Bate Plywood Co., Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1969

174 N.L.R.B. 1096 (N.L.R.B. 1969)

1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bate Plywood Company, Inc. and Lumber & Sawmill
Workers Local No. 3009, AFL-CIO. Case
36-CA-1720
March 11, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 4, 1968, Trial Examiner George H.
O'Brien issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision The Trial
Examiner also found that the Respondent had not
engaged in certain other alleged unfair labor
practices. Thereafter, the Respondent, the General
Counsel, and the Charging Party filed exceptions
and supporting briefs and the Respondent filed an
answering 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
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations only to the extent consistent
herewith
The Trial Examiner found that Respondent
violated Section 8(a)(3) and (1) by discharging
Herman J. Daily on December 6, 1967, because it
resented Daily's insistence on supporting the
position of his Union that millwrights and
electricians should continue to perform separate
functions. The Respondent excepts, contending that
Daily was discharged for insubordination We find
merit in respondent's exceptions.
As more fully set forth in the Trial Examiner's
Decision, in 1961 and again in March 1966, the
Respondent rejected Union requests for specific
definitions of each job in the plant. In August 1966,
the Union rejected Respondent's proposal for the
creation of a new job with the title
"electrician-millwright." About this time, after a
complaint by the Union, the State of Oregon
ordered one of Respondent's millwrights to desist
from doing electrical work without a license. The
net result is that neither the Respondent nor the
Union had been able to persuade the other to adopt
its position and the matter had been dormant for
over a year at the time of Daily's discharge.
Daily was hired by the Respondent in October
1961. Since that time Daily has insisted that
electricians should not perform millwright work In
1966, Daily was transferred from the night shift to
the day shift where he came under the direct
supervision of Chief Electrician, Albert Scouten.
Both Scouten and Daily testified that after that time
Daily had been required to do work outside of his
electrical classification although Scouten was aware
that Daily was opposed to doing so. Daily
acknowledges that he did some millwright work
On reporting for work on the morning of
December 6, 1967, Scouten was told by the
night-shift electrician that a gear-motor was going
out on the patch line in the sanding department
Scouten told Daily to go take a look at it. Daily
reported back that it sounded like a bearing going
out. Scouten then asked Daily to get the name plate
data from the defective gear-motor so that if one
could not be found in stock it could be ordered and
to see if he could find one that could be made to do
the job About 10 minutes later, Scouten went over
to the patch line and found Daily still copying the
name plate data. Daily informed Scouten that he
had found a gear-motor in back of the shop but that
the defective gear-motor had a speed of 58 RPM's
whereas the one in the back of the shop had a speed
of 100 RPM's. Scouten then told Daily to see if he
could find a sprocket that would work with that
gear-motor.'
Daily then proceeded to the millwright shop.
There he discussed the problem with the millwright
supervisor, Arthur Parish, and with the millwright,
Charles N. (Pat) Crowell After examining the
gear-motor, Crowell told Parish that he thought it
would last the rest of the shift. Parish decided to
wait until after the shift to make the change and
said he would make the necessary preparations to
make the change if the gear-motor did not last for
the remainder of the shift.
Scouten was not in the electrical shop when Daily
returned. Daily next answered two electrician's
whistles. About 9 a.m. he returned to the electrical
shop where he and Scouten had the conversation
which immediately preceded Daily's discharge
Scouten testified that he asked Daily if the
gear-motor would be ready to change at noon. Daily
replied, "No," he had turned the job over to the
millwright Scouten asked him why he had done
that. Daily replied that it was not electrician's work
'Scouten testified that he told Daily to get a sprocket with 60 pitch that
had approximately half of the number of teeth of the sprocket of the
defective gear motor , take it to the machine shop and have it bored or
bushed, put it on and have it ready to change at noon Daily denies that
these instructions were given The Trial Examiner finds that Scouten
invented these details Daily testified that after Scouten gave him the
instructions he replied that he would get a millwright to help Scouten
denies that Daily said anything about getting a millwright to help The
Trial Examiner finds that Daily invented this detail After a careful review
of the record , we conclude that these credibility findings are not contrary
to the clear preponderance of all the relevant evidence Accordingly, we
find no basis for disturbing these findings Standard Dry Wall Products,
Inc . 91 NLRB 544, enfd 188 F 2d 362 (C A 5)
174 NLRB No 162
BATE PLYWOOD CO. INC.
