Fort Vancouver Plywood Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1009 (N.L.R.B. 1980)

FORT VANCOUVER PLYWOOD COMPANY
Fort Vancouver Plywood Company and Local Union
No. 3-3, International Woodworkers of Amer-
ica, AFL-CIO. Case 36-CA-2930
September 30, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 16, 1980, Administrative Law Judge
Richard J. Boyce issued the attached Supplemental
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief.
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 Supplemental Decision in light of the ex-
ceptions and brief and has decided to affirm the
rulings, findings, 2 and conclusions 3 of the Adminis-
trative Law Judge and to adopt his recommenda-
tion.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommenda-
tion of the Administrative Law Judge and hereby
orders that the Decision and Order issued by the
I The Board's Decision and Order is reported at 235 NLRB 635
(1978).
2 Respondent asserts that the Administrative Law Judge's resolutions
of credibility, findings of fact, and conclusions of law are the result of
bias. After a careful examination of the entire record, we are satisfied that
this allegation is without merit. There is no basis for finding that bias and
partiality existed merely because the Administrative Law Judge resolved
important factual matters in favor of the General Counsel's position. As
the Supreme Court stated in N.LR.B. v. Pittsburgh Steamship Company,
337 U.S. 656, 659 (1949), "[Tlotal rejection of an opposed view cannot of
itself impugn the integrity or competence of a trier of fact." Further-
more, it is the Board's established policy not to overrule an administra-
tive law judge's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the reso-
lutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings.
We find merit in Respondent's exceptions with respect to the Adminis-
trative Law Judge's factual findings in two minor respects. First, Re-
spondent's director, Melford Stroup, has been misidentified as Melton
Stroup. Second, General Manager Roland Mill, and not Director Gerald
McChesney, reported to Respondent's board of directors in November
1979 that Respondent probably had the best order file in the whole indus-
try. Neither of these errors is material to our conclusions.
3 In adopting the Administrative Law Judge's conclusion that Re-
spondent failed to meet its burden to establish that some or all of the dis-
charged nonshareholder employees would have been terminated lawfully
subsequent to June 14, 1976, we note that, in the reopened proceeding,
Respondent has not introduced probative evidence showing the existence
of changed circumstances after June 14, 1976, which would have resulted
in the discriminatees' loss of employment for reasons other than those
previously found unlawful.
252 NLRB No. 142
Board in Fort Vancouver Plywood Company, 235
NLRB 635 (1978), be, and it hereby is, reaffirmed.
SUPPLEMENTAL DECISION
I. BACKGROUND
RICHARD J. BOYCE, Administrative Law Judge: On
November 3, 1977, 1 issued a decision herein, conclud-
ing, inter alia, that Respondent had violated Section
8(a)(3) aid (1) of the Act by the mass discharge of its 72
nonshareholder employees on June 14, 1976. Included in
my recommended Order was a provision that Respond-
ent "offer the 72 nonshareholders unlawfully discharged
. . . immediate and full reinstatement to their former
jobs, or, if any such jobs no longer exist, to substantially
equivalent jobs .... " The Board, by decision dated
April 4, 1978, affirmed the conclusion that the discharges
were unlawful, and adopted my recommended Order.
Fort Vancouver Plywood Company, 235 NLRB 635 (1978).
Thereafter, in an opinion dated August 2, 1979, the
Ninth Circuit Court of Appeals affirmed the conclusion
that the mass discharge was unlawful, but declined to
adopt that portion of the remedy requiring reinstatement
of the 72 affected employees. N.L.R.B. v. Fort Vancouver
Plywood Company, 604 F.2d 596. The court noted in that
regard:
[T]he Board admits that Fort Vancouver Plywood's
usual contingent of nonshareholders was only a
fraction of the number employed in June 1976. It
concedes that three of the company's seven direc-
tors had long urged the company to do away with
all nonshareholder employment. The NLRB agrees
as well that many shareholder-workers not on the
board of directors of the company also favored
ending the use of outside workers altogether.
Under these circumstances, the Board had a duty to
consider how many employees, if any, the company
would have continued to employ but for the unfair
labor practices, and for how long. The record indi-
cates that neither the judge nor the Board in review
gave any consideration to whether some or all of
the temporary employees eventually would have
lost their jobs for acceptable business reasons. Fail-
ure to inquire how many employees would have
stayed on but for the section 8 violations makes the
remedy punitive, and so unenforceable.'
