Hankins Lumber Co.

National Labor Relations Board - Board Decisions

Mar 27, 1995

316 N.L.R.B. 837 (N.L.R.B. 1995)

837
316 NLRB No. 139
HANKINS LUMBER CO.
1 On November 16, 1992, Administrative Law Judge Richard J.
Linton issued the attached decision. The Respondent filed exceptions
and a supporting brief. The General Counsel filed exceptions and a
supporting brief. Both the Respondent and the General Counsel filed
answering briefs.
The Board has delegated its authority in this proceeding to a three-
member panel.
2 All dates are in 1990, unless otherwise indicated.
3 The Respondent and the General Counsel have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule and administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
4 We agree with the judge that Wallace Hamburg did not act as
a statutory supervisor or as the Respondent’s agent when he spoke
to Quitman mill employees about rumors of an antiunion mill clos-
ing. We do not rely on the judge’s alternative rationale that Ham-
burg’s remark was not unlawfully coercive even if he acted as a su-
pervisor or agent.
5 We shall delete from the judge’s recommended remedy provi-
sions requiring that the Respondent bargain with the Union if it de-
cides to reopen the Melvin mill. The judge found only that the Re-
spondent violated Sec. 8(a)(5) by refusing to bargain over the deci-
sion to lay off employees. There was no allegation or finding that
the Respondent unlawfully refused to bargain with the Union over
the decision to close the Melvin mill indefinitely, and the judge dis-
missed the allegation that the plant closing was unlawfully moti-
vated. If the Respondent in the future decides to reopen the mill, the
circumstances at that time will determine whether it has a duty to
bargain with the Union. See Sterling Processing Corp., 291 NLRB
208 (1988); and Morton Development Corp., 299 NLRB 649 (1990).
6 We shall modify the judge’s recommended remedial provisions
to include references to this violation. We note that the General
Counsel does not allege that the October 19 layoff violated Sec.
8(a)(5).
7 This case does not, therefore, present the kind of decisional bar-
gaining issue addressed in First National Maintenance Corp. v.
NLRB, 452 U.S. 666 (1981), and in Dubuque Packing Co., 303
NLRB 386 (1991). Indeed, the Respondent does not refer to this
precedent in its brief in support of exceptions.
Hankins Lumber Company, Inc. and International
Woodworkers of America, U.S., AFL–CIO.
Cases 15–CA–11281, 15–CA–11394, 15–CA–
11523, and 15–RC–7533
March 27, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
This case presents several unfair labor practice
issues involving employees at the Respondent’s
Quitman, Mississippi, and Melvin, Alabama lumber
mills.1 The judge has found, inter alia, that the Re-
spondent: (1) did not threaten Quitman employees or
grant them a wage increase in order to undermine the
Union’s organizing campaign; (2) did not threaten
Melvin employees in speeches by its president; (3) vio-
lated Section 8(a)(5) and (3) of the Act by temporarily
laying off Melvin employees on October 22 and No-
vember 1, 1990;2 (4) violated Section 8(a)(5), but not
Section 8(a)(3), by permanently laying off Melvin em-
ployees on November 5; and (5) did not violate elec-
tion 8(a)(3) by closing the Melvin plant on December
22. The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions,4 except as modified below, and to adopt the
recommended Order as modified.5
1. As indicated, the judge found that the Respondent
unlawfully discriminated against prounion Melvin mill
employees by temporary layoffs on October 22 and on
November 1. He also found that the Respondent tem-
porarily laid off employees on October 19 for the same
purpose of retaliating against those who voted for the
Union in a Board election held on that day. He de-
clined, however, to find that this layoff was an unfair
labor practice. The judge reasoned that the General
Counsel did not refer to October 19 in the complaint
allegations of unlawful layoffs and, further, that the
General Counsel disclaimed any intent to litigate
whether the October layoff was a discriminatory
change in an established past practice of assigning
cleanup work to avoid layoffs during brief work inter-
ruptions.
The General Counsel’s exceptions do not allege an
unlawful change of past practice. The General Counsel
contends, however, that the judge erred by failing to
find that the October 19 layoff was unlawful for the
same reasons that the two succeeding temporary lay-
offs were unlawful. We agree.
Although the General Counsel disclaimed a ‘‘change
of past practice’’ theory, he did assert, at the hearing,
that the temporary layoffs, including the October 19
layoffs, were unlawful. The complaint’s allegation of
unlawful layoffs on October 22 and November 1 gave
the Respondent sufficient notice of a factual time
frame reasonably encompassing October 19. Further-
more, the first temporary layoff is closely related to
and raises the same issues as the two subsequent tem-
porary layoffs. These issues were fully litigated as to
all three layoffs. As set forth in the judge’s decision,
the Respondent designed each temporary layoff to af-
fect a disproportionate number of identifiable prounion
employees. Accordingly, we find that the Respondent
violated Section 8(a)(3) and (1) by laying off employ-
ees on October 19.6
2. We agree with the judge that the Respondent vio-
lated Section 8(a)(5) of the Act by failing to bargain
with the Union about the decision to lay off numerous
Melvin mill employees permanently on November 5
due to a log shortage. We also note the narrow basis
on which the Respondent defends its conduct. The Re-
spondent has admitted in its answer that the layoff was
a mandatory subject of bargaining.7 It contends, how-
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The Respondent also contends that the Union waived its right to
bargain about the layoff decision. For the reasons set forth in the
judge’s decision, we find no merit in this contention.
9 Farina Corp., 310 NLRB 318, 321 (1993).
10 In this regard among others, this case is distinguishable from
Brooks-Scanlon, Inc., 246 NLRB 476, (1979), on which the Re-
spondent relies.
11 We note that the Respondent’s exceptions do not independently
challenge the propriety of the judge’s recommended remedy for the
violation found.
12 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
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.’’
ever, that compelling economic considerations excused
it from bargaining.8 The Respondent refers to its
chronic difficulties in procuring logs for the Melvin
mill.
The Board has observed that
Most layoffs are taken as a of result economic
considerations. However, business necessity is not
the equivalent of compelling considerations which
excuse bargaining. Were that the case, a respond-
ent faced with a gloomy economic outlook could
take any unilateral action it wished or violate any
of the terms of a contract which it had signed
simply because it was being squeezed financially.9
Accordingly, the Board recognizes as ‘‘compelling
economic considerations’’ only those extraordinary
events which are ‘‘an unforeseen occurrence, having a
major economic effect [requiring] the company to take
immediate action.’’ Angelica Healthcare Services, 284
NLRB 844, 852–853 (1987).
The Respondent’s log shortage does not fall within
this narrow exception to the general duty to bargain.
This shortage had been a continuous problem for
months prior to the permanent layoff. The Respondent
has failed to prove any precipitate worsening of this
situation that required immediate action prior to bar-
gaining with the newly certified Union. Indeed, at least
initially, the Respondent signaled its willingness to
bargain in advance about the permanent layoff deci-
sion.10 A November 2 letter notified the Union of the
intent to implement a layoff of approximately 30 em-
ployees. The letter further stated that ‘‘[u]nless we
hear from you immediately, this decision will go into
effect in seven days or less.’’ The Respondent did not
wait a sufficient amount a time, however, for the
Union to respond. The permanent layoffs actually
began on the same day that the Union received the let-
ter.
Based on the foregoing, we find that the Respondent
has failed to prove its defense of compelling economic
circumstances which would justify a failure to bargain
about the November 5 layoff decision. Accordingly,
we adopt the judge’s conclusion that the Respondent
violated Section 8(a)(5) of the Act by failing to bar-
gain with the Union about this decision.11
ORDER
The National Labor Relations Board orders that the
Respondent, Hankins Lumber Company, Inc., Quitman,
Mississippi, and Melvin, Alabama, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge because
of their support for a union.
(b) Laying off or otherwise discriminating against
any employee for supporting the International Wood-
workers of America, U.S., AFL–CIO or any other
union.
(c) Unilaterally laying off employees without first
notifying their exclusive collective-bargaining rep-
resentative and affording it a reasonable opportunity to
bargain about the layoff decision and its effects on em-
ployees.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request by the Union, bargain in good faith
with it, as the certified exclusive bargaining representa-
tive of an appropriate unit of Melvin mill employees,
about the decision and effects of the permanent layoffs
initiated on November 5, 1990, at the Melvin mill.
(b) Make whole, with interest, in the manner set
forth in the remedy section of the judge’s decision, all
Melvin mill employees for losses suffered as a result
of temporary layoffs initiated on October 19, October
22, and November 1, 1990, and of permanent layoffs
initiated on November, 5, 1990.
(c) Remove from its files any reference to the dis-
criminatory layoffs of Melvin mill employees and no-
tify the affected employees in writing that this has
been done and that the layoffs will not be used against
them in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Mail copies of the attached notice marked ‘‘Ap-
pendix’’12 to all employees on the Melvin, Alabama
payroll as of October 19, 1990, to their last known
mailing address. Copies of this notice shall be on
forms provided by the Regional Director for Region
15.
839HANKINS LUMBER CO.
(f) Post at its mill in Quitman, Mississippi, copies
of the attached notice to employees. Copies of the no-
tice, on forms provided by the Regional Director for
Region 15, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that
1. The complaints in Cases 15–CA–11281 and 15–
CA–11523 are dismissed in their entirety.
2. The Union’s objections in Case 15–RC–7533 are
overruled and that case is severed and remanded to the
Regional Director for Region 15, who shall, within 14
days of this Decision and Order, open and count the
ballots cast by Dennis Cochran, Daniel Norris, and Er-
nest Manning. The Regional Director shall thereafter
prepare and serve on the parties a revised tally of bal-
lots and issue the appropriate certification.
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten to fire you because of your
union activities.
WE WILL NOT lay you off or otherwise discriminate
against any of you for supporting the International
Woodworkers of America, U.S., AFL–CIO or any
other Union.
WE WILL NOT unilaterally lay off employees without
first notifying their exclusive collective-bargaining rep-
resentative and affording it a reasonable opportunity to
bargain about the layoff decision and its effects on em-
ployees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request by the Union, bargain in good
faith with it, as the certified exclusive bargaining rep-
resentative of an appropriate unit of Melvin mill em-
ployees, about the decision and effects of the perma-
nent layoffs which we initiated on November 5, 1990
at the Melvin mill.
WE WILL make whole, with interest, all Melvin mill
employees for losses suffered as a result of temporary
layoffs initiated on October 19, October 22, and No-
vember 1, 1990, and of permanent layoffs initiated on
November 5, 1990.
WE WILL remove from our files any reference to the
discriminatory temporary layoffs of Melvin mill em-
ployees and WE WILL notify the affected employees
that this has been done and that the layoffs will not
be used against them in any way.
HANKINS LUMBER COMPANY, INC.
Constance Traylor, Esq., for the General Counsel.
Michael S. Mitchell, Esq. and Gregory A. McConnell, Esq.,
of New Orleans, Louisiana, and Charles W. Reynolds, Esq.
(not on brief) (McGlinchey, Stafford, Cellini & Lang), of
Little Rock, Arkansas, for the Respondent.
James P. O’Connor, Esq. (Youngdahl, Trotter, McGowan,
O’Connor & Farris), of Little Rock, Arkansas, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. The prin-
cipal issue here is whether Hankins Lumber Company (HLC,
Company, or Respondent) closed its sawmill in Melvin, Ala-
bama, on December 22, 1990, for economic reasons, as it as-
serts, or because the Union won the October 19, 1990 elec-
tion, as the Union charges and the Government alleges. Cred-
iting Owner Burton Hankins and HLC’s witnesses on this
issue, I dismiss that allegation.