Scouten said that that was beside the point, that
everyone was there to keep the plant rolling and the
rest of the electricians would do that type of work
Daily replied that it was not electrician work and he
did not intend to do it At some point in the
conversation Daily stated that Scouten would know
better than to ask an electrician to do a job like that
if Scouten had ever been an electrician in a plant
like this Finally, Scouten said that he could get
Daily's check and Daily said, "well, I can't stop
you." Scouten said, "Fine" and went and got the
check
Daily testified that Scouten asked him how he
was coming with the gear-motor Daily replied that
Parish was getting a sprocket as none was available.
Scouten asked why Daily had not given him the
information. Daily replied that Crowell had written
down this information and, in any case, Scouten was
not in the electrical shop at the time Scouten then
asked Daily why he did not cooperate like the other
electricians Daily replied that he did cooperate to
the extent of his ability and reminded Scouten that
the other electricians had millwright experience
After a period of silence, Scouten said, "Well, I can
get your time for you," Daily replied, "If that's the
way you feel about it, I can't stop you from giving
me my time." Scouten left and got Daily's check.
After examining the testimony concerning the
events of December 6, 1967, in light of the situation
as it existed on that date, we conclude that the
evidence does not establish that Respondent's
discharge of Daily was motivated by Daily's support
for the Union's position that electricians should not
be required to do millwright work. Daily's views on
this issue had been openly expressed throughout his
employment with Respondent and were well known
to Respondent. Although a source of contention in
the past, as of the date of Daily's discharge the issue
had been dormant for well over a year and there is
no evidence in the record indicating that the issue
was going to flare up in the near future Therefore,
as the situation stood prior to the events of
December 6, 1967, there appears to be little reason
to believe Respondent would suddenly seek to
discharge Daily because it resented his support of
the Union's position on this issue.
After a careful review of both Daily's testimony
and Scouten's testimony we conclude that nothing
occurred on December 6, 1967, which would support
a finding that Respondent's previous tolerance had
been changed to such a degree that Respondent now
so resented Daily's views that it was motivated to
discharge him for that reason. Daily, according to
his own testimony, did not on the day of his
discharge make any attempt to assert the Union's
position When Scouten asked why he did not
cooperate like the other electricians, he pointed to
the fact that the other electricians had millwright
experience whereas he had none. While Scouten's
testimony would seem to indicate that Daily did
bring up the subject of what electricians should or
1097
should not be required to do, it is apparent that
Daily, according to this version, was attacking
Scouten with the implied claim that Scouten did not
have sufficient experience to properly assign
electricians, rather than attempting to assert the
Union's position, and at the same time was refusing
to do something he had previously done, namely,
work outside of his electrician classification.
As the evidence does not establish that
Respondent was motivated by a desire to
discriminate against Daily because of his support of
a Union position, we shall dismiss this allegation of
the complaint
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE H'O' BRIEN, Trial Examiner On July 16 and
July 17, 1968, a hearing was held in the above-entitled
matter in the Josephine County Court House, Grants
Pass, Oregon, at which all parties appeared and
participated The complaint issued by the Acting Regional
Director, Region 19, of the National Labor Relations
Board on April 17, 1968, is based upon a charge filed by
the Union on February 7, 1968, and an amended charge
filed April 2, 1968, and alleges violations of Section
8(a)(I), (3), and (5) of the National Labor Relations Act,
as amended Upon the entire record in this case, including
my observation of the witnesses and after due
consideration of the briefs filed by the General Counsel,
the Union and the Respondent, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Bate Plywood Company, Inc., herein called
Respondent, is an Oregon corporation which operates a
mill in Merlin, Oregon, for the manufacture of plywood
and related products. During the calendar year 1967,
which period is representative, Respondent manufactured,
sold and distributed products valued in excess of $500,000
of which products valued in excess of $50,000 were
shipped from Respondent's Merlin, Oregon, mill directly
to points in states of the United States other than the
State of Oregon Respondent is now, and has been at all
times material herein, an employer within the meaning of
Section 2(2) of Act 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
Lumber & Sawmill Workers Union Local No 3009,
AFL-CIO, affiliated with United Brotherhood of
Carpenters & Joiners of America, AFL-CIO, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues
I Whether the discharge of Herman Daily on
December 6, 1967, by the Electrical Supervisor, Albert
