Dierks Forest, Inc.

National Labor Relations Board - Board Decisions

Jul 20, 1966

160 N.L.R.B. 183 (N.L.R.B. 1966)

DIERKS FOREST, INC.
APPENDIX
183
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that-
Upon request of the United Steelworkers of America, AFL-CIO, the exclu-
sive bargaining repiesentative of our production and maintenance employees,
WE WILL bargain with it in good faith concerning proposals it may advance for
a voluntary checkoff or other lawful means of facilitating the collection of
union dues.
ROANOKE IRON & BRIDGE WORKS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland 21202, Telephone 752-2159
Dierks Forest , Inc. and United Papermakers and Paperworkers,
AFL-CIO. Cases 16-CA-2522 and 16-RC-!1.064. July 20, 1966'
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On May Vii, 79f;6, 'trial Exam mer Marion C. Ludwig issued his
Decision in the above-entitled proceedings, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. In addition, the Trial Exanumer found that certain
objections to the election filed in Case 16-RC-4064 warranted setting
aside the election of November 3, 1965. Thereafter, Respondent, filed
exceptions to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Dlembers Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and the entire rec-
ord in these cases, and hereby adopts the findings,' conclusions, and
reeonnnenclations of the Trial Examiner, with the following addition.
I Respondent attacks the credibility findings of the Tital Examiner in connection with
111s fin tines of Sta) (1) Violations We have revicr,ed the entire record and under the t.nid-
ards of forth in Standard 1)ril Wall Prodircls, Inc, 91 NLRr, 544, cold 188 P 2d :62
(C A R) vve had no season to reject these finding.,
160 NLRB No IS
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board adopted the Trial Examiner's Recommended Order.]
[The Board set aside the election held in Case 16-RC-4064 on
November 3, 1965, and ordered that the case be remanded to the
Regional Director for Region 16 for the purpose of conducting a new
election at such time as he deems the circumstances permit the free
choice of a bargaining representative.]
[Text of Direction of Second Election omitted from publication.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These cases involve unfair labor practice charges and objections to conduct affect-
ing the results of a stipulated consent election held on November 3, 1965.1 A con-
solidated proceeding was heard before Trial Examiner Marion C. Ladwig at Idabel,
Oklahoma, on March 22, 1966, pursuant to a complaint dated January 27, 1966;
an order dated February 11, 1966, directing a hearing on the objections timely filed
by the Union (United Papermakers and Paperworkers , AFL-CIO); and an order of
consolidation dated February 16, 1966. The primary issues are whether (a) the
Respondent (herein called the Company ), through its production superintendent,
stated during the preelection campaign that the plant would be closed, and that the
Company would not bargain and would cancel its plant expansion plans, if the
Union successfully organized the plant, and coercively interrogated employees; (b)
the Company, through its plant superintendent , coercively interrogated an employee;
and (c ) the election should be set aside.
Upon the entire record,2 including my observation of the demeanor of the wit-
nesses, and after due consideration of the briefs filed by the General Counsel and
the Company ,3 I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The Company is a Delaware corporation, which is engaged in the manufacture of
insulation board and pressed board at its Craig plant near Broken Bow, Oklahoma,
from which it ships goods valued in excess of $50,000 directly to points outside that
State. The Company admits, and I find, that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The Union is a labor organization
within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Threats and interrogation by the production superintendent
Tom Coulter , the superintendent of production over about 70 employees at the
Craig plant, admittedly talked to a number of employees during the preelection cam-
paign against the Union , but the testimony is largely in dispute concerning a num-
ber of alleged threats and inquiries.
Employee Jimmy O'Donnel testified as follows: On October 25 (9 days before
the election ), Coulter came out to his job where he was working on a machine.
Coulter said he "would like for me to come into the lab and he wanted to talk to
me about the Union ." They went into a part of the lab where none of O'Donnel's
work was done . There, Coulter "told me he didn 't know how I felt about the
Union," but that he "had looked up some old records in the office and found that I
I Unless otherwise indicated, all dates refer to the year 1965
1 The General Counsel's motion to correct the record, dated April 16, 1966, is hereby
granted and the record is corrected accordingly. The record is also corrected to change the
word "for" at page 24, line 16, to "against "
3 The Company' s motion to dismiss the complaint and to overrule the objections are
hereby denied because of the findings and conclusions made hereinafter
DIERKS FOREST, INC. 185
had been for the Union." This O'Donnel denied. Then Coulter said they "would shut
the Craig Plant down if we voted the Union in, because all of the owners had a
million dollars or more in their pockets." O'Donnel asked who the owners were and
"he named Fred Dierks and some others and he went on and told me that Dierks
wouldn't bargain with the Union. And there wasn't no way that we could get higher
wages and they wouldn't bargain with them." Then, before discussing a strike in
California and another one there at Broken Bow in 1945, Coulter said that the
"Dierks had plan to expand the Craig Plant but they wouldn't if we worked against
them" and brought the Union in.
