Forest Products Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1987

286 N.L.R.B. 1336 (N.L.R.B. 1987)

1336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Forest Products Company, Inc. and United Brother-
hood of Carpenters and Joiners of America,
Southwestern Council of Industrial Workers,
AFL-CIO. Case 28-CA-7682
30 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFF
On unfair labor practice charges filed 28 Decem-
ber 1983 by United Brotherhood of Carpenters and
Joiners of America, Southwestern Council of In-
dustrial Workers , AFL-CIO , the Union, the Re-
gional Director for Region 28 issued a complaint 1
May 1984 against Forest Products Company, Inc.,
the Respondent , alleging that the Respondent en-
gaged in certain unfair labor practices affecting
commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the National
Labor Relations Act. Copies of the complaint and
notice of hearing were served on the Respondent
and the Charging Party. The Respondent filed a
timely answer denying the commission of any
unfair labor practices.
On 29 October 1984, on the basis of an all-party
stipulation , the General Counsel filed with the
Board a motion to transfer the instant proceeding
to the Board without a hearing before an adminis-
trative law judge and submitted a proposed record
consisting of the formal papers and the parties' stip-
ulation of facts with attached exhibits . On 13 De-
cember 1984 the Associate Executive Secretary of
the Board, by direction of the Board , issued an
Order granting the motion , approving the stipula-
tion , and transferring the proceeding to the Board.
Thereafter , the General Counsel, the Respondent,
and the Charging Party filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the stipulation, the
briefs, and the entire record in this proceeding, and
makes the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a Nevada corporation, is en-
gaged in the manufacture and wholesale sale of
wood moulding and fingerjoint products at its prin-
cipal office and place of business in Albuquerque,
New Mexico, where it annually purchases goods
and materials valued in excess of $50,000 and
causes the goods to be transported in interstate
commerce and delivered directly to it in New
Mexico from suppliers and firms located outside
New Mexico. We find that the Respondent is an
employer within the meaning of Section 2(6) and
(7) of the Act and the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
The issue is whether the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to
match funds withheld from employees' wages pur-
suant to its Christmas Savings Program, the Fund,
because those employees were striking on the
Fund's disbursement date. We find that the Re-
spondent violated the Act.
A. Facts
On 2 May 19831 the Union was certified as the
collective-bargaining representative of certain of
the Respondent's employees, and on 25 July the
union-represented employees commenced an eco-
nomic strike. During the strike, the Respondent
hired permanent replacements for the striking em-
ployees who did not abandon the strike and return
to work. The Respondent continued to run its op-
eration with former strikers and strike replacements
until 31 March 1984, when it ceased operations.
For many years, the Respondent maintained a
Christmas Savings Program for employees to par-
ticipate in on a voluntary basis. The participating
employees signed enrollment forms that specified
the following terms:
1. Each employee shall have five (5) percent
of his gross monthly wages withheld and de-
posited in the company's fund.
2. On or about the 10th of each December the
company will contribute an additional 5% of
each employee's wages to this fund for a total
of 10% of his gross wages from January 1st.
This total amount will be distributed in a
Christmas fund, each employee receiving his
share.
3. . . . should an employee leave the employ-
ment of the company for any reason before the
Christmas fund is distributed, he shall receive
any money he has personally contributed to
this fund, but shall not receive the company
portion.
Twenty-six strikers withdrew their wage contri-
butions from the Fund before 10 December, but 18
striking employees had not withdrawn their money
as of 10 December. In accordance with the Fund's
written terms, after 10 December the Respondent
distributed the Fund's moneys. Nonstriking em-
' All dates hereafter are 1983, unless otherwise indicated.
286 NLRB No. 128
FOREST PRODUCTS CO 1337
ployees participating in the Fund received the Re-
spondent 's matching contributions in addition to
their own contributions; however, the 18 striking
employees received only their own wage contribu-
tions.
Throughout the history of the Fund, the Re-
spondent has considered employees on leave due to
sickness or injury or on economic layoff status as
ineligible for matching contributions because they
are not "actively working" and are not necessarily
expected to resume active work for the Respond-
ent. Those employees' names are removed from the
active payroll records. Although the Respondent
has never told the employees about its "actively
working" condition for matching fund eligibility,
its past practice has been to return Fund wage con-
tributions to employees on leave or layoff along
with their final paychecks, whether the refund is
requested or not.
On one occasion, an employee who was on leave
due to a work-related injury remained on the
active payroll, earned full pay, and received the
matching contribution on the Fund's disbursement.
Other than that employee and the 18 strikers at
issue here, the record contains no evidence that
any employee on leave or layoff had money on de-
posit in the Fund on the distribution date in any
year.
