Century Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1967

168 N.L.R.B. 221 (N.L.R.B. 1967)

CENTURY LUMBER CO.
Century Lumber Company, Inc. and Truck Drivers
and Helpers Local Union No. 696, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 17-CA-3154
November 15, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 15, 1967, Trial Examiner William J.
Brown issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
in violation of the National Labor Relations Act, as
amended, and recommending that Respondent
cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Ex-
aminer's Decision. He further found that Respond-
ent had not engaged in certain other unfair labor
practices alleged in the complaint and recom-
mended dismissal as to them. Thereafter, the
Charging Party and the General Counsel filed ex-
ceptions to the Trial Examiner's Decision and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as herein modified.
1. The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(1) of the Act by
threatening employees with discharge and plant
closing in reprisal for support of the Union and by
engaging in coercive interrogation of employees
concerning their union activity.
However, contrary to the Trial Examiner, we
find that Respondent further violated Section
8(a)(1) by promising and granting economic benefits
to employees on February 15 and 16,1 respectively,
to discourage membership in and support of the
Union. In reaching this conclusion we note the fol-
lowing:
On February 15, 2 days after the Union's de-
mand for recognition and bargaining, Vice Pres-
ident McCoy told employee Lacey he would get a
All dates are 1967 unless otherwise indicated
Sewell was laid off along with the others on February 15 but was
rehired on February 24
221
wage increase and also sought to obtain the name of
the union leader from Lacey. When unsuccessful,
McCoy rebuked Lacey for refusing to give this in-
formation. On the same day, McCoy told employee
Murphy that he would receive a wage increase. At
the same time, McCoy said to Murphy that
Respondent would even resort to illegal means
(closing the plant) in order to defeat the Union.
Rcspondent's established practice was to give in-
dividual wage increases. It had never before given
a general wage increase. However, on February 16,
after making the above promises to employees
Lacey and Murphy, Respondent effected a general
wage increase resulting in raises not only for
Murphy and Lacey but also for the remaining nine
employees then in the unit. In view of Respondent's
union animus, its promise of increases to Lacey and
Murphy in the context of unlawful threats and inter-
rogation, the timing of the increase in relation to the
Union's demand for recognition, and the un-
precedented nature of the general increase, we find
that this conduct was an additional part of Respond-
ent's overall plan to dissipate employee support of
the Union. Accordingly, and as there is no showing
that the new benefits were motivated by some fac-
tor other than to destroy the Union, we find that
Respondent violated 8(a)(1) by promising and
granting wage increases.
2. The General Counsel excepts to the Trial Ex-
aminer's failure to find that Respondent violated
8(a)(3) and (1) of the Act by terminating employees
Ronald Lutz, Arthur Meredith, and Thomas Hen-
kensiefken, Jr., and by laying off employee Dewey
Sewel1.2 In dismissing these allegations, the Trial
Examiner concluded that Lutz was terminated
because of his unsatisfactory work record and that,
with respect to Lutz and the remaining alleged dis-
criminatees, the General Counsel had failed to
sustain his burden of proving Respondent's
knowledge of union support by any of the em-
ployees allegedly discriminated against. We find
merit in the General Counsel's exceptions.
Employee activity on behalf of the Union began
in January 1967. During this period employees
openly discussed the Union and distributed
authorization cards on Respondent's premises.
Early in the campaign, Assistant Warehouse
Foreman Russell advised employee Meredith that
all the employees would be fired if the Union came
in. Thereafter, by letter to Respondent dated
February 10, the Union claimed representation of
a majority of unit employees, requested recognition
and bargaining, and offered to substantiate its claim
of majority by an impartial card check. On or about
February 15, Respondent's unlawful antiunion
campaign intensified with Vice President McCoy
questioning employees Lytle and Lacey concerning
168 NLRB No. 36
222 DECISIONS OF NATIONAL
their union activities and the union activities of fel-
low employees. In addition, McCoy, on February
15, called employee Murphy to his office and told
him that before going Union, he would close the
plant down, and that it was his intention to "get rid
of the union element." On Wednesday, February
15, Respondent promised wage increases to Lacey
and Murphy. That same day Respondent effected
the mid-week termination of Lutz, Meredith, and
Henkensiefken and laid off Dewey Sewell. The
next day the wage increases, heretofore found to be
unlawful, were granted to the remaining employees
in the unit.
