Crown Zellerbach Corp.

National Labor Relations Board - Board Decisions

Aug 13, 1976

225 N.L.R.B. 911 (N.L.R.B. 1976)

CROWN ZELLERBACH CORPORATION 911
Crown Zellerbach Corporation and United Paper-
workers International Union, AFL-CIO. Case 15-
CA-5810
August 13, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On April 16, 1976, Administrative Law Judge Paul
L. Harper issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and counsel for the General
Counsel filed exceptions and supporting brief. Re-
spondent filed an answering brief to the General
Counsel's exceptions.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order to the extent consis-
tent herewith.
The complaint alleges and the Administrative Law
Judge found that Respondent violated Section
8(a)(3) and (1) of the Act by discharging Eugene
Harper on August 29, 1975, because of Harper's ac-
tivities on behalf of the Union.2 The Administrative
Law Judge declined to find, however, that other con-
duct alleged in the complaint, including the interro-
gation of Eugene and Felton Harper and the grant of
wage increases to woods crew employees, constituted
independent violations of Section 8(a)(1) by this Re-
spondent. For the reasons set forth below we dis-
agree with the Administrative Law Judge's conclu-
sions with respect to these additional violations of
Section 8(a)(1).
Respondent concedes that it was aware of union
activity among its Joyce Managed Forest employees
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2
Respondent concedes that Eugene Harper was discharged, at least in
part, because of his involvement in organizing activities Respondent argues,
however, that at the time of the discharge Harper was a statutory supervisor
and outside the protection afforded employees by the Act We agree with
the Administrative Law Judge's finding that Eugene Harper was a rank-
and-file employee and hence that his discharge for engaging in union activi-
ty was unlawful
for several months prior to the events that culminat-
ed in the August 29 discharge of Eugene Harper and
grant of pay raises to other company employees.'
Harper testified that in March 1975 he mentioned to
District Forester Wayne Horn that he had received a
telephone call from a union representative. Harper's
testimony indicates that he informed Horn of the
telephone call because of a standing company ad-
monishment to report any such contact to a supervi-
sor. Shortly thereafter, in late March or early April,
the Company called a meeting of salaried woodsmen,
all of whom the Company apparently sought to des-
ignate "supervisory" employees. At this meeting
company officials voiced their opposition to the
Union and urged employees to notify the Company
if they were contacted by the Union.
According to Harper, on the morning of this meet-
ing he was called to the office of Respondent, Joyce
Forest manager, Douglas Berlin, who asked for de-
tails of his conversation with the union representa-
tive. Subsequently, Harper was questioned by Berlin
and Durwood Alford, Respondent's employee rela-
tions manager. Harper testified that Alford asked
"would I help with the Union, and asked would I
give him names of the people, and I said, no, and he
told me if he [the union representative] called back to
pick him and find out what he was after-what he
wanted, said, this is the kind of information we need,
said, feed it back to your supervisor."
Although Harper was contacted later by a union
representative he did not report this to the Company.
Rather, he became a union activist and was instru-
mental in securing authorization cards in August
from his fellow employees on the Chatham woods
crew.
Eugene Harper's brother, Felton, is employed by
the Company on its woods crew at Tullos, Louisiana.
Felton Harper, like his brother, was changed from a
salaried to an hourly paid employee on June 1. On
August 27, less than 2 weeks after Eugene Harper
had signed a union card and solicited signed cards
from the entire woods crew at Chatham, Felton was
called into the Tullos office by District Forester
Huey Lizanna. Assistant Forester Michael Bentley
was also present.
According to Felton Harper, Lizanna questioned
him about his union sympathy and the union activi-
ties of his fellow woodsmen. Lizanna drew from Fel-
ton an admission that not only had he signed a union
card but Eugene and the entire Chatham crew had
signed cards. Felton was also questioned about a
3 Respondent's Joyce Managed Forest woods crews operate out of facili-
ties located at Joyce, Chatham, and Tullos, Louisiana After June 1, Harper
and other salaried woodsmen at these facilities were taken off salary and
paid an hourly wage At the same time Eugene Harper was reclassified from
"forest technician" to "leaderman "
225 NLRB No. 130
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union meeting among Tullos employees. Finally, in
response to Lizanna's question concerning his motive
for supporting the Union, Felton replied that he had
been shown a sheet indicating higher union wages for
the work he was doing.
Respondent acknowledges that the day after this
incident there was a meeting of company officials
and supervisors at which the union activities of the
Harper brothers was the topic of discussion. At this
meeting it was finally decided to discharge Eugene,
who apparently was considered the more active
union proponent. The next morning, August 29,
woods crew employees were assembled at the Chat-
ham office where they were informed of new job
titles and higher pay scales for all hourly paid woods
crew employees. Eugene Harper was given the title
"woods leader" and granted a pay increase of 75
cents an hour. At 4 p.m. the same day Eugene Har-
per was discharged with the explanation, "you're not
doing the job . . . you keep something stirred up all
the time."
As indicated previously, the Administrative Law
Judge found that Respondent violated Section
8(a)(3) by discharging Eugene Harper. However, the
Administrative Law Judge, apparently having over-
looked Eugene Harper's direct testimony concerning
his interrogation by company officials, stated that no
evidence was offered in support of this 8(a)(1) allega-
tion of the complaint and recommended its dismiss-
al.