Although I dismiss the plant closing allegation, plus most
others, I find that certain layoffs were discriminatory and that
HLC must pay backpay to all Melvin employees for the uni-
lateral layoffs of October 22 and November 1 and 5, 1990.
In the Quitman, Mississippi representation case I find no
merit either to the Union’s objections or to its pending chal-
lenges to the ballots of three voters there. I recommend that
the Board adopt these findings and direct the Regional Direc-
tor to open the three ballots, prepare and serve a revised tally
of ballots, and issue the appropriate certification.
I presided at this 17-day trial in Laurel, Mississippi, begin-
ning January 27, 1992, and concluding May 22, 1992. The
Government’s trial pleading consists of separate complaints
for each of the three unfair labor practice cases. Issues from
the representation case are embodied in the Regional Direc-
tor’s April 24, 1991 report on challenged ballots and objec-
tions. By a third order consolidating cases, dated July 31,
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 References to the 17-volume transcript of testimony are by vol-
ume and page. Exhibits are designated GCX for the General Coun-
sel’s, CPX for the Charging Union’s, and RX for those of Respond-
ent HLC.
2 All dates are for 1990 unless otherwise indicated.
1991, the Acting Regional Director consolidated the three
complaint cases with the representation case for hearing.
The first charge, docketed as Case 15–CA–11281, was
filed by the Union (International Woodworkers of America,
U.S., AFL–CIO) on July 11, 1990, and served the following
day, against Hankins Lumber Company, Inc. The General
Counsel, by the Regional Director, issued the Government’s
complaint in the case on January 24, 1991. This complaint
pertains to HLC’s facility in Quitman, Mississippi.
The Union’s second charge, filed against the Company on
November 8, 1990, in Case 15–CA–11394, pertains to Re-
spondent’s Melvin, Alabama facility. The General Counsel’s
complaint, dated December 31, 1990, actually issued before
the complaint in the first case.
Complaint number three, dated July 31, 1991, is based on
the Union’s charge filed against HLC on May 8, 1991, in
Case 15–CA–11523. As with the second charge, this case
also pertains to Company’s facility in Melvin, Alabama.
Turn now to the Quitman, Mississippi facility with the
representation case and the Regional Director’s April 24,
1991 report on challenged ballots and objections in Case 15–
RC–7533. That report addresses objections by both HLC and
the Union. The Regional Director overruled HLC’s objec-
tions, the Company apparently did not request review, and its
objections have passed from the case. Thus, the representa-
tion case presents issues raised by the challenged ballots and
the Union’s objections. Although the ballots of eight employ-
ees were challenged by the Union at the Quitman election,
only four are before me for resolution.
Quitman is about 24 miles south of Meridian in the east
by southeast sector of Mississippi. Just across the Alabama
line, some 20 miles to Quitman’s southeast, lies Melvin.
HLC operates, or did during the relevant time, sawmills at
Quitman and Melvin. Joy Lynn Smith, the Union’s organizer
in this case, testified that she began the Union’s organizing
campaign at Quitman about April 25, 1990. (7:1784.)1 The
Union filed its election petition for Quitman on May 72 and
the election was conducted on June 15 where, of approxi-
mately 110 eligible voters, 51 cast ‘‘Yes’’ ballots for the
Union, 50 employees voted no, and 8 had their ballots chal-
lenged. The challenged ballots are sufficient in number to af-
fect the election’s results. (GCX 1s.) The Regional Director
has resolved four of the challenges, and only four were pre-
sented here. Of those four, the parties have agreed (1:221–
223) that the ballot of Wallace Hamburg should not be
opened. That leaves three to be resolved here.
As to Quitman, the complaint alleges that HLC violated
Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), between
May 7 and June 12 by interrogating employees, threatening
them with stricter enforcement of work rules and discharge
if they voted in the Union, and creating the impression of
surveillance of their union activities. The complaint also al-
leges that HLC violated 29 U.S.C. § 158(a)(3) and (1) about
May 1990 by granting employees a pay increase in order to
dissuade them from supporting the Union. Other than admit-
ting the fact of the pay raise, HLC denies the allegations. For
the most part, the Union’s objections mirror the complaint al-
legations.
Two of those whose ballots were challenged are Paul Sims
and Bruce Young, timber buyers (timber ‘‘cruisers’’ or pro-
curement foresters). Timber buyers work away from the saw-
mill much of the time. The three challenges preserved for de-
cision here respect the ballots of log scalers Dennis Cochran
and Daniel Norris and maintenance purchasing clerk Ernest
Manning. Log scalers work in the sawmill’s yard and scale
house measuring arriving logs for their volume of lumber.
The Petitioner, the Union, would exclude the scalers and
Manning as lacking a community of interest with the unit
Employees, whereas HLC, the Employer, would include
them as sharing a community of interest with the unit em-
ployees. The stipulated bargaining unit, quoted at footnote 2
of the Regional Director’s April 24, 1991 Report (GCX 1s)
on challenged ballots and objections, reads:
All production and maintenance employees employed
by Hankins Lumber Company, Inc. at its facility lo-
cated in Quitman, Mississippi; excluding office clerical
employees, guards, watchmen, professional employees,
and supervisors as defined in the Act.
Moving on to Melvin, Smith began the Union’s organizing
there about August 6. (7:1786.) Johnnie Stephens, Melvin’s
plant manager, testified that around that same date the fact
of the organizing was reported to him. He informed Hankins.
(9:2357; 10:2383–2385.) The Union filed its election petition
sometime in late August, the date not being clearly estab-
lished in the record. In her opening statement, the General
Counsel’s attorney represented that the Melvin petition was
filed on August 27. (1:18.) Smith testimonially referred to
the ‘‘last of August, about August 23.’’ (7:1788.) The parties
stipulated that the Melvin election was held October 19, in
Case 15–RC–7554, from 10 a.m. to 12 noon. (2:462, 565.)
The Melvin unit, in October, consisted of some 60 unit em-
ployees. (11:2750; GCX 6.) The tally of ballots is not dis-
closed.
The Union won at Melvin, for the pleadings establish that
the Union was certified on October 29 and, since October 19
(denied, but later I so find), has been the exclusive bargain-
ing representative of the unit employees there. The Melvin
unit is described as:
All production and maintenance employees employed
by Hankins Lumber Company, Inc. at its Melvin, Ala-
bama facility; excluding all office clerical employees,
professional employees, guards, and supervisors as de-
fined in the Act.
There are two Melvin complaints (Cases 15–CA–11394
and 15–CA–11523). The first alleges that Respondent vio-
lated 29 U.S.C. § 158(a)(1) about August 29 by a threat of
discharge, and about October 4 and 10 (in speeches, as we
shall see, by HLC’s president, A. Burton Hankins) by threat-
ening (1) plant closure and (2) loss of benefits if the employ-
ees voted in the Union. Layoffs about October 22 and No-
vember 1 at Melvin violate 29 U.S.C. § 158(a)(3) and (5) the
complaint alleges. The second Melvin complaint alleges that
about December 24 HLC violated 29 U.S.C. § 158(a)(3) by
closing its Melvin facility and terminating its employees
there. Admitting the fact of the layoffs and plant closing,
HLC denies violating the statute.
841HANKINS LUMBER CO.
3 HLC’s unopposed motion of August 31, 1992, for leave to file
a 16-page reply brief is granted, and I have considered that August
31 reply brief. Fruehauf Corp., 274 NLRB 403, JD fn. 2 (1985).
At trial I granted (5:1382), over objection, the General
Counsel’s motion (5:1366–1367) to amend the Quitman com-
plaint (Case 15–CA–11281) and the second Melvin com-
plaint (Case 15–CA–11523) to allege that Wallace ‘‘Bud’’
Hamburg was a statutory supervisor at the Quitman sawmill
during the relevant time. At the same time I granted, over
objection (5:1376), the General Counsel’s motion (5:1369) to
amend the second Melvin complaint to add an allegation that
in the fall of 1990 Hamburg told employees at Quitman that
one of HLC’s facilities would be closed if its employees se-
lected the Union as their bargaining representative. (HLC,
Br. at 170, understandably treats this as an amendment to the
Quitman complaint.) I granted that motion and the Hamburg
threat allegation was added to the second Melvin complaint
as paragraph 11. (5:1382.)
HLC also objected (5:1377) that it could not keep track of
all the allegations because of the absence of a consolidated
complaint, and it moved for a continuance on two grounds.
First, lack of due process and needing time to investigate. As
we were about to adjourn the hearing for some weeks, I re-
jected that ground.
Second, HLC moved (5:1384) that the trial should be con-
tinued until the General Counsel’s Regional Office issued a
consolidated complaint. Although sympathetic to the motion,
I denied it on the basis, advanced by the General Counsel,
that we were not far from the Government’s resting and there
had been so many references to the individual complaints
that a consolidated complaint, desirable though it would have
been earlier, might then confuse matters. (5:1385–1386.)
When the Government (initially) rested its case-in-chief, the
General Counsel withdrew an allegation of October 16 inter-
rogation at Melvin. (7:1911–1913.) (Because of certain out-
standing items, the General Counsel did not finally rest the
Government’s case-in-chief until 10:2523.)
HLC’s answer admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
At the beginning of the last week of trial, the Union’s at-
torney announced that he would be unable to participate fur-
ther in the case, and he then departed. (13:3070–3074.) Joy
Lynn Smith, the Union’s organizer, thereafter entered her ap-
pearance as the Union’s representative at the hearing.
(13:3288, 3303.) The Union did not file a brief.
By unopposed motion dated July 16, 1992, HLC moves to
correct some of the numerous errors in the transcript of testi-
mony. I grant that unopposed motion, but I note that 15:3826
should list line 11 rather than 17. Moreover, I correct
1:168:20 from ‘‘Judge Linton’’ to ‘‘Mr. Reynolds’’ and
1:208:21 from ‘‘Ms. Traylor’’ to ‘‘Ms. Smith.’’ At 6:1438:11
the name apparently should be ‘‘James Evans’’ rather than
‘‘Jay Miven [phonetic].’’ The context clarifies most other er-
rors.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and HLC,3 I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
HLC, a Mississippi corporation, produces and sells lumber
at nonretail. During the 12 months ending December 31,
1990 HLC sold and shipped from its Quitman facility goods
and materials valued at $50,000 or more direct to points out-
side Mississippi. HLC admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of 29
U.S.C. § 152(2), (6), and (7).
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. HLC’s Business
Burton Hankins is president and CEO (chief executive of-
ficer) of HLC. (8:1988.) It appears that Hankins either owns
or controls a majority of HLC’s stock. (16:3885, 3972).
Hankins and his older brother, who died in 1971 (16:3883),
began the business in 1955 when they bought a planer mill
in Winona, Mississippi. (16:3879.) In 1957 they started
building a sawmill at Grenada, Mississippi. (16:3881, 3998.)
HLC purchased sawmills at Melvin, Alabama, in April 1984,
Quitman, Mississippi, in April 1985, and, in 1986, at Sturgis,
Mississippi. (16:3884, 3999.) HLC treats these mills as its
five divisions, Robert Lewis Smith testified. (8:1980, 1987.)
A certified public accountant, Smith is HLC’s comptroller,
secretary, and chief financial officer (CFO). (8:1980, 2077–
2078). HLC’s headquarters are located at the Grenada facil-
ity, and Hankins and Smith have their offices in the same
building there. (9:2292; 16:4012, 4114.) Unlike HLC’s four
other mills which buy timber and logs, saw them, and plane
them into finished lumber, Winona buys no logs and remains
a planer mill only. (9:2252.)