On the issue of knowledge, we find, contrary to
the Trial Examiner, that the record is sufficient to
establish that Respondent was aware of union ac-
tivities of all employees who were allegedly the sub-
ject of discriminatory treatment. All four had signed
authorization cards prior to February 9. During the
organization drive, Respondent's blue collar work
force consisted of no more than 18 employees. As
indicated, the Union was openly discussed with
cards solicited on Respondent's premises. Unde-
nied testimony establishes that Assistant
Warehouse Manager Russell was present while dis-
criminatees Meredith and Lutz engaged in conver-
sations concerning the Union. 'In addition,
Respondent's coercive interrogation sought not
only information as to the union activities of the
employees questioned but also the identity of others
supporting the Union. Although Respondent's
specific knowledge of the activities of Lutz and
Meredith is amply demonstrated by Russell's
presence during their discussions of the Union 3 we
also find, on the basis of the small size of the plant,
the nature of the interrogation, and the timing of the
discharges in relation to Respondent's other unfair
labor practices, an adequate basis for inferring that
Respondent knew or had reason to believe that all
the alleged discriminatees were union protagonists.
But we also note that in the view we take of the case,
even assuming that Respondent was unaware of the
union membership of Henkensiefken and Sewell,
our ultimate result herein would not be altered. For,
as set forth below, we are satisfied that the record
amply demonstrates that Respondent discriminated
against all these employees to discourage union ac-
tivity generally, and it is settled principle that
where, as here, "an employer lays off a group of em-
ployees, for discriminatory reasons, such conduct
is unlawful as to all employees in that group, even
as to those employees ... whose union sympathies
are unknown to the employer."4
In finding that Lutz was unlawfully terminated,
unlike the Trial Examiner, we reject as pretextual
Respondent's contention that Lutz was discharged
because he was an inefficient worker who had been
LABOR RELATIONS BOARD
the subject of creditors' complaints and the cause of
bothersome phone calls from a former girl friend.
Respondent conceded that its difficulties with Lutz
were not of recent origin, but explained that Lutz
was tolerated because his services were needed.
However, there is nothing in the record, other than
the advent of the Union, to indicate why Lutz was
no longer needed at the time of his discharge. That
union considerations were the true cause of his ter-
mination is strongly suggested by undenied
testimony that Vice President McCoy told Lutz
that the Union was a factor leading to his discharge.
Nor do we find merit in Respondent's assertion
that the layoffs or discharges of Meredith, Henken-
siefken, and Sewell were predicated upon legitimate
economic considerations. Respondent presented no
evidence to substantiate its alleged economic justifi-
cation for a sudden layoff in the middle of the week
and without prior notice to those affected. Respond-
ent also makes no effort to explain its inconsistent
action in granting wage increases simultaneously
with its decision to reduce business losses by
cutting the size of the employee complement. In
this latter connection, it is significant that after the
layoffs Respondent hired new men from Manpower
Inc. to perform work which would otherwise have
been performed by the separated employees. We
also note that although witnesses for the Respond-
ent indicated that layoff selections were made on
the basis of seniority, the instant layoffs were made
while other employees with less time on the job
than the discriminatees were retained.
In finding that Respondent's reasons for the ac-
tion taken against all four employees were pretex-
tual and calculated to mask its true intention of
discouraging union activity and dissipating union
support, we also rely upon the fact that the
discharges and layoffs occurred contemporane-
ously with similarly designed unfair labor practices,
some of which indicated a disposition on Respond-
ent's part to engage in discrimination for unlawful
purposes. McCoy's admission to Lutz that a cut-
back was necessary because of the Union is also
corroborative of a calculated effort on Respond-
ent's part to terminate a substantial segment of the
unit in order to curb the effectiveness of the or-
ganization campaign generally. In sum, we are
satisfied and find on the basis of Respondent's
avowed opposition to union organization, the timing
of the discharges in relation to other unfair labor
practices and to the demand for recognition, and the
absence of any satisfactory explanation for Re-
spondent's precipitate action in terminating four
employees in mid-week and without prior notice,
that Respondent's action in this regard was but a
part of an unlawful pattern of conduct calculated to
undermine the Union. Accordingly, we find that
' Rust Sales Company, 157 NLRB 1685, fn 7
4 Northwestern Publishing Company, 144 NLRB 1069, 1073, fn 14,
and cases cited therein Rust Sales Company, supra
CENTURY LUMBER CO.
Respondent violated Section 8(a)(3) and (1) of the
Act by terminating Lutz, Meredith, and Henken-
siefken and by laying off Sewell.
3. The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(5) and (1) of the
Act by its unlawful refusal to recognize and bargain
with the Union. However, the Trial Examiner
found the unfair labor practice as of March 24,
1967, the date Respondent affirmatively denied the
Union's demand for recognition. We find merit in
the General Counsel's contention that the 8(a)(5)
violation should properly date from Respondent's
receipt of the Union's demand for recognition on
February 13, 1967.