The court accordingly remanded the matter to the
Board "for reconsideration of the reinstatement part of
its order"; 2 and the Board, by an unpublished order
dated January 10, 1980, in turn remanded the matter for
further hearing "limited to the introduction of evidence
bearing on the issues remanded by the court's opinion."
Pursuant to the Board's remand order, a supplemental
hearing was held before me in Portland, Oregon, on
April I and 2, 1980.
604 F 2d at 602
2 604 F 2d at 603
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. A SUMMARY OF CERTAIN FACTS PREVIOUSI.Y
FOUND
As set forth in my earlier decision,3 41 of the 72 non-
shareholders discharged on June 14, 1976, were on the
payroll at the close of 1975. Seven of the remaining 31
were hired in January and February 1976, 22 in March
and April, and 2 in June. The influx in March and April
was largely the idea of Richard Grenier, plant superin-
tendent, and was supported by Roland Mill, general
manager, and had at least the tacit blessing of the board
of directors. It was prompted mainly by a disproportion-
ate increase in production at the glue spreaders, which
created a need for more manpower at other stages of
production, especially in the repatch department, to re-
store plant "balance." Among other things, a graveyard
shift was added in repatch, accounting for the hire of
about 15. Other reasons for the hiring upsurge were a
chronic absenteeism problem and a spate of retirements
and deaths.
As balance improved, in April and May, some of the
newly hired nonshareholders were shifted from their
original tasks, but none was discharged. Mill testified of
the possibility of their being needed "indefinitely,"
adding: "[T]hey were only hired until that surplus of in-
ventory was worked down, but I had no idea how long
it would take." Similarly, Grenier testified that they
were hired as "permanent, full-time employees."
Ilt. DEVELOPMENTS AFTER THE MASS DISCHARGE
The mass discharge left Respondent shorthanded, at
least in the view of Mill. The minutes of the annual
shareholders' meeting held November 20, 1976, disclose
that Mill spoke at that time of a need for "more automa-
tion to solve our manpower problems," and that Re-
spondent supplement its own veneer production from
outside sources "to be able to maintain anywhere near
the spreader production balance that we need . . . with
our limited amount of men."
Mill and some of the directors were of the view, ac-
cording to the testimony of Melton Stroup, a director of
contrary persuasion, that Respondent was "not getting
the production out" and that nonshareholders were nec-
essary to "take advantage of a rising plywood market,"
thereby achieving "maximum production for maximum
profit." A motion consequently was made during the
regular monthly meeting of the directors held February
17-18, 1977, "to increase the size of production employ-
ee work force by a maximum number of thirty (30) non-
shareholder employees." The motion was defeated, 4 to
3. The four opposed were Walter Huttula, Gerald
McChesney, Lyndon Rumsey, and Stroup. Those in
favor were Elmer Culley, Larry Malloy, and Stanley
Swanson. Of these seven, Cully and Malloy had become
directors since the mass discharge. As stated in my previ-
ous decision,4 Huttula, McChesney, and Stroup had op-
posed the use of nonshareholders for years.
Later in the same meeting, a motion was made that
"supervision be authorized to increase employment of
nonmnember production employees to a maximum of
3 235 NLRB at 637-38
4 235 NLRB at 636.
twenty-five (25) individuals." This motion carried, 4 to 3,
Rumsey joining those who had favored the previous
motion.
In the immediate aftermath of the February 17-18
meeting, the directors "got a lot of flak" from the share-
holder-workers-Huttula's depiction-over the decision
to rehire nonshareholders. "More than once" before this
time, according to Huttula, Respondent's attorney, Wil-
liam Lenihan, had counseled the directors to the effect
"that there is an economic defense (no liability) for back-
pay to any of the terminated nonshareholder employees,
since no persons were hired to fill the vacancies created
by their termination." 5 Huttula testified that Lenihan had
expressed this opinion, as well, at the annual sharehold-
ers' meeting in November 1976; and that he, Huttula,
had taken it upon himself, as a director, to "spread that
knowledge" to the shareholders in the course of "infor-
mal discussions" at the mill. It is undisputed that each of
the shareholders had a direct economic stake in the pay-
ment of backpay to the dischargees.
