American Lumber Sales, Inc.

National Labor Relations Board - Board Decisions

May 2, 1977

229 N.L.R.B. 414 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Lumber Sales, Inc. and Los Angeles County
District Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO. Case 21-CA-14452
May 2, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On December 7, 1976, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions 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 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, American Lum-
ber Sales, Inc., Pomona, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommmended 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
WILLIAM J. PANNIER III, Administrative Law Judge: This
matter was heard by me in Los Angeles, California, on
August 3, 1976.1 On April 30, the Regional Director for
Region 21 of the National Labor Relations Board issued a
complaint and notice of hearing, based upon an unfair
labor practice charge filed on March 4, alleging violations
I Unless otherwise stated, all dates occurred in 1976.
2 While the complaint alleged that, in April, Kenneth Bergman, an
acknowledged supervisor and agent of Respondent, had offered employees
increases in pay to induce them to reject the Union, no evidence was
adduced regarding such an allegation other than Leber's testimony that he
had been aware that such a conversation had taken place, but was not
"aware of much that was said there." Bergman denied making such
229 NLRB No. 66
of Section 8(aX1) and (3) of the National Labor Relations
Act, as amended, 29 U.S.C., § 151, et seq., herein called the
Act.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based on the entire record, the
briefs filed on behalf of the parties, and my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material, American Lumber Sales, Inc.,
herein called Respondent, has been a California corpora-
tion engaged in the manufacture of decorative wood
products at its facility located in Pomona, California. In
the normal course and conduct of its business operations,
Respondent annually sells and ships goods and products
valued in excess of $50,000 directly to customers within the
State of California, each of whom either annually sells and
ships goods valued in excess of $50,000 directly to
customers located outside the State of California, or
annually purchases and receives goods valued in excess of
$50,000 directly from suppliers located outside the State of
California.
Therefore, I find, as admitted by Respondent at the
hearing, that at all times material, Respondent has been an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Los Angeles County District
Council of Carpenters, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, herein called the
Union, has been a labor organization within the meaning
of Section 2(5) of the Act.
III. ISSUES 2
I. Whether Respondent, through President and Gener-
al Manager David Fred Leber, 3 violated Section 8(a)(1) of
the Act by threatening to withhold promised wage
increases and to reduce employees' working hours because
they engaged in union activities; by informing employees
that stricter discipline would be imposed because they had
engaged in union activities; by directing employees to elect
a steward in an attempt to solicit grievances to discourage
them from engaging in union activities; by interrogating
employees concerning their own and their fellow employ-
ees' union sympathies and activities; and by threatening
and attempting to expel a union representative from
Respondent's premises, in the presence of employees,
during a Board election proceeding.
promises and no argument concerning this allegation is advanced in the
brief filed on behalf of the General Counsel. Accordingly, I grant
Respondent's motion, in its brief, to dismiss this allegation of the complaint.
I At the hearing, Respondent acknowledged that Leber has been a
supervisor within the meaning of Sec. 2(11) of the Act and an agent of
Respondent within the meaning of Sec. 2(2) and (13) of the Act.
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AMERICAN LUMBER SALES
2. Whether Gary Wenger and Stan Mago have been
supervisors and/or agents of Respondent and, if so,
whether they threatened employees with plant closure
should the Union be selected as the bargaining representa-
tive of Respondent's employees, thereby causing Respon-
dent to violate Section 8(aX I) of the Act.
3. Whether Respondent violated Section 8(aX3) and (1)
of the Act by reducing employees' working hours because
they engaged in union or other protected concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.
4. Whether Respondent violated Section 8(aX3) and (1)
of the Act by discharging employee Gary Flynt and by
refusing thereafter to reinstate him, because Flynt had
engaged in union or other protected concerted activities for
the purpose of collective bargaining or other mutual aid or
protection.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Conduct Attributed to Leber
i. Facts
On Friday, February 13, the Union filed a petition for
election among Respondent's employees with the Board's
Regional Office. On Monday, February 16, having re-
ceived the petition, Leber convened a meeting of Respon-
dent's employees. Admittedly, he told them that he thought
that they had been unfair for wanting a union and that they
should go to work for a union shop, if that was what they
wanted. Admittedly, he told them that he did not intend to
implement the wage increases which had previously been
announced "because the deal I had received from the
NLRB had specifically said not to promise or grant wages
to employees, something to the effect of to solicit their vote
or something to that effect." 4 Moreover, Leber admittedly
directed the assembled employees to select a steward and
he conceded that there "were several things said, but I
don't remember what all they were." Accordingly, he did
not deny having also told the employees that as he had
worked in a union shop and knew that employers got in
trouble if they forced employees to do more than one job,
he intended to assign each employee to a single position at
which they would work until their tasks were completed, at
which point they would be sent home. 5 Nor did he deny
having said that as part of operating like a union shop,
4 A notice on which specific increases. taking into account length of
employment and job classification, were listed had been posted prior to
February 16. Leber then destroyed it upon receipt of the petition, claiming
that he "felt it was a promise of wages and it would be misconstrued as
trying to buy their vote at the election then." However, while he conceded
that he later had been told that he could in fact grant the raises, he never
posted a similar notice. Apparently, the wage increases were subsequently
granted to the employees for there is no allegation that they were actually
withheld and, aside from Flynt, the General Counsel requests that
employees be made whole only for the effects of being sent home early
pursuant to a practice discussed infra.
5 Leber did testify that at a meeting on Friday, February 13, before
learning about the Union's campaign, he had announced this policy of
placing a single employee on each machine with employees then to be sent
home whenever the work for their machines was completed. Yet, while three
employees placed this announcement as occurring during the February 16
meeting, not one witness was called to corroborate Leber's version that the
Respondent would no longer tolerate absences and
tardiness, but would fire employees for such matters.