Thus, the record establishes that by February 10,
1967, the Union represented a majority of em-
ployees in the unit. Respondent, shortly after
receiving the Union's demand for recognition, em-
barked on a course of conduct designed to un-
dermine the Union, which included coercive inter-
rogation, threats of reprisal, unlawful promises and
grants of wage increases, and discrimination. It also
appears that Respondent, after agreeing to a card
check, conceded that the authenticated cards sub-
stantiated the Union's claim of majority support. In
the circumstances, we find that Respondent's con-
duct from the date it received the Union's demand
for recognition exhibited a rejection of the collec-
tive-bargaining principle and an intention to un-
dermine the Union's majority. Accordingly, we find
that Respondent has engaged in an unlawful refusal
to bargain since February 13, 1967,5 and we shall
amend the Trial Examiner's Conclusions of Law
accordingly.
AMENDED CONCLUSION OF LAW
7. By refusing since February 13, 1967, to bar-
gain with the Union as the exclusive representative
of the employees in the aforesaid unit, the Company
has engaged in unfair labor practices as defined in
Section 8(a)(5) of the Act.
ADDITIONAL CONCLUSIONS OF LAW
Renumber paragraphs 8 and 9 in the Trial Ex-
aminer's Conclusions of Law as paragraphs 10 and
11, and add the following as new paragraphs 8 and
9:
8. By promising and granting economic benefits
to employees to induce them to withdraw from sup-
port of and membership in the Union, Respondent
has engaged in an-unfair labor practice defined in
Section 8(a)(1) of the Act.
9. By discharging and laying off employees in
reprisal for their support of the Union, Respondent
has engaged in an unfair labor practice defined in
Section 8(a)(3) and (1) of the Act.
THE REMEDY
223
Having found that Respondent has engaged in
certain unfair labor practices in addition to those
found by the Trial Examiner, we shall order it to
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Among the additional violations, we have found
that Respondent violated Section 8(a)(3) and (1) of
the Act by discharging employees Ronald Lutz,
Arthur Meredith, and Thomas Henkensiefken and
laying off Dewey Sewell to discourage union activi-
ties. We shall therefore order that Respondent offer
to those employees reinstatement to their same or
substantially equivalent positions with full restora-
tion of seniority or other benefits they would have
enjoyed--had they not been discriminated against.
We shall also order that Respondent make them
whole for any wages lost because of the discrimina-
tion, with backpay computed in manner set forth in
F. W. Woolworth Company, 90 NLRB 289, plus in-
terest at 6 percent per annum as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Century Lumber Company, Inc., Topeka,
Kansas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees coercively as to
whether they signed union cards or as to the identi-
ty of employee leaders in union activity.
(b) Threatening employees with discharge or
with closing of the plant in reprisal for their par-
ticipation in concerted activities in connection with
representation by the Union.
(c) Refusing to bargain collectively with the
Union as exclusive representative of employees in
the following appropriate unit: All production and
maintenance employees of the Company including
truckdrivers but excluding all other employees,
guards and supervisors as defined in the Act, con-
stitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
(d) Promising and granting economic benefits to
employees to induce them to withdraw from sup-
port of and membership in the Union; provided,
however, that nothing in this Decision and Order
shall require Respondent to vary or abandon any
wage, hour, seniority, or other substantial feature
which it has established for its employees or to
prejudice the assertion by its employees of any
5 The Great Atlantic and Pacific Tea Company, Inc, 162 N LRB 1182
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights they may have derived as a result of the un-
fair labor practices committed by Respondent.
(e) Discouraging union activities by discharging
or laying off employees or discriminating in any
other manner in reprisal for their support of and
membership in the Union.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing, and
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all such activities.
2. Take the following affirmative action which
the Board deems necessary and appropriate to ef-
fectuate the policies of the Act:
(a) Offer Ronald Lutz, Arthur Meredith,
Thomas Henkensiefken, and Dewey Sewell im-
mediate and full reinstatement to their former or
substantially equivalent positions, without preju-
dice to their seniority and other rights and
privileges.
(b) Notify the above-named employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
(c) Make the above-named employees whole for
any loss of earnings they may have suffered as a
result of the discrimination against them in a
manner computed in accordance with the formula
set forth in the section of the Board's Decision and
Order herein entitled "The Remedy."
(d) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) On request, bargain collectively with the
Union as exclusive representative of employees in
the aforesaid appropriate unit with respect to
wages, rates of pay, hours of employment, and
other terms and conditions of employment and, if an
understanding is reached, embody such understand-
ing in a signed agreement.
(f) Post at its office and warehouse at Topeka,
Kansas, copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 17, after
being duly signed by the Company's authorized
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 the Company to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 17,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
6 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 refuse to bargain and we will,
on request, bargain with Truck Drivers and
Helpers Local Union No. 696, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as exclusive representative of em-
ployees in the following appropriate unit:
All production and maintenance em-
ployees including truckdrivers but exclud-
ing all other employees, guards and super-
visors as defined in the Act.
WE WILL reduce to a signed memorandum of
agreement any understanding reached as a
result of such bargaining.