Contrary to the Administrative Law Judge, and in-
asmuch as the testimony of Eugene Harper set forth
earlier herein is uncontroverted and plainly estab-
lishes the unlawful nature of the interrogation con-
ducted by Company Officials Berlin and Alford in
late March or April 1975, we shall find and remedy
that violation of Section 8(a)(1) as alleged in para-
graph 9 of the complaint .4
Harper's uncontroverted testimony also establishes
the existence of a company directive to employees to
report to the Company any union contact. We find
such a directive constitutes an additional violation of
Section 8(a)(1) of the Act.5 See Value City Furniture
of Springdale, Inc., 222 NLRB 455 (1976); Daniel A.
Donovan, Charles Brennick and John Brennick, d/b/a
New Fairview Hall Convalescent Home, 206 NLRB
688 (1973), enfd. 520 F.2d 1316 (C.A. 2, 1975), cert.
denied 423 U.S. 1053 (1976). Because there is no fac-
tual dispute as to the existence of the directive and its
4 Blue Flash Express, Inc, 109 NLRB 591 (1954), Hanes Hosiery, Inc, 219
NLRB 338 (1975)
5 In this connection we note the testimony of Respondent 's officials who
acknowledged that such a directive was repeated at the conclusion of the
company meeting attended by the Harper brothers and other company em-
ployees in late March 1975
promulgation to employees, and because the issue
was fully litigated and is intimately related to the
subject matter of the complaint, we shall find and
remedy this unlawful conduct even though it is not
specifically alleged to be an unfair labor practice in
the complaint. See Monroe Feed Store, 112 NLRB
1336 (1955); N.L.R.B. v. American Tube Bending Co.,
Inc., 205 F.2d 45, 46-47 (C.A. 2, 1953) (Judge
Learned Hand); Ford Radio & Mica Corporation, 115
NLRB 1046 (1956), enfd. in pertinent part 258 F.2d
457 (C.A. 2, 1958).
We also find a violation of Section 8(a)(1) predi-
cated on District Forester Lizanna's August 28 inter-
rogation of employee Felton Harper. Under the cir-
cumstances here, even if we agreed with the
Administrative Law Judge's suggestion that motive is
a relevant consideration in the context of this alleged
violation of Section 8(a)(1), we could not agree with
the Administrative Law Judge's characterization of
this incident as innocently motivated and isolated.'
Were we to conclude otherwise we would have to
ignore the fact that this incident was a blatant inter-
rogation concerning not only the interrogated
employee's union sympathy and activity but also the
union activity of the employee's fellow workers. Nor
can we be unmindful of the fact that this incident
was the prelude to the events of August 29, which
included the unlawful discharge of the employee
identified during this interrogation as a leading
union proponent.?
We also disagree with the Administrative Law
Judge's analysis of the circumstances surrounding
the Company's August 29 grant of pay raises and
with his ultimate conclusion that this action was not
violative of Section 8(a)(1) of the Act. Thus, although
the Administrative Law Judge suggests otherwise, we
do not believe that we should discount the timing of
these raises as a factor indicating Respondent's un-
6 In support of his conclusions , the Administrative Law Judge also re-
marked on the absence of a specific threat or promise of benefit by Lizanna
during his questioning of Felton Harper However , as this Board has point-
ed out "the basic premise in situations involving the questioning of employ-
ees by their employer about union activities is that such questions are inher-
ently coercive by their very nature " P B and S Chemical Company, 224
NLRB No 1 (1976)
7 In passing we note that the sole defense to the allegations of unlawful
interrogation raised by this Respondent is the claim that both the Harper
brothers were supervisors within the meaning of the Act at the time these
incidents took place Although the Administrative Law Judge found that
Eugene Harper was not a supervisor when he was discharged on August 29,
he failed to make a specific finding as to Eugene Harper's status prior to
June I, 1975 Similarly, the Administrative Law Judge did not find it neces-
sary to pass on Felton Harper's status on August 27
The alleged supervisory status of Eugene and Felton Harper was fully
litigated by the parties and the record contains extensive testimony concern-
ing their job functions, responsibility, and authority We have carefully ex-
amined the record and we are satisified that at no time relevant hereto did
either Eugene or Felton Harper possess or exercise any indicia of superviso-
ry authority Accordingly, we find no merit in Respondent 's defense based
on its claim that these two employees are or were supervisors within the
meaning of the Act
CROWN ZELLERBACH CORPORATION
lawful motive merely because the Company "was
quite aware of its employees' organizational efforts
5 full months" prior to the date of the wage
increases. As the testimony of Respondent's officials
makes plain, the Company harbored a longstanding
concern about unionization and possessed general-
ized knowledge of union interest among employees
well before August 29. However, insofar as this rec-
ord shows, only as a result of the unlawful interroga-
tion on August 27 did Respondent learn that Eugene
and Felton Harper and the entire Chatham
crew had actually signed union authorization cards.8
Moreover, through this interrogation the Respondent
also learned of the effectiveness of the Union's argu-
ment that union adherence carried with it the prom-
ise of higher wages. In these circumstances one
would be hard put not to connect the events of Au-
gust 27 with those of August 29, and to see in the
grant of wage increases the Company's counter to
the Union's organizational inroads.
Nor does our finding that the grant of pay raises
was unlawful rest solely on an inference drawn from
the timing of the raises. As pointed out by the Gener-
al Counsel, the August 29 raise deviated in almost
every respect from the Respondent's usual practice.