Following the meeting, the employees selected Gary
Flynt to serve as their steward and, later that same day, he
attempted to act in that capacity by going to Leber to
protest the fact that some employees were being sent home
early, while new employees had been hired that day. In
response to his complaint, testified Flynt, Leber had said
that it was legal to do this and then had pointed out that he
did not think that the employees had been fair in
contacting the Union. Flynt testified that Leber had then
asked both why the employees had "started the Union"
and why "we didn't come talk to him," to which Flynt
replied that the employees contacted the Union because
their conversations with Respondent's supervisors had
done them no good and that long-term employees were
working without raises and benefits. Although Leber
generally denied that he had ever interrogated employees,
he did not deny participating in this conversation with
Flynt nor did he dispute the specific statements which
Flynt attributed to him in the conversation.
Flynt was not the only employee to attribute statements
regarding the Union to Leber during conversations. David
Abbott, who had worked for Respondent from August
1975 until March 1, testified to two such conversations.
During the first, 6 testified Abbott, Leber had inquired why
Abbott had signed a union card, and when Abbott denied
having done so, had then retorted that someone had done
so. According to Abbott, Leber had then asserted that it
had not been "fair for us to bring in the union when he was
a nonunion shop already and that if it had to go so far that
he'd go back, too, like, he started-just two or three men." 7
Abbott testified that the second conversation had occurred
on the morning of February 17, when Leber had been
walking through the yard and had stopped long enough to
ask if Abbott had learned anything at the Union's meeting
of the preceding evening, to which Abbott replied "not
really." Corroboration for Abbott's testimony in the latter
regard is derived from that of James Arizpe who described
Leber walking through Respondent's facility on the
morning of February 17, asking employees questions about
the Union, one of which was what they had learned at the
Union's meeting.
Michael Reed, who worked for Respondent for a I-year
period ending in June, testified that Leber had spoken with
him regarding the Union on a number of occasions in
February, appealing on each occasion for Reed's support
announcement had been made on February 13. Indeed, the only reference
to a meeting on February 13 was that of former employee James Arizpe and
he described that meeting as merely "a little pep talk" given because Leber
felt that the employees "had been fooling around a lot." Moreover, while
Leber asserted, at one point during his testimony, that the employees had
requested job titles and classifications, his testimony in this regard was quite
vague and at no point did he advance a specific economic reason which
would have led him to institute such a policy, either on February 13 or on
any other date. I do not credit Leber's testimony that this change was
announced on February 13.
a Initially, Abbott testified that this conversation had occurred on a
Friday, payday, prior to the February 16 speech. When this matter was
probed on cross-examination, however, Abbott conceded that he was not
really sure about the date.
I There is no allegation that Leber threatened a reduction in the
employment complement nor has the General Counsel sought a remedy for
such a violation. Medicine Bow Coal Company, 217 NLRB 931, fn. 2 (1975).
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and promising that "when the Union situation was over, he
knew I deserved [a raise] and that he wouldn't forget me." 8
During those conversations, Reed testified, Leber had
continually asked "if I made up my mind about supporting
the Union or not" and, on several occasions, had inquired
if Reed "would cross a picket line if it came down to a
strike."
On the day of the election, Business Representative
James Flores appeared at Respondent's premises as one of
the Union's representatives at the election. Flores testified
that when he had requested that sticker fitter George Soto
serve as the Union's observer, Leber had retorted: "You
can't call him, god damn it, he's not on your payroll. He's
on mine." Flores further testified that he had then
suggested that Leber speak to the Board agent in charge of
the election, but that Leber had continued to insist that
Soto was under his control, in the process accusing Flores
of being a "shit stirrer" 9 for causing the election to be held.
These comments were not disputed by Leber.
Upon walking to the polling place, testified Flores, Leber
then insisted that Flores "get [his] ass off [his] property"
and when Flores suggested that Leber speak to the Board
agent, the latter responded by threatening to "knock [his]
god damned teeth out" if Flores did not depart. According
to Flores, when Leber began shaking his fist and repeating
his threat, the Board agent and other officials of both
parties intervened and separated the two men. Leber
acknowledged that he had not felt that Flores should be in
the plant that day. However, he claimed that the source of
his disgruntlement had been the fact that several represen-
tatives had been present for the Union and that some of
them had been talking to employees, interrupting their
work. Leber testified that he first raised the matter with the
Board agent, who replied that he could not do anything
about it, but who pointed out that Leber could ask anyone
to leave the premises. According to Leber, this request
went unheeded. There was no contradiction to Flores'
testimony that the observers for both parties had been
present at the polling place during the incident. Only Soto
testified concerning the matter and he testified that he
could not hear clearly the words which Leber and Flores
had exchanged.
2. Analysis
Based on the above-recited facts, the General Counsel
argues that Respondent violated Section 8(aXl) of the Act
by threatening to withhold promised wage increases and
reduce employees' working hours because they had
engaged in union activities; by informing employees that
stricter discipline would be imposed because they had
engaged in union activities; by directing employees to elect
a steward in an effort to solicit grievances to discourage
them from engaging in union activities; by interrogating
employees concerning their own and their fellow employ-
ees' union sympathies and activities; and by attempting to
expel from its premises and threatening a union representa-
tive in the presence of employees. In opposition to most of
K There is no allegation that Leber made promises of benefit nor has the
General Counsel sought a remedy for such a violation. Id.
" I hereby grant what is in essence a motion to correct transcript included
in the General Counsel's brief.
these matters, Leber denied, in essence, that any of his
comments on February 16 had been intended to constitute
reprisals against employees for their union activities. Yet,
even assuming that this were true, "the test of interference,
restraint, and coercion under §[a](l) of the Act does not
turn on the employer's motive...." N.LR.B. v. Illinois
Tool Works, 153 F.2d 811, 814 (C.A. 7, 1946). Rather, the
test is whether the employer's conduct and words reason-
ably tend to interfere with the exercise of employee rights.
Id; see also Munro Enterprises, Inc., 210 NLRB 403 (1974).
Consequently, even were Leber not to have designed his
remarks so that they would interfere with, restrain, and
coerce Respondent's employees, if they reasonably tended
to do so, Respondent violated Section 8(aXl) of the Act.