As a result of the shareholder unrest, a special direc-
tors' meeting was held February 21, during which it was
decided to "operate with a shareholder work force only"
until the "policy" of using nonshareholders could be "re-
viewed by the entire membership." It also was decided
to convene a special shareholders' meeting on March 13
to consider the matter.
During the March 13 shareholders' meeting, there was
much comment, pro and con, about hiring nonshare-
holders, after which a motion was made "that no non-
member employees be hired [per the directors' action of
February 17-18] for a period of 90 days." That motion
was defeated, whereupon it was moved that the directors
be authorized, "at their discretion, to hire a maximum of
25 nonshareholder production employees." That motion
likewise failed.
At the next regular meeting of the directors, held
March 17, a motion was made to rescind the action of
February 17-18, "relative to the hiring of nonmember
production employees." It carried, 4 to 3, with Stanley
Swanson joining those previously opposed to the action.
Then, during a special directors' meeting on March 21, a
motion again was made "to authorize supervision to in-
crease employment of nonmember production employees
to a maximum of thirty (30) individuals." It failed to
carry, 3 to 3, Huttula being absent.
A second special shareholders' meeting was held July
24, 1977, during which it was proposed that Respond-
ent's bylaws be changed to require that all production
employees "shall be Class A shareholders." The proposal
was adopted, 224 to 32. The new provision superseded
the one authorizing the directors "to employ a nonshare-
holder in any capacity" whenever they were "satisfied
that it is in the best interest of the corporation" to do so.
In this same July 24 meeting, acting on Mill's recommen-
dation that it would be "the best way to accomplish
more production with a given amount of manpower,"
5 The minutes of a directors' meeting held February 4, 1977, reveal
that Lenihan then had expressed his opinion to the directors in precisely
this fashion
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FORT VANCOUVER PLYWOOD COMPANY
the shareholders authorized an outlay of $1 million to in-
stall an automated layup line.
Huttula and Stroup both testified, in substance, that
the status of the pending National Labor Relations Board
case concerning the mass discharge was not mentioned in
any of the directors' or shareholders' meetings described
above. Given the decided pro-company bias of both. this
testimony is given no weight.
Gerald McChesney testified that, because of high in-
terest rates, housing starts were down "drastically" in
the 9 months or so preceding the present hearing, result-
ing in a buildup of Respondent's inventory and in his
belief that Respondent had about 10 too many employees
at the time of hearing. McChesney also testified that, in
anticipation of the annual shareholders' meeting in No-
vember 1979, he inquired of two or three other mills
about their layoff situations, and reported his findings at
the meeting. He in addition spoke at that neeting of
"problems" causing certain other mills to close, voicing
the opinion that Respondent "could overcome" them
"by working together." Finally, McChesney reported at
that meeting that Respondent "probably [had] the best
order file in the whole industry," and that sales returns
for October 1979 had set an all-time record.
The original hearing herein ran from April 19 29,
1977.
IV. DISCUSSION
The opinion of the Ninth Circuit speaks of giving "the
company an opportunity to show that fewer than 72 jobs
would have been available regardless of its unfair labor
practices." 604 F.2d at 603. So stating, the court plainly
meant for Respondent to have the burden of proving
that the reinstatement portion of the Board's remedy is
inappropriate as concerns some or all of the dischargees.
This corresponds with settled Board doctrine that, once
unlawful discrimination has been established, the burden
is on the wrongdoer "as to diminution of damages..
from the unavailability of a job at [its] plant for some
reason unconnected with the discrimination." Mastro
Plastics Corporation and French-A4merican Reeds Manufac-
turing Co., Inc., 136 NLRB 1342, 1346 (1962).
Respondent argues that the turmoil among the direc-
tors and shareholders over the hire of nonshareholders in
the first 3 months of 1977, culminating in the bylaw en-
actment restricting production tasks to shareholders, dic-
tates an inference that the jobs of the nonshareholders
would have been eliminated in that process, apart from
the earlier mass discharge.