Thus in 1974 and 1975 the Company gave 30-cent
across-the-board increases each June to the full com-
plement of employees at its Joyce Managed Forest
operation. Here, on the other hand, Respondent gave
raises limited to the Joyce Forest woods crews, pre-
cisely those employees being organized by the
Union. Moreover, these raises averaged more than
double the usual 30-cent across-the-board increase,
amounting in some instances to as much as 82 cents
per hour, and were announced at a special meeting of
employees rather than, as in the past, by notices post-
ed on the company bulletin board.
We also find unpersuasive the Company's expla-
nation that the August 29 increases were granted
solely to keep pace with the rates paid by the
Company's chief competitor, Olincraft Paper. Al-
though Employee Relations Manager Alford, the
company official purportedly responsible for wage
comparability studies, testified that Olincraft granted
large wage increases in June 1975, he was unable to
testify as to the percentage increases which Olincraft
allegedly granted its woodsmen or whether rates paid
by Respondent to some of its hourly classification of
woodsmen exceeded those paid by Olincraft. Nor did
Alford explain why the Respondent waited 3 months
before moving to meet the new Olincraft rates.
Finally, we reject the Administrative Law Judge's
8 It appears from the record that the union campaign did not begin in
earnest until early August Eugene Harper and his fellow woods crew em-
ployees signed authorization cards on or about August 12
913
conclusion that the grant of pay increases here, even
when coupled with the unlawful discharge of Eugene
Harper, is not conduct that "tends to interfere with
the free exercise of rights under the Act." We believe
that by granting Harper along with its other employ-
ees a pay raise on the morning of August 29 and then
discharging Harper that same day in violation of Sec-
tion 8(a)(3) of the Act, Respondent intentionally and
irrevocably linked the raise and the discharge in the
minds of its employees. Contrary to the Administra-
tive Law Judge's suggestion, it is not always neces-
sary for an employer to shout from the rooftops its
power and willingness to reward or punish employees
depending on their response to a union campaign.
Indeed, we are satisified that only a remarkably ob-
tuse employee would fail to see in this Respondent's
grant of benefits and nearly simultaneous discharge
of a leading union proponent the proverbial "fist in-
side a velvet glove." N.L.R B. v. Exchange Parts
Company, 375 U.S. 405, 409 (1964).
In addition to modifying the Administrative Law
Judge's recommended Order to conform with our ad-
ditional findings of violations as explained above, we
shall also rectify his inadvertent failure to make dis-
criminatee Eugene Harper whole for any loss of
other employee benefits, as well as pay. Further, in-
asmuch as Respondent's conduct violates Section
8(a)(3), we shall enter a broad Order herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent
Crown Zellerbach Corporation, Chatham, Louisiana,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging any employee because of mem-
bership in and/or activity in behalf of United Paper-
workers International Union, AFL-CIO, or any
other labor organization.
(b) Soliciting or directing employees to report
union contact or activity.
(c) Interrogating employees concerning their own
union activities or the union activities of their fellow
employees.
(d) Granting wage increases to employees for the
purpose of discouraging employees from exercising
the rights guaranteed employees in Section 7 of the
Act. However, nothing contained herein shall be
construed as requiring Respondent to revoke any
wage increase heretofore granted.
(e) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
rights guaranteed employees in Section 7 of the Act.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to Jessie Eugene Harper immediate and
full reinstatement to his job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privi-
leges, and make him financially whole for any loss of
pay or loss of other employee benefits resulting from
the discrimination against him Such backpay shall
be computed in accordance with the formula ap-
proved in F W Woolworth Company, 90 NLRB 289
(1950), with interest computed in the manner pre-
scribed in Isis Plumbing & Heating Co, 138 NLRB
716, 717-721 (1962).
(b) 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 Order.
(c) Post at its facilities in Chatham, Tullos, and
Joyce, Louisiana, copies of the attached notice
marked "Appendix." 9 Copies of said notice, on
forms provided by the Regional Director for Region
15, after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
'In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminatorily discharge any
employee because of membership in and/or ac-
tivity in behalf of the United Paperworkers In-
ternational Union, AFL-CIO, or any other la-
bor organization.
WE WILL NOT interfere with the right of em-
ployees to engage in protected concerted activity
by interrogating them about union activity.
WE WILL NOT grant wage increases to our em-
ployees to discourage their exercise of the rights
guaranteed them in Section 7 of the Act.
WE WILL NOT solicit or direct employees to re-
port if they are contacted by a union or to report
union activity among their fellow employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Section
7 of the Act.
WE WILL offer Jessie Eugene Harper immedi-
ate and full reinstatement to his formerjob or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or other rights and privileges.
WE WILL make Jessie Eugene Harper finan-
cially whole with interest for any loss of pay or
loss of any other employee benefit suffered as a
result of the discrimination against him.
CROWN ZELLERBACH CORPORATION
DECISION
STATEMENT OF THE CASE
PAUL L. HARPER, Administrative Law Judge: Hearing in
this case was held January 26 and 27, 1976, in Monroe,
Louisiana. Complaint was issued October 21, 1975, alleg-
ing violations of Section 8(a)(1) and (3) of the National
Labor Relations Act. All parties were represented and par-
ticipated at the hearing Briefs have been filed by the Gen-
eral Counsel and Respondent and have been duly consid-
ered, as has the entire record, in reaching the findings and
conclusions herein.
Issues
(1) Whether Eugene Harper is a supervisor within the
meaning of the Act as contended by Respondent, or a
rank-and-file employee as contended by the General
Counsel and Union. If found to be the latter, Respondent
concedes, pursuant to stipulation of the parties, that Har-
per was terminated, at least in part, because of his union
membership and activity, in violation of Section 8(a)(3) of
the Act. If found to be a supervisor within the definition of
the Act, all parties are in agreement that no violation of the
Act has been incurred.