Furthermore, it is difficult to conclude that Leber did not
intend his February 16 remarks to be coercive. He made it
quite clear during the speech that he was hostile toward the
Union by accusing the employees of being unfair for
wanting a union and by suggesting that they work
elsewhere if they wanted to work in a union shop. This
latter comment quite clearly evidences Leber's opposition
to "dealing with his employees through their chosen
representative," B. J. Provenzale Company, Inc. d/b/a
B.J.P. Painting and Decorating Co., 206 NLRB 800 (1973),
enforcement denied 512 F.2d 599 (C.A. 6, 1975), and
"could reasonably be interpreted by [the employees] that
union employees were unwelcome in the plant." Ramar
Dress Corp., et al., 175 NLRB 320, 327 (1969). Against this
background, Leber announced a change in Respondent's
prior willingness to permit employees to continue working
when work at their machines was finished, by transferring
them to other duties, and announced that absences and
tardinesses would lead to termination. No economic reason
was advanced by Leber to justify the institution of these
policies o and, obviously, the meeting had been called in
response to receipt of the Union's petition for election. In
these circumstances, there simply is no alternative to
finding that Leber fully intended to penalize the employees
by instituting these policies in retaliation for their support
for the Union's campaign.
While Respondent claims that the changes were effected
merely to conform to "union shop" practice, there has been
no showing that such policies have been in effect at firms
where the Union serves as the employees' representative
nor has it been shown that Respondent had undertaken
any effort to ascertain the nature of the policies prevelant
at firms where the Union serves as the representative of the
employees. Moreover, it is noteworthy that Respondent's
effort to conform its practices to those in union shops
extended only to instituting changes which were adverse to
its employees; no effort was made to institute "union shop"
policies which would improve the conditions of employ-
ment of Respondent's employees.
Therefore, I find that on February 16, Respondent,
through Leber, did violate Section 8(aX l) of the Act by
threatening to reduce employees' hours and by informing
t0 While Leber did testify to adverse economic conditions, at no point
did he specifically advance them as the reason for his decision to institute
these policies and, in any event, no financial documentation was produced
to support his testimony in this respect.
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AMERICAN LUMBER SALES
employees that it would impose stricter discipline because
those employees had sought representation by the Union.
During the same speech, Leber also stated that the
previously announced wage increase would be rescinded,
as a notice from the Board had directed him "not to
promise or grant wages to employees . . . to solicit their
vote or something to that effect." Yet, Respondent never
produced this notice and, consequently, it is not possible to
ascertain what it did state. Presumably, however, it was
consistent with the Board's own pronouncements concern-
ing withholding benefits pending an election. "It is well
established that during an organizational campaign an
employer must decide whether or not to grant improve-
ments in wages and benefits in the same manner as it
would absent the presence of a union." Diamond Motors,
Inc., 212 NLRB 820 (1974). Consequently, an employer is
not free to grant nor withhold benefits simply on the basis
of the prospect of an election, although the Board has
countenanced such withholding in situations where the
benefit has not been fully formulated at the time of
withholding, The Great Atlantic & Pacific Tea Company,
Inc., 192 NLRB 645 (1971), enfd. per curiam 463 F.2d 184
(C.A. 5, 1972), and where it has been made clear to the
employees that the benefit would be forthcoming but is
being withheld only to avoid the appearance of election
interference. Montana Lumber Sales Inc., 185 NLRB 46
(1970); see also The Singer Company, Friden Division, 199
NLRB 1195, 1196 (1972), enfd. 480 F.2d 269 (C.A. 10,
1973).
These conditions have not been met in the instant case.
The wage increases had been specifically established both
as to amount and as to date of institution. A notice reciting
these facts had been posted prior to receipt of the petition.
Clearly, the increases were fully formulated and promised
to Respondent's employees. Furthermore, so far as the
record discloses, "Respondent's cancellation announce-
ment was unaccompanied by any assurance of future
consideration or predicated on any economic considera-
tions." Pacific Southwest Airlines, 201 NLRB 647 (1973).
The employees were well aware that the increases had been
announced prior to receipt of the petition by Respondent.
As they had been announced prior to Respondent's receipt
of the petition, the employees could perceive the patent
transparency of any charge that increases were being
conferred solely to influence their vote in a representation
election and, consequently, would have been cognizant of
the equally transparent excuse being advanced by Leber
for cancelling the increases. If anything, Leber's reference
to the Board in announcing the cancellation of the
increases appears to have been no more than an effort to
transfer the onus to the Board for the deprivation of these
increases.
1" As pointed out in fn. 4, above, Leber testified that he later learned that
he could grant the raises and, apparently, then did so. I have considered the
possible argument that this tends to support Leber's innocence in initially
announcing the cancellation. Yet, as is also pointed out above, the test for
violations under Sec. 8(a)( I) of the Act does not encompass consideration of
an employer's intent. Consequently, at the very least, the announcement
would be a violation because it reasonably tended to lead the employees to
believe that the cancellation was occasioned by their support for the Union,
given the context in which it was uttered. Moreover, this very context
supports the conclusion that Leber was acting in anything but innocence
when he made this announcement. His other statements and conduct quite
"[A n employer acts at his peril when he grants or
withholds increases in economic benefits during the
pendency of a union organizational campaign." Pacific
Southwest Airlines, supra. Here, Respondent failed to
satisfy either of the principal requirements for withholding
benefits pending an election. The increases had been fully
formulated and no assurances were afforded the employees
that they would ultimately be forthcoming. The reason
advanced by Leber during the speech for the cancellation
was pretextual on its face. The announcement of the
cancellation was made during the course of a speech in
which Leber expressed strong displeasure with the employ-
ees' efforts to obtain representation and in which he
announced the institution of retaliatory practices against
them for having done so. In these circumstances, "employ-
ees would rightly have assumed that management had not
rejected the increase on economic grounds, but that the
Union's presence was the only obstacle to realization of
these benefits," Ring Metals Company, 198 NLRB 1020,
1021 (1972), enfd. by unpublished order (CA. 8, April 17,
1973), and, further, that "but for their support of the Union
there would be no fear of an unfair labor practice and
hence, they would be receiving their wage increases."
Diamond Motors, supra.
Therefore, I find that on February 16, Respondent,
through Leber did violate Section 8(aXl) of the Act by
announcing that a promised wage increase was canceled
because the employees had engaged in union activity."