Scouten was motivated by the desire to discourage union
membership and activity and was precipitated because
Daily argued with Scouten for the maintenance of
working conditions established by the union contract and
shop practice or whether Daily was discharged because of
his obstinate and insubordinate refusal to obey direct,
clear and proper orders
2 Whether in violation of Section 8(a)(5) of the Act
Respondent made unilateral changes in the job duties and
working conditions of its electricians and millwrights and
whether in the processing of a grievance growing out of
the discharge of Daily Respondent bargained in bad faith
B. The Setting and History of The Dispute
Respondent's mill covers a large area, more than a
block in length and employs over 250 workers. For many
years its employees have been represented by the Union in
a single production and maintenance unit The current
contract, effective from June 1, 1966, to June 1, 1969, lists
96 separate job classifications and 48 separate wage rates
The Union has sought, since at least 1961 to have the
duties and responsibilities of each job defined and
incorporated in written job descriptions. Respondent has
consistently resisted these proposals and has insisted upon
the right to assign any employee to any work which he is
capable of performing All parties agree that the Daily
discharge and the directly related allegations of unilateral
change and refusal to bargain were incident to this
dispute On the Respondent's theory, Daily, an employee
classified as "electrician" was discharged because he
refused to perform a task, which in Daily's view, should
have been assigned to an employee classified as
"millwright " The General Counsel argues (1) that Daily
did not disobey any order (2) that if he had been ordered
to perform a millwrights's task, his refusal to do so would
not have justified the discharge and (3) that he was in fact
discharged for merely voicing the opinion that electricians
should not be required to do millwright work, and that
Daily was denied reinstatement because his presence in the
mill constituted the sole impediment to Respondent's
unlawful aim of combining unilaterally the functions of
"electrician" and "millwright" in one job, over the voiced
opposition of the Union.
In negotiations for a prior contract in 1961 the Union
proposed and Respondent rejected contract clauses which
would restrict transfers between jobs and which would
require that when jobs were posted they should be defined
by "machine, bench or station " In the spring of 1966 the
Union demanded and the Respondent refused to prepare
in writing a step by step description of every job in the
plant. In a wage reopening meeting in June, 1966 a union
representative stated that electricians believed that they
should receive more pay than millwrights because they
had received better training and were required to pass an
examination and obtain a license from the State
Respondent, through Mill Superintendent Roberts, replied
that millwrights and electricians should continue to receive
the same rate of pay because millwrights were equally
skilled in other fields and in other types of activities and
had a larger involvement in tools. The Union acquiesced
In August 1966 Respondent proposed to the Union that
a new job be created with the title
"electrician-millwright." Roberts testified: "We had no
intention of changing all of our millwrights and all of our
electricians" but there is no evidence that this subjective
intent was communicated to the Union On the contrary,
a Union representative testified that Respondent's
proposal was to have millwrights perform both electrical
and millwright work and to have electricians perform both
electrical and millwright work, which in the Union's view
would be a radical change from the existing practice The
proposal was rejected by the Union.
About the same time the Union filed a grievance under
the contract complaining that a millwright was doing
electrical work, and also filed a complaint with the State
of Oregon The State, presumably after an investigation
ordered the millwright to desist Respondent, and its
electrical supervisor, Scouten, were notified of this
determination
On this record there is no definition of "electrician" or
"millwright " Websters Third New International
Dictionary contains the following definitions, of which I
take official notice because they are consistent with and
help to explain the testimony of all witnesses.
Electrician - One who installs, maintains, operates or
repairs electrical equipment
Millwright - A workman who erects shafting, moves
machinery and cares for the mechanical equipment in a
workshop, mill or plant.
All parties appear to have been guided by recognition
of the fact that the practice of the mill is a part of the
collective bargaining agreement, though not set forth in
the contract' but testimony is sharply conflicting as to
what that practice is and has been as it relates to the
respective tasks of electrician and millwright
C The Alleged Discriminatory Discharge
I Daily's work prior to December 6, 1967
Herman Daily was hired by Scouten in October 1961
Immediately prior to this he had worked as an industrial
electrician for Ford Motor Company for six years and
had also worked as an industrial electrician for Owens
Corning Corporation and for American Can Company.