(2) Whether or not Respondent engaged in interroga-
tion of its employees concerning their union membership
and activity; and whether or not Respondent promised and
then granted wage increases to its employees to induce
them to refrain from becoming members of the Union or
otherwise active in the Union, all in violation of Section
8(a)(1) of the Act.
CROWN ZELLERBACH CORPORATION 915
FINDINGS OF FACTS
1. BUSINESS OF RESPONDENT
Respondent is a corporate enterprise engaged in forestry
and related activities. Respondent's Joyce operations of its
Southern Timber and Wood Products Division, located at
Joyce, Chatham, and Tullos, Louisiana, are the only opera-
tions involved herein. Respondent has been so engaged
since on or about July 1, 1974, when it bought out Tree-
mont Lumber Company. During a representative period,
Respondent has made out-of-state purchases and sales,
each in excess of $50,000. Respondent admits, and I find,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. Re-
spondent also admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Discharge of Eugene Harper
Eugene Harper was employed by the Respondent when
it took over the operations of Treemont Lumber Company
on or about July 1, 1974. He was discharged on August 29,
1975. As stated above, the sole issue regarding the dis-
charge is whether or not Eugene Harper was a supervisor.
Respondent contends that he was. The General Counsel
and Union contend that he was not.
According to Eugene Harper he had been under the su-
pervision of Wayne Horn, area forester, about 3 years at
the time of his termination. He was employed at the Chat-
ham facility along with nine or ten other individuals. He
first learned about his discharge around 7 a.m., on August
29. There had been no prior indications or warnings. He
learned about his discharge from his supervisor, Wayne
Horn, during a meeting with the other employees in the
Chatham group. Harper testified as follows. That Horn
told the group that the Respondent had been surprised
upon learning about wage increases recently given by com-
petitors in the area and therefore "we're coming up with
new job titles and some raises.. ." Horn told Harper
"you're now classified as woods leader, and you make
$5.00. " (a raise of 75¢ from $4.25 an hour). Others
were given raises and some were given new job titles. At
the time of his discharge, according to Harper, there were
seven hourly rated employees. The raises were announced
on Friday to become effective the following Monday. Eu-
gene Harper, however, was terminated about 4 p.m., the
same day the raises were announced, i.e., on Friday, Au-
gust 29, 1975. Lee Garr, assistant forester at the Chatham
facility, was present with Wayne Horn and Eugene Harper
at the discharge interview. Harper testified that Horn ad-
vised him of his discharge stating "that it would be in the
best interest of Crown Zellerbach" and when asked to ex-
plain, stated it was Harper's "attitude," "you're not for
Crown Zellerbach," "you're not doing the job," "you keep
something stirred up all the time." Harper replied, "[W]ell,
I know what it is. It's the Union." His termination notice
(G.C. Exh. 2) carried the legend: "Unsatisfactory perfor-
mance. Failure to properly perform his duties and func-
tions."
B. The Supervisory Question
1. Evidence in support of General Counsel's position
In support of its position General Counsel presented the
testimony of Eugene Harper, Lloyd Chatham, Roy Mos-
ley, Lloyd Mosley, and Felton Harper. On or about June 1,
1975, according to Eugene Harper, his method of pay was
changed from a monthly salary basis (with overtime provi-
sions) to that of an hourly rate basis. At the same time
benefits enjoyed while on a salary basis were reduced, in-
cluding loss of dental insurance; 80 percent medical and
hospital benefits instead of 100 percent as salaried; loss of
privilege of certain stock purchase options granted to sala-
ried employees; and about a $30 per month reduction in
take-home pay. Harper also testified that at this time his
duties and responsibilities changed "significantly." Thus,
he stated "we started a new kind of cruise" and Mr Horn,
his immediate supervisor, told him "that from now on,
your job will be primarily cruising."
During his last 3 months of employment with Respon-
dent, from about June 1 when he was put on an hourly rate
basis to his date of discharge on August 29, he spent all but
about 1 week in the new cruising operations. Such cruising
functions included briefly the following: Taking inventory
of standing timber in a given area, including measuring
tree diameters and heights, all with the use of maps, com-
pass, angle gauges, loggers tape, and other instruments,
and recording all such information on record forms of the
employer. Usually in performing such functions Harper
worked with one other employee, occasionally two. On ev-
ery occasion District Forester Wayne Horn determined the
area to be inventoried and furnished the maps, instru-
ments, and records. According to Harper all Chatham,
Louisiana, hourly rated employees reported to Wayne
Horn or L.B. Mosley for sick leave, time off for personal
reasons, and for supervision in general.
Sometime in September 1974, long before he was placed
on the cruising operation on an hourly rate basis, Harper
testified he had an occasion to test any possible supervisory
authority he might have thought he had. This occasion in-
volved a crew member, Roy Mosley, who, towards the end
of a workday, expressed his intention of leaving the job an
hour or so before quitting time Harper apparently consid-
ered himself in charge of the operation and told Mosley if
he left the job he would fire him Mosley retorted that
Harper "couldn't fire a box of matches." Nevertheless,
Mosley remained until quitting time. Harper reported the
incident to Horn after work the same day. Horn, according
to Harper, told him he did not have authority to fire but he
could make such recommendation to him and he would
take the matter up with a higher authority. The next day
Horn called a meeting of the Chatham employees and in-
formed them that Eugene Harper had no authority to fire
but could recommend such action to him and he would
"check into it, and if I approve it, will be carried higher."