As the 1991 official Mississippi highway map reflects,
Grenada is 113 miles north of Jackson on IH 55. Winona is
21 miles or so south of Grenada, and Sturgis is situated just
above the Tombigbee National Forest about 60 miles south-
east of Winona. These three mills, therefore, are in the cen-
tral north to central northeast sector of Mississippi. Quitman,
as earlier noted, is about 24 miles south of IH 20 in the east
by southeast sector, with Melvin being in Alabama some 20
miles southeast of Quitman. W. L. Brown Jr. has been
Quitman’s plant manager from its 1985 purchase by HLC.
(14:3440). From Melvin’s 1984 acquisition until its Decem-
ber 1990 closing, and even several weeks beyond, Johnnie
Lee Stephens was its plant manager. (9:2336–2337; 10:2576–
2578.)
HLC manufactures Southern Yellow Pine (SYP) lumber.
(16:3874). Hankins testified that the SYP market is now di-
vided into three markets, with everything west of Mississippi
being the western zone, Alabama and Mississippi being in
the central, and all east of Alabama being the eastern zone
for SYP. (16:3907.)
HLC sells and ships its finished lumber to markets on the
east coast, in the midwest, the south, and wherever it can.
(16:3875, 4028–4029.) Transportation costs are an important
business factor, and it costs substantially less to transport
lumber by rail than by truck. (8:1992–1995; 9:2163, 2357.)
Actually, HLC sells nearly all of its lumber (and 99 percent
of that from Quitman and Melvin) through its wholly owned
subsidiary, Hankins Lumber Sales. (16:3874, 4027–4028;
CPX 20 nos. 8 and 9.)
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Unless I show them, I drop the cents from all figures.
5 Asked why he robs banks, Sutton replied, ‘‘Because that’s where
the money is.’’ 11 The New Encyclopaedia Britannica, 421 (1990).
The evidence discloses that U.S. softwood producers, such
as HLC, have been caught in a cost-price squeeze since
about mid-1987, with the purchase price of logs (timber) in-
creasing while the sales price of lumber has dropped. A
graph in evidence (RX 39) illustrates this gap. By the spring
of 1990 the gap had expanded to the point, Hankins testified,
that it was almost impossible to make a profit. (16:3973,
4102.) HLC’s pretax profit data (RX 12) for its four saw-
mills reflect a decline in pretax profits for 1990 from 1989.
(Winona, the planer mill, enjoyed an increase.)
Melvin suffered a 1989 loss of $51,627,4 but that would
have been cause for celebration in light of its 1990 loss of
$757,051. As we see in a moment, Melvin’s drastic 1990
loss is largely attributable, in Hankins’ opinion, to human
error rather than to market forces. In addition to Melvin’s
drastic loss, Quitman’s 1990 profit plummeted nearly 72 per-
cent from the 1989 mark. Sturgis made a profit in 1989, but
a substantial loss in 1990 dropped it well into the loss col-
umn for that year. Grenada remained profitable, but its 1990
profit fell nearly 58 percent from its 1989 level.
At Melvin 1990 loss figures appear for every month ex-
cept March, April, and August. (HLC’s fiscal year is the cal-
endar year except that it ends with the last full week in De-
cember. 9:2183.) What caused Melvin’s enormous 1990
losses? Rivaling the simplicity of Willie Sutton’s famous an-
swer to the question of why does he rob banks,5 CFO
Smith’s surface response is that the losses developed ‘‘be-
cause the expenses were more than income.’’ (8:1991.)
Aside from surface simplicity, the evidence discloses that
97 percent of Melvin’s 1990 loss resulted from what is called
‘‘tract losses.’’ (CPX 33; 9:2227–2228; 11:2965). Hankins
attributed the tract losses, or much of them, to ‘‘overcruis-
ing’’ by Melvin’s timber buyer, Gary Graham. (16:3954–
3955, 4119). In a private meeting at Melvin in about April
or May, Hankins told Graham (13:3140–3141, 3235, 3266;
16:3955, 4044–4045) that the tracts had to ‘‘cut out,’’ mean-
ing (13:3141; RX 22 at 21) that the lumber volume estimated
at purchase of the standing timber had to equal that which
the scaler measures (estimates) when the logs reach the yard.
As Melvin’s losses continued to mount, Hankins held an-
other meeting with Graham, this one about August at
Quitman. Graham concluded from the meeting that he no
longer had a future at HLC, and some 3 weeks later he left
HLC to work for Sumter Timber Company in Alabama.
(13:3144-3147, 3245-3248, 3259; 16:3957-3959, 4052-4055.)
The parties stipulated that Graham left the week ending Sep-
tember 15. (CPX 20 no. 4.) Aubrey Cannon succeeded
Graham on October 8. (14:3362; CPX 20 no. 5.)
Reference to Melvin’s tract losses requires a brief descrip-
tion of the timber buyer’s work. The timber buyer (also tim-
ber cruiser or forester) ‘‘cruises’’—estimates—standing tim-
ber on tracts of land. Based on a figure set by management,
the buyer, in competition with buyers from other firms, sub-
mits a bid (frequently bids are sealed) to the landowner for
the timber. The buyer’s ‘‘cruise’’ is an estimate, mostly by
eyeball and based on experience and training, of the volume
of lumber that can be produced from the timber standing on
that tract of land.
If the buyer’s bid is the winner the timber is cut and, as
logs, hauled to the mill (lumber mill, sawmill) where the logs
are ‘‘scaled’’ (or weighed in some instances). The logs are
then sawn in the sawmill portion of the mill and finished in
the planer mill (a section of the mill) from which they
emerge as finished lumber.
Scaling, most agree, is or should be more accurate than
cruising. Scalers use calibrated sticks to measure the timber
(‘‘stems’’) brought to the mill as logs. Nevertheless, scaling
involves judgment and experience and, to some extent, is
itself an estimate. If the board feet of the cruiser’s estimate
equals (or exceeds) that measured by the scaler, after all of
the tract has been cut, then the buyer’s cruise is said to have
‘‘cut out.’’ ‘‘Overcruising’’ means that the buyer’s estimate
exceeds the board feet of lumber measured by the scaler.
Undercruising, of course, is the opposite. HLC bases its fi-
nancial records and bids on the measurements made by the
scalers.
When the buyer’s cruise of lumber that can be produced
from the standing timber fails to ‘‘cut out’’ (that is, when the
scaler’s measuring estimate is less than the cruiser’s estimate
for a given tract), the result is a ‘‘tract loss.’’ Because the
terms describe only the relationship between two estimates,
tract losses are not themselves accounting losses. That is,
tract losses are not an item on the balance sheet or profit-
and-loss statement. They however can reflect actual financial
losses and, in the record, tract losses at times are described
as actual losses. In those instances, presumably, the tract
losses resulted in actual losses of those amounts.
Although specific tracts are not tracked through the mill,
HLC (and that part of the industry using the Doyle scale
method) uses the term ‘‘overrun’’ to describe the relationship
between the total volume that is scaled at the mill and the
total which emerges from the mill as finished lumber. (1:68,
73–75; 8:2014–2015; 16:3933–3934.) This overrun factor, as
it is described in the testimony and exhibits (RXs 13, 38),
is a percentage expressed as a number. The overrun factor
apparently incorporates whatever miscuts or other errors
occur in the sawmill and planing mill process.
(Although HLC apparently makes no effort to track timber
from the various tracts through the mill into finished lumber
so that the sawn lumber can be measured and compared to
both the cruiser’s estimate and the scaler’s measure, Bruce
Young, who cruised for HLC at Quitman for the last 2 years
before leaving about late June 1990 (1:27, 227), described a
tracking procedure another company (Long Leaf) experi-
mented with in which the stem butts were painted colors.
When the logs came out the mill as finished lumber, the
lumber with the painted ends could be counted, measured,
and compared to what had been scaled. So far as he knew,
Young testified, HLC made no such effort to track the logs
and compare with the volume scaled. (1:147–148, 169, 241–
243; 2:388).)
All agree that it is desirable, even necessary, that the
cruise result in producing more lumber (an overrun) than the
buyer estimates is actually contained in the standing timber.
A higher overrun means more profit because the mill is
being more efficient. Hankins testified that a good overrun
figure is 70 percent or greater. (16:3934.) That is, a tract
cruised/scaled at, to illustrate in simple terms, 1000 board
843HANKINS LUMBER CO.
feet but resulting in sawn lumber of 1700 board feet pro-
duces an overrun figure of 70 percent (700 divided by 1000).
(16:3933–3934.)
As stated, the higher a mill’s efficiency the higher its prof-
it. One advantage a mill with higher profit enjoys is the abil-
ity to purchase logs (timber) when a less efficient mill cannot
afford to pay the prevailing price. (12:3028.) Thus, in a mar-
ket of increasing log costs and low sales prices for finished
lumber, a good overrun figure, or high mill efficiency, is
critical. Of HLC’s four sawmills, a chart (RX 13) in evi-
dence reflects, Melvin had the lowest overrun factor. The
1990 percentages, substantially the same as for 1989, were
(RX 13):
Grenada 96
Sturgis 79
Quitman 79
Melvin 60
By letter (GCX 4) dated October 24, 1990, Hankins noti-
fied (4:932–933; 11:2746; 16:4087) all unit employees at
Melvin as follows:
Hankins Lumber Company, Inc. (Melvin Division)
located at County Road 14, Melvin, Alabama, will dis-
continue all manufacturing operations at its lumber mill
on or about December 24, 1990, unless market condi-
tions improve, as reflected by the mill profit and loss
statement for the months of October and November,
1990. This action, if taken, is expected to be permanent
and, as a result, all employees will be separated from
employment on December 24th. Some plant upkeep po-
sitions will remain.
Employees have no contractual right to priority of
employment nor bumping rights at any other lumber
mill operated by Hankins Lumber Company, Inc.
We wish you the best of luck in the future.
The following day, October 25, Hankins sent a letter
(GCX 5) to Joy Lynn Smith advising the Union that HLC
recognized the Union and naming Company’s attorney to be
contacted for contract negotiations. That is followed by the
concluding paragraph reading:
You should be aware, however, that unless market
conditions improve, as reflected by the mill profit and
loss statement for the months of October and November
1990, Hankins Lumber Company will discontinue man-
ufacturing operations at its Melvin, Alabama plant on
or about December 24, 1990. As such, we suggest that
negotiations focus on the decision and the effects of the
decision to discontinue manufacturing operations.
Also on October 25 Hankins, as president of HLC, sent a
letter (GCX 6) to the Union ‘‘in accordance with our obliga-
tions under the Warren Act.’’ (That is, WARN, the statu-
torily required 60-day notice before a plant closing. 29
U.S.C. § 2101 et seq.) Aside from repeating most of the no-
tice given by the October 24 letter to employees, this letter
lists all 66 persons, by job classification and name (including
the plant manager) employed at the plant, as the employees
affected. This notice advises that affected employees will be
separated ‘‘on or before’’ the date that operations are discon-
tinued.
After the October 19 election at Melvin, certain layoffs
and work shortages did occur. In consultation with CFO
Smith on December 8, Hankins decided to close the Melvin
mill on December 24, 1990. (8:2942, 2081; 9:2326; 16:3971,
4069–4071). By letter (GCX 11) dated December 13, HLC’s
attorney notified the Union, in part:
Hankins Lumber Company has now had an oppor-
tunity to examine market conditions, and to project the
likelihood of profitable operations at its Melvin mill,
and concluded that it must in fact discontinue oper-
ations. The Company will attend the bargaining session
scheduled for 10:00 a.m., December 19, 1990, at the
Western Inn in Waynesboro, Mississippi, prepared to
discuss the effects of its decision to discontinue oper-
ations.