On his first night on the job Scouten asked him to help a
millwright dig a hole and Daily declined, stating that if
there was not enough electrical work at Bate Plywood to
keep him busy he would seek another job. Scouten did not
press the matter. The mill runs three shifts Between 1961
and 1966 Daily and one millwright, Preiss, were
responsible for all mechanical and electrical maintenance
on the swing shift, independent of any direct supervision.
During all this period, Daily did the electrical work and
Preiss did the millwright work.
In 1966 Daily was transferred to days and his hours,
for the first time coincided with those of the electrical
supervisor, Scouten. On one occasion, when Daily was
actively engaged in rewiring the electrical controls on a
condenser tank, he was asked by Scouten to install a
steam valve When Daily protested that he had electrical
work to do, Scouten, without comment, assigned the
steam valve job to a millwright On other occasions Daily
did perform millwright work Scouten testified that Daily
was an excellent electrician, that Daily had never, prior to
'Steelworkers v Worrier and Gulf Co , 363 U S 574, 581-582
BATE PLYWOOD CO. INC. 1099
December 6, 1967 refused to obey any order and further
testified
Q. (by Mr Roll) You knew, didn't you, sir, that Mr
Daily was opposed to working outside his electrical
classification as set forth in the contract? You knew
that, didn't you?
A Yes, I did know that.
Q Yes. And you continuously insisted that he
perform work -
A. That's right
Q. - outside the electrical classification set forth in
the contract" That's right, isn't it9
A Yes.
This record reveals only two occasions when Scouten
directed any critical remark to Daily, both in the fall of
1966 In one instance Scouten observed Daily in the
machine shop and told him that he should not stand there
in front of the window where other employees could see
that he was not doing anything, and reminded Daily that
he had other work to do. In the other instance Daily was
eating lunch when the electricians whistle blew, and
Scouten told him to stop eating and answer the whistle.
Daily obeyed.
2 The discharge, December 6, 1967
When Daily and Scouten came on duty at about 7 00
a m on December 6, Scouten received a report from the
night shift electrician that a gearhead or gear-motor on
the patch line in the sanding department had been making
an unusual noise through all of his shift and at least part
of the previous shift Scouten asked Daily to listen to it
and report Daily reported back that it sounded to him
like a bearing going out Scouten then instructed Daily to
look at the spare gear-motors to see if there was one that
"could be made to do" and to copy the name plate data
from the defective gear-motor so that Scouten could order
a new one from Medford and have it sent out by
Greyhound Becoming inpatient, Scouten went himself to
the patch line where he found Daily still copying name
plate data. Scouten asked Daily what he had found in the
spare gear-motors and Daily replied that there was no
identical spare The closest thing was a gear-motor with
an output speed of 98 or 100 RPM, whereas the output
speed of the motor on the line was 58 RPM (I infer at
this point Scouten must himself have looked at and
listened to the defective gear-motor.) Scouten then and
there gave Daily the order which is the focal point of this
case.
Scouten testified that he instructed Daily
Get a sprocket with 60 pitch that's approximately half
of the number of teeth that's on this one. Take it to the
machine shop, have it bored or bushed, as the case
might require, put it on and have it ready to change out
at noon.
Daily testified that his instructions were: "To see if I
could find a sprocket that would work for that gear head,
but the sprocket would have to be different because of the
difference in the speeds of the two gear heads", that Daily
accepted the instruction with the words "Okay, I'll get
Pat [a millwright] to help me", and that Scouten made no
reply. Daily specifically denied that Scouten, mentioned
"number of teeth", or "pitch", or "boring" or "bushing"
or "the machine shop" or that Scouten said anything
about having the job "ready to change out at noon".
Scouten specifically denied that Daily said anything about
getting a millwright's help
Daily went to the millwright shop which is adjacent to
the electrical shop and there spoke to the millwright
supervisor (who was also the master mechanic) Arthur
Parish Daily told Parish that there was a defective
gearhead on the patch line, that Scouten had sent for a
replacement but it might not be delivered until later, and
asked for help to locate a sprocket. Parish instructed the
dayshift millwright, Charles N (Pat) Crowell to look at
the gearhead Crowell and Daily went to the patch line
where Crowell performed a thorough maintenance check
Daily and Crowell returned to the millwright shop where
Crowell reported to Parish that the gear-motor would run
for at least the remainder of the day shift, and Parish and
Crowell decided to take maintenance steps in case a
change in the middle of the shift should become necessary.