When Coulter was called as a defense witness, he was permitted (over objections
by the General Counsel) to be asked specific questions whether or not he made par-
ticular statements to O'Donnel and other witnesses called by the General Counsel.
His testimony, therefore, consisted primarily of denials, which he gave without first
testifying what he recalled was said in the various conversations. Thus, I did not
have the opportunity to compare his recollections in detail with those of the employ-
ees. Nevertheless, from the way he gave his brief testimony, I was not favorably
impressed.
He denied mentioning anything about looking up old records, shutting down the
plant, about Dierks not bargaining, or about the plant never expanding if the Union
came in . He did not specifically deny other parts of O'Donnel's testimony. Concern-
ing the old records, O'Donnel had testified that in 1964, a union "started up," but
never did get an election. The parties stipulated that O'Donnel's personnel status
sheet did not bear any reference to his union activities, but there was no stipulation
that this was the Company's only record concerning O'Donnel.
From my observation of the two witnesses , I credit O'Donnel 's testimony and
discredit Coulter's denials. In doing so, I do not overlook the Company's argument
in its brief that O'Donnel's testimony was evasive concerning the antiunion status of
30 or 35 employees whose names were on a petition circulated in the plant against
the Union. I do not consider O'Donnel to have been evasive when he testified that
"if someone walked up to you and asked you to sign it against the Union and you
didn't want the Company to know about [how you felt], you would go ahead and
sign that paper wouldn't you?" and that "The writing was opposed to the Union,
but I don't know about the names."
Another employee, Edward Leonard, testified that on October 7 (over 2 weeks
earlier), Coulter came to where he worked and "said that he had heard that I had
gone bad on him" and "that I was for the Union." Leonard responded that "about
all of the dealings that I had with the Union could be put on the point of my knife
blade." Then Coulter said, "Is that right, I didn't know, I just wanted to know how
you felt." In the discussion that followed, Coulter stated that "guys like Phil Jones
and George Whitten and three or four more on this in-plant organizing committee
would probably run the thing. And ... ,that Phil would probably present him with
the contract," and if he did, Coulter "would tell him to kiss his . " Coulter
denied that he asked Leonard or anyone else how he felt about the Union, but
acknowledged having the other part of the conversation, except for using the word,
"contract," He testified that he "more or less, in a kidding way, but I was sincere
in a way" said that in the final analysis, "Phil and Whitten, I probably named one
or more, would be running the plant and that when he come up telling me what to
do I would probably tell him to kiss my ." Judging from their demeanor, I
am convinced that Leonard was the more reliable witness. I credit his account of
what was said.
Former employee James Mills testified that on the same date, October 7, in the
refinery area, Coulter initiated a conversation, asking "me if a union man had been
to see me, and I told him, `Yes, he had.' He said, `James, what have they promised
you this year?' I told him, `I didn't know, I didn't have much to say to the union
man.' " Then, on October 29, less than a week before the election, Coulter
approached him again in the chemical room and said that "two or three people told
him that I was for the Union." Mills denied it. Coulter admitted telling Mills that
two or three employees had said Mills was for the Union, and testified that two or
three, or "it may have been five or six," had so advised him, although Coulter denied
ever asking employees whether Mills was for or against the Union. Although Coul-
ter denied ever asking any employees on his shift how they felt about the Union, I
find that his admitted statement to Mills, immediately before the election, about
employees claiming he was for the Union-after previously interrogating him about
the visit of the union man-was interrogation about his union support. I discredit
Coulter's denial that he questioned employees about the Union.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having credited the testimony of O'Donnel, Leonard, and Mills, and having con-
sidered all the circumstances of the case, I find that Coulter made threats and coer-
cively interrogated these employees, in violation of Section 8(a)(1) of the Act. In
view of this finding, I do not consider it necessary to rule specifically on the con-
flicts between the testimony of Coulter and other employees, or to rule on the coer-
sive effect of other alleged interrogation.
B. Interrogation by the plant superintendent
Contrary to my observations of Coulter, I was most favorably impressed by Plant
Superintendent John Selig. Concerning his alleged interrogation of employee George
Whitten, a member of the Union's in-plant organizing committee, Selig testified that
about October 10 or 11, Whitten approached him and said that in a couple of days,
he would receive a letter from the Union, that Whitten's name would be on it, and
that Whitten would like to get his name off of it. Selig asked why, and Whitten
said: "I thought I was for this deal and my brother came home and told me that I
shouldn't have signed it, it was not a good deal." Selig said he did not know what
the letter was, but that he would be glad to mentally cross his name off of it. Then
a day or two later, Selig received the letter claiming a union majority and namine
the in-plant committee. Selig saw Whitten 2 or 3 days later and said he had received
the letter Whitten then asked to talk about his job, and proceeded to express his
concern about not having enough help, and asked, "If I agree to vote against the
Union will you promise to get me a helper?" Selig said he could not promise him
anything.
Whitten testified that Selig questioned him about union people visiting him, about
what they told him, and about how he was getting along with his job. He denied
that he ever said a word to Selig about the union letter, but did recall talking to
Selig about needing a helper. He denied remembering if Selig had said Selig could
not promise him anything.