In regard to receiving daily instructions from Horn the
testimony of Eugene Harper is corroborated by that of
Lloyd Chatham.
Also with respect to the so-called argument between
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harper and Mosley the testimony of Harper is corroborat-
ed by that of Mosley. Further, Roy Mosley testified, as did
Harper, that Horn called a meeting the following day and
told the employee group "that Eugene could not hire or fire
anyone . . . he could recommend that you be fired, but it
would be up to him, and Clocksm, Berlin and Quitta, if
you were fired." Lloyd Mosley's testimony in this connec-
tion corroborates that of the other employee witnesses.
2. Evidence in support of Respondent's position
In support of its position that Eugene Harper was, at all
times material herein, a supervisor within the meaning of
the Act, Respondent presented the testimony of Wayne
Horn, district forester of the Chatham area and immediate
supervisor of Eugene Harper, Duane B. Clocksin, general
manager of the Southern Timber Wood Products Division,
James Quitta, chief forester of the Joyce Managed Forest
supervising the three forest areas herein involved- name-
ly, Chatham, Tullos, and Joyce, all towns within the State
of Louisiana-and Durwood Alford, employee relations
manager for the southern wood products group.
Horn testified that, having learned of the Union's orga-
nizational efforts among the employees in the woodlands
section of the three areas (Chatham, Tullos, and Joyce)
under the Joyce Managed Forest Division of Respondent,
a supervisory meeting was held sometime in March 1975.
Some 20 or so supervisors attended. Eugene Harper was
present. At this time he was on a straight monthly salary.
The supervisors at this meeting were instructed regarding
their proper roles during the union campaign, specifically
"that they could not join and could not push the union."
On or about June 1, 1975, the wage basis of a number of
salaried employees in the Joyce operation was changed to
an hourly rate basis. Horn and Chief Forester Quitta met
with Harper and "informed him of the change, and that his
duties would not change." His title, however, according to
Horn, was changed from "forest technician" to "leader-
man." Harper's job description (Resp. Exh. 1) t was pre-
pared in part by Harper and in part by Horn and main-
tained in the latter's office files. In conjunction with such
job description, Horn testified Harper's duties included su-
pervising timber marking and checking on independent
contractors (cutting poles, logs, and pulpwood). He also
testified Harper had the authority "to instruct the contrac-
tor in what he should do" and that he supervises burning
operations during which he would ordinarily have "four to
six men" under his supervision
Horn recalled the incident involving Roy Mosley. Mos-
ley had wanted to leave the job early and Harper refused
permission. The following morning Horn called a meeting
of the Chatham crew and told them the reason he "had it
[the meeting] in front of the whole crew was because Roy
Mosley had seen fit to disobey his supervisor in front of all
of them, so I felt like he should be called down in front of
the crew . . . [so] that Roy Mosley would not again dis-
obey a supervisor. If he was, he would be fired, but that
Eugene Harper did not have the authority to fire him, but
if he brought him in again, he would be fired." Horn testi-
fied that after the March 1975 meeting of supervisors Eu-
gene Harper made it known to Respondent's officials that
he had been contacted by Union Representative Shelby
Phillips, but it was not until sometime in August 1975 that
the Respondent learned Eugene Harper "was actively or-
ganizing the men in his crew." Harper was discharged on
August 29, 1975, admittedly, in part, because of such activ-
ities.
Duane B. Clocksin, general manager of Respondent's
Southern Timber Products Division, testified that it was his
decision to reclassify certain positions, including that of
Eugene Harper, from a salary to hourly base; that he did
so for cost control purposes and no other reason; and that
the duties and responsibilities of those individuals affected
were not altered in any manner. Further, that an effort was
made to see that nobody was "financially injured" in mak-
ing the transition from salary to an hourly wage basis. In
describing the supervisory hierarchy, Clocksin testified that
the forest technician ranked higher than the woods leader;
that the title "woods leader" was adopted to replace that of
"leadermen" in order to erase the confusion between the
woodland and mill groups since there was a "leader" posi-
tion in existence in the mills; that Eugene Harper had been
reclassified on or about June 1, 1975, from "forest techni-
cian" to "leaderman" and at the same time changed from a
salary to an hourly rate basis; that on August 29, 1975,
Eugene Harper was again reclassified from "leaderman" to
that of "woods leader," but his wage rate was raised from
$4.25 to $5 an hour, without change of duties or responsi-
bilities; and that about 4 p.m., on the same day, i.e., Au-
gust 29, 1975, Eugene Harper was discharged.
James Quitta, chief forester at the Joyce Managed For-
est, is the immediate supervisor of the area or district for-
esters (Joyce, Chatham, and Tullos). With respect to the
March 1975 supervisory meeting at which the "duties and
responsibilities of supervisors were discussed, with particu-
lar reference to their attitude toward unions," Quitta's tes-
timony corroborates that of Clocksin and the other wit-
nesses presented by Respondent. In regard to the change
from salary to hourly wage basis of payment Quitta testi-
fied he, along with District Forester Horn, discussed this
changeover with Eugene Harper, explaining to him "his
responsibilities would be the same as they had been earlier
in years past." Quitta acknowledged that he had prepared
the typed "final copy" of Harper's job description; that in
preparing this job description he had "the benefit of a
handwritten job description . . . submitted by Mr. Eugene
Harper"; that he supplied certain portions of the document
that Harper had omitted, namely, "basic function of posi-
tion," the average percentage of time spent on each func-
tion, contacts with "logging system supervisor," "timber
marking crew chief," "crew chief," and "adjoining land-
owners." The "final copy" prepared by Quitta carried the
notation regarding the number of employees supervised as
"Eight: During planting season-25 temporary."