Johnnie Stephens, then Melvin’s plant manager, testified
that the Melvin mill ceased operating the week ending Satur-
day, December 22. (9:2366; 10:2494.) The parties stipulated
that a handful of employees remained employed at Melvin
(CPX 20 no. 13.) They are there to provide fire watch as re-
quired by HLC’s fire insurance carrier. (16:4023–4024.)
Company has not offered the Melvin mill for sale (16:4112),
and correspondence (GCXs 16, 17) in evidence indicates that
in 1992 HLC removed some of the equipment from that mill.
I turn now to summarize the evidence. Following the chro-
nology of events, I begin with the Quitman complaint (Case
15–CA–11281) and then address the two Melvin complaints
(Cases 15–CA–11394 and 15–CA–11523).
B. Quitman—Case 15–CA–11281
1. Allegations of 8(a)(1) coercion
a. Joey McCarra
The complaint alleges that about May 7 HLC, acting
through Joey McCarra, ‘‘created an impression among its
employees that their union activities were under surveillance
by Respondent.’’ The Company denies.
Richard McCree worked relief at Quitman for about 6
years (he was working there when HLC acquired the mill)
until he was fired about mid-1991. His supervisor was Joey
McCarra, the planing mill foreman. (7:1858–1859, 1874;
13:3282, 3285, 3296, 3299.) McCree testified that about May
1, around midmorning, McCarra summoned him to his office
where, with just the two of them present behind the closed
door, McCarra said he had heard that McCree was serving
cake and coffee for a union meeting at his home. The re-
freshments were not for any union meeting, but for a base-
ball match, McCree answered. McCarra then said he had
heard that McCree and Charles Barnett had brought in the
Union. ‘‘No,’’ McCree replied. So far as McCree describes,
the conversation ended and McCree returned to work.
(7:1861–1863, 1873.)
McCarra testified that he first learned of union activity at
Quitman about May 5 when W. L. Brown, the plant man-
ager, asked him if he knew about a union leaflet being cir-
culated. (13:3279–3280, 3292.) About 3 to 4 weeks later,
McCarra acknowledges, McCree came to his office concern-
ing the union topic. (13:3282, 3297). The morning McCree
came to his office, McCarra testified, several employees that
morning already had told McCarra that McCree had been
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
serving refreshments for a union meeting at his home.
(13:3293–3299.)
Later that morning McCree came to McCarra’s office and
told McCarra that he had heard rumors that he, McCree, was
serving refreshments at union meetings being held at his
home. McCree said he wanted McCarra to know that he had
not been serving refreshments. McCarra laughed. McCree
then returned to work. McCarra testified that he laughed be-
cause McCree’s concern was to correct the rumors about his
having served refreshments rather than to address the matter
of his hosting a union meeting. (13:3283–3284, 3298, 3305.)
Charles Barnett, McCarra explains, is a former employee of
McCarra’s who was terminated (apparently after the office
conversation with McCree) for failing to report to work one
Saturday. McCarra denies saying he had heard that McCree
and Barnett were the ones who had brought in the Union.
(13:3284, 3299.)
McCarra was a credible witness; McCree was not. Credit-
ing McCarra’s version of the conversation, I shall dismiss the
allegation that McCarra created the impression of surveil-
lance.
b. Stanley N. Majure
(1) Allegations
Two complaint allegations attack statements attributed to
Majure. The first alleges that about May 15 and June 12
Majure threatened employees ‘‘with more strict enforcement
of work rules if they selected the Union as their bargaining
representative.’’ About the second week of May, according
to the second allegation, Majure threatened employees ‘‘with
discharge if they supported the Union.’’ On brief the General
Counsel moves to have an unalleged statement attributed to
Majure be declared an unlawful threat of plant closure, or at
least be considered as evidence of union animus. (Br. at 31.)
(2) Threat of stricter enforcement
(a) Carl Brown
During May, Quitman employees Carl Brown, Charles E.
Gates, and Willie Matthews were among seven or eight em-
ployees who worked on the drive chain. Their supervisor was
Stanley N. Majure. HLC fired Gates and Matthews about
May 15 or 16; their discharges are not among the issues in
this case.
About June 6, Carl Brown testified (5:1271, 1313–1315),
Majure told Brown and several of his dry chain employees,
as a group, that he would have to tighten his enforcement
of the work rules, that this applied to everyone, and that this
had come from the ‘‘boss man,’’ a reference Brown under-
stood to be Plant Manager W. L. Brown. Majure said that
the two employees who had been fired did have an ‘‘effect
on everybody around here.’’ (Brown was aware of only
Gates and Matthews having been fired recently.) ‘‘Things are
going to have to change,’’ Brown (in a pretrial affidavit
which he testimonially confirms as accurate) quotes Majure.
‘‘We are going to have to tighten down on the rules,’’
Majure said. Majure did not mention the Union in his re-
marks to the group. Of the group of some six employees
present, only Carl Brown testified. (5:1271–1272, 1313–
1315.) Although Brown recalls that earlier (how much earlier
is not specified) he and Majure had discussed the union mat-
ter, no details are given and no connection with Majure’s
later statement to the group is shown.
At trial Majure, who in February 1991 left HLC for an-
other company (15:3591), does not address this incident. I
find nothing unlawful in Majure’s June 6 remarks to the
group.
(b) Charles E. Gates
The last day Gates worked was Wednesday, May 16, ap-
parently the effective date of his discharge. (6:1571, 1575.)
The day before, Tuesday, according to Gates, Majure ap-
proached him at his work station. Gates had arrived late for
work that Tuesday. Majure told Gates that if the Union were
there Majure would have had to ‘‘write up’’ Gates, and that
Majure was going to ‘‘stiffen down on the rules.’’ Gates said
he understood that Gates was just doing his job. (6:1558–
1559.) After Majure spoke with him, Gates observed Majure
go speak to Willie Matthews. (6:1560–1561.) Majure denies
ever speaking with Gates about tightening the work rules.
(15:3598.) Majure believes Gates and Willie Matthews hold
grudges against him (and, by implication, lied) because he
fired both of them about mid-May. (15:3598–3599.)
(c) Willie Matthews
According to Matthews, Majure came and told him that if
a union were voted in that he would have to tighten down
on the workers. (7:1698.) Matthews asserts that Majure stat-
ed that the ‘‘boss man’’ (whom Matthews identifies as W. L.
Brown) told him he would have to do this because of the
Union. Matthews observed Majure move on and speak to
others on the dry chain. (7:1698–1700.) Matthews dates the
event as about the second week of May, about 2 weeks be-
fore his discharge. (7:1696–1697, 1721.)
Matthews concedes that he had been late for work the day
before, and that Majure said the stricter enforcement would
apply to everyone, including supervisors, ‘‘anyway.’’
(7:1706–1707.) The ‘‘anyway’’ can be interpreted as ‘‘for
sure’’ or as ‘‘regardless.’’ Matthews states that he also was
late the day Majure spoke to him, although that appears to
be a garbled rendition of the account in his pretrial affidavit.
(7:1715–1716, 1726.) Matthews confirms the accuracy of his
pretrial version that Majure said he was going to tighten
down because of the Union, and that it would be that way
‘‘if we get a union.’’ (7:1715–1716.) In his pretrial statement
Matthews expresses the belief that Gates and his other fellow
workers heard Majure’s remarks. (7:1726.)
Majure denies having the conversation with Matthews.
(15:3598.) Finding Majure credible and Gates and Matthews
not credible, I shall dismiss the complaint allegation respect-
ing stricter rules enforcement.
(3) Threat of discharge
Majure was Carl Brown’s supervisor even before HLC
purchased the Quitman mill. (5:1308–1309.) On direct exam-
ination, Brown testified that about 1 p.m. in May or June
Majure came to where he was working at the drive chain and
told him to think about it before joining the Union because
he owed that to himself and to his family to learn the facts
before making a decision. Saying he was 100 percent against
the Union, Majure observed that he and Brown had worked
together for a long time, that he would hate to lose Brown,
845HANKINS LUMBER CO.
but he would ‘‘put someone else in my place.’’ Majure then
left and Brown resumed working. (5:1270–1271.)
Brown concedes on cross-examination that, respecting the
‘‘someone else in your place’’ conversation, Majure had said
that if the Union came in and the employees went on strike,
that Brown would be replaced. (5:1310.) On redirect exam-
ination Brown recalled two conversations, and further re-
called that Majure made the strike replacement statement
while they were on a trip in a dump truck, that no strike ref-
erence was made in the conversation at the dry chain.
(5:1320–1321.)
Majure testified (15:3594) that the dump truck conversa-
tion, about the second week in May, was the only conversa-
tion he had with Brown about the Union. In the dump truck
conversation, Majure testified, he said he wanted Brown to
be aware of some facts because Brown had been with him
a long time. Majure mentioned that contract negotiations
could yield less than what a union demanded, that a strike
could result, that HLC intended to operate during any strike,
and that HLC would hire from the outside to keep the plant
running. (15:3595–3596, 3628–3630.)
Even if Carl Brown’s amended version (two conversa-
tions) were credited, I would find no violation because the
‘‘hate to lose’’ and ‘‘put someone in your place’’ are ambig-
uous and at least as consistent with replacement of an eco-
nomic striker as with discharge because of union activities.
In any event, I credit Majure rather than Brown, and
Majure’s account describes lawful comment. Accordingly, I
shall dismiss the allegation of a threat of discharge at
Quitman.
(4) Unalleged threat of plant closure
Carl Brown testified that he learned about the Melvin
Mill’s closing from fellow employees who, the day after the
closing, were discussing that event. (5:1275–1276.) One
afternoon thereafter, but still within the last few days of De-
cember 1990, Supervisor Majure approached Brown near the
stacker. No other employees were nearby. With no prelimi-
nary remarks, Majure said to Brown, ‘‘If the Union went in
at Melvin, that they was going to close it down anyway.’’
Brown did not respond. (5:1275.) Presumably Majure walked
away after making this lone statement. During cross-exam-
ination, HLC did not ask Brown about this incident. Majure
denies making the statement. (15:3596.)
The General Counsel urges that Majure’s denial not be
credited, and contends that his remark should be found viola-
tive of the Act even though it is not alleged in the complaint
and although no motion was make at the trial to amend the
complaint to allege it. Citing Action Auto Stores, 298 NLRB
875 fn. 2 (1990), the General Counsel advances the follow-
ing reasons to demonstrate that the evidence should be con-
sidered. First, at the close of the hearing the General Counsel
moved to conform the pleadings to the proof, which motion
the Administrative Law Judge denied. (17:4149–4151.) Sec-
ond, Majure’s statement is related to other violations alleged.
Third, the matter was fully litigated. Finally, the General
Counsel urges that, in any event, Majure’s statement should
be considered ‘‘as evidence of union animus.’’
The General Counsel’s motion to conform (to which HLC
objected, 17:4149) is designed to address matters which are
not substantive. Thus, the statutory General Counsel’s guide-
lines provide, NLRB Casehandling Manual (Part One) Mo-
tion to Conform Section 10388.3 (June 1989):
At the end of the hearing, the trial attorney should
make a motion to conform the pleadings to the proof.
Pressed for explanation or meeting with resistance, the
trial attorney should note that the purpose is to dispose
of minor and immaterial variances that might appear in
the record, such as names, dates, and minor details.
He/She should also keep in mind that this is the only
effect—if substantive correction is necessary, it will not
be accomplished by this motion.
At the hearing the General Counsel, in making her motion
to conform, began on the basis that the motion addressed
only minor variances, not matters of substance. She pro-
gressed from there and concluded with a motion which pos-
sibly could encompass substantive matters. (17:4150–4151.)