WE WILL NOT interrogate employees as to
whether they have signed cards for the above-
named or any other labor organization.
WE WILL NOT threaten employees with
discharge or with closing of the plant in reprisal
for their support of the above-named or any
other labor organization.
WE WILL NOT promise or grant economic
benefits to employees to induce them to
withdraw their support of and membership in
the above-named or any other labor organiza-
tion.
WE WILL NOT discharge or lay off employees
because of their support of or membership in
the above-named or any other labor organiza-
tion.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights to self-organization,
to form, join, or assist labor organizations, or
to engage in concerted activities for the pur-
pose of collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activities:
WE WILL offer Ronald Lutz, Arthur
Meredith, Thomas Henkensiefken, and Dewey
Sewell immediate and full reinstatement to
their former or substantially equivalent posi-
CENTURY LUMBER CO.
tions without prejudice to seniority and other
rights previously enjoyed.
WE WILL make Ronald Lutz, Arthur
Meredith, Thomas Henkensiefken, and Dewey
Sewell whole for any loss of earnings they may
have suffered as a result of the discrimination
against them.
CENTURY LUMBER COM-
PANY, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named em-
ployees if presently serving in the Armed Forces of
the United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
This notice must remain posted for 60 consecu-
tive 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, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone
374-5181.
TRIAL EXAMINER'S DECISION
WILLIAM J. BROWN, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, hereinafter referred to as the "Act," came on
to be heard on June 14 and 15, 1967,' at Topeka, Kansas.
The original charge of unfair labor practices was filed
February 20 by the above-indicated Charging Party,
hereinafter sometimes referred to as the "Union"; the
complaint herein was issued April 18, by the Regional
Director of the National Labor Relations Board for Re-
gion 17 . It alleged , in addition to jurisdictional matter, and
the duly filed answer of the above-indicated Respondent,
hereinafter sometimes referred to as the "Company," de-
nied the commission of unfair labor practices defined in
Sections 8(a)(1), (3), and (5) of the Act.
At the hearing the parties appeared and participated as
noted above with full opportunity to present evidence and
argument on the issues. Briefs were not filed by any par-
ty. On the entire record2 herein and on the basis of my ob-
servation of the witnesses , I make the following:
Dates hereinafter relate to the year 1967 except as otherwise noted
2 After the hearing the General Counsel filed a motion to correct the
transcript in 14 specified instances Unopposed by any other party the
motion is granted and the transcript amended in the particulars therein
specified In addition the following corrections are ordered p 157, 121.
should read "TRIAL EXAMINER Was it proved"", p 159,1 7, 8,
should read "There is nothing more independent of his father than a first
year college student ", p 244, I I should read "Mr Rose , I think that I
am disposed to ", p 246,1 24 should read "the 8(a)(I) allegatuns are
important not only in themselves, of ", p 256,1 17 should re,d "July
20 Briefs will be due on July 20 If you need more time " 1
FINDINGS OF FACT
225
t. THE BUSINESS OF THE RESPONDENT-COMPANY
The pleadings and evidence indicate and I find that the
Company is a corporation organized and existing under
and by virtue of the laws of the State of Kansas and
operates a wholesale lumber facility in Topeka, Kansas,
in the course of which it annually purchases from
sources outside the State of Kansas, goods and services
valued in excess of $50,000 while annually receiving in
excess of $50,000 for sales or services rendered outside
the State of Kansas. I find, as the Company concedes,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence indicate and I find that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Introduction and Summary of Events
The Company's operations consist of the receipt,
warehousing, sale, and delivery of lumber products. Its
supervisory staff at material times included President
Harry Foster, Vice President Edward McCoy,'
Warehouse Foreman Adrian "Bud" Alexander, and
Assistant Warehouse Foreman Dean Russell. Attorney
Hiatt is the Company's secretary. In addition to sales and
office personnel, the Company employs warehousemen,
forklift drivers, a door and hardware employee (Howard
Harder),4 and truckdrivers; all the foregoing work under
the supervision of Alexander and Russell. The warehouse
employees and the drivers are hourly paid with their start-
ing wage dependent on their experience, they wear regu-
lar work clothes, punch the same clock, use the same
sanitary and lunch facilities, and enjoy the same vacation
and insurance benefits. The warehouse employees work
5-1/2 days; the drivers do no Saturday work, need Kan-
sas chauffeurs' licenses and must meet I.C.C. require-
ments; they deliver one load a day within a 165 mile
radius, make no overnight stops except in case of emer-
gency and when not engaged in loading, unloading, or
driving work alongside warehouse employees.