Concluding Findings
1 Resp Exh 4 is a typewritten description of Harper's duties, at some but
significant variance with Resp Exh I Section 2(11) of the Act defines the term "supervisor" as
CROWN ZELLERBACH CORPORATION
"any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment." (Emphasis supplied.)
It is clear that in the case of Eugene Harper it is essential
to deal only with the emphasized portion of the above stat-
utory definition of "supervisor." Composite testimony in
this record clearly establishes that Harper has met no other
indicia of supervisory status. Thus, the question to be re-
solved is whether, in performing his duties and responsibil-
ities, he could or did effectively recommend a change in
status of employees under his direction, thereby lending
responsibility to such direction, if in exercising such au-
thority it was not of a routine or clerical nature but re-
quired the use of independent judgment.
Respondent contends that Harper's duties and responsi-
bilities remained the same throughout his tenure with the
Employer. The facts, however, belie such contention. The
evidence establishes that on or about June 1, 1975,
Harper's status was materially altered. His wage rate was
changed from a salary to an hourly rate basis of pay; his
net take-home pay was admittedly reduced by about $30
per month; his title was changed from forester technician
to that of leaderman or leadman; and his benefits and priv-
ileges previously enjoyed were considerably reduced, e.g.,
dental benefits lost entirely, medical reduced from 100 per-
cent coverage to 80 percent, and use of the company vehi-
cle for personal use was lost completely. There is also no
question but that Harper lost the last vestiges of superviso-
ry authority, if indeed he possessed any beforehand, which
I doubt. Even according to the testimony of Respondent's
chief executive officer of the Joyce operations, Duane
Clocksm, the job of "leaderman" is subordinate to that of
"forest technician," despite the contradictions in this re-
spect contained in his testimony. Also it is noted here, ac-
cording to Clocksm, the change in title from "leaderman"
to "woods leader" and the hourly wage increase made on
August 29, the day Harper was discharged, did not consti-
tute a promotion or any change of Harper's duties or re-
sponsibilities. Clocksin testified as follows:
Q. So, the woods leader would report to the forest
technician, not the other way around.
A. Oh, yeah, that's true. The woods leader would
report to the technician if that case were open.
Moreover, Clocksin testified that the chief timber mark-
er, who also operates with a crew of several employees, is
not considered a supervisor although he acknowledged the
operation of timber marking is "an important job"-"it is
practically our bread and butter of our operations." Clock-
sin also testified that the responsibilities of chief timber
marker and woods leader are "parallel" but in a showdown
the woods leader would have the greater responsibility.
Horn testified that the chief timber marker, as in the case
of the woods leader, "is responsible to see that the crew
does not sit down, that they work "
Furthermore, according to the testimony of Harper, he
917
was told at the time of such changes, or on or about June 1,
that he would thereafter perform mostly "cruising" opera-
tions; that, in fact, during the period from June 1 to his
termination on August 29, except for about 1 week, he
actually performed only such duties; and that in perform-
ing such duties, he normally worked with only one other
individual. Sometimes, if that other individual was more
experienced and senior in job tenure, that other person
would be in "charge" of the operation. Conversely, if the
other person was junior in seniority and experience, Har-
per would be in "charge." Wherever Respondent' s witness-
es testified that such changes, which are documented and
largely admitted, did not also alter Harper's duties and/or
responsibilities, such testimony is discredited.
Based on all the testimony of record, I find that Eugene
Harper, prior to June 1, 1975, did perform a multitude of
duties, including marking timber to be cut into logs, poles,
and pulpwood; supervised the burning of certain areas of
woodland designated by the district forester and recorded
on area maps; inventoried certain woodland areas (cruis-
ing operations) including measuring of tree diameters,
height, and condition; planted and supervised the planting
of trees; and performed other incidental functions. In per-
forming such duties Harper was accompanied and aided
by a crew of several employees.
While I do not consider Harper's duties and responsibili-
ties prior to June 1, 1975, controlling of the issue of wheth-
er or not he was a supervisor at the time of his discharge on
August 29, 1975, I find that during the period he was em-
ployed by Respondent from on or about July 1, 1974, when
Respondent took over from Treemont Lumber Company,
to June 1, 1975, when Harper's status was materially al-
tered, he possessed none of the indicia of a supervisor as
defined in the Act. I base this finding on the fact that
Harper's direction of other employees, the little, if any, that
existed, was entirely routine in nature, being merely con-
ductive of instructions given him by his immediate supervi-
sor.