As I suggested at the trial in denying the motion, the Federal
Rules of Civil Procedure 15(b), provide that unobjected-to
variances between allegations and evidence are waived be-
cause they are deemed as tried by implied consent.
(17:4151.) Wright, Miller, and Kane, 6A Federal Practice
and Procedure § 1493 at 18 (2d 1990). Implied consent how-
ever ‘‘seems to depend on whether the parties recognized
that an issue not presented by the pleadings entered the case
at trial. [Citation omitted.] If they do not, there is no consent
and the amendment cannot be allowed.’’ Id. at 19–20.
And where the opponent has objected to introduction of
evidence on a new issue, the movant cannot seek to amend
the pleadings ‘‘to conform to the evidence on the ground that
the party impliedly consented to the trial of that issue.’’
Wright, Miller, and Kane, id. at 31.
‘‘Furthermore, when the evidence that is claimed to
show that an issue was tried by consent is relevant to
an issue already in the case, as well as to the one that
is the subject matter of the amendment, and there was
no indication at trial that the party who introduced the
evidence was seeking to raise a new issue, the plead-
ings will not be deemed amended under the first por-
tion of Rule 15(b.) [Citations omitted.] The reasoning
behind this view is sound since if evidence is intro-
duced to support basic issues that already have been
pleaded, the opposing party may not be conscious of its
relevance to issues not raised by the pleadings unless
that fact is made clear.
Id. at 32–35, citations omitted, but see Burdett v. Miller, 957
F.2d 1375, 1380 (7th Cir. 1992); Yellow Freight System v.
Martin, 954 F.2d 353, 358–359 (1992).
Was the issue fully litigated, that is, tried by implied con-
sent? When the General Counsel began questioning Carl
Brown on the incident, HLC objected. I observed that the
General Counsel also had listed ‘‘Complaint Number 3, para-
graph 7’’ among items to be covered by the witness.
(5:1274.) That referred to the allegation that the closure of
Melvin violated Section 8(a)(3). Of course, I should have
asked the General Counsel to describe the relevance. Even
so, by failing to correct my reference to the Melvin closure
allegation, the General Counsel in effect allowed everyone to
believe that the incident was being offered to support the clo-
sure allegation. That is, in line with the General Counsel’s
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fallback position on brief, the incident should be considered
‘‘as evidence of union animus.’’
Although Majure briefly addressed the topic, to deny it,
that brief coverage is consistent with treatment accorded
background evidence, here evidence of union animus, as dis-
tinguished from a possibly fuller response to an alleged inde-
pendent violation.
In light of the General Counsel’s silence at trial in the face
of HLC’s objection, and my pointing to the Melvin closure
allegation, I find that HLC was not given fair notice that the
Government would seek anything more than to have this in-
cident considered as evidence of union animus. Finding that
the matter was not tried by implied consent, I therefore deny
the General Counsel’s posthearing motion (‘‘position,’’ Br. at
31) that a violation be found if Brown is credited. If Brown
is credited, the incident would constitute evidence of union
animus, but nothing more. I turn now to the incident.
Carl Brown’s description of such an abrupt remark by
Majure casts the comment in a light uncommon to experi-
ence with most conversations. There is no evidence that
Majure usually clipped his conversations in this fashion.
Moreover, the remark Carl Brown attributes to Majure is am-
biguous. Does the ‘‘anyway’’ impart the lawful meaning that
HLC had intended to close Melvin regardless of whether the
Union won the October election? Or should the remark be
interpreted as an unlawful threat that HLC had intended all
along to close Melvin if the Union won the election, but to
keep it open if the Union lost? Either possibility seems to
be a reasonable interpretation, although the ‘‘regardless’’
possibility appears less burdened than the alternate option.
Because the attributed statement is ambiguous and, of two
possible interpretations, more likely to convey a lawful
meaning, I shall not consider the statement as evidence of
union animus by HLC even were I to credit Carl Brown.
Moreover, as Majure is not shown to have any connection
with HLC’s decisions respecting Melvin, a mill where he did
not work, any comment by him about HLC’s intent respect-
ing Melvin seems to be nothing stronger than mere specula-
tion on his part. In any event, crediting Majure in his denial,
I find that the late December 1990 incident described by Carl
Brown did not occur.
c. Billy Brown
The complaint alleges that HLC, through Billy Brown, un-
lawfully interrogated employees about June 12. (Recall that
the election was conducted on June 15.) HLC denies. I shall
dismiss.
Billy Brown (listed as W. L. Brown III on the payroll,
GCX 12 at 9) testified with far more clarity, accuracy, and
specific recall than did Daniel Means, the Government’s sup-
porting witness for this allegation. Brown was by far the
more credible witness. I therefore very briefly summarize the
evidence on this matter. Daniel Means, who worked for
Brown, claims that Brown approached him one morning be-
fore the election, he believes it was in June, and after asking
a work-related question, began asking Means how each of
three other employees felt about the Union (Means did not
know), concluding by asking Means how he felt about the
Union (Means saw the pros and cons.) (2:589–591; 4:1102.)
As part of the objections evidence, Means said he had
been suspended for 3 days on June 19, after the election, for
being a minute tardy (4:1105, 1114–1115, 1149–1150), and
that it had come as a surprise because he frequently was
tardy. Even so, Means concedes that only 2 weeks earlier
Brown ‘‘had told us’’ to be on time. (4:1109.) According to
Means, the first time Brown told him to start arriving at
work punctually was the week of June 4. (4:1129, 1150.) In-
deed, in his testimonially confirmed pretrial affidavit of July
11 (4:1113), Means proclaims (4:1150) that he previously
had never been given a written warning for tardiness. As late
as the trial he thought he had never received one. (4:1130.)
In fact he had received one (RX 5) for not showing up for
work one Saturday in May. At trial Means identified his sig-
nature acknowledging receipt of the written warning.
(4:1130.)
Brown testified that he orally warned Means on May 8
that the next tardiness would result in a written reprimand.
Brown completed a documentation sheet (RX 31) concerning
the matter. (14:3553–3555.) When Means skipped Saturday,
May 12, Brown progressed to a written warning and told
Means that the next occasion would result in a layoff. (RX
5: 14:3556–3557.) That next occasion came on June 19, and
Brown suspended Means for 3 days. (RX 32; 14:3558–3559.)
The complaint does not allege any of these disciplinary ac-
tions to be a violation of the Act.
Turning now to the conversation which Means describes,
I note that Brown places it in May, about 3 to 4 weeks be-
fore the election. Denying that he asked how any of the
named employees, including Means, was going to vote,
Brown asserts that he followed a set procedure by informing
Means that if Means had any questions concerning the
Union, or HLC’s stand on the Union, that Means should feel
free to ask Brown and Brown would do his best to answer
the questions. (14:3544-3548, 3567.) Crediting Supervisor
Brown over Daniel Means, I shall dismiss the interrogation
allegation.
d. Wallace A. ‘‘Bud’’ Hamburg
(1) Allegation
As I described earlier, trial amendments added Hamburg
to the litigation. First, he was added to the list of supervisors
in both the Quitman complaint, Case 15–CA–11281, and the
second Melvin complaint, Case 15–CA–11523. (5:1366–
1367, 1382.) Second, he was added to the second Melvin
complaint (the third complaint in the series), as paragraph
11, as having stated to Quitman employees, in the fall of
1990, that ‘‘one of Respondent’s facilities would be closed
if employees at that facility selected the Union as their exclu-
sive collective bargaining representative.’’ (5:1370, 1382.)
Respondent denies both the supervisory status and the threat
allegation. (5:1386.) Sam Moss Jr. testified in support of the
threat allegation (and also respecting the supervisory status
of Hamburg.) Hamburg, who left HLC in early 1992, did not
testify.
(2) Closure threat
Sam Moss Jr. worked at the Quitman mill for several
years. He was employed there when HLC acquired the mill
in 1985. Moss operated the lumber sorter. (6:1477.) He in-
jured his leg at work on July 27 and was off work until Sep-
tember 17. Moss then worked until November 15, but be-
cause of various medical problems he has not returned to
work. (6:1476–1477, 1510, 1523–1524.)
847HANKINS LUMBER CO.
About mid-October, Moss testified, as Moss and fellow
employee Alvin Patton were discussing the possibility that
the Melvin mill would close, Hamburg came by and re-
marked to them that he had heard ‘‘rumors’’ that W. L.
Brown had said that if the Union won the Melvin election
the Melvin mill would close. (6:1519.) (On further question-
ing by the Government, Moss modified his testimony to re-
move ‘‘rumors’’ from his quote of Hamburg, so as to quote
Hamburg as saying he had ‘‘heard.’’ 6:1520.) Neither Moss
nor Patton replied and Hamburg proceeded to the sorter com-
puter room. (6:1520.) Patton did not testify, nor did Hamburg
who, as I mentioned earlier, no longer works for HLC. Thus,
Moss’ assertion is uncontradicted.
If Hamburg was a statutory supervisor in October 1990
then his statement (for whatever weight it is worth) is attrib-
utable to HLC. Respondent denies that Hamburg was a statu-
tory supervisor. Before addressing the supervisor issue, I
note that HLC complains (Br. at 170–171) that the General
Counsel abused the Government’s power by ‘‘unwisely’’
amending the complaint to add the Hamburg allegations of
supervisor and threat. Because of these unwise amendments,
HLC observes, the record has been unnecessarily increased
by ‘‘numberless pages of the transcript and hours of hearing
time were devoted to analyzing Hamburg’s status. Several
pages of this brief are unnecessarily dedicated to discussing
a rumor between employees at the mill.’’ In essence, HLC
protests that the amendments caused a big increase in the
volume of the record without adding any weight to the Gov-
ernment’s case. Thus, does Hamburg’s remark about rumors,
even if violative of the Act, assist in proving the Govern-
ment’s contention that HLC unlawfully closed the Melvin
mill? The General Counsel describes that as the purpose of
the amendments. (5:1369; Br. at 31.)
(3) Supervisor status
Until late June 1990 Jeff Colston (stipulated to be a statu-
tory supervisor, 6:1474) was in charge of the sorter area as
well as the sawmill department. Moss testified that Colston
assigned Wallace ‘‘Bud’’ Hamburg to look after the sorter
area by informing the employees that Hamburg would be the
‘‘leadman’’ there and to go to him with any sorter problems.
(6:1481–1482, 1535.) About 1988 Colston, who visited the
sorter area for only about 15 minutes once a week, told the
sorter crew that Hamburg was in charge of the sorter and if
they had problems or needed to take time off from work to
see Hamburg. (6:1488-1490.) Moss understood that Ham-
burg’s classification title was ‘‘leadman/maintenance me-
chanic.’’ (6:1536.)
In late June 1990 supervision of the sorter area passed
from Colston to Billy Brown. (6:1515, 1543; 14:3507.) (Billy
Brown’s estimate of late 1989 to early 1990 appears to be
incorrect. 14:3562.) Brown called the eight or so sorter em-
ployees together and informed them that henceforth he would
be responsible for the area and that they should come to him
with any problems. (14:3565–3567.) According to Moss,
Brown said that he was taking over the sorter. ‘‘Bud
wouldn’t be over the sorter no more.’’ (6:1543–1544.) Moss
either clips the ‘‘Brown said’’ from his testimony or supplies
his own conclusion of what Brown meant, and this is so not-
withstanding he repeats his clipped answer to the question of
what Brown said. Denying any reference to Hamburg, Brown
asserts that he told the group he was taking over supervision
of the sorter from Jeff Colston, that everyone would ‘‘answer
to me,’’ and if they had any problems they needed to come
see him. (14:3565.) Brown testified that he had considered
Hamburg a maintenance employee, not a leadman. (14:3573.)