Employee discussion of self-organization commenced
sometime in January and in February employees
designated employee Thomas Murphy to obtain union
authorization cards. Murphy obtained twelve signed
union authorization cards from drivers and
warehousemen in the period February 8-10 and under
date of February 10 the Union wrote the Company
claiming to represent a majority of production and main-
tenance employees including truckdrivers, requesting
recognition and bargaining and offering to substantiate its
majority claim by card check before a disinterested party
of the Company's choice. The Company replied by letter
,i McCoy's term of office as vice president terminated on or about
March I and at the time of the hearing he was only a stockholder
" Harder, when not engaged in putting lights in doors, loads and unloads
trucks, operates the forklift and does some city, but no over-the-road driv-
ing
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dated February 27 referring to the union claim and to the
unit and stating that it desired to check the cards against
the company payroll. In the interim between the union
letter and the company reply, employees Arthur
Meredith, Ronald Lutz,5 Dewey Sewell, and Thomas
Henkensiefken had been laid off and an unfair labor prac-
tice charge filed by the Union in connection with their
layoffs.
Between 5 and 6 o'clock on March 2 there was a meet-
ing between union and company representatives at the
Company's office. The Union was represented by Attor-
ney Rose, Assistant Business Agent Glenn, and Thomas
Murphy; company representatives included Attorney
Hiatt, President Foster and Treasurer Fulton. Glenn and
Murphy testified, and no company witnesses were called
in refutation of their testimony which I credit, that on this
occasion Hiatt checked the signatures on the 12 union
authorization cards (G.C. Exhs. 9 through 20 inclusive)
and advised the meeting that the Union appeared to have
a majority of employees signed to cards, and that the
Company would get in touch with the Union within a
week or so.
On March 22 Rose wrote to Hiatt, referred to the
March 2 meeting, and demanded a meeting for the pur-
pose of collective bargaining. On March 24, Hiatt replied
that inasmuch as the matter was in the hands of the Board
it would be necessary to await the Board's determination
of the matter.
The complaint herein alleged and the Company's
answer denies that in the period between February 15
and 24, McCoy and Russells engaged in various activities
constituting interference, restraint, and coercion within
the meaning of Section 8(a)(1) of the Act, that on Februa-
ry 15 the Company discharged three employees and laid
off another because of their activity on behalf of the
Union and that on March 6 the Company increased the
work quota of Murphy in reprisal for his union activity.
The complaint also alleges that the Company unlawfully
refused to bargain with the Union as representative of
production and maintenance employees including
truckdrivers. The Company's answer denies the ap-
propriateness of the above-mentioned unit and denies
committing any unfair labor practices; it affirmatively al-
leges that it filed a representation petition on or about
March 21 and that the Regional Director refused to con-
duct a hearing thereon and refused also to investigate
charges against the Union.
B. Interference, Restraint , and Coercion
1. Interrogation
The complaint alleges and the answer denies that
McCoy interrogated employees concerning their union
"and/or other protected activity" on or about February
15 and 16. David Lytle, a driver who signed a union card
on February 8, testified that in late February, McCoy
asked if he had signed for the Union. Lytle replied that he
had and McCoy, according to Lytle's account, stated that
5 The complaint refers to this employee as "Rodney" Lutz Company
payroll records, his signature on a union authorization card, and his
testimony indicated his correct name to be Ronald Lutz
6 The complaint also alleges that William Foster, a student and part-
time employee and the son of President Foster, as an agent acting on be-
half of the Company interrogated employees concerning their union ac-
tivity on or about February 14 The evidence indicates that young
he was not going to have anything to do with the Union.
James Lacey, a lift driver who signed a union card on
February 8, testified that on or about February 15
McCoy called him into the office and in the course of a
conversation about impending layoffs, referred to the
Union and asked Lacey if he knew who had started it.
Lacey admitted that he knew but refused to reveal the
name due to fear of reprisal against him. McCoy then
stated that Lacey had been with the Company for 4 years
and should have informed him when union activity
started.
McCoy did not testify and I find Lytle and Lacey to be
thoroughly credible witnesses. The questioning attributed
by them to McCoy does not appear to be set in circum-
stances indicating innocence of purpose in the inquiries
and I find that by McCoy's questioning of Lytle as to
whether Lytle had signed a card and of Lacey which
plainly was in effect as to who had started the Union, the
Company engaged in unfair labor practices defined in
Section 8(a)(1) of the Act.
2. Threats
The complaint alleges and the answer denies that on or
about February 15 McCoy and Russell threatened em-
ployees with reprisals, including closing of the lum-
beryard, to discourage support of the Union. Murphy
testified that on the afternoon of February 15, McCoy
called him to the office and said, among other things, that
before they would go Union he would close the place
down. Arthur Meredith, a union supporter and an alleged
discriminatee, testified that some time in January, Russell
said that the people in the office said that all the em-
ployees would be fired if the Union came in. Ronald Lutz,
a union supporter and alleged discriminatee, testified that
2 or 3 days after his layoff, Russell told him that McCoy
had said that before he would let the Union in he would
close the doors and run the place himself.