Pat Crowell, the millwright, with Daily's assistance
searched for but was unable to find any sprocket wheel of
the proper tooth count and pitch which would fit on the
shaft of the replacement gear-motor He did find one
which would serve if a bushing were inserted in the center
hole, the bushing bored to fit the output shaft and a new
keyway cut Crowell reported these facts to Parish, and
Parish, in Daily's presence said that he would find a
sprocket wheel in the machine shop. At this point the
electrician's whistle blew, indicating trouble on the joiner.
Daily answered the whistle and made the repair. Another
electrical whistle blew, indicating trouble on the pond saw
outside Daily repaired the pond saw switch and returned
to the electrical shop. There, shortly before 9.00 a m. the
second pivotal conversation took place. Scouten testified
Half or three quarters of an hour after I told him
about the sprocket, I came back in the shop and he was
there - I don't know whether he was there first, or if I
came in first, one or the other and I asked him if he
had the thing all ready to go and change at noon, and
he said, "No, he turned the job over to Art and
Pat" .
Pat's a millwright and Art's the master Mechanic. I
asked him why in hell he had to do that He said,
"well, it wasn't electrician's work" and I says, "That's
absolutely beside the point we are all here for one
purpose, and that's to keep this plant rolling. The rest
of the electricians would do this kind of a job and
change this out. It doesn't weigh but fifty or sixty
pounds and why couldn't he cooperate the same as the
rest of them" ... .
He said it wasn't electricians work and he didn't
intend to do it . .
Some place in there he told me that if I had ever
been an electrician in a plant like this I would know
better than to ask an electrician to do a job like that
and I said that was beside the point too That we were
here for one purpose. The maintenance department was
the maintenance department and everybody was to
cooperate and I told him I could get his check and he
says, "well I can't stop you" and I said, "Fine," so I
went and got it
Daily testified that Scouten asked how he was making
out with the gearhead. Daily replied okay, that Mr. Parish
was getting a sprocket because there wasn't one in the
right size available. Scouten asked why Daily had not
given him that information Daily replied that Crowell
had the information and had given it to Mr. Parish and
that in any event Scouten was not in the shop to be
reported to Scouten then changed the subject and asked
Daily why he did not cooperate the way the other
electricians did. Daily assuming, that Scouten was talking
about millwright work, replied that he did cooperate to
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the extent of his ability. Daily reminded Scouten that the
other electricians had millwright experience, whereas
Daily had none. After a period of silence, Scouten said,
"Well, I can get your time for you " And Daily replied,
"If that's the way you feel about it, I can't stop you from
giving me my time," and he went out the door.
The time was then 9 a.m Within a few minutes,
Scouten handed Daily his final check and Daily left the
mill At some time during the day Scouten told
Superintendent Roberts that he had fired Daily because
Daily had "refused to change a gearhead."=
In the afternoon Scouten told Parish that it would not
be necessary for Parish to look for a sprocket because
Scouten had found one that would do, and that he had
discharged Daily. Parish replied that he had not had time
to get to it anyway. Scouten did not tell Parish why he
had discharged Daily.
When the swing shift electrician came on duty at 3:30
p.m., Scouten asked him to take a sprocket to the
machine shop, have a bushing inserted in the hole, have it
bored to size and have a keyhole cut Carter carried out
these instructions and a machinist performed the
operation in about 1/2 hour of overtime. The machinist
left the completed work on his bench when he went home
that night. This record does not disclose when or by whom
the modified sprocket was installed on the 100 RPM
gear-motor or when or by whom the gear-motor was
changed
On December 6, Daily applied to the Department of
Employment of the State of Oregon for unemployment
compensation. On the basis of information supplied by
Daily, a clerk in the office in the Department of
Employment inserted in a department form under "reason
for separation" the words "I was discharged because I
asked a millwright to get some needed information."
