Anthon Forest Prodects Co.

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 976 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anthony Forest Products Co. and United Furniture
Workers of America, AFL-CIO. Case 16-CA-
6773
August 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On April 7, 1977, Administrative Law Judge James
T. Rasbury issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
Respondent also filed a brief in opposition to the
General Counsel's exceptions.
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, 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 complaint be, and it hereby is,
dismissed in its entirety.
I In view of our decision to adopt the Administrative Law Judge's
Decision dismissing the complaint herein, Member Murphy finds it
unnecessary to pass on Ricardo Medrano's employee status.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard by me in Marshall, Texas, on January 20, 1977.1
The original charge was filed by the United Furniture
Workers of America, AFL-CIO (herein Union), on
September 7; an amended charge was filed by the Union
on October 12. Respondent admits having been served
with a copy of both the original charge and the amended
charge. Complaint was issued on October 15 alleging
Respondent to have violated Section 8(aXl) and (3) of the
Act in that Respondent's supervisor, James Gilliam, orally
warned an employee that he was being laid off because he
was working for the Union and thereafter on August 17
discharged said employee because said employee was
engaging in protected union activities.
The relevant and significant dates concerning this matter occurred in
the year 1976. All dates shown hereinafter will refer to the calendar year
1976 unless otherwise indicated.
231 NLRB No. 161
Respondent's answer, filed October 25, admitted all
jurisdictional and procedural allegations, the supervisory
status of Gilliam, and the fact of Ricardo Medrano's
discharge, but denied commission of any unfair labor
practices.2
The parties were given full opportunity at the hearing to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Helpful briefs were received
from the General Counsel and Respondent and have been
carefully considered.
Upon the entire record, and from my observation of the
demeanor of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and at all times material herein has been,
a corporation duly organized under, and existing by virtue
of, the laws of the State of Delaware, maintaining a plant at
Atlanta, Texas, where it is engaged in the operation of a
lumber mill. During the past 12 months, which period is
representative of all times material herein, in the course
and conduct of its business operations, Respondent
shipped goods valued in excess of $50,000 directly to points
located outside the State of Texas. Respondent admits and
I herewith find Respondent to be an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION
The Union is now, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
(1) Can a full-time employee of the Union who has
sought and obtained employment from a company for the
express purpose of organizing its employees, become an
employee of said employer entitled to all of the protection
afforded by the Act? (2) Was Ricardo Medrano discharged
because of his union activities?
B. The Evidence
I. Relating to the status of Medrano
Medrano testified that he owns a small grocery store in
Dallas, Texas, which is managed by his wife and provides
him a small income that has enabled him to do volunteer
work for a number of different unions. In May he was
hired by the United Furniture Workers of America as a
union organizer and was paid a regular weekly salary. His
salary was $200 per week and in addition he was furnished
a 1976 Chevrolet Impala automobile for his use and was
reimbursed for out-of-pocket expenses including lodging
2 Medrano testified that his first name is Ricardo but that he is also
known as Richard and throughout the record he is frequently referred to as
Richard.
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ANTHONY FOREST PRODUCTS CO.
and $6 per day for meals. Medrano testified that on or
about August 11 he was instructed by his superior, Jack
Houston, to go to Atlanta, Texas, and seek employment
with Respondent for the purpose of organizing the plant.3
Medrano stated that he proceeded to Atlanta on August
12 and on the same date applied for, obtained, and went to
work on the afternoon or evening shift as a laborer for
Respondent. August 12 was a Thursday and Medrano
worked that Thursday and Friday for which he received a
check, was off on Saturday and Sunday, and then worked
August 16 and 17 which was Monday and Tuesday of the
following week. He was paid at the rate of $2.50 an hour
and received two separate checks for the 4 days that he
worked. He was laid off or discharged at the conclusion of
the afternoon or evening shift on August 17. Medrano
testified that he received his full salary and expenses while
he was working for Respondent and that he turned the
paychecks received from Respondent over to the Union.
Under cross-examination Medrano acknowledged that
while at Respondent's plant in Atlanta he was generally
under the direction of Jack Houston, and had he been
asked to leave there and take an assignment elsewhere he
would have done so.
Analysis
1. The employee status of Medrano
The evidence is crystal clear and undisputed that
Medrano was a full-time union employee working under
the Union's direction at the time he sought and obtained
employment by Respondent and at all times while
employed by Respondent. The question to be resolved is:
Under such circumstances was Medrano an "employee" of
Respondent entitled to the protection afforded by the Act?
Respondent contends Medrano should not be afforded
protection of the Act and relies rather heavily on selective
language from two Board cases concerned with the same
subject matter. In Sears, Roebuck and Co., 170 NLRB 533,
at 535, fn. 1 (1968), the Administrative Law Judge set forth
this comment:
Of course, if he [the discriminatee] seeks only tempo-
rary employment in order to organize, and withholds
from his employer the fact that he seeks only temporary
employment, a different result might follow, but no
such showing is made on this record.