Russell did not testify and McCoy did not deny the
statement attributed to him by Murphy nor the statement
referred to by Lutz.7 I credit the testimony of Murphy,
Meredith, and Lutz and find that by the statements of
Russell and McCoy the Company engaged in unfair labor
practices defined in Section 8(a)(1) of the Act.
3. Promises and grants of benefits
The complaint alleges in paragraph X(d) that McCoy,
on February 15 and 16, promised and granted economic
benefits to discourage membership in and support of the
Union. In this area the General Counsel in oral argument
pointed to testimony of Lacey and Murphy and to G.C.
Exhs. 2 and 3. Lacey testified that in the course of a
second discussion on February 15 McCoy stated that he
was going to give him a 25-cent raise which he in fact
received on the next payday. Murphy also testified that
on the same day, February 15, in the course of their
discussion above mentioned, McCoy said he was giving
him a 10-cent hourly raise but that he wanted more work
Foster's only connection with management is that he resides in his father's
home and the Examiner sustained objections designed to elicit unfair labor
practices through his agency
Although Lutz' testimony was that Russell had told him that McCoy
made t,a statement in question, and the testimony has some of the aspects
of hears -,V, the Company is responsible for the coercive utterance since
both Rus-_•II and McCoy are supervisors
CENTURY LUMBER CO.
out of him. It appears from G.C. Exhs. 2 and 3(b) that 11
employees received increases on February 16, and that
the Company has a practice of granting sporadic in-
dividual wage adjustments. It also appears that Lacey,
the senior employee in the unit, had not received a wage
increase since April 20, 1966, and was overdue for one as
compared to numerous other employees. In the case of
Murphy the adjustment of February 1967 was clearly
geared by McCoy to expectancy of increased productivi-
ty.
It would appear to be a matter of suspicion and conjec-
ture, rather than a conclusion bottomed on a preponder-
ance of evidence, to conclude that McCoy's promises
and subsequent adjustments were motivated by a purpose
to discourage membership in and support of the Union
and I conclude that the allegations of the complaint in this
regard are not supported by a preponderance of the
evidence.
C. Discrimination
The complaint alleges and the answer denies that the
Company, on February 15, discharged employees
Ronald Lutz, Arthur Meredith, and Thomas Henkensief-
ken, Jr., and laid off employee Dewey Sewell until
February 24 in reprisal for their support of the Union; it
also alleges and the Company denies, that Murphy's work
quota was increased on or about March 6 in reprisal for
his union activity.
Ronald Lutz was hired May 25, 1966, at $1.50 and
worked initially as a boxcar unloader progressing
thereafter to the jobs of forklift helper and a forklift
driver. He received a 25-cent wage increase soon after his
hire and a 10-cent hourly increase in October 1966. He
signed a union authorization card on February 8, but
does not appear to have been active in soliciting others to
sign . He appears to have been unsatisfactory in several
respects, concedes that McCoy criticized him for his
slowness and errors, one of which could, if not caught in
time , have resulted in a delivery of $3,000 more cedar sid-
ing than the customer's order called for. The evidence
also establishes that on one occasion he ran the forklift off
the dock and on another ran it into and punctured a
customer's tire. Lutz conceded that he was deficient in
learning the location of materials in the warehouse and in
fact often found it necessary to inquire of Foreman Alex-
ander , Order Desk Man Abbott and rank-and-file fellow
workers as to the location of materials.
There is some basis for uncertainty as to whether Lutz
was discharged or laid off. His account is that McCoy
called him to the office on February 15, told him that the
Company had to lay off some employees due to business
losses and to the fact that the advent of the Union would
mean higher wage costs and then laid them off. Company
records on whether Lutz was discharged are ambivalent;
G.C. Exh. 3 B bears a notation that he -was laid off on
February 15, whereas G.C. Exh. 2 bears a "T,"
presumably for "Termination" penciled in over an erased
"L/O." Whether discharged or laid off he had not been re-
called or reemployed as of the date of the hearing.
It is clear that at the time of the card check of March 2,
8 Murphy, the principal union protagonist, appears to have instructed
card signers to return signed cards to the glove compartment of his car,
presumably parked in a company parking lot
° Sewell was rehired February 24 at a 10-cent hourly increase
° Meredith testified that he had gone to the union hall to get cards but
227
the Company knew of Lutz' support of the Union. To
establish knowledge as of the time of the lay off or
discharge the General Counsel, conceding the absence of
direct evidence of knowledge, relies on the "small plant"
theory and on testimony offered to establish that the
warehouse-office-dock complex was interconnected with
an intercommunication system whereby the office group of
supervisors could eavesdrop on conversations held else-
where in the plant. But there is no evidence that any ex-
tensive union solicitations or other activity were carried
on in the plant" much less adjacent to any one of the inter-
com boxes nor is there evidence as to the size of the plant
which, although relatively few in number of employees
could, as a substantial lumber warehousing operation
conceivably, and most probably would occupy a substan-
tial area. I can see no basis in the evidence for concluding
that it preponderates in favor of a finding that the Com-
pany had knowledge of the union activities of any particu-
lar employee prior to the March 2 card check, although
McCoy and other officials knew of the union claim by its
letter of February 10.