The final facet to Leber's February 16 speech was his
directive to select a steward or spokesman. The only
justification advanced for such a direction was that, based
on experience with "union shops," Leber was commencing
operation as a union shop. Yet, as pointed out in
connection with the single-job limitation, Leber's conduct
extended only to instituting conditions of employment that
would be adverse to Respondent's employees. Moreover,
his assertion of opposition to the Union and his invitation
to those who supported the Union to work elsewhere
hardly support Respondent's portrayal of Leber as one
who, by his direction to select a steward, was adjusting
operations to the inevitable consequences of unionization.
I reject any such argument and, instead, find that the
source of Leber's motivation for this direction must be
located elsewhere.
In Wolverine World Wide, Inc., 193 NLRB 441 (1971),
when an employee expressed dissatisfaction with his
conditions of employment, the employer inquired if such
dissatisfaction were general and if formation of departmen-
tal committees would help. This was followed by a
discussion of the composition of such committees. In
concluding that this conduct had violated Section 8(a)(1) of
the Act, the Board noted (id):
clearly demonstrate that he was hardly concerned with avoiding commission
of unfair labor practices. In fact, his failure to describe the circumstances
under which he assertedly learned that he could grant the increases, viewed
in light of his other unfair labor practices, leads to a contrary inference -
that he later learned that the rescission of the increases was an obvious
unfair labor practice. Viewed in this light, his subsequent conferral of these
increases would be no more than an effort to undo the harm which he had
already caused. That, of course, would not be sufficient to cure the effects of
his prior announcement, particularly in light of the other unfair labor
practices found in this matter.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the context of the Respondent's unlawful opposition
to the Charging Union, these statements not only
indicated the Respondent's preference for such an
arrangement, but, also, employees would rightfully,
tend to assume that assent to Respondent's suggestion
could lead to more favorable disposition of their
grievances.
In the instant case, Leber's direction to select a steward
was uttered as part of a speech in which he both expressed
hostility to the Union and announced unlawfully motiva-
ted changes - cancellation of a previously announced
wage increase, institution of a one-job only policy, and
imposition of strict discipline for absences and tardinesses
- which clearly would give rise to employee dissatisfac-
tion. In this context, and absent credible evidence of a
valid reason for the direction, I find that Leber's purpose in
directing the employees to select a steward was to suggest
an alternative path for dealing with Respondent and for
securing rescission of the announced changes in conditions
of employment which resulted from Respondent's hostility
to the Union. In other words, Respondent created
conditions of employment that would lead to employee
dissatisfaction and then offered, as an alternative to the
Union, a means whereby the employees could deal directly
with Respondent to, at the very least, obtain cancellation
of the announced adverse changes. That the employees
clearly so understood Leber is demonstrated by Flynt's
effort to discuss the single-job policy with Leber that same
evening.
Therefore, I find that Respondent, through Leber, did
violate Section 8(a)( ) of the Act by directing employees to
select a steward for the purpose of providing an alternative
means to unionization for resolving employee dissatisfac-
tion and grievances.
A protracted discussion of the questioning conducted by
Leber is not warranted. Following the February 16 speech,
during a conversation in which he renewed his pique at the
employees for seeking representation, Leber asked Flynt
why the employees had "started the Union" and why they
had not first "come talk to him." Similarly, Abbott was
asked his reason for signing a card during a conversation in
which Leber complained about the employees contacting
the Union and threatened to reduce the employee comple-
ment. On one morning, Leber roamed the facility inquiring
about the Union's meeting of the prior evening and he
pressed Reed throughout the month of February, continu-
ally seeking to ascertain the latter's attitude regarding the
Union and continually seeking to garner Reed's support
through promises that he would not be forgotten. No valid
purpose has been advanced for such questioning. Nor
could one be advanced. The questions were not accompa-
nied by any assurances against reprisal. To the contrary,
they were accompanied by both threats and promises and,
moreover, occurred in the context of other unfair labor
practices, occurring separately from the conversations in
which the questioning took place. Therefore, I find that
Respondent, through Leber, did violate Section 8(a)(1) of
the Act by interrogating employees concerning their union
membership, sympathies, and activities and the union
membership, sympathies, and activities of their fellow
employees.
Finally, there was the incident occurring on the morning
of the election when, it is uncontroverted, Leber threatened
to knock out Business Representative Flores' teeth if the
latter did not leave Respondent's premises. While Leber
testified that this had occurred because Flores and other
officials of the Union had been interrupting the work of
employees by talking to them, no other witness - official
of Respondent or employee - corroborated that descrip-
tion of the conduct of the Union's agents. Further, Leber
did not deny having heatedly objected to Flores' selection
of Soto as an observer and having expressed hostility
toward Flores for having caused an election to be held.
Consequently, I do not credit Leber's description of the
incident which had precipitated his conduct, but rather
find that he had been motivated by dissatisfaction with the
fact that an election was being conducted, an attitude
which he had earlier made manifest to his employees, and
with the added fact that Soto's work would have to be
interrupted to comply with the Board's rules regarding
observers. As Soto and Respondent's observer both were
present when the incident occurred, though Soto's percep-
tion and recollection of the event were quite dim, and as it
would not be unlikely for word of such conduct to circulate
through Respondent's relatively small employee comple-
ment, I find that the effect of Leber's conduct would tend
to restrain and coerce employees. See Sullivan Surplus
Sales, Inc., 152 NLRB 132, 148-149 (1965). Therefore, I
find that Respondent, through Leber, did violate Section
8(aX1) of the Act by threatening and attempting to expel a
union representative from Respondent's premises, in the
presence of employees, during a Board election proceeding.
B. The Status of Stan Mago and Gary Wenger
and the Conduct Attributed to Them
The complaint alleges that, in March, Stan Mago and
Gary Wenger each threatened that Respondent's plant
would be closed should the employees select the Union as
their bargaining representative. Mark Milbauer, a lumber
handler with Respondent until April, testified that Mago
had made such a statement to him and both Milbauer and
Soto described separate incidents when such a statement
had been made to each of them by Wenger. Neither Mago
nor Wenger appeared as witnesses and, accordingly, there
is no dispute concerning the fact that such statements had
been made. However, Respondent does contend, contrary
to the General Counsel, that Mago and Wenger were
neither supervisors nor agents of Respondent.