B. The Parties' Contention
The General Counsel contends that the employ-
ees were lawful economic strikers who had not left
the Respondent's employment on the disbursement
date and still qualified for matching funds under
paragraph three of the agreement, the money to
which the employees were entitled under the Fund
had accrued by the time they went on strike be-
cause it was based on their cumulative earnings
from the beginning of the year, and the Respond-
ent's refusal to make matching contributions be-
cause of the employees' strike participation was in-
herently destructive of their statutory rights under
NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
Alternatively, the General Counsel argues that
even if denial of the benefit had only a slight ad-
verse effect on employee rights under Great Dane,
the Respondent offered no legitimate business justi-
fication for its action.
The Charging Party contends that the Fund's
active service rule is discriminatory on its face and
inherently destructive of employees' right to strike
because it deprives strikers of substantial economic
benefits, and the Respondent failed to show some
substantial business reason for the rule.
The Respondent contends that its practice in ad-
ministering the program has been consistent in that
employees not earning wages and not certain to
return to work do not receive matching contribu-
tions; therefore, the strikers' right to the matching
contributions had not accrued when the strike
began and Great Dane does no apply. Alternative-
ly, the Respondent argues that its conduct was not
inherently destructive because the conduct did not
have far-reaching effects on important employee
rights.
C. Analysis
In Texaco, Inc., 285 NLRB 241 (1987), we held
that the question whether an employer violates
Section 8(a)(3) or (1) by refusing to continue bene-
fit payments to a disabled employee upon com-
mencement of a strike will be resolved by applying
the test for alleged unlawful conduct articulated by
the Supreme Court in NLRB v. Great Dane Trail-
ers, supra at 34 . Under this test , the General Coun-
sel bears the prima facie burden of proving at least
some adverse effect of the benefit denial on em-
ployee rights . The General Counsel can meet this
burden by showing that ( 1) the benefit was accrued
and (2) the benefit was withheld on the apparent
basis of a strike .2 The burden then shifts to the em-
ployer to come forward with proof of a legitimate
and substantial business justification for its cessa-
tion of benefits by proving waiver or by demon-
strating reliance on a nondiscriminatory contract in-
terpretation that is reasonable and arguably cor-
rect.3 If the employer proves business justification
the Board may nevertheless find that the employer
has committed an unfair labor practice if the con-
duct is demonstrated to be "inherently destructive"
of important employee rights or motivated by an-
tiunion intent.4
We find the Texaco analysis of the Supreme
Court's Great Dane test for unlawful conduct is ap-
plicable to the instant case. Applying the Texaco
principles to the facts , we find that the General
Counsel has established a prima facie case of
8(a)(3) and ( 1) conduct concerning the Respond-
ent's failure to provide matching funds to strikers
whose wage contributions were on deposit in the
Respondent 's Christmas Fund on the distribution
date.
Whether the General Counsel has met the prima
facie burden of proving that the matching funds
were due and payable and therefore accrued on the
date the Respondent withheld them depends on an
interpretation of the Fund's enrollment form. 5 Ac-
2 Texaco. Inc, supra.
Z Id
Id
5 Id at fn 22 and accompanying text
1338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cording to the provisions of the Fund's enrollment
form, Fund participants must be employed by the
Respondent on the distribution date to be entitled
to matching contributions. As Section 2(3) of the
Act states that strikers retain their employee status,
it is clear that the 18 striking Fund participants
were in the Respondent's employ on the distribu-
tion date and that they satisfied this first condition
on accrual. The enrollment form further requires
that the employee wage contributions be on deposit
on 10 December. The 18 striking employees also
satisfied this requirement. Because these 18 employ-
ees met the conditions stated on the Fund's enroll-
ment form, we conclude that the General Counsel
has made a prima facie showing that their right to
matching funds had accrued. In addition, when the
Fund was distributed after 10 December, only non-
striking employees received the matching contribu-
tions; the 18 strikers are the only employees in the
Fund's history to have wages on deposit on the dis-
tribution date who did not receive matching contri-
butions. Such withholding of accrued matching
contributions on the apparent basis of protected
strike activity warrants the inference of unlawful
discriminatory conduct.