Lutz appears to have been a source of annoyance on
other bases than his inability to learn materials locations;
the unrefuted testimony of McCoy is that the office was
in receipt of frequent telephone calls about difficulties
Lutz had with creditors and a girl friend. It also appears
that Lutz frequently left trucks unloaded, refusing to
work overtime. McCoy testified that he would have
discharged Lutz long prior to the actual date of dismissal
but for the fact that the Company was in need of drivers.
While the timing of Lutz' release gives a basis for suspi-
cion, the evidence indicates no more than an employee
with a longstanding record of unsatisfactory service was
released shortly after receipt of a union demand for recog-
nition. It does not appear to indicate any basis for
knowledge or even suspicion that Lutz was related to the
union effort and in fact his connection with the Union ap-
pears to be merely that of a card signer. The majority of
card signers were not released. I conclude that the
evidence does not preponderate in favor of the conclusion
that Lutz was discharged or laid off in reprisal for his sup-
port of the Union.
Employees Meredith, Henkensiefken, and Sewell were
laid off on February 159 allegedly in reprisal for their
union activity which consisted merely of their signing of
cards. 10 Sewell and Henkensiefken were warehousemen
as of the date of their separation while Meredith had
transferred from warehouseman to truckdriver on
December 22, 1966.
Dewey Sewell was hired August 25, 1966, and worked
at a rate of $1.25 per hour as a laborer loading boxcars; he
received an increase of 25 cents per hour in October 1966
after he asked for it. At the time of his layoff there were
four warehouse employees (including Murphy and Hen-
kensiefken) junior to him.I I McCoy's testimony is that on
February 15 he determined to lay off the junior em-
ployees, got a seniority list from the bookkeepers and laid
off the four junior warehousemen. In fact Meredith,
Sewell, and Henkensiefken were senior to employees
Stotts and Blair who were not laid off at that time but
found that Murphy had preceded him there He then signed his card and
delivered it to Murphy at the latter's home
" Two part-time student-help employees, William and Jack Foster,
were also junior They were also laid off on February 15
336-845 0 - 70 - 16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since Stotts and Blair also signed cards for the Union any
significance to layoff out of seniority disappears.
There is no basis in the evidence for concluding that the
Company had knowledge of the union support of Sewell,
Meredith , and Henkensiefken . While the events sur-
rounding and reasons for their layoff are considerably un-
clear , any such lack of clarity cannot suffice to make out
a case of discriminatory discharge but necessarily
operates against the General Counsel who has the burden
of proof. Murphy testified that after February 15 the
Company engaged the services of employees supplied by
Manpower ; this testimony does not indicate the number
of men , the classifications in which they worked , nor the
duration of their services . The evidence in my judgment,
cannot reasonably be said to preponderate in favor of the
conclusion that Sewell , Meredith , and Henkensiefken
were laid off in reprisal for their union activities.
With respect to the allegation of discrimination against
Thomas Murphy in the nature of an increase in his work
quota on or about March 6, the sum total of the evidence
is that on February 15, McCoy, after telling him about
the layoff of other employees, said that they would give
him a 10-cent increase but wanted more work out of him.
Company records confirm that he got the increase on the
following day. There is no reason to believe that the state-
ment of McCoy that the Company wanted more work out
of Murphy in return for the wage increase amounted to an
increase in his work quota in reprisal for his leadership in
union activity particularly since there is no basis for infer-
ring company knowledge of his activity until the date of
the card check of March 2 when he appeared not only as
a card signer but as a principal in the Union' s organiza-
tional efforts . I recommend dismissal of the allegations of
the complaint respecting discrimination against Thomas
Murphy.
D. The Refusal To Bargain
The complaint alleges the commission of an unfair
labor practice defined in Section 8 (a)(5) and (1) of the Act
in the Company's refusal from and after February 10 to
bargain on request with the Union as exclusive represent-
ative of its employees in a unit composed of all produc-
tion and maintenance employees including truckdrivers,
but excluding all other employees, guards and super-
visors. Respondent ' s answer admits receipt of the
Union's request for bargaining , denies the appropriate-
ness of a unit including truckdrivers with production and
maintenance employees , denies the majority status of the
Union and affirmatively alleges that on March 21, it filed
a representation petition which was dismissed by the Re-
gional Director on March 28 as not meriting further
proceedings.