Although the General Counsel points to a number of
items in the record which, he urges, tend to support the
conclusion that Wenger, who became a leadman following
Leber's February speech, has been a supervisor, careful
examination of each of these matters leads to the
conclusion that Respondent has the better of this particular
argument. For example, Plant Superintendent Bergman
testified that Wenger had become responsible for maintain-
ing the flow of production in the area near the finish line
where approximately 12 to 18 employees work. Yet,
Wenger did not become leadman until after the single-job
policy had been instituted and each employee works on a
different successive facet of Respondent's production line.
Consequently, there is simply no latitude for him to have
418
AMERICAN LUMBER SALES
exercised any discretion in determining employee assign-
ments to machines, when employees were to leave for the
day, and the manner in which production would progress.
In fact, Wenger's primary functions in this regard were to
be certain that sufficient materials were available in the
area, to avoid interruptions in production due to momen-
tary shortages, and to check the machines so that they
would continue to be operational. Consequently, the fact
that Wenger maintains the flow of production does not
establish that he is a supervisor. See Bank of America
National Trust and Savings Association, 196 NLRB 591, 594
(1972).
Arizpe testified that it had been Wenger who had
selected the sequence in which customer orders were to be
produced. Yet, there is no evidence that this involved any
significant degree of judgment or, more significantly, that
the sequence in which orders were produced had any
appreciable effect on the manner in which employees
discharged their duties. In this regard, the matter appears
to rise no higher than the simple "lining out" of routine
work. While routineness of the work would not, of itself,
preclude a finding of supervisory status, Dunkirk Motor
Inn, Inc., d/b/a Holiday Inn of Dunkirk-Fredonia, 211
NLRB 461, 462 (1974), there must be a showing that
independent judgment is being exercised in directing the
performance of such work. The mere arrangement of the
order in which jobs are to be completed, particularly where
each employee has already been assigned the specific
function that he is to perform, has not been held to rise to
that level. See Medicine Bow Coal Company, supra, and
cases cited therein. Similarly, while Wenger only occasion-
ally worked himself and, Bergman testified, told employees
"what to do and how to do it and kept an eye on how to
grade, how it was supposed to come out, more or less as
leadman," such activity partakes more of an inspection
function by a more experienced employee than of a
supervisor. In this regard, it should be borne in mind that
the transfer of Wenger to leadman accompanied the hiring
of a number of newer employees, as discussed infra.
Consequently, there was, in all probability, a greater need
for instruction and guidance of employees than had
formerly existed when a stable cadre of employees rotated
positions, filling in wherever needed. Consequently, Wen-
ger's duties in this regard appear to have been no more
than those of an experienced employee providing instruc-
tion and guidance for the performance of routine work.
Pervel Corporation, 119 NLRB 497, 499 (1957).
Nor has it been shown that Wenger exercised indepen-
dent judgment in disciplining employees. He could tell
them to "get back to work" if they were not working. Yet,
there is no element of independent judgment in determin-
ing when an employee is not working and, more important,
there is no evidence that Wenger could, or ever did, take
disciplinary action to enforce such an order.t2 To like
effect is Arizpe's accusation that as a leadman, Wenger had
become a "snitch." There is no evidence that any reports of
12 Nor would such admonitions, of themselves, be construed as
"discipline" within the meaning of Sec. 2(1 I1) of the Act, for it is settled that
verbal reprimands do not rise to that status. Wim P. McDonald Corporation,
97 NLRB 1471, 1472, fn. 4 (1952): see also Greenfield Components
Corporation, supra.
1a There is no allegation that these statements by Leber regarding the
employee misconduct made by Wenger were ever accom-
panied by a recommendation of disciplinary action or that
any employee was ever disciplined on the basis of any
recommendation, without an independent investigation of
the matter. Greenfield Components Corporation, 146 NLRB
757, 759 (1964); Yellow Cab, Inc., 131 NLRB 239 (1961);
Pepsi-Cola Bottling Company of Merced-Modesto, et al., 154
NLRB 490 (1965).
Finally, Soto described two specific incidents pertaining
to Wenger's authority. The first involved a conversation
which he had overheard in which employee Ramon
Estrada complained of being "pushed" by Wenger and in
which Leber had replied: "Yes, because I push Gary. Gary
is the leadman." The second involved an announcement by
Wenger that Soto was to receive a wage increase. With
regard to the second of these two incidents, one description
advanced by Soto on direct examination left the impression
that Wenger had been speaking prospectively - that he
intended to speak with Bergman about obtaining a wage
increase for Soto since the latter was a good worker.
However, this was pinned down during cross-examination
and Soto made clear that Wenger had told him that he had
learned from Bergman that the decision to grant Soto an
increase had already been made. Since Bergman testified
that he used Wenger as a conduit for messages to
employees, this incident is consistent with that practice
and, in any event, as it occurred after the decision had
already been made, will not support an inference that
Wenger played any role in the decision to grant the
increase. Similarly vague are the comments exchanged by
Estrada and Leber: At no point is it clear precisely what
Estrada meant by being "pushed" and, considering
Wenger's role as a conduit, it is not clear whether he was
carrying out specific instructions given to him by Leber or
whether he had simply been telling Estrada to "get back to
work." In any event, such an isolated instance would not
support a finding of supervisory status in view of the record
as a whole. Commercial Fleet Wash, Inc., 190 NLRB 326
(1971).
Therefore, I find that the General Counsel has failed to
show by a preponderance of the evidence that Gary
Wenger has been a supervisor within the meaning of
Section 2(11) of the Act.
This, however, does not end the matter for there remains
the allegation that Wenger, as well as Mago, were agents of
Respondent. Regarding the latter, shortly before the
election Leber delivered a speech to the employees in
which he concededly told them that in view of everything
that had occurred, including a recent theft of numerous
personal items, he intended to sell the business and that
Mago, who had been a frequent visitor of Leber at
Respondent's premises, would be taking over.13 It was on
the following morning that Mago then told Milbauer that
Respondent would remain open unless the employees
selected the Union as their representative. On the succeed-
ing day, it is uncontroverted that Milbauer asked if he
purported sale of Respondent violated the Act. Leber did not explain why
he had chosen this point in time, shortly before the election, to announce the
sale of the business. In fact, the negotiations with Mago for the sale of the
business ultimately terminated without any change in ownership of
Respondent.