During his entire employment with Respondent there
was only one significant incident that occasioned any test
of Eugene Harper's alleged supervisory authority. This was
the episode between Harper and Roy Mosley sometime in
September 1974 when Harper, apparently at that time
thinking he was vested with supervisory authority, told
Mosley he would be fired if he left the job before quitting
time. Although Mosley remained until quitting time Har-
per reported the incident to Horn who, the next day, called
a meeting of the employees. Harper, corroborated by Mos-
ley, testified that Horn told the group Harper did not have
authority to fire but could recommend such action which
would then be taken up with higher authority. Horn testi-
fied that he told the group the same thing but added that if
such an incident occurred again Mosley would be fired,
indicating Harper could at least effectively recommend
such action, and that he addressed the group in this man-
ner as a reprimand and warning to Mosley. Mosley testi-
fied he did not consider Horn's remarks, as he recalled
them in his testimony, to be a reprimand or warning. On
the contrary he seemed to emphasize that portion of
Horn's remarks in expressing the limitations of Harper's
assumed authority. The testimony of Harper and Mosley,
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which I credit over Horn's, is also buttressed by the fact
that Harper's discharge followed the exact pattern de-
scribed in their testimony. It was Clocksin, in consultation
with only top management officials, who made the deci-
sion to discharge Harper. Supervisory authority cannot be
estimated by such a single incident. Moreover there were
several other minor incidents where Harper made recom-
mendations which were either disregarded entirely or car-
ried no weight with management officials.
Respondent argues in its brief, correctly, that a person
with authority "responsibly to direct" other employees,
without having other supervisory authority, is nevertheless
a supervisor, citing Ohio Power Co. v. N.L.R.B., 76 F.2d
385, 387-388 (C.A. 6, 1949). I find this case factually dis-
tinguishable from the subject case. In the cited case the
court stated. "Each control operator is charged with the
responsible direction of the generating unit and the men
under him. With some minor exceptions he handles the
entire operation of the plant " "That power responsibly to
direct exists here is uncontradicted. [Not so in the subject
case.] The control operator at all times responsibly directs
the assistant control operator and the auxiliary equipment
operator. He has authority in time of emergency to requisi-
tion any men on the spot, in fact, to direct the activities of
substantially all the employees at the Tidd Plant, and has
on various occasions used this authority."
The following portion of the testimony of record in Ohio
Power is quoted at 386:
Q. And it is necessary for him to make decisions on
the spot9
A. Particularly when there are emergencies, but in a
routine way as to various adjustments.
Q. But he has to do those things on his own initia-
tive?
A. He makes those decisions on his own initiative.
Q. And the decisions which he makes are such as to
control the operation of the entire unit9
A. That is correct.
Q. And thereby they control the entire output of
the plant as it is now constituted?
A. That is correct
It is thus clear that the control operators in the cited case
were invested with considerably more responsible direction
of other employees than was possessed by Eugene Harper
either as forest technician when he routinely directed the
activities of several employees, or as leadman during the
last 3 months of his employment with Respondent when he
worked with only one other individual with even less au-
thonty, if any at all, to direct others.
Respondent continues its argument in this respect, stat-
ing in its brief that Respondent, in the management of its
70,000-acre forest, "must employ some professional forest-
ers and technicians who never actually direct the manual
labor of the men in the field." Thus, it would seem Respon-
dent agrees that Eugene Harper, when employed as a forest
technician prior to June 1, "never actually direct[ed]" the
work of other employees. On June 1 Harper's title was
changed from "forest technician" to that of "leaderman"
or "leadman." However, all of Respondent's witnesses em-
phasized in their testimony that, notwithstanding the
change from salary to hourly rate, etc., Harper's duties and
responsibilities remained unchanged. Therefore it is clear
that on June 1 he was not given any more authority than he
already possessed.
Following up its argument noted above, Respondent, in
its brief, stated "It is equally clear that the woods leaders,
such as Felton Harper, supervise the manual labor in the
field, dust as Felton was supervising the planting crew at
the time of the hearing." There are several fallacies to this
part of Respondent's argument as well. In the first place
the testimony does not establish that Felton Harper and
Eugene Harper had identical duties and responsibilities. In
fact the contrary is more nearly the truth of the matter.
However, even if it had been established that Felton Har-
per was a supervisor, it still would not necessarily follow
that Eugene Harper was also a supervisor Furthermore,
notwithstanding Respondent's contention that Eugene
Harper's responsibilities remained unchanged on both
June 1 and August 29, it is clear that he had no opportunity
to function as a "woods leader" since he was fired on the
same day he was given the title as well as the 75-cents-an-
hour raise in pay.
Based on the above considerations, I find that Eugene
Harper, at all times material herein, was not a supervisor
within the definition of the Act, and therefore entitled to
all the rights and protection of the Act. I find that prior to
June 1, 1975, Eugene Harper did, in fact, perfunctorily di-
rect the work of other employees, but that such direction
was of a routine or clerical nature, mostly merely trans-
mitting directions from higher authority, and that such
routine direction did not require the exercise of indepen-
dent judgment. I further find that on June 1, 1975, Eugene
Harper's status with Respondent was significantly altered,
i.e, his method of pay was changed from a salary to an
hourly rate basis; fringe benefits in a significant manner
were reduced and some of them lost completely; certain
privileges normally accorded supervisory personnel abol-
ished; and his net earnings reduced From such undisputed
facts I find that whatever alleged supervisory authority Eu-
gene Harper may have possessed before June 1, 1975, such
reduction in status noted above effectively divested him of
the last vestiges of such alleged authority. Therefore, dur-
ing the last 3 months of his employment while performing
"cruising" duties and working with only one other individ-
ual and not directing the work of any other employee, it is
clear, and I find, that Eugene Harper possessed no indicia
of supervisory authority within the definition of the Act.
Accordingly, I find that by discharging Eugene Harper, an
employee, on August 29, 1975, admittedly, in part, because
of his membership in and/or activity on behalf of the
Union, Respondent thereby violated Section 8(a)(3) of the
Act.