On December 7, Daily filed, through the Union, a
grievance reciting, "I feel I was unjustly discharged for
stating my position in regards to work out of my
classification that has never been negotiated or agreed
upon between the company and the Union " On some
date prior to December 12 Scouten had, pursuant to
contract, signed a written reason for discharge dated
December 6, 1967, reciting "To Whom It May Concern:
Herman J Daily was discharged this date for
insubordination "
On December 15, 1967, Daily prepared an affidavit
reciting the events of December 6, and on January 9,
1968, Scouten prepared an affidavit wherein he described
the events of December 6
On December 12, 1967, the union committee discussed
the Daily grievance with Plant Superintendent Roberts
Further meetings with regard to the Daily grievance were
held under the auspices of George Walker, United States
Commissioner of Conciliation, on January 3, 16, and 29,
1967. The Union at all meetings insisted that Daily should
be reinstated with full backpay The Employer at all
meetings insisted that he was discharged for cause and
should not be reinstated under any circumstance
D The Grievance Meetings, the Alleged Refusal to
Bargain and the Refusal to Reinstate Daily
The first meeting on the Daily grievance was held at
the mill on December 12, 1967 Respondent was
't'his inference is compelled by the fact that this is the only reason stated
by Superintendent Roberts at the first meeting on Daily ' s grievance
December 12, 1967
represented by Superintendent Roberts. The Union was
represented by the plant committee, by an official of the
local Union and by a representative of the Lumber and
Sawmill Workers District Council Daily was also present
After Daily completed his recitation of the events of
December 6, Roberts stated that he had statements in
Daily's own handwriting which contradicted what he had
just said. Roberts, when asked what was meant by
"insubordination" on Scouten's memorandum of
discharge replied that it meant that Daily had refused to
change a gearhead The chairman of the plant committee
charged that the company had fired Daily in reprisal for
the Union's causing the State of Oregon to take
millwrights off electrical work, and as part of
Respondent's determination to combine the two jobs.
Roberts denied this but stated that because the
Respondent had proposed to the Union that the jobs be
combined, and because the Union had rejected this
proposal, Respondent now had the right to combine the
jobs unilaterally. The parties agreed to meet again and
Roberts promised to produce his documents at the next
meeting
The second meeting was held under the auspices of
Commissioner Walker on January 3 at the mill In
addition to Roberts, Respondent was represented by the
Plant Manager, Ritchie, and by its labor relations
consultant, Henry The Union was represented by the
plant committee, a representative of the District Council
of Lumber and Sawmill Workers and by a representative
of the United Brotherhood of Carpenters. The entire
meeting is aptly described by Ritchie in the following
testimony
Well there was substantial discussion about who did
what, and who said what. There was a lot of confusing
talk about a sprocket that was either on a wall or on a
pallet, or non-existent entirely, and this was the general
theme of the entire discussion, who was a liar, and who
wasn't. It was that kind of a meeting.
At this meeting there was an argument between the
representative of the District Council and Henry over the
right of the Respondent to take unilateral action in
combining millwright and electrician jobs and Henry
agreed that such action would be improper at a time when
the contract was not open for negotiations At this
meeting Roberts stated that Daily had been fired because
he refused to take a sprocket to the machine shop. When
several committeemen objected that this was not the
reason given at the first meeting, Roberts replied that it
did not make any difference
The third meeting was held January 16 at the mill
Respondent was represented by its Superintendent, its
Plant Manager and its labor relations consultant The
Union had the same representatives as at the second
meeting, with the addition of the local President and a
representative of the Western Conference of Lumber and
Sawmill workers After caucuses with Commissioner
Walker the parties agreed that there should be a
subcommittee meeting limited to three representatives of
Respondent and three representatives of the Union who
would question Daily, Scouten and Parish. Daily was
questioned first, then Scouten In response to an answer
by Scouten, a union representative stated "That's a
damned lie " At this point the plant manager asked
Scouten and Parish to leave. Daily left shortly thereafter
In the course of his recitation Scouten stated "the reason
he discharged Herman Daily was limiting his work to
electrician's duties only and didn't want to do any
BATE PLYWOOD CO. INC 1101
maintenance or millwright work, and this was the reason
he discharged Herman."