Because the General Counsel has established a
prima facie showing of some adverse effect on em-
ployee rights, the burden shifts to the Respondent
to prove a legitimate and substantial business justi-
fication for its denial of benefits. The Respondent
asserts that it relied on a reasonable interpretation
of the Fund's written terms and this interpretation
is consistent with its past practice of requiring em-
ployees to be actively working in order to be eligi-
ble for matching funds. In fact, however, the past
practice, viewed as a whole, belies the business jus-
tification argument. The Respondent has consist-
ently refunded an employee's wage contributions
along with his final paycheck when that employee
went on leave or layoff and was no longer actively
working. Yet, the Respondent did not refund the
strikers' money until the distribution date in De-
cember. On the only previous occasion when an
employee on leave had wages on deposit on the
Fund's distribution date, that employee received
matching funds, consistent with the evidence that
the Respondent has always matched all contribu-
tions on deposit on the distribution date. Because
the denial of benefits here is not consistent with its
previous applications of the active work require-
ment, the Respondent cannot rely on past practice
to advance the business justification argument. Fur-
thermore, the enrollment form's written conditions
do not state that an employee must be actively
working on the distribution date. The Respondent
has failed to show that it relied on a nondiscrimina-
tory contract interpretation which is reasonable
and arguably correct. We therefore conclude that
the Respondent, by denying matching fund benefits
to strikers only, violated Section 8(a)(3) and (1) of
the Act.'
CONCLUSION OF LAW
By withholding payments of Christmas Savings
Program matching contributions due Mario R.
Anaya, Joe L. Archibeque, L. Lorenzo Baca, Pro-
firio Baca, Raymond Barela, Sisto Chavez, Eugene
R. Gallegos, Rafael M. Garcia, Antonio J. Grajeda,
Leonel J. Grajeda, Albert Lucero Jr., Manuel Mar-
quez, Ramon Marquez, Ruben S. Marquez, Guada-
lupe Melero, Jesus Mercado, Ernesto Romero, and
Zerefino Sanchez after 10 December 1983, the Re-
spondent engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order the
Respondent to cease and desist and to take certain
affirmative actions designed to effectuate the poli-
cies of the Act.
Having found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by withholding pay-
ments of accrued benefits due employees Mario R.
Anaya, Joe L. Archibeque, L. Lorenzo Baca, Pro-
firio Baca, Raymond Barela, Sisto Chavez, Eugene
R. Gallegos, Rafael M. Garcia, Antonio J. Grajeda,
Leonel J. Grajeda, Albert Lucero Jr., Manuel Mar-
quez, Ramon Marquez, Ruben S. Marquez , Guada-
lupe Melero, Jesus Mercado, Ernesto Romero, and
Zerefmo Sanchez after 10 December 1983, we shall
order the Respondent to make them whole by
paying the Christmas Savings Program matching
contributions due them 10 December 1983, with in-
terest as provided in New Horizons for the Retard-
ed.7
ORDER
The National Labor Relations Board orders that
the Respondent, Forest Products Company, Inc.,
Albuquerque, New Mexico, its officers, agents, suc-
cessors, and assigns, shall
Given the basis for our holding , we find it unnecessary to address the
General Counsel 's and the Charging Party's argument that the Respond-
ent's conduct was inherently destructive of employee rights.
7 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out to the 1986 amendment to 26 U.S C § 6621. Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
FOREST PRODUCTS CO. 1339
1. Cease and desist from
(a) Discriminating against and coercing employ-
ees in the exercise of their rights to engage in or
refrain from engaging in union and other protected
concerted activities, including the right to strike,
by withholding payments of accrued Christmas
Savings Program matching contributions.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole employees Mario R. Anaya, Joe
L. Archibeque, L. Lorenzo Baca, Profirio Baca,
Raymond Barela, Sisto Chavez, Eugene R. Galle-
gos, Rafael M. Garcia, Antonio J. Grajeda, Leonel
J. Grajeda, Albert Lucero Jr., Manuel Marquez,
Ramon Marquez, Ruben S. Marquez, Guadalupe
Melero, Jesus Mercado, Ernesto Romero, and Zer-
efmo Sanchez in the manner set forth in the
remedy section of this decision.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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 facility in Albuquerque, New
Mexico, copies of the attached notice marked "Ap-
pendix."8 Copies of the notice, on forms provided
by the Regional Director for Region 28, after
being signed by the Respondent's authorized repre-
sentative , shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall The taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coerce or discriminate against you
in the exercise of your rights to engage in or re-
frain from engaging in union and other protected
concerted activities, including the right to strike,
by withholding payments of accrued Christmas
Savings Program matching contributions.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make Mario R. Anaya, Joe L. Archi-
beque, L. Lorenzo Baca, Profirio Baca, Raymond
Barela, Sisto Chavez, Eugene R. Gallegos, Rafael
M. Garcia, Antonio J. Grajeda, Leonel J. Grajeda,
Albert Lucero Jr., Manuel Marquez, Ramon Mar-
quez, Ruben S. Marquez, Guadalupe Melero, Jesus
Mercado, Ernesto Romero, and Zerefino Sanchez
whole, with interest, for the losses they suffered as
a consequence of our failure to pay the Christmas
Savings Program matching contributions due them
10 December 1983.
FOREST PRODUCTS COMPANY, INC.
8 If 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 Nation-
al 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."