The Board, in agreement with the Administrative Law
Judge, dismissed the complaint but in a footnote of their
own specifically stated, "We find it unnecessary to pass
upon the 'comment' and statements of the trial examiner
expressed in footnote 3 of his decision." Other language
from the same questionable footnote clearly indicates that
the Administrative Law Judge found the discriminatee to
be "a bona fide employee. The fact that he was also paid by
the Union to organize does not militate against that
finding." Counsel then points out that in Dee Knitting
: Throughout the record, Jack Houston's last name has been spelled
Houston although Respondent's brief indicates that the correct spelling is
Huston. Regardless of the correct spelling. Jack Houston was the district
director of District 9 for the Union which included the States of Georgia.
Tennessee. Mississippi. Alabama, Arkansas, Texas, and Oklahoma.
Mills, Inc., et al., 214 NLRB 1041 (1974), the Board
specifically approved the Administrative Law Judge's
footnote in Sears, supra. Respondent then contends that
based on the Board's holding in Dee Knitting Mills that it
would appear to have decided that persons such as
Medrano, whose employment was solely to organize, are
not employees within the meaning of the Act.
Such an argument tends to mix and confuse what the
Board has said. The footnote in the Sears case makes it
quite clear that the discriminatee with which that case was
concerned was a bona fide employee even though he was
working full time for a union also. The note only suggested
that it might have been otherwise if there had been some
indication of temporary employment. In the Dee Knitting
Mills case, supra, the pertinent comments by the Board
were concerned with the question of whether or not the
particular employee was a temporary or a permanent
employee so as to determine whether or not her union
authorization card should be counted. A "temporary"
employee is not permitted to vote in a Board-conducted
election because he or she does not have any longtime
community of interest with the regular employees. How-
ever, that is not to say that a "temporary" employee is not
to be accorded all of the protection afforded under the Act
insofar as discriminatory treatment because of union
activity is concerned. In the Dee Knitting Mills case, the
Board said:
The Administrative Law Judge notes, and we agree,
that an employee does not lose his status because he is also
paid to organize. See Sears Roebuck & Co., 170 NLRB
533, 535, footnote 3 (1968.) The real question, as the
cited case shows, is whether the employment itself was
solely to organize, so that the employment is really only
temporary, whether the employer knows it or not.
[Emphasis supplied.]
In Elias Brothers Big Boy, Inc., 139 NLRB 1158 (1962),
the Board found a violation of discriminatory discharge.
However, on appeal to the Sixth Circuit, the court denied
reinstatement of the discriminatee on the theory that the
individual was not a bona fide employee within the intent
of Section 2(3) of the Act because she was receiving pay
from the Union during the period of her employment as a
waitress for Respondent. 4
In a more recent case5 the Board was confronted with
the issue as to whether or not two employees who were
paid professional union organizers were employees of
Respondent within the meaning of Section 2(3) of the Act.
The Board said, "the issue of whether Mary Calligarias and
Antoinette Jackson are entitled to the protection of the Act
is not whether they sought, with respect to Respondent, 'an
employment relationship of a permanent nature.' In
recognition of the broad definition of 'employee' in Section
2(3) of the Act, the Board consistently has held, at least
since 1947, that unlawful discrimination includes discrimi-
4 N. LR.B. v. Elias Brothers Big Boy, Inc., 327 F.2d 421 (C.A. 6. 1964.)
I Oak Apparel, Inc., 218 NLRB 120(1975).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation against members of the working class generally."
Board Member Kennedy dissented in the Oaks case.6
On the basis of Board Decisions, it seems unmistakably
clear that a full-time union organizer may be hired by a
company and is to be accorded the full protection afforded
any other employee under the Act. I find, therefore, that
Medrano was a bona fide employee of Respondent.
2. Relating to the cause of Medrano's discharge
While there is no doubt of Medrano's purpose in seeking
employment with Respondent, his own union conversa-
tions, or activity, as testified to by him were confined to
three incidents. (I) Medrano testified that on Monday,
during his lunch hour he passed out four union cards. (2)
Medrano also testified that at approximately 10:30 p.m. on
August 17, the night he was discharged, that Ottie Walker7
told him that he wanted to talk to him and they moved
about 75 feet away from the outside of the building where
Walker asked him ....
If I worked for the Union, and I told him yes, I did
work for the Union, and he said that they had my
business card up front, and that they knew that I
worked for the Union.
And he started to tell me that he was sympathetic
with the Union. It was a worthwhile cause, and he too
had belonged to the Union, and he reached into his
back pocket, pulled out his wallet and showed me a
Teamsters membership card.
(3) According to Medrano, "about five minutes before
quitting time Mr. Gilliam came and told me that he had to
let me go because we had too many employees working,
and these are his words, and that they knew that I had
worked for the Union, and they didn't like it, and they had
to let me go, but it wasn't none of his doing."
The complaint did not allege Ottie Walker to be a
supervisor and/or agent of Respondent and this record is
wholly inadequate to support such a finding. Walker is a
millwright who has worked on more than one occasion for
Respondent and there is reason to believe that he is a
knowledgeable employee frequently relied on by Respon-
dent to make emergency repairs and generally keep the
machinery operating. The record totally fails to reflect any
of the usual indicia of supervisory status for Walker and
Respondent's witness denied that he was a supervisor.