The meeting ended with the Union insisting that Daily
should be reinstated with full back pay, and Respondent
insisting that Daily should not be reinstated under any
circumstances That night the Union struck
The Union was still on strike when the parties met for
the fourth and last time on the subject of the Daily
grievance This meeting was held January 29 in the
Federal Building in Medford Oregon under the auspices of
Commissioner Walker. Both parties remained adamant in
their respective positions. Plant Manager Ritchie testified
I had made statements at all the meetings, I believe and
at that meeting too, how I felt about this. The
super-limiting of job description would build into our
operation a lack of flexibility that I thought would
make in time - in a very short time a very uneconomic
unit, and I could see that it would mean the ultimate
end of the company
E Concluding Findings
1. The gear-motor
The gear-motor is an integral assembly of electric
motor, worm gear and worm wheel, completely enclosed
in a metal housing except for its protruding rotating
output shaft The device is designed for the output shaft to
rotate at a fixed speed, which cannot be varied. The
manufacturer's catalogue lists 5 gear-motor sizes from one
horsepower to five horsepower The one horsepower motor
may be obtained with eleven different output speeds,
varying from 25 RPM to 190 RPM When in operation
the gear-motor is attached to wall or floor or some other
piece of machinery by four bolts or studs. The gear-motor
here in controversy was attached to the patch line A
sprocket wheel mounted on the output shaft drove a pitch
chain which in turn drove another sprocket wheel on the
axle of a drum It was obvious to all that if the speed of
the output shaft of the gear-motor was doubled the speed
of the drum would also double, unless some adjustment
was made in the sprocket and chain linkage
The gear-motor itself is the responsibility of the
electrician. Malfunctioning gear-motors are disassembled,
repaired and reassembled in the electric shop The
physical act of removing this gear-motor from its mount
involves the electrical skill of disconnecting wires, and the
millwright skill of "breaking" the pitch chain and the
common skill of unscrewing a nut and bolt. The operation
is normally performed by an electrician and millwright
working together The sprocketry, i e , the task of
selecting the proper sprockets and chain, the attachment
of the sprocket wheel to the output shaft of the
gear-motor, adjusting the length of the chain and lining up
the driving and driven mechanisms is purely a millwright
function Scouten testified
As a general rule, any time a piece of machinery quits
around there and it's run by an electric motor, they
blow the electrician's whistle The electrician analyzes
the trouble and then calls the millwright if its
mechanical If he finds out that its something
mechanical, say the sprocket is turning on the shaft
because it needs a set screw, or the key has fallen out,
then, he'll holler and tell the millwright about it
and Superintendent Roberts testified.
The sprocket work, I would say, is considered
millwright work
2 The discharge of Daily
The briefs before me, like the testimony regarding the
grievance sessions exhibit an excessive preoccupation with
who is lying and who is telling the truth Both Scouten
and Daily are righteous individuals Each is intelligent,
independent, proud, opinionated and articulate There was
no third person present at either of their pivotal
conversations. As to the first conversation, I conclude that
Scouten merely told Daily to find a sprocket and take
care of the changeover should it become necessary.
Scouten must have assumed that Daily would, in
conformity with normal mill practice, go to a millwright
for help in selecting and installing the proper sprocket
Scouten could not have known that either boring or
bushing would be necessary Since Daily had, with a
millwright, handled- competently an identical job on the
night shift, Scouten would have no reason to give him any
specific instructions as to pitch or number of teeth I can
only conclude that Scouten, having stated to his supervisor
on the day of the discharge that he had fired Daily for
refusing to change a gearhead, felt compelled to invent
these details when giving his affidavit on January 9. Once
these details were reduced to writing, the writing erased
any original recollection Scouten, on the witness stand
was testifying to matter in his affidavit, not from any
original memory 3
Daily carried out his instructions by following the
normal mill practice of asking for a millwright's help.
When the millwright supervisor told Daily that he, Parish
would take care of it, Daily was relieved of further
responsibility He would have been guilty of gross
misconduct had he not promptly answered the two
electricians whistles Scouten, being in the mill, must have
heard those same whistles
As to the second pivotal conversation, I conclude that
Scouten merely asked how Daily was coming with the
gear-motor and was satisfied with his reply that Mr
Parish was taking care of it This again was in strict
conformity with shop practice I find that Scouten's
question, "Why can't you cooperate with me the way the
other electricians dog" was an invitation to discuss the
entire millwright-electrician problem, that Scouten,
perceiving that it would be impossible to convince Daily,
made the suggestion, "I could get your time'" and
accepted with alacrity when Daily replied, "I can't stop
you."