If Hamburg, who quit HLC’s employment in early 1992
(14:3573), was not a leadman, then Billy Brown was spread
rather thin because his areas of supervision included 40 to
45 employees. (14:3541–3542, 3566.) Billy Brown’s father,
Quitman Plant Manager W. L. Brown Jr. (14:3502, 3541),
testified however that although Hamburg was classified as
maintenance (14:3454; RX 24), he was one of several em-
ployees at the Quitman mill who had the authority of a
leadperson. (14:3455.) Hamburg, W. L. Brown testified,
functioned as a leadman for the sorter crew. (14:3509.) Dur-
ing the relevant time W. L. Brown had four supervisors re-
porting to him: Billy Brown, Jeff Colston, Stan Majure, and
Joey McCarra. When Majure left, Brown saw no need to ap-
point a successor and he since has supervised the area him-
self. (14:3450, 3502–3503.)
The evidence indicates that, during Colston’s tenure as su-
pervisor of the sorter crew, Hamburg may have effectively
recommended the discharge of a total of three employees
during 1988–1989. Thus, after disputes with the employees,
Hamburg pulled their timecards, went to Colston, and the af-
fected employee never returned to work.
Billy Brown acknowledges that he made no changes in
Hamburg’s work duties (14:3565, 3574), but denies aware-
ness of any instructions Colston gave Hamburg regarding his
duties or responsibilities. (14:3574.) W. L. Brown, who had
been the Quitman plant manager under the predecessor, Tim-
ber Realization Company, before HLC acquired the mill in
1985 (14:3440), testified that Hamburg had been a supervisor
for Timber Realization (TRC, herein) but had quit and, when
later hired by HLC, he was hired as a maintenance person,
not as a supervisor, and his status never changed thereafter
except that he did serve as one of several lead persons at the
mill. (14:3453–3455, 3509.)
Hamburg’s principal duties entailed setting and operating
the computer which ran the sorter, and repairing and main-
taining the sorter and related equipment. Clearly Hamburg
was a skilled employee, and he was paid substantially more
than employees on the sorter crew. Moss testified that Ham-
burg spent a lot of time walking around the area and visiting
other departments, and, at least on one occasion, sleeping in
the scale house. (6:1503.) Billy Brown does not address the
question of Hamburg’s walking around and visiting other
areas, or sleeping, and neither Colston (still employed) nor
Hamburg (no longer with HLC) testified. Unlike Colston’s
15 minutes a week in the sorter area, however, in 1990 Billy
Brown was there about 2 hours a day. (14:3574.) Thus, the
change of supervision from Colston to Billy Brown resulted
in a major change respecting the attending presence of the
sorter crew’s supervisor and by the fact that now all prob-
lems were to be taken direct to Billy Brown.
(4) Discussion
It seems clear that even assuming Wallace Hamburg was
a statutory supervisor before June 1990, beginning in late
June 1990 with Billy Brown’s assignment as supervisor of
the sorter crew, Hamburg lost whatever statutory authority he
had enjoyed under Jeff Colston. Before June 1990 incidents
occurred which could support a finding of supervisory status.
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Billy Brown’s late June 1990 announcement of supervisory
change, plus his own attendance in the area for 2 hours a
day, his instruction that henceforth crewmembers were to
bring any problems to him, and the lack of evidence showing
that after Billy Brown took over that Hamburg still exercised
discretionary matters such as pulling timecards, lead to the
finding, which I make, that beginning in late June 1990 Wal-
lace ‘‘Bud’’ Hamburg no longer possessed any authority of
a statutory supervisor, even assuming that he had held such
authority before June 1990.
Resolution of the supervisor question does not end the in-
quiry. Was Hamburg a statutory agent in October 1990?
Could the employees reasonably believe that he delivered
messages from management? Under Colston Hamburg dis-
tributed paychecks, and he presumably continued to do so
under Billy Brown. But even if he passed on messages from
management, or from Billy Brown, Hamburg’s October state-
ment was not couched as a message from management, but
as a repeat of gossip, or ‘‘rumors’’ of a purported remark by
W. L. Brown. Thus, even if employees could reasonably
have viewed Hamburg as an agent for conveying messages
from management, the October remark does not purport to
be a message from management. Accordingly, I find that
Hamburg’s October remark is not attributable to HLC.
But even if it were determined that Wallace Hamburg was
a statutory supervisor or agent and that his October repetition
of rumors to Moss and Patton (Patton did not testify) that
W. L. Brown had said thus and so, it is clear that the viola-
tion, if such, was by HLC through Hamburg—not HLC
through W. L. Brown. First, Moss does not contend he is di-
rectly quoting the plant manager. He quotes ‘‘rumors’’; gos-
sip; what he ‘‘heard’’ had been attributed to W. L. Brown.
Any violation, therefore, is only by force of Hamburg’s re-
peating the gossip, and not because the gossip purports to
name the plant manager as the source. Thus, any impact of
the gossip has to be weighed on the scale of a barely thresh-
old supervisor, not on the scale of a plant manager. On either
scale, and particularly the scale for Hamburg, I would find
that the remark, admittedly quoting rumors, would not rea-
sonably be coercive to employees. On every basis, therefore,
I shall dismiss paragraph 11 added at trial to the third com-
plaint, Case 15–CA–11523.
2. Allegation of 8(a)(3) discrimination
a. Allegation that wage increase unlawful
Paragraph 10 of the Quitman complaint (Case 15–CA–
11281) alleges that about May 1990 HLC granted employees
a wage increase because (par. 11) the employees were sup-
porting the Union and for the purpose of dissuading them
from that support. By granting this wage increase, paragraph
13 alleges, HLC violated Section 8(a)(3) and, derivatively,
8(a)(1) of the Act. Thus, we are concerned here with HLC’s
motive in granting the wage increase.
b. Facts and discussion
There is no dispute that at all of HLC’s mills discretionary
pay increases were made effective on various dates in April
1990. At two mills, Grenada and Sturgis, April 15 was the
effective date. For Melvin and Winona the effective date was
April 22. Quitman was last at April 29. (RX 17.) The evi-
dence shows that HLC’s weekly pay periods begin Sunday
morning, run through the following Saturday, and that the
paychecks are distributed on the following Friday, 6 days
later. The pay raise made effective at Quitman on Sunday
April 29 was therefore in the paychecks distributed 13 days
later on Friday May 11, 1990. (12:3016–3023; 14:3496.)
What creates an issue respecting Quitman is that, as I
noted in the statement of the case, the Union began its orga-
nizing at Quitman about April 25. HLC learned of the orga-
nizing when Supervisor Billy Brown, on Thursday May 3,
turned over to W. L. Brown a union flyer which Billy
Brown had discovered that morning. (14:3497, 3522, 3561.)
No copy of the flyer is in evidence, and its contents are
not described. W. L. Brown’s testimony indicates however
that he understood the flyer and Bill Brown’s report to mean
that the Union was attempting to organize Quitman’s em-
ployees. Under Board law, the General Counsel establishes
a prima facie violation of the Act by showing that a discre-
tionary pay increase occurred, as here, early in a union orga-
nizing campaign. The burden of rebuttal then shifts to the
employer to show that its purpose in granting the discre-
tionary pay increase was not to dissuade its employees from
joining or supporting the union. Elston Electronics, 292
NLRB 510 fn. 2, 525–526 (1989). I find that HLC has car-
ried its burden.
As the record reflects, W. L. Brown tentatively set a pay
raise amount for each Quitman employee about April 4 or
5 (14:3488, 3490–3492), and he reached a firm figure after
consulting with his line supervisors about mid-April.
(14:3493.) About April 17 or 19 (a Thursday) Burton
Hankins approved the pay increases except (for reasons not
fully explained in the record) as to Billy Brown. (14:3521;
16:3991–3992.) On April 19 W. L. Brown entered those fig-
ures by each employee’s name on his copy of the payroll
register, except of course for Billy Brown. (14:3495.)
Plant Manager Brown, however, held up implementing the
pay raises until an increase could be set for Billy Brown.
(14:3521.) Two Saturdays later, on April 28, Hankins and
W. L. Brown agreed on the amount of Billy Brown’s pay
raise, and the following day, April 29—4 days before W. L.
Brown learned of the Union’s organizing campaign—the pay
raises went into effect. (14:3519–3521.) As the pay increase
decision was made and implemented before HLC learned of
the Union’s organizing activity at Quitman, I shall dismiss
complaint paragraphs 10 and 11, the wage increase allega-
tions.
C. Quitman—Case 15–RC–7533
1. Challenged ballots
a. Introduction
Earlier in my statement of the case I noted that only three
of the challenged ballots are preserved here for resolution:
Dennis O. Cochran, Daniel Norris, and Ernest Manning. As
reflected in the Regional Director’s April 24, 1991 report
(GCX 1s at 11), the Union challenged the ballots of these
three on the basis they were not in the appropriate unit.
Although the Union also challenged Wallace ‘‘Bud’’ Ham-
burg’s ballot on the basis that he is a supervisor (GCX 1s
at 11), at the hearing the parties agreed that HLC would not
contest the Union’s challenge to Hamburg’s ballot and that
his ballot would not be opened and counted. At the same
849HANKINS LUMBER CO.
time HLC made clear that it was not agreeing that Hamburg
in fact was a statutory supervisor. (1:221–223; 5:1355, 1380.)
I find that HLC has withdrawn its contest of the Union’s
challenge to the ballot of Wallace Hamburg. Thus, I find that
the parties resolved the challenged ballot of Wallace Ham-
burg by agreeing that his ballot would not be opened and
counted.
Dennis Cochran and Daniel Norris are log scalers at
Quitman, and Ernest Manning is the maintenance purchasing
clerk there. The Union has not filed a brief. The Union’s
challenge appears to be on the basis that Manning does not
share a community of interest with unit employees. Contrary
to the challenges, I find that the three employees share a
community of interest with the employees of the bargaining
unit.
b. The log scalers
The nature of the log scalers’ work already has been de-
scribed to some extent. They are the beginning of the pro-
duction process at the sawmill. When trucks loaded with logs
arrive, the scalers weigh the trucks and prepare a scale ticket.
After a lift operator, operating a LeTourneau machine (a
heavy duty lift), then unloads the logs the truck is weighed
again without the logs and another scale ticket is prepared.
With HLC logs only the first load or two from a new tract
is scaled, followed by every fifth load thereafter, but all logs
of independents are scaled. All logs are weighed. After the
logs are weighed and unloaded they are spread out on the
yard (by the LeTourneau operator) where the scaler measures
their volume when they are to be scaled. Scalers use a meas-
uring stick (for length) and calipers (to measure diameter) to
calculate the volume of wood in the logs. They also deter-
mine the quality of the logs based on specifications and
guidelines. The scaler takes the scaled ticket to the office
where an office clerical employee completes it (apparently
for accounting and payment, 15:3698, 3733). A lift operator
either stacks the logs in log runs or moves the logs directly
to the sawmill.
The scale house and the yard are the principal work areas
for the log scalers. Log scalers report to work at 6 a.m., the
same as other employees, but work to 6 p.m., beyond the
4:30 p.m. quitting time for others. Scalers may even may
work longer hours if a truck arrives close to the usual 6 p.m.
quitting time. (Recall that boiler firemen work staggered
shifts.) The parties stipulated that Cochran and Norris (and
Manning as well) receive the same vacation, pension, and
other benefits as unit employees. (7:1899.) In June 1990
Cochran and Norris each was paid $7.25 per hour, a rate
placing them among the higher paid unit employees. (RX 27,
GCX 12, CPX 49.)