I credit Selig and find that he did not coercively interrogate Whitten
III. OBJECTIONS TO THE ELECTION
On November 9, the Union filed objections to conduct affecting the results of
the election alleging, inter alia, that the Company interrogated the employees about
the Union and maintained a-listing of employees involved in the Union's organiza-
tional activities. In ruling on these objections, I shall consider only conduct occur-
ring between September 30, when the petition was filed, and November 3, when
the election was conducted.
Having found that the Company engaged in violations of Section 8(a)( I) by the
coercive interrogations found above (including Production Superintendent Coulter's
statement about the Company's old records of•O'Donnel's union support), it follows,
as the Board has consistently held, that such conduct a fortiori interfered with the
exercise of a free and untrammeled choice in the election. I therefore find merit in
the Union's election objections. I recommend that the representation election held
herein be set aside and that a new election be held at an appropriate time to be fixed
by the Regional Director.
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act, the Company has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
The Company contends that no violation should be found because the alleged
conduct was isolated, innocuous, and de minimis in character, and contrary to
instructions. However, because of the gravity and inherent coerciveness of the
threats, the coercive context and nature of the interrogation, the position of the
production superintendent in the management of the plant, and his aforesaid con-
duct, despite any contrary instructions given in connection with the preelection cam-
paign against the Union, I find that the contention has no merit. I shall therefore
recommend an order directing the Company to cease and desist from its unfair labor
practices and from any like or related invasion of its employees' Section 7 rights,
DIERKS FOREST, INC. 187
and to take certain affirmative action, which I find necessary to remedy and to
remove the effect of the unfair labor practices and to effectuate the policies of the
Act.
Accordingly, on the basis of the foregoing findings and conclusions, and on the
entire record, I recommend, pursuant to Section 10tc) of the Act, issuance or the
following:
ORDER
Respondent, Dierks Forest, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to close down if its employees vote for union representation.
(b) Threatening to cancel plant expansion plans if a union successfully organizes
the plant.
(c) Informing employees that it has records of their prior union activities.
(d) Telling employees that it would not bargain with a union
(e) Coercively interrogating its employees concerning union activities or their
union sympathies.
(f) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to effecutate the policies of the
Act:
(a) Post at its plant near Broken Bow, Oklahoma, copies of the attached notice
marked "Appendix." 4 Copies of such notice to be furnished by the Regional Direc-
tor for Region 16, after being duly signed by the authorized representative of the
Respondent, shall be posted 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 Respondent to insure that said notices are not altered, defaced, or coveted
by any other material.
(b) Notify the Regional Director for Region 16, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewitfi 5
In the event that this Recommended Order is adopted by the Board, the wools "a'
Decision and Order" shall be substituted for "the Recommended Order of a Trial E%am-
iner" in the notice In the further event that the Board's Order is enforced b} a decree of
a United States Court of Appeals, the words ""ii Decree of the United States Court of
Appeals. Enforcing an Order" shall be substituted for the words "a Decision and Order"
5 In the event that this Recommended Order is adopted by the Board, this pros ision
shall be modified to read, "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions-Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten to close down if our employees vote for a union
WE WILL, NOT threaten to cancel any plans for plant expansion if a union
comes in.
WE WILL NOT inform employees that we are keeping records of their union
activities.
WE WILL NOT tell employees that we will not bargain with a union.
WE WILL NOT coercively interrogate our employees about union activities or
their union support.
WE WILL NOT interfere with the right of our employees to make a free choice
in any election ordered by the National Labor Relations Board
WE WILL NOT interfere with our employees' union activities.
DIERKS FOREST, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Sixth
Floor, Meacham Building , 110 West Fifth Street, Fort Worth, Texas 76102, Tele-
phone 335-4211, Extension 2145.
Watkins Furniture Company, Watkins-Pearl, Inc., Watkins-
Southgate Furniture Co., Watkins -Great Northern Furniture
Company, Forman Furniture Company, Watkins-Euclid Furni-
ture Co., Inc ., and Watkins-Mentor Furniture Co. and Retail
Store Employees Union Local 880, Retail Clerks International
Association , AFL-CIO and the Employees Committee , Party of
Interest. Case 8-CA-4047. July 25,1966
DECISION AND ORDER
On April 27, 1966, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision, a supporting brief, and a brief in opposition
to the cross-exceptions of the Charging Party; and the Charging
Party filed cross-exceptions, a supporting brief, and a brief in oppo-
sition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 exceptions, cross-exceptions, briefs,
and the entire record in this case, and it hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner with the
following modifications :
We agree with the Trial Examiner that the evidence establishes
that Respondent interfered with the administration of, and contrib-
uted support to the Employees' Committee in violation of Section
8(a) (2) and (1) of the Act. We do not agree, however, with the Trial
Examiner's further finding that the evidence establishes domination
of the Employees' Committee by Respondent.'
1 See Irving Air Chute Company, 149 NLRB 627, 641.
160 NLRB No. 20.