419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should take orders from Mago and that Leber replied:
"Yes. I don't do anything out here any more. You listen to
him."
For an employer to be responsible for the conduct of
nonsupervisory personnel which interferes with the rights
of employees under the Act, there need not be express
authorization for the acts committed. "The existence of
that interference must be determined by careful scrutiny of
all the factors, often subtle, which restrain the employees'
choice and for which the employer may fairly be said to be
responsible." International Association of Machinists; Tool
and Die Makers Lodge No. 35, etc. [Serrick Corporation] v.
N.LR.B., 311 U.S. 72, 80 (1940). In making that determi-
nation, "the crucial question is whether, under all the
circumstances, the employees could reasonably believe that
[the nonsupervisor] was reflecting company policy, and
speaking and acting for management...." Aircraft
Plating Company, Inc., 213 NLRB 664 (1974). In the instant
case, that test seems amply satisfied by both Mago and
Wenger. Leber, Respondent's sole shareholder, had intro-
duced Mago to the employees as the new owner of
Respondent on the day prior to his threat to Milbauer. On
the day following that threat, Leber reaffirmed his
announcement during a conversation in which Milbauer,
the object of Mago's threat, questioned whether Respon-
dent's employees should take orders from Mago. In thse
circumstances, Respondent is fairly charged with responsi-
bility for Mago's threat.
While I have found that Wenger is not a supervisor
within the meaning of Section 2(1 1) of the Act, many of his
duties are such that it is clear to employees that he occupies
a special position. Thus, he is the one who distributed the
work to a significant number of Respondent's employees, it
is he who serves as the conduit for the delivery of messages
from Respondent to the employees, and it is he who
occupies the position of leadman. See N.LR.B. v. Dayton
Motels, Inc., 474 F.2d 328, 331 (C.A. 6, 1973). Moreover,
the comments made by Wenger to Milbauer and Soto were
identical to the one which Milbauer had heard from Mago
and the antiunion tenor of the remarks "reflected the
attitude" which Leber had expressed during his February
16 speech. N.LR.B. v. Des Moines Foods, Inc., 296 F.2d
285, 287 (C.A. 8, 1961). Consequently, both the position
occupied by Wenger and the message which he conveyed
to Milbauer and Soto support a conclusion that these two
employees "could reasonably believe that [Wenger] was
reflecting company policy, and speaking and acting for
management .... "Aircraft Plating, supra.
Therefore, I find that Gary Wenger and Stan Mago have
been agents of Respondent at all times material herein and
that Respondent violated Section 8(a)(l) of the Act by
virtue of their threats of plant closure should the employees
choose to be represented by the Union.
C. The Reduction in Working Hours
As found above, on February 16, Leber announced
institution of a policy of restricting each employee to a
1 While Abbott and Arizpe left Respondent's employment at approxi-
mately the same time as Flynt, they apparently quit and, in any event, there
is no evidence that they - unlike Flynt - had engaged in any siginficant
conduct to obtain representation. Nor is there any evidence that Leber
single job, with the employee to be sent home whenever
work was completed at that work station for the day. Also,
as found above, that announcement was made as part of a
retaliatory campaign against the employees for desiring
representation by the Union. It is undisputed that, prior to
February 16, Respondent had pursued a practice of
transferring employees to other jobs whenever work was
completed on the job where they had been working.
Respondent concedes that, on and after February 16, the
policy announced by Leber that day was implemented with
the result that employees were sent home early because
work at the jobs to which they had been assigned had been
completed for the day, even though there was work to be
performed at other locations for which they were qualified
and at which they had worked in the past. Respondent
further acknowledges that, following the speech, a number
of additional employees were hired, thereby insuring a
complement sufficient in number to permanently assign a
single employee to each job performed in Respondent's
facility. No evidence was adduced that would supply a
valid business reason for this change in operations.
Therfore, in view of Leber's hostility toward the Union and
in light of his announcement attributing this change in
operations to the employees' desire for representation, I
find that Respondent did reduce employees' working hours
on and after February 16 and, further, that it did so as a
means of retaliating against the employees for selecting the
Union as their bargaining representative. By such conduct,
Respondent violated Section 8(a)(3) and (1) of the Act.
D. The Termination of Gary Flynt
Gary Flynt worked on the resaw from July 1975 until
March 2, when he was discharged. Flynt had been the
employee who had initially contacted the Union in January
regarding the possibility of obtaining representation for
Respondent's employees. It had been Flynt who had
circulated the authorization cards which the Union then
used to secure a representation election. Although there is
no evidence that Respondent had been aware of Flynt's
activities at the time that he had been soliciting signatures
on the cards, Leber - whose hostility toward the Union
has been detailed above - admitted that he had been
aware of Flynt's support for the Union prior to his
termination. Moreover, within 10 days after Flynt's
discharge, Leber participated in another of his ongoing
conversations with Reed. It is uncontroverted that during
this conversation, Leber pointed out that he knew who had
instigated the Union and then added, "That sone [sic] of a
bitch doesn't work here any more." 14
Leber denied that Flynt had been discharged because of
his sympathies and activities on behalf of the Union and,
instead, claimed that the discharge had been occasioned by
Flynt's habitual tardiness and absence from work and had
come at a point in time when Flynt's conduct in this regard
had already led to the issuance of three warning notices to
him. Thus, Leber testified that, on February 1, Respondent
had instituted a policy of issuing notices to employees for
would have viewed them as union instigators. Indeed, he did not even claim
that he thought that they had been involved in activities on behalf of the
Union. Accordingly, I find that Leber's comment pertained to Flynt and not
to either Abbott or Arizpe.