C. The Alleged Violation of Section 8(a)(1)
General Counsel contends that the raises and reclassifi-
cations on August 29, 1975, were made by Respondent for
the purpose of discouraging the employees of the Joyce
Managed Forest from supporting the Union. Apart from
the admitted fact that such raises and reclassifications were
made, the General Counsel produced no evidence to sus-
CROWN ZELLERBACH CORPORATION 919
tam the allegation of unlawful conduct. The thrust of Gen-
eral Counsel's theory is that "the timing, the excessive
amount, the deviation from established past patterns, the
special announcement meeting, the narrow application of
these changes to the employees being organized, and the
suddenness of the changes, are all factors which indicate
that the pay increases of August 29, 1975, were violative of
Section 8 (a)(1)."
In advancing such a theory, counsel for the General
Counsel apparently assumes his assertions are bottomed on
evidentiary proof thereof. I find, however, no such eviden-
tiary proof in the record. As to the timing, the record shows
that at least as early as the meeting on March 27, 1975,
Respondent was quite aware of its employees' organiza-
tional efforts and instructed its supervisory personnel ac-
cordingly. This was 5 full months before the alleged unlaw-
ful raise and reclassification action. I find no merit to this
contention by the General Counsel.
Regarding deviation from established past patterns,
there is nothing in the record beyond the bare assertion in
General Counsel's brief. Of course, the August 29 raises
were selective in nature and therefore in that respect differ-
ent from the across-the-board raises made earlier. But there
is no evidence in the record to show that the different na-
ture of the raises on dust these two occasions had anything
to do with the employees' organizational activities. Nor
does the selection of those persons raised and reclassified
reveal any connection with the Union. The Respondent
effectively explained its reasons to grant such increases,
i.e., its effort to bring in line its pay rates to more nearly
conform with that of its competitors.
Even in those cases cited by the General Counsel to sup-
port its theory, e.g., Burkley Envelope Company, 165 NLRB
43, 47 (1967), the Board stated, inter alia, "the test which is
applicable is whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere with
the free exercise of rights under the Act." Here the record
is absent evidence of any such alleged conduct. Even in its
discharge of Eugene Harper, Respondent acted with dis-
cretion, taking the precaution not to publicize in any man-
ner the real reason for its action, i.e., the union activities of
an individual it considered to be one of its supervisors,
thereby insulating any possible impact such action may
have had on other employees
Again, in Spotlight Company, Inc, 188 NLRB 819 (1971),
also stated by the General Counsel, the Board stated that
the illegality of the timing of pay increases hinged on the
presence of other acts of interference, which is totally lack-
ing in the subject case. I find the evidence in this record
insufficient to support the allegation contained in para-
graph 10 of the complaint that Respondent, on or about
August 29, 1975, offered, promised, and granted to its em-
ployees substantial wage increases for unlawful purposes.
Accordingly, I recommend this portion of the complaint be
dismissed.
Paragraphs 8 and 9 of the complaint allege unlawful in-
terrogation on or about August 27 and April 16, respective-
ly. Apparently the General Counsel has abandoned its con-
tention of unlawful conduct with respect to paragraph 9 of
the complaint since no mention is made of this allegation
in its brief and no evidence was offered in support of this
allegation. Accordingly, I recommend that paragraph 9 of
the complaint be dismissed.
The only remaining alleged unlawful interrogation con-
cerns a conversation between Felton Harper and his super-
visor, Huey Lizanna, on or about August 27, 1975, in
Lizanna's office. According to Felton Harper, Lizanna
asked him if he had signed a union card and when Harper
replied in the affirmative, asked who else had signed such
cards. Harper told Lizanna that his brother, Eugene, had
signed a card and "all the Chatham crew had signed." Li-
zanna responded that he thought Harper "was agin the
union," whereupon Harper stated that he was until he had
seen a document shown him by Union Representative
Phillips, revealing the union pay scale There is no evidence
that Lizanna made any threats or promises to Harper; nor
is there any evidence Lizanna thereafter utilized such infor-
mation for any purpose, much less an unlawful purpose.
Account must also be taken of the fact that the work units
involved herein are quite small and closely knit and most
employees and supervisors are friends and acquaintances
of long standing. Moreover, the record clearly establishes
that the Respondent took cautionary measures to guard
against this very type of conduct on the part of its supervi-
sors, and this one conversation is clearly an isolated inci-
dent. It must also be noted that at the time of the conversa-
tion Lizanna was under the impression he was discussing
such matters with another supervisor.
Based on the above considerations, I find this one isolat-
ed incident of simple interrogation, in the context of all the
circumstances involved herein, not to constitute coercive
interrogation in violation of Section 8(a)(1) of the Act. Re-
spondent considered Felton Harper, as well as his brother,
Eugene Harper, a supervisor and as such a part of the
management team. This fact, in my view, somewhat molli-
fies what might otherwise be considered an unlawful inten-
tion on the part of Lizanna. Even so, assuming there is no
question concerning Felton Harper's status and that he is
an employee, I find nothing coercive, no threat of reprisal
or promise of benefit, in the content of Lizanna's remarks.
Accordingly, I recommend paragraph 8 of the complaint
be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization , all within the meaning of the
Act.
2. By discriminating in regard to the tenure of employ-
ment of Jessie Eugene Harper, the Respondent has en-
gaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
3. The Respondent has not violated the Act as alleged in
paragraphs 8, 9, and 10 of the complaint, or in any manner
not specifically found herein
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]