I conclude and find that Scouten, in discharging Daily
was motivated entirely by resentment of Daily's insistence
in supporting the position of his Union that millwrights
and electricians should continue to perform separate
functions
3 The alleged refusal to bargain
(a) The allegation of unilateral change
Testimony of all witnesses makes it clear that there is a
great deal of mechanical work which is incidental to and
part of the work of a maintenance electrician. Electricians
'Daily ' s testimony is subject to the same infirmity He too invented a
detail , i e , "I'll get Pat to help me " when making his affidavit on
December 6, and Daily ' s statement , reduced to writing erased his original
memory
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do customarily and without protest perform many
functions in addition to that of hooking wires together.
They overhaul the mechanical as well as the electrical
parts of the gear-motor, of valves, of hydraulic equipment
It is also clear that under state law no one who does not
have an industrial electrician's license cannot do any
electrical maintenance or electrical construction It is
further uncontraverted that sprocketery is purely a
millwright function There is no claim that there is any
sharp line of division between the work of the two crafts
I find that the General Counsel has not established by a
preponderance of the evidence that there has been any
change in the respective duties, functions, responsibility,
or work of either electrician or millwright within the
6-month period preceding the filing of the original charge
herein.
(b) The alleged refusal to bargain over the discharge
of Daily
There were four grievance meetings wherein the subject
of Daily's discharge was discussed In each there was full,
fair and frank discussion and disclosure Neither party
conceded anything nor was either party required to
concede anything Both parties remained adamant and
both parties bargained in good faith to an impasse
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth above,
occurring in connection with the operations of Respondent
described above have a close, intimate, and substantial
relation 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.
V. THE REMEDY
It has been found that Respondent has engaged in
certain unfair labor practices It will therefore be
recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act
Having found that Respondent discriminated against
Herman J Daily by discharging him, I shall recommend
that it be ordered to reinstate him to his former or
substantially equivalent position of employment without
prejudice to his seniority or other rights and privileges and
to make him whole for any loss of earnings suffered as a
result of the discrimination against him. Reinstatement
shall be effected in the manner described in Chase
National Bank of New York, 65 NLRB 827, 829
Backpay shall be computed in the manner set forth in F
W Woolworth Co , 90 NLRB 289, with interest added
thereto in the manner set forth in Isis Plumbing &
Heating Co, 138 NLRB 716
Upon the foregoing finding of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act
2 Respondent is engaged in commerce within the
meaning of Section 2 (6) of the Act.
3. The Union is a labor organization within the
meaning of Section 2(5) of the Act
4. By discharging Herman J Daily because he sought
the retention of working conditions established under the
terms of the collective-bargaining agreement with the
Union and established practice under said contract,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(I) and 8(a)(3) of the Act
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6 The Employer has not engaged in any unfair labor
practice within the meaning of Section 8(a)(5) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this
proceeding, I recommend that Respondent, Bate Plywood
Company, Inc., its agents, successors, and assigns, shall
1 Cease and desist from.
(a) Discouraging concerted and union activity and
membership by discriminating in regard to the hire and
tenure of employment of any of its employees in order to
discourage such activities or union membership or
activities therein.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act
(a) Offer to Herman J Daily immediate and full
reinstatement to his former or substantially equivalent
position as described herein, without prejudice to his
seniority or other rights and privileges, and make him
whole in the manner set forth in the section of this
Decision entitled "The Remedy "
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
and Training Act, as amended, after discharge from the
Armed Forces
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Decision.
(d) Post at Respondent's mill copies of the attached
notice marked "Appendix."4 Copies of said notice, on
forms provided by the Regional Director for Region 19,
after being duly signed by Respondent's representative,
shall be posted by it 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 insure that said notices are not
altered, defaced, or covered by any other material
(e) Notify the Regional Director for Region 19, in
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order "
BATE PLYWOOD CO. INC. 1103
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
with the foregoing Decision '
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 19, in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
WE WILL NOT discourage membership in or activities
on behalf of Lumber & Sawmill Workers Local No
3009, AFL-CIO by discharging or otherwise
discriminating in regard to the hire or tenure of
employment, or any term or condition of employment
of our employees
WE WILL offer to Herman J. Daily immediate and
full reinstatement to his former position without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered as a
result of the discrimination against him.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the right to
self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities or other mutual aid or
protection, except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as authorized by Section 8(a)(3) of
the Act.
Dated By
BATE PLYWOOD
COMPANY, INC
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 1000 Republic
Building 1511 Third Ave, Seattle, Wash. 98101,
Telephone 583-7473.