420
AMERICAN LUMBER SALES
tardiness and failure "to show up for work." There was no
evidence, however, regarding the reason for initiating such
a policy nor was any evidence proffered concerning the
substance of such a policy. Consequently, while Respon-
dent makes much of the fact that Flynt had received
purportedly three warning notices, there is no evidence that
it was Respondent's policy to terminate an employee upon
repetition of conduct which had previously led to issuance
of three warning notices. Conversely, there is evidence of
Respondent's intent to use absences and tardinesses as a
means of retaliating against the Union's supporters, for, as
found above, Leber so announced at a speech given
approximately 2 weeks prior to Flynt's termination.
In any event, assuming that Respondent's policy did
mandate termination for the repetition of conduct which
had been the subject of three warning notices, the evidence
is simply not sufficient to establish that Flynt had received
a total of three such notices. Notwithstanding Leber's
testimony to that effect, Respondent produced but two
notices - one dated February 3 ("Failure to show up for
work Monday 2/2/76") and the other dated February 20
("For being late to work").' 5 A compilation of Flynt's
attendance record was produced, and penciled thereon is a
notation of a second warning for an absence on Tuesday,
February 10, when Flynt, according to the compilation,
"Called in sick." The notice itself was never produced and
no explanation was advanced for failing to do so. Nor was
any testimony adduced concerning the circumstances of
the issuance of this purported notice. In these circumstanc-
es, it is fairly inferable that no such notice existed. "The
nonproduction of evidence that would naturally have been
produced by an honest and therefore fearless claimant
permits the inference that its tenor is unfavorable to the
party's cause." 2 Wigmore, Evidence, § 285, p. 162 (3d ed.
1940). See also International Association of Bridge, Structur-
al and Ornamental Ironworkers, Local 600 (Bay City
Erection Company, Inc.), 134 NLRB 301, 306, fn. 11 (1961).
Accordingly, I find that the credible evidence is not
sufficient to establish that a warning notice was issued to
Flynt for his absence of February 10 and, therefore,
assuming that Respondent's rule does mandate termination
for conduct which had previously been the subject of three
warning notices, such a rule has not been shown to have
been applicable to Flynt's situation on March 2. His
"discharge is not supportable on the basis of the Respon-
dent's disciplinary system .... " Mission Valley Mills, a
subsidiary of West Point Pepperell, 225 NLRB 442 (1976).
The event which purportedly precipitated Flynt's dis-
charge was his absence on March 1. Most of the events
which transpired that day were not disputed by Respon-
dent. The windshield wipers on Flynt's automobile became
inoperative and, as it was raining, he telephoned Respon-
dent to report he would not be coming to work until the
wipers were repaired. Though he spoke with both Leber
and Bergman, no objection was posed to his failure to
15 In his brief, the General Counsel argues that the circumstances under
which this notice - the one of February 20 - was issued are suspect.
Indeed. there does appear to be merit in that argument. However, there is no
allegation in the complaint regarding that notice and, in his bnrief, the
General Counsel does not seek a remedy for issuance of the February 20
notice. Medicine Bow Coal Comparen,, supra. Consequently, I make no finding
regarding its legality under the Act.
report for work, although Leber mildly rebuked Flynt for
not calling earlier that morning at the normal starting
time.16 Their failure to object is understandable in light of
what had occurred earlier that morning at Respondent's
facility, for, due to the inclement weather, Respondent sent
home over half of its work force. In fact, in order to be
permitted to work for half that day, Soto had to threaten to
quit and seek employment where he would regularly
receive income. Moreover, it is not disputed that the resaw,
which Flynt operated, was not used that day, even though
there were four employees experienced in its operation who
were retained to work on March 1. Accordingly, it has not
been shown that Flynt's presence was necessary for
Respondent to conduct operations on March 1. In these
circumstances, the record clearly supports the General
Counsel's assertions that Respondent agreed to Flynt's
absence on March I and that there was no work-related
need for him to be present on that day.
Finally, it is abundantly clear that Flynt's attendance
record was anything but that of a model employee. Since
September 1975, he had been absent on the average of once
a month, had been late 20 times, and had left early on 8
other occasions. Yet, other than the warning notices of
February 3 and 20, Respondent had tolerated his conduct,
so far as the record shows, without complaint and without
at any time warning him that his conduct might lead to his
discharge. Not until the Union appeared on the scene and
at a time when Leber was aware of Flynt's activities on its
behalf did Respondent choose to terminate Flynt for this
longstanding practice of absences and tardiness. "LA]n
employer who freely tolerates such conduct may not
suddenly find it offensive only when committed by an
employee who exercises his rights to engage in concerted
activity." Apico Inns of California, Inc. d/b/a Holiday Inn of
America of San Bernardino, 212 NLRB 280 (1974), enfd. as
modified 512 F.2d 1171 (C.A. 9, 1975). See also Shasta
Fiberglass, Inc., 202 NLRB 341 (1973).
In sum, on March 1, Respondent discharged the most
active proponent of the Union for an absence which not
only had been excused, but which occurred on a day when
Respondent operated on a partial basis with no showing of
need for Flynt's services. This discharge occurred shortly
after the Union's campaign had become known to
Respondent, at a time when Respondent was admittedly
aware of Flynt's role in that campaign, and following a
lengthy period of toleration of Flynt's absences and
tardinesses. Respondent had repeatedly made clear its
opposition to the Union and had announced employment
policies designed to retaliate against its employees for
supporting the Union. One of these retaliatory policies
formed the basis for the reason advanced for Flynt's
termination. Moreover, in restricting employees to single
jobs, Respondent demonstrated that it was not averse to
depriving them of income in reprisal for their activities on
behalf of the Union. The discharge of Flynt is simply
'6 There is no assertion that the time of Flynt's call influenced
Respondent's decision to terminate him. Nor could there be, for the
termination notice reads merely: "Failure to show up for work. Called in
asking about work, at which time he was told to come in and work." There
is, of course, no evidence to support the latter statement which is, in fact,
clearly controverted by Flynt's testimony.
421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another manifestation of Respondent's willingness to
deprive employees of earnings, in this case depriving Flynt
of all earnings by depriving him of continued employment.