Norris and Cochran are, and were in May–June 1990, su-
pervised by the plant manager, W. L. Brown. Hourly paid,
they both punch timeclocks used by unit employees. Both
learned log scaling by on-the-job training. Actually, in May–
June Cochran had been pulled off full-time log scaling in
order to operate the LeTourneau machine. The LeTourneau
can lift at one time all the logs from a truck. Around the
election Cochran only helped part time at log scaling. When
log scaling was slow during the preelection period, both Nor-
ris and Cochran helped perform other unit work in various
areas or departments of the mill.
Finding that the log scalers, and particularly Dennis Coch-
ran and Daniel Norris, share a community of interest with
unit employees, I shall recommend that the Board overrule
the Union’s challenges to the ballots of Cochran and Norris
and direct that their ballots be opened and counted and that
a revised tally of ballots be issued.
c. Ernest Manning
Hired June 30, 1986, as a lumber grader, Ernest Manning
has worked as the maintenance purchasing clerk since March
1987. (15:3752, 3777.) During the weeks leading up to the
election Manning worked under Billy Brown’s supervision.
(15:3649, 3753, 3773, 3780.) Manning was earning $6.75 per
hour in early June. (15:3764; CPX 49 at 2.) Manning
punches a sawmill timeclock used by 80 to 90 other employ-
ees. (15:3765–3766.)
Manning’s primary job duties are to order machine parts
and supplies such as bearings, nuts, and bolts, stock and
issue the inventory, and maintain the parts warehouse. The
supply and parts warehouse has an office in the front of the
building. That office is divided by a wall with a window. Su-
pervisor Billy Brown has one of the offices and Manning the
other. Manning spends about 30 to 50 percent of his day at
his office telephone ordering parts and supplies. Brown now
must approve any purchase over $300, but because of a busi-
ness slump in May–June 1990 Brown had to approve every
purchase. 13:3656, 3759–3761, 3781. Brown testified that
even a maintenance employee may order parts costing no
more than $300, as can Carl Brown, a unit truckdriver.
(15:3677–3678.) Most of what Manning orders costs less
than $300. (15:3787.)
During about 50 percent of his day Manning stocks and
issues parts and supplies. This includes, Carl Brown reports,
issuing hand soap. (6:1426.) For the remaining 20 percent or
so of his time Manning performs ‘‘hands on’’ maintenance
such as assisting on a lift or helping in the shop. In fact,
Manning sustained a serious hand injury about late 1988
while helping the mechanics replace the pivot bearings on
one of the large lifts. (15:3766–3767.) Carl Brown confirms
that Manning assists with the maintenance work. (6:1435.)
Supervisor Brown distributes paychecks to his crew, and in
Brown’s absence Manning performs that duty and any other
routine matters Brown assigns to him. Brown supervised
about 45 employees at the time. (14:3541–3542, 3566–3567.)
Brown testified that, in Brown’s absence, Manning does not
assume all his duties, and another supervisor would assume
Brown’s supervisory role. (15:3668, 3679–3680.)
Manning also runs errands in a company vehicle. The ve-
hicle is available to others for company business, and Man-
ning does not drive it to and from work. As Carl Brown tes-
tified (5:1404–1405), and Manning confirms (15:3775), Man-
ning, the three mechanics, supervisors, and perhaps one or
two others, carry two-way radios, or ‘‘walkie talkies.’’ Su-
pervisor Brown explains that Manning’s duties carry him
over all the facility when he is not in the warehouse.
(15:3671.) The Quitman mill consists of several buildings,
and an employee can walk several hundred yards from a
building at one end to a building at the opposite end. In any
event, the walkie talkies did not arrive until after the elec-
tion. (15:3784.)
Because Ernest Manning’s duties have him working in
several clearly unit capacities (warehouse, supply clerk, and
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
maintenance helper), I find that he shares a community of in-
terest with unit employees. Accordingly, I shall recommend
that the Board overrule the challenge to Manning’s ballot and
direct that his ballot be opened and counted and a revised
tally of ballots issued.
2. Objections
a. Introduction
The Union filed nine numbered objections to the election.
As reflected in the Regional Director’s April 24, 1991 report
(GCX 1s at 9–10), the Union withdrew Objections 3, 4, 7,
8, 9, and the first part of 6, leaving allegations in Objection
6 that HLC (1) surveilled union meetings and (2) attempted
to ascertain the identity of leading union adherents. The Re-
gional Director found no merit to the surveillance allegation
and recommended (GCX 1s at 10) that the Board overrule
it. The Regional Director however also found evidence that
Supervisor Joey McCarra ‘‘created an impression of surveil-
lance of employees’’’ union activities, and evidence that the
Employer unlawfully attempted to identify the leading union
adherents. Noting that these contentions (the impression of
surveillance matter and the third item from Objection 6, at-
tempting to ascertain identity of union supporters) parallel al-
legations in the Quitman complaint, Case 15–CA–11281, he
referred these contentions to this proceeding along with Ob-
jections 1, 2, and 5.
b. Objection 1
Objection 1 alleges that during the critical period HLC
‘‘threatened certain employees with retaliation and/or loss of
their jobs if or after union was voted in.’’ (GCX 1s.) The
‘‘critical period’’ for objections is that time from the filing
of the petition to the date of the election. Fruehauf Corp.,
274 NLRB 403, 404 fn. 3 (1985.)
As far as I can determine in the absence of a brief from
the Union, the Union relies on evidence pertaining to Wal-
lace Hamburg and W. L. Brown.
Recall that the Wallace Hamburg incident is the subject of
a trial amendment to the complaint. The allegation is that
Wallace Hamburg, allegedly a supervisor, told employees in
mid-October 1990 that W. L. Brown, Quitman’s plant man-
ager, had said that if the Union won the Melvin election then
the Melvin plant would close. The Union apparently intended
that evidence adduced on this incident support its objections
as well as the trial amendment to the complaint. (5:1356–
1360.) As the incident occurred, if it did, outside the critical
period, however it would not be objectionable. Accordingly,
I find that any such conduct by Hamburg, even assuming he
was an agent of HLC at the time, would not support Objec-
tion 1.
That brings us to Quitman’s plant manager, W. L. Brown
Jr. As there are no complaint allegations naming Brown, and
therefore no unfair labor practice evidence naming him di-
rectly (other than the supposed indirect naming by Ham-
burg), the Union adduced evidence respecting two speeches
which Brown delivered. Brown identified written texts as his
two speeches. The first he delivered on May 18 (RX 30;
14:3530) and the second on May 25. (RX 29; 14:3528.) The
Union’s objection is supported by the testimony of employee
Carl Brown and former employees Charles Gates, Willie
Matthews, and Richard McCree.
Carl Brown and the three former employees testified, to
one extent or another (with many of the questions leading),
that Plant Manager Brown said he was 100 percent against
the Union and that if the Union won the election the employ-
ees would lose benefits and their jobs and HLC would hire
other employees to replace them.
Carl Brown admitted, however, that W. L. Brown said
that ‘‘if we went on strike he would replace us.’’ (5:1337,
1345.) Gates expanded his statement to assert that in the first
speech Brown said that a union victory may cause employees
‘‘to lose their jobs or fire or something’’ (6:1588); that he
would do all he could to keep the Union out even ‘‘if that
means having to fire somebody.’’ (6:1616.) Gates concedes
however that his pretrial affidavit, given on June 5, only a
few days later, contains nothing about Brown’s saying any-
thing about firing employees. (6:1616–1617, 1625–1630.)
Matthews testified that Brown said employees could lose
their jobs and everything they had (7:1736, 1757), but on
cross examination admits that Brown, in that connection,
could have stated (7:1757-1758):
What I am telling you today is that you don’t need
to run the risk of losing everything in a strike or losing
what you have now in good faith bargaining. [A line
from RX 30 at 14.]
Convoluted testimony given by McCree, eventually involv-
ing his quoting from his pretrial affidavit, reflects that Brown
told employees he could hire new employees (7:1883) and
(7:1887, 1905) that HLC ‘‘would do anything they had to do
to keep the Union out, even if it meant hiring all new people
because the mill would still run.’’ McCree concedes that
Brown also said, as shown by McCree’s pretrial affidavit,
that if the Union came in and called a strike ‘‘then we could
be replaced.’’ (7:1901, 1904.)
Plant Manager W. L. Brown testified that he read the 14-
page May 18 speech (RX 3) verbatim (14:3752, 3535, 3537),
except that he did depart at one point to describe a personal
experience involving the Union at another plant. (14:3535–
3536.) Brown denies saying anything about firing employees.
(14:3534.) The written text of the May 18 speech describes
the collective-bargaining process: the Union can bargain
away currently enjoyed paid holidays and benefits (RX 30 at
4, 7, 8, 14), and if a strike is called HLC lawfully may hire
employees to replace the strikers. (RX 30 at 9, 12-13.)
Finding nothing objectionable either in the written text of
Brown’s first speech, and crediting W. L. Brown over the
Union’s witnesses, I find that the Union’s evidence respect-
ing the first speech fails to support its Objection 1.
Brown’s second speech actually was 1-1/2 pages of com-
ments (RX 29) which he delivered at a company cookout on
May 25 (14:3529), the Friday before the Memorial holiday,
at the planer mill. (14:3528.) Brown testified that he read it
verbatim, adding nothing. (14:3529, 3537.) As to this speech
the Union’s evidence apparently consists of Carl Brown’s
testimony that W. L. Brown, at the planer mill cookout
speech (5:1348; 6:1422), said he would terminate anyone
who criticized the Company ‘‘Vote No’’ hats and shirts
(5:1347) or that ‘‘action would be taken’’ against them.
(6:1421.) Brown denies. (14:3530.)
On cross-examination Carl Brown concedes that Brown
(no relation) could have used the word ‘‘harassed’’ rather
than ‘‘criticized.’’ (6:1422.) With counsel then reading
851HANKINS LUMBER CO.
Brown’s closing paragraph from his May 25 remarks (RX 29
at 2), Carl Brown admits this is what he was referring to in
his testimony (6:1422–1423):
Everyone has a right to not wear a cap and shirt just
like as everyone has a right to wear a cap and shirt. I
have heard that some of you have been harassed be-
cause you were wearing the caps and shirts. I heard that
one person said he was afraid that if he wore them he
would be knocked in the head. I will not tolerate threats
or harassment on either side. I want you to understand
that—for or against.
Finding no evidence that W. L. Brown said anything ob-
jectionable in his May 25 remarks, and having found nothing
objectionable in Plant Manager W. L. Brown’s first speech
on May 18, I shall recommend that the Board overrule the
Union’s Objection 1 respecting threats.
c. Objection 2
In its Objection 2 the Union alleges that during the critical
period HLC (1) gave wage increases to its employees, (2)
gave some employees different increases, and (3) promised
other employees additional wages or benefits to vote against
the Union and/ or assist in keeping the Union out.
Part one of the objection parallels complaint paragraph 10,
an allegation I earlier dismissed. Part two makes no sense,
but possibly was intended to allege discrimination against
union supporters. No evidence was presented on part two or
part three. Indeed, I found that HLC did not learn until May
3 of the Union’s organizing, and that the decision to imple-
ment the raises predated that decision. I shall recommend
that the Board overrule Objection 2.
d. Objection 5
Objection 5 alleges that during the critical period HLC
‘‘promulgated a rule and or threatened to enforce existing
rule or rules more strenuously to dissuade employees from
voting for union representation and did discriminatorily en-
force such rules on certain employees because of their mem-
bership in and activity on behalf of the Union.’’
The evidence the Union apparently relies on for this objec-
tion pertains to Supervisors Stanley Majure (threats of strict-
er enforcement of work rules) and Billy Brown (his progres-
sive warnings to Daniel Means in May 1990). The matter re-
specting Majure parallels complaint paragraph 7(a), an alle-
gation I earlier dismissed.