This argument is rejected. The directors and share-
holders were dealing with the fait accompli of the prior
action, which was bound to have had major impact on
the dynamics of their deliberations. They were faced,
moreover, with the pendency of a hearing and a decision
concerning the legality of that action, having been told
there would be a favorable outcome if the resultant job
vacancies remained unfilled; and they realized that as
shareholders, they would suffer personal economic detri-
ment should backpay be owing. Returning to the above
language from Mastro Plastics Corporation, it can hardly
be said in such circumstances that the 1977 turmoil and
bylaw change came about "for some reason unconnected
with the discrimination." 6
Respondent makes the additional argument that, be-
cause of substantial opposition among the directors to the
use of nonshareholders before the mass discharge, unre-
lated to union considerations, "it is quite evident that" a
motion would have been made to eliminate them during
the regular monthly directors' meeting held June 17,
1976; and "it is equally evident that [the] motion would
have prevailed on that date." The basis for this argument
is the historic opposition to nonshareholders by Huttula,
McChesney, and Stroup, in combination with the testi-
mony of Charles Wright, a director in June 1976, that he
had spoken to Stroup at that time "about eliminating
nonshareholders," and that Stroup had agreed that "it
was time that we brought this thing to a head."
This argument likewise is rejected. Not only is it total-
ly conjectural, but it is conjectural because of Respond-
ent's June 14 misconduct. As the Board has observed,
the "innocent discriminate . . . should receive the bene-
fit of any doubt rather than . . . the wrongdoer responsi-
ble for the existence of any uncertainty and against
whom any uncertainty must be resolved." United A.ircraft
Corporation, 204 NLRB 1068, 1068 (1973). Beyond that,
Respondent's failure to elicit testimony of this sort from
Wright during the original hearing,7 despite going to
some lengths to develop the predischarge views of the
various directors concerning the use of nonshareholders,
suggests that Wright's testimony was of after-the-fact
contrivance and not worthy of belief. Further, the host
of factors pointing to the illegality of the directors'
action of June 14, 1976, scarcely would have been less
compelling had the same action been taken 3 days later.
Respondent next argues that it would have "trimmed
its ranks" in the fall of 1979, if not sooner, because of "a
very substantial decline" in the plywood industry at that
time. McChesney is not doubted that housing starts suf-
fered "drastically" in the several months before the pres-
ent hearing, largely because of high interest rates, with
an attendant impact on Respondent's market situation.
He spoke encouragingly of Respondent's prospects at the
1979 shareholders' meeting, however, and Respondent
failed to make any kind of a record establishing if, when,
or to what extent nonshareholders would have been ter-
minated over this situation, had they not been eliminated
in 1976. Again, the burden of conjecture must be borne
by the wrongdoer.
Finally, as against Respondent's several arguments just
described and the evidence on which they rely, it is well
o Attempting to make the point that Attorney Lenihan's opinion con-
cerning liability as not "widely known" among the shareholders in
patent disregard of Huttula's testimony to the contrary, Respondent con-
cedes in its brief that his opinion likely would have been a powerful influ-
ence on them. Thus, it asserts that, had Lenihan's iew been abroad at
the time of the March 13 shareholders' meeting. "it is doubtful that there
would has e been much. if any, debate ol er nonshareholder employment "
Ihenl. as if to have the best of all possible worlds. Respondent general-
iles ill the er 5 next paragraph of its brief, based )on Stroup's professed
indifference to Lenihan's opinion that "it is completely unrealistic
that [leniha's opinion] could have become such a dnmitinant ming
force i a ork force composed primarily f indisiduals much like Mr
Stlroup
: Wright did not testify in the original hearing
1011
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to recall Grenier's testimony in the original hearing that
the nonshareholders were hired as "permanent, full-time
employees"; and Mill's testimony that they might be
needed "indefinitely"-i.e., until the surplus of inventory
"was worked down," and he "had no idea how long it
would take." Significantly, Respondent addresses Mill's
inventory contingency with neither evidence nor argu-
ment.
CONCLUSION OF LAW AND RECOMMENDATION 8
It is concluded that Respondent has not met its burden
of proving that, to the time of the present hearing, it
8 All outstanding motions inconsistent with this Conclusion and Rec-
ommendation are hereby denied. In the event no exceptions are filed as
would have eliminated the jobs of any of the 72 dis-
chargees.
It therefore is recommended that the Board adhere to
its original Order.
provided by Sec. 102.46 of the Rules and Regulations of the National
Labor Relations Board, the findings and conclusions herein shall, as pro-
vided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings and conclusions, and all objections thereto
shall be deemed waived for all purposes.
1012