1. The appropriate unit
The facts with respect to the identities and disparaties
of interest as between warehousemen and drivers are set
forth above. It seems clear that the factors of common su-
pervision , identical fringe benefits , use of common plant
facilities, progression from warehouse work to driving,
warehouse work performed by drivers and the absence of
identifying uniforms for drivers warrant the inclusion of
truckdrivers in a unit with production and maintenance
employees where no separate representation is sought by
a labor organization . I find that the unit in which the
Union seeks representation is an appropriate one. Marks
Oxygen Company of Alabama, 147 NLRB 228. In this
connection it is noted that the Company on receipt of the
Union's initial request for bargaining on February 11,
which clearly specified the unit as one embracing produc-
tion and maintenance employees including truckdrivers,
raised no question as to the appropriateness of the unit
but proceeded, as hereinafter related, to a card check of
production and maintenance employees and truckdrivers.
2. The Union's majority status
At the time of the Union's initial request for bargaining
and its assertion of majority status in the appropriate unit,
which request appears both from common experience
with intracity mail delivery and from the testimony of
McCoy, to have been received by the Company on
February 13, the Union had received signed authoriza-
tion cards from 12 employees in the unit. These cards are
in evidence as G.C. Exhs. 9-20 inclusive. The cards are
unambiguous authorizations for representation by the
Union12 and in the case of each card it is authenticated
either by the signer or by Murphy, the chief employee
spokesman for the Union. It also appears that the 12
union authorization cards were shown by Glenn and
Murphy to company representatives at the March 2 card
check in the company offices and that the Company
acknowledged the authenticity of the cards and conceded
the Union's majority status. The total number of em-
ployees in the unit is shown by G C. Exh. 2 to have been
18 at most. The evidence is abundantly clear that the
Union at all material times was the representative of a
majority of employees in the appropriate unit and entitled
to recognition as the exclusive statutory representative of
employees . In this connection it is noted that Sewell was
rehired on February 24. There is also uncontradicted
evidence that following the layoffs of February 15, the
Company engaged the services of Manpower to fulfill its
labor requirements and I conclude that the layoffs of
Meredith and Henkensiefken were under circumstances
such that they would also have a normal expectancy of re-
call. In any event the evidence clearly establishes that at
the March 2 card check the Company conceded the
majority status of the Union, and raised no question of
the inclusion of Lutz, Meredith, Sewell, and Henkensief-
ken in the unit. It appears that the filing of a representa-
tion petition thereafter resulted from an afterthought and
as part of a second look at the prospects of bargaining
with the Union. On the basis of all the foregoing I con-
clude that the Company has unlawfully refused to bargain
with the Union at all times from and after March 24, the
date of the company communication putting it up to the
Board to make its determination in the matter.
12 The card signed by Meredith does not name the Union as his
representative , but, apparently in error , contains the words " Authoriza-
tion for Collective Bargaining Representative " in the blank spaces pro-
vided for insertion of the union stamp This does not appear to have been
any obstacle to the Company's acknowledgement of the validity of his
card in the March 2 card check Furthermore, although the cards bear an
invalid restriction or revocability this feature does not appear to be any
element of significance in this case See Southbridge Sheet Metal Works,
Inc , 158 NLRB 819, enfd 380 F 2d 519 (C A 5)
CENTURY LUMBER CO. 229
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICIES
UPON COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with the operations
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
In view of the findings set forth above to the effect that
the Company has engaged in unfair labor practices affect-
ing commerce, I shall recommend that it be required to
cease and desist therefrom and from like or related unfair
labor practices and take such affirmative action as ap-
pears necessary and appropriate to effectuate the policies
of the Act. 13
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating employees as to
whether they had signed cards for the Union and as to
who among employees had started the union campaign
the Company has engaged in unfair labor practices
defined in Section 8(a)(1) of the Act.
4. By threatening employees with discharge of all em-
ployees and the closing of the plant in reprisal for em-
ployee support of the Union the Company has engaged in
unfair labor practices defined in Section 8(a)(1) of the
Act.
5. All production and maintenance employees of the
Company including_truckdrivers but excluding all other
employees , guards and supervisors as defined in the Act,
constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
6. Since on or about February 10 the Union has been
and is now the exclusive representative of employees in
the aforesaid unit for purposes of collective bargaining.
7. By refusing from and after March 24 to bargain
with the Union as exclusive representative of employees
in the aforesaid unit the Company has engaged in unfair
labor practices defined in Section 8(a)(5) of the Act.
8. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
9. Except as specifically found herein , the Company
has not engaged in unfair labor practices alleged in the
complaint.
Union Business Agent LaRue Moore identified Union Exh I as a type of relief appropriate in the instant case The Examiner rejected this
copy of an agreement negotiated and in effect between the Union and a exhibit on the ground that it was not material to the issues in the instant
wholesale-retail lumber company in the Topeka area as bearing on the case