Therefore, I find that Respondent did discharge Gary
Flynt and thereafter refused to reinstate him because he
had engaged in union or other protected concerted
activities for the purposes of collective bargaining or other
mutual aid or protection, thereby violating Section 8(aX3)
and (1) of the Act.
v. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with Respondent's operations described in
section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead, and have led, to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
I. American Lumber Sales, Inc., is an employer within
the meaning of Section 2(2) of the Act, engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Los Angeles County District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening to reduce employees' hours and by
informing employees that stricter discipline would be
imposed because they sought representation by the Union;
by announcing cancellation of a promised wage increase
because employees had engaged in union activity; by
directing employees to select a steward for the purpose of
providing an alternative means to unionization for resolv-
ing employee dissatisfaction and grievances; by interrogat-
ing employees concerning their union membership, sympa-
thies, and activities, and the union membership, sympa-
thies, and activities of their fellow employees; by threaten-
ing and attempting to expel a representative of the Union
from Respondent's premises in the presence of employees
during a Board election proceeding; and by threatening to
close the plant should the employees select representation
by the Union, I find that Respondent violated Section
8(a)(1) of the Act.
4. By reducing employees' working hours because they
engaged in union or other protected concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, and by discharging and refusing to reinstate
employee Gary Flynt because he had engaged in union or
other protected concerted activities for the purpose of
collective bargaining or other mutual aid or protection, I
find that Respondent has discriminated in regard to hire or
tenure of employment or any term or condition of
employment to discourage membership in a labor organi-
zation in violation of Section 8(a)(3) and (1) of the Act.
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
5. The evidence is not sufficient to establish that
Respondent, through Kenneth Bergman, offered employ-
ees increases in pay to induce them to reject representation
by the Union in violation of Section 8(aXl) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the Act.
Respondent will be required to offer Gary Flynt
immediate reinstatement to his former position of employ-
ment or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, dismissing, if necessary, anyone
who may have been assigned or hired to perform the work
which Flynt had been performing prior to the time that he
was terminated on March 2, 1976. Additionally, Respon-
dent will be required to make Flynt and all employees who
were deprived of income by being sent home early on and
after February 16, 1976, pursuant to the implementation of
Respondent's unlawfully motivated single-job policy,
whole for any loss of earnings that they may have suffered
by reason of the discrimination against them, with backpay
to be computed on a quarterly basis, making deductions
for interim earings and with interest to be paid at the rate
of 6 percent per annum. F. W. Woolworth Company, 90
NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB
716 (1962), enforcement denied on different grounds 322
F.2d 913 (C.A. 9, 1963).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 17
The Respondent, American Lumber Sales, Inc., Pomona,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening to rescind promised wage increases and
to reduce employees' working hours because they engaged
in union activities; informing employees that stricter
discipline would be imposed because they had engaged in
union activities; directing employees to select stewards or
spokesmen in an effort to provide an alternative means for
resolving employee grievances; interrogating employees
concerning their union membership, sympathies, and
activities and the union membership, sympathies and
activities of their fellow employees; attempting to expel
and threatening representatives of the Union when they are
on Respondent's premises for a valid, lawful purpose; and
threatening employees with plant closure should they select
a collective-bargaining representative.
(b) Reducing working hours, sending employees home
without considering their ability to perform other duties,
and discharging or otherwise discriminating against em-
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.
422
AMERICAN LUMBER SALES
ployees in regard to hire or tenure of employment or any
term or condition of employment for engaging in union or
concerted activities protected by Section 7 of the Act.
(c) Applying and implementing the single-job policy.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Gary Flynt immediate and full reinstatement to
his former position of employment, dismissing, if neces-
sary, anyone who may have been hired, retained, or
assigned to perform the work which he had been perform-
ing prior to the time that he was terminated on March 2,
1976, or, if his former position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for the loss of pay he may have suffered as a result of
his discharge, in the manner set forth above in the section
entitled "The Remedy."
(b) Make whole all employees who were deprived of
income by being sent home early on and after February 16,
1976, pursuant to the implementation of Respondent's
unlawfully motivated single-job policy, in the manner set
forth above in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents all payroll and other records necessary
to compute the backpay and reinstatement rights as set
forth in the section of this Decision entitled "The
Remedy."
(d) Post at its Pomona, California, facility copies of the
attached notice marked "Appendix." 18 Copies of said
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by the Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that Respondent
violated the Act through the conduct of Kenneth Bergman.
is In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities
except to the extent that the employees' bargain-
ing representative and employer have a collective-
bargaining agreement which imposes a lawful
requirement that employees become union mem-
bers.
WE WILL NOT threaten to withhold wage increases
from you because you engage in activities on behalf of
a labor organization.
WE WILL NOT threaten to reduce your working hours
because you engage in activities on behalf of a labor
organization.
WE WILL NOT inform you that stricter discipline will
be imposed because you engage in activities on behalf
of a labor organization.
WE WILL NOT direct you to select stewards or
spokesmen in an effort to provide an alternative to a
labor organization as a means for resolving your
grievances.
WE WILL NOT interrogate you concerning your union
membership, sympathies, and activities, nor concerning
the union membership, sympathies, and activities of
your fellow employees.
WE WILL NOT threaten nor attempt to expel represen-
tatives of a labor organization from our premises when
those representatives are on the premises for a valid,
lawful purpose.
WE WILL NOT threaten you with plant closure should
you select a labor organization as your collective-
bargaining representative.
WE WILL NOT reduce your working hours, send you
home early without considering your ability to perform
other duties, discharge you, or otherwise discriminate
against you for engaging in activities on behalf of Los
Angeles County District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or on behalf of any other labor organiza-
tion.
WE WILL NOT continue to apply the policy of
restricting you to only a single job and refuse to
consider you for other assignments.
WE WILL NOT in any other manner interfere with any
of your rights set forth above which are guaranteed by
the National Labor Relations Act.
WE WILL offer Gary Flynt immediate and full
reinstatement to his former position, dismissing, if
necessary, anyone who may have been hired or retained
to perform the work which he had been performing
prior to his discharge, or, if that position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and make him whole for any loss of pay he may have
suffered as a result of our discrimination.
WE WILL make whole all employees who were
deprived of income by being sent home early on and
after February 16, 1976, pursuant to the implementa-
tion of our policy of assigning employees to one job
only.
AMERICAN LUMBER SALES,
INC.
424