Moreover,
under cross-examination Porter admitted and Quality
Control Superintendent Wheeler testified that as a day
technician Porter's duties on occasions involved lifting or
assisting other employees in lifting heavy objects such as
boards and placing oil drums on carriers.
Under cross-examination Porter gave as an additional
reason for his refusal to accept the jobs offered the fact that
his mother lived alone and from time to time he had to
operator, he could not recall mentioning it was a fast-shift job nor was this
job offered to Porter by Swift.
16 Personnel Manager Swift acknowledged one of the new jobs being
created in the finishing department involved grading and checking boards.
17 Under Respondent 's policies an employee upon being transferred
from one department to another department starts as a utility employee on
whatever shift is available and although he loses his departmental seniority
he retains his plant seniority.
is The fact the jobs offered paid less money was not given as a reason by
Porter for having declined them
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
check on her.19
There was no evidence to establish and Swift denied he
was aware of those reasons given by Porter for declining
the jobs offered.
D. Analysis and Conclusions
The General Counsel contended while Respondent
denied that Respondent violated Section 8(axl) and (3) of
the Act by unlawfully interrogating , threatening, and
creating impressions of surveillance with respect to its
employees' union activities and by discriminatorily dis-
charging and denying reinstatement to Porter because of
his union or concerted activities.
Section 8(a)(1) of the Act prohibits an employer from
interfering with , restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(3) of the Act provides in pertinent part:
"It shall be an unfair labor practice for an employer .. .
by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to
encourage or discourage membership in any labor organi-
zation
o r g a n i -
t i o n .
Based upon my findings, supra, Respondent Personnel
Manager Swift coercively interrogated Bauguess concern-
ing his union activities and threatened both Porter and
Bauguess with the loss of their jobs for engaging in union
activities. I hereby find such conduct interfered with,
restrained , and coerced Porter and Bauguess in the exercise
of their rights guaranteed in Section 7 of the Act and
thereby violated Section 8(aX I) of the Act.
The remaining issue is whether Porter was discriminato-
rily terminated and denied reinstatement.
The evidence established that Porter, upon being
removed from his job as day technician, quit his employ-
ment rather than accept other jobs offered him. Since the
evidence established he quit rather than being terminated
as alleged in the complaint, the issue first raised but fully
litigated at the hearing was whether Porter was construc-
tively discharged.
A constructive discharge may be found where working
conditions have been changed in a manner which has the
effect of forcing an employee to quit his employment
because he had engaged in union or protected concerted
activity. See Masdon Industries, Inc., 212 NLRB 505 (1974).
The initial decision to remove Porter from his day
technician's job not only preceded the most recent union
organizing campaign but occurred at a time when there
was no evidence of any union activity or any reason shown
why Porter, who had previously assisted Respondent in its
efforts against the Union as herein found, would have been
discriminated against because of such activities. That
decision to remove Porter because he was unsuitable for
the job was supported by his personnel rating and was
consistent with his dislike and fear of the job. Thus the
initial decision could not be found to have been discrimi-
natorily motivated. However, when the final decision to
remove Porter was made and implemented Respondent
had knowledge that a couple of months earlier Porter had
discussed the Union with another employee in the
lunchroom and it had threatened Porter with discharge for
having engaged in union activities . While Respondent's
knowledge of Porter 's union activities and the threat to
discharge him for having engaged in such activities coupled
with Respondent 's union animus established both by the
prior Board decision 20 and the unlawful conduct herein
found are significant factors in determining whether
Porter's termination was unlawful , I am not persuaded he
was discriminatorily terminated . Having found that the
initial decision to remove him from his job as day
technician was not discriminatorily motivated and the
delay in implementing the decision was reasonably
explained by the cancellation of the anticipated plant
expansion plans, I find it significant that Respondent,
rather than terminating Porter, offered him other jobs
which he declined not only for reasons unknown to
Respondent but which were substantially refuted by the
evidence . Contrary to Porter's assertion he had declined
the jobs offered because of an inability to perform
continuous lifting, an examination of his employment
applications and employment physical examination dis-
closed no such disability and Porter 's duties as day
technician had involved lifting heavy objects . Under these
circumstances , I find that the General Counsel has not
proven by a preponderance of the evidence as is his burden
that the Respondent violated Section 8(aX3) and ( 1) of the
Act by discharging and denying Porter reinstatement or
that it forced him to quit his employment because he had
engaged in union or protected concerted activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondent described
in section I, above , have a close, intimate, and substantial
relationship to trade, traffic, and conunerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Abitibi Corporation is an employer engaged in
commercg within the meaning of Section 2(6) and (7) of the
Act.
2. International Woodworkers of America, AFL-CIO-
CLC, is a labor organization within the meaning of Section
2(5) of the Act.
3. By coercively interrogating an employee concerning
his union activities , and by threatening to discharge
employees for their having engaged in union activities,
Respondent has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in
Section 7 of the Act and has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
19 Two of Porter's four brothers lived less than a mile from their mother prior unfair labor practices . Southwrre Company, 159 NLRB 394, enfd. as
and the other two brothers resided less than 10 miles from her.
20 An employer 's union animus can be established by reliance upon its
modified 383 F.2d 235 (C.A. 5, 1967).
ABITIBI CORPORATION
4. Respondent did not violate Section 8(aX3) and (1) of
the Act by discriminatorily discharging and refusing to
reinstate Clayton Porter as alleged.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(axl)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action to effectuate
the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER21
Abitibi Corporation, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interfering with , restraining, or coercing its employ-
ees by coercively intertogating them concerning their
union activities and by threatening them with loss of their
jobs for engaging in union activities.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form , join, or assist the
International Woodworkers of America, AFL-CIO-CLC,
or any other labor organization , to bargain collectively
through representatives of their own choosing or to engage
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed
in Section 7 of the National Labor Relations Act, as
amended, or to refrain from any or all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business located at Roaring River,
North Carolina , copies of the attached notice marked
"Appendix ." 22 Copies of said notice , on forms provided by
the Regional Director for Region 11, after being duly
signed by an authorized representative of the Respondent,
shall be posted by the Respondent immediately upon
receipt thereof, and maintained by it for 60 consecutive
379
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Respondent shall take reasonable steps to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint , as amended,
be and it hereby is, dismissed insofar as it alleged unfair
labor practices not specifically found herein.
21 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
22 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMP1.OYEEs
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our employees
concerning their union activities.
WE WILL NOT threaten our employees with discharge
for engaging in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join, or assist
the International Woodworkers of America, AFL-
CIO-CLC, or any other labor organization, to bargain
collectively through representatives of their own choos-
ing, 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.
ABITIBI CORPORATION