Medrano testified that there were other employees hired
after he was hired who were not laid off, or terminated at
the time of his termination. He described one such person
as a young black about 18 years of age, named Peoples. No
further identification regarding where Peoples may have
worked was made. Medrano also testified that he had no
knowledge of anyone who was hired after he was hired or
" I personally have great difficulty in understanding how an individual
can be an employee of two different employers at the same time for the same
working hours. There is a certain master-servant relationship encompassed
in an, employer-employee relationship which is absent under such
circunistances. hlowever. I am bound by the Board's Decision and shall find
aIccordingly.
7 Walker's first name is variously spelled in the transcript as "Odell" and
as "Audi." but Respondent has indicated in his brief that the correct
spelling should be Ottie.
after his discharge that performed exactly the same type of
laboring duties that he had been assigned.
James Gilliam testified that he is the evening shift
foreman for the Respondent; that he had hired Medrano
and that he had been responsible for telling Medrano that
he was to be laid off because of a curtailment of the
number of employees on the day shift which in turn
allowed the employees on the day shift to bump back on to
the evening shift (see Resp. Exh. 4). Gilliam denied that he
made any reference to Medrano's union activities and
further denied that he had any knowledge that Medrano
had been or was active for the Union at the time of the
discharge. Gilliam regarded Medrano as a good worker.
Gilliam further testified that no one has been hired to take
Medrano's place; that the only employee performing
laboring type duties is Donald Taylor who was on the
payroll and working at the time Medrano was hired; that
the only employee who has been hired of which he has any
knowledge since Medrano's termination is a man by the
name of Humphrey. He is an "edgerman," which is a
skilled position.
Conclusion
In every case a violation of the Act must be proved by
the General Counsel by a preponderance of the evidences
Where there is no direct evidence of discriminatory motive,
the Board may examine the record to determine if there is
support for an inference of such motivation. In order to
draw such an inference, however, it must be based upon
evidence, direct or circumstantial, not upon mere suspi-
cion.9 I find insufficient evidence to support such an
inference based on all the testimony in this case. Walker
was not called by the General Counsel to lend credence to
Medrano's testimony that Walker had knowledge that the
Company knew of Medrano's union activities. No explana-
tion was given as to why he was not called. The Act does
not give the Board control over an employer's policies,
including his policies concerning tenure of employment; it
is immaterial whether the discharge was arbitrary, unfair,
or unreasonable, so long as it was not discriminatorily
motivated.' 0 In order to find that a discharge is discrimina-
torily motivated the General Counsel must prove some
knowledge or belief on the part of Respondent associating
the dischargee with union activities or interests. In this case
the only evidence indicating union activity on the part of
Medrano and/or knowledge on the part of Respondent
concerning Medrano's union activities consisted of the
testimony of Medrano. The evidence fails to reveal the
circumstances under which the union cards were distribut-
ed to the four employees or in what manner Respondent
might have obtained some knowledge of this activity.
Walker, who supposedly had some information reflecting
on the knowledge of Respondent regarding Medrano's
activities, was not called to corroborate Medrano's testimo-
B Falstaff Brewing Corporation, 128 NLRB 294, 295, fn. 2 (1960), enfd. as
modified 301 F.2d 216. (C.A. 8, 1962.)
9 Cedar Rapids Block Co., Inc. and Cedar Sand and Gravel Co. v.
N.L.R.B., 332 F.2d 880, 884. (C.A. 8, 1964.)
i' N.LR.B. v. Ace Comb Co. and Ace Bowling Co., Division of Amerace
Corp., 342 F.2d 841, 847 (C.A. 8, 1965); N.LR.B. v. TA. McGahey, Sr., el
al., d/b/a Columbus Marble Works, 233 F.2d 406, 413 (C.A. 5, 1956).
978
ANTHONY FOREST PRODUCTS CO.
ny. While I was impressed with the demeanor and apparent
credibility of Medrano as a witness, I was generally
impressed by the demeanor and apparent credibility of the
testimony given by James Gilliam. Under such circum-
stances it cannot be said that the General Counsel has
proven this case by a preponderance of the evidence." I
find that the General Counsel has failed to prove that
Medrano was discharged by Respondent because of an
unlawful discriminatory motive.
CONCLUSIONS OF LAW
I. Respondent, Anthony Forest Products Co., is en-
gaged in commerce, and the Union, United Furniture
" Blue Flash Express, Inc. 109 NLRB 591 (1954); Casa Grande Cotton
Oil Mill, I 10 NLRB 1834 (1954); Brotherhood of Painters, Decorators and
Paperhangers of America, Union No. 76 (Gomez Painting & Decorating Co.),
182 NLRB405(1970): cf. AAA Lapco, Inc., 197 NLRB274(1972).
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Workers of America, AFL-CIO, is a labor organization all
within the meaning of the Act.
2. Respondent has not violated the Act with regard to
the allegations contained in the complaint.
Upon the basis of 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:
ORDER 12
The complaint is hereby dismissed in its entirety for lack
of merit.
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, apd 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.
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