In covering complaint paragraph 9, that on June 12 Billy
Brown unlawfully interrogated employees (Daniel Means), I
discussed what the Union apparently relies on here—Super-
visor Brown’s progressive warnings to Means in May (the
June 19 suspension occurred after the election). No disparity
or departure from past practice was shown in this. I shall
recommend that the Board overrule Objection 5.
e. Objection 6
As Objection 6 is the subject of some confusion, I quote
it (GCX 1s):
6. During the critical period, agents, representatives,
or supervisors of the Company threatened employees
with futility of bargaining if they selected the Union as
their bargaining representative, threatening to deny
union recognition, spying on union meetings and trying
to find out who [the] leader of union drive was.
In his April 24, 1991 report, the Regional Director ap-
proved the Union’s withdrawal of the part alleging threats of
futility and denial of Union recognition. (GCX 1s at 9.) That
is, everything up to ‘‘spying’’ was withdrawn. After review-
ing the evidence presented during the Region’s investigation,
the Regional Director found the evidence insufficient to es-
tablish surveillance. This included evidence that Supervisor
Joey McCarra was observed driving past the location where
union meetings were held (across the road from the plant,
outside, in open view of employees driving home from work)
and that ‘‘people’’ were seen looking out of Hankins’ office
window at the union meetings. The Regional Director rec-
ommended (GCX 1s at 10) that the spying allegation be
overruled.
The Regional Director however proceeds to state that the
Region’s investigation disclosed evidence that during the
critical period Supervisor McCarra ‘‘created an impression of
surveillance of employees’ union activities, and evidence that
the Employer unlawfully attempted to indentify the leading
union advocates. These two allegations which are, inter alia,
the subject of the complaint issued in Case 15–CA–11281,
raise substantial and material issues that can best be resolved
after a hearing.’’ Thus, except for the final allegation of try-
ing to ascertain the identity of the leader of the union sup-
porters, all other allegations of Objection 6 were rejected by
the Regional Director by his recommendations to overrule.
Referred to hearing, therefore, was the one surviving alle-
gation about discovering the leader plus the item disclosed
by the investigation, that Supervisor McCarra had created an
impression of surveillance. Both these items, as the Regional
Director observes, parallel allegations in the complaint—
paragraphs 8 (about May 7 McCarra created an impression
of surveillance) and, apparently, 9 (about June 12 Supervisor
Billy Brown interrogated employees). Earlier I dismissed
both these complaint allegations.
As if a Halloween vampire requiring a stake through the
heart to kill it permanently, the surveillance portion of Ob-
jection 6 rises in the record without objection that the Re-
gional Director already has disposed of it. Although the Re-
gional Director specifically rejected the allegation of surveil-
lance generally and by Supervisor McCarra as he drove
home from work, that evidence was presented here—without
objection. To the extent HLC’s failure to object, and there-
after addressing it, revived the issue, I reach the same con-
clusion as did the Regional Director that such evidence does
not constitute prohibited surveillance (nor the impression of
surveillance, if that be the distinction for the Union’s reoffer-
ing the evidence). Thus, I find that the conduct is not objec-
tionable.
The Union also presented, on this same allegation, evi-
dence that Plant Manager W. L. Brown was observed stand-
ing outside the office (rather than looking out the window)
and, arms folded, peering at the union meeting some 500 feet
away. Even if Brown was looking at a union meeting being
held in the open some 500 feet from the plant (Brown recalls
no such incident, 14:3498), I find that it would not constitute
objectionable conduct because there was nothing extraor-
dinary about the incident.
Finding no merit to the one allegation surviving from Ob-
jection 6, nor on the two matters (one duplicating the item
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about trying to find the identity of the employee or employ-
ees leading the union supporters) referred by the Regional
Director, I shall recommend that the Board overrule these
issues. No further objections remain to address.
3. Summary
All objections to the conduct of the June 15, 1990
Quitman election have been disposed of either by withdrawal
or recommendation by the Regional Director or by me that
the Board overrule the objections.
Of the four challenged ballots referred to this proceeding
for resolution, the parties agreed that the ballot of Wallace
‘‘Bud’’ Hamburg would not be opened. That left the chal-
lenges to the ballots of Quitman voters Dennis Cochran,
Daniel Norris, and Ernest Manning. I have recommended
that the Board overrule all three challenges and that it direct
the opening of those three ballots, the preparation and service
of a revised tally of ballots, and the issuance of the appro-
priate certification.
D. Melvin—Threats and Layoffs—Case 15–CA–11394
1. Introduction
Recall that there are two complaints respecting the Melvin
mill. The first, Case 15–CA–11394, alleges violations of Sec-
tion 8(a)(1), (3), and (5) of the Act by coercive threats and
unlawful layoffs, the layoffs allegedly being without notice
to the Union. The second complaint, Case 15–CA–11523, al-
leges that HLC closed Melvin about December 24 and laid
off the employees in violation of Section 8(a)(3) of the Act.
Except as noted for the plant closure complaint, all complaint
references are to the first Melvin complaint.
2. Allegations of 8(a)(1) coercion
a. Jerry Turner
(1) Alleged threat of discharge
Complaint paragraph 7 alleges that about August 29 Su-
pervisor Jerry Turner threatened to discharge employees sup-
porting the Union ‘‘if the Union lost an upcoming represen-
tation election.’’ Respondent denies. For the Government’s
supporting witness, the General Counsel called employee
Ronnie E. Graham. Supervisor Turner did not testify.
Hired at Melvin in 1988, Graham worked on the ‘‘green
chain’’ pulling and stacking lumber. (3:876–877.) Jerry Turn-
er was his foreman. (3:880, 903.) Graham testified that on
an occasion between summer’s end (3:906) and ‘‘about Oc-
tober’’ (3:881), but when the union activity had ‘‘first started
getting organized good’’ (3:906), he and Turner had a con-
versation in Turner’s work area. No one else was close
enough to listen. (3:881.) Initially placing the conversation
during a morning (3:881), Graham later acknowledges that
he does not recall whether it was morning or afternoon, the
day of the week, or how the conversation began except that
they began talking about the Union. (3:882, 906–908.)
Graham was wearing his union pin, sized slightly larger than
a quarter, in the center of his hat. (3:907.)
As they discussed the Union, Graham testified, Turner as-
serted, ‘‘All you are doing is spitting in my face and taking
my job away from me. If it was left up to me, I would run
all you sonofabitches off.’’ (3:882, 908.) Turner then said
that Graham could leave. When Graham asked if Turner was
firing him, Turner replied no, that he would not be the one
to do it. Turner added that whether the Union won, ‘‘you,
Earnest Frost, and Bill Foster will be the first ones to hit the
road.’’ Laughing, Turner then walked away. (3:882, 914–
915.)
Although Turner frequently used such coarse language
(3:908), and sometimes did so when joking, he was serious
on this occasion. (3:915.) Graham had never been dis-
ciplined. (3:908-909.) Graham, Frost, and Foster openly sup-
ported the Union (3:915), and Earnest Frost (like Graham)
also wore a union pin. (3:916.)
(2) Discussion
Although HLC argues that Graham should not be credited
because his memory fails to recall many details (Br. at 148),
I find Graham’s testimony on this incident to be credible.
HLC next argues that no violation should be found because
the incident was isolated as to number and employees. Re-
jecting that argument, I find that, as alleged, HLC violated
29 U.S.C. § 158(a)(1) by Supervisor Jerry Turner’s remarks.
Turner’s coarse remarks clearly threatened that HLC would
discharge Graham, and two others as well because they dared
to support the Union.
b. Burton Hankins
(1) Introduction
Two allegations name HLC’s president, A. Burton
Hankins. Complaint paragraph 9 alleges that about October
4 and 10, 1990, Hankins threatened employees with (a) plant
closure and (b) loss of benefits ‘‘if they chose the Union as
their exclusive bargaining representative.’’ HLC denies.
The allegations refer to two campaign speeches Hankins
delivered before the October 19 election at Melvin. The par-
ties differ over what Hankins said. Although Hankins had
written texts, copies of which are in evidence (RXs 15, 40),
unfortunately HLC apparently did not tape record Hankins’
remarks. The text (RX 15) for the first speech, October 4,
extends onto 14 numbered pages; the second (RX 40) is
shorter, extending to the top of page 3. Both texts are in
larger type and double-spaced. Sentences and paragraphs are
short and to the point.
Actually, Hankins and R. Lewis Smith, HLC’s chief finan-
cial officer, delivered alternating parts of the first (October
4) speech, with each covering roughly one-half (a bit more
than 6-1/2 pages). The Government alleges only as to
Hankins’ remarks, not those of Smith. (Only Hankins spoke
on October 10.) Stated differently, the General Counsel does
not attack the written text, but only what the Government
contends that Hankins said. HLC contends that Hankins fol-
lowed the written text.
Hankins acknowledges that he did not read line by line ei-
ther the first speech (his portions) or the second speech, but
instead occasionally glanced at the text and quoted, as nec-
essary, while delivering the texts. Hankins worked on memo-
rizing as much as he could of the texts by engaging in some
20 to 30 practice sessions. That memorization, plus glancing
and spot quoting as necessary, enabled him, Hankins testi-
fied, to deliver the written texts from memory. (16:3981–
3982, 3986, 4072.) Smith testified that he followed along as
Hankins delivered his portions of the first speech and testi-
853HANKINS LUMBER CO.
fied that Hankins delivered his portions verbatim. (8:2039.)
Although Smith practiced his own portions of the first
speech ‘‘many times’’ (8:2105), it appears that he may have
read most of his portions. (8:2039.)
In support of the allegations, the General Counsel called
seven employee witnesses and desired to call at least two or
three more. (4:1083.) The Union proposed calling at least 7
to 10 additional witnesses on the speeches. (4:1084–1085,
1087, 1093–1094.) Earlier (3:879–880) HLC had raised the
point that the evidence appeared to be cumulative. Although
I declined to rule it so at that point, I did so after six wit-
nesses had been called by the General Counsel on the
speeches. (4:1083–1084, 1087.) In so ruling, I permitted the
General Counsel and the Union each to call one additional
witness. (4:1095.) The General Counsel called her seventh
witness before being restricted. (4:1169.) The Union there-
after questioned, as its witness on the point, Jessie Prestage,
and expressed its desire to call an additional 10 to 12 wit-
nesses, a proffer I rejected. (4:1214–1216.) Thus, eight em-
ployees testified in support of the complaint allegations.
Testifying on behalf of HLC about the speeches were
Hankins, Smith, and Johnnie Stephens, Melvin’s plant man-
ager. Smith was not present at the October 10 speech, but
Stephens attended both dates. I credit HLC’s witnesses over
those of the Government and the Union.
In crediting HLC’s witnesses, I recognize that the Govern-
ment’s witnesses appeared to testify sincerely. By the time
of the trial, over a year after the speeches, memories had
begun to fade (notwithstanding the existence of pretrial affi-
davits), and the fading was noticeable. (4:1085.) As such is
natural, the fading was not limited to the General Counsel’s
witnesses. Hankins, who assertedly delivered much of his
two October 1990 speeches from memory, admitted
(16:4074) on cross-examination that he no longer could re-
cite even the opening paragraph (three short sentences) from
his October 4, 1990 speech.
Immediately following his October 10 address (a speech
apparently about 2 minutes in length), Hankins orally added
some 2 to 3 minutes without benefit of notes or other written
text. (16:3987–3988, 4076–4077, 4081.) Much of the record
dispute about the speeches appears to derive from these
added remarks. Hankins testified that in making his addi-
tional remarks he told the employees that Joy Lynn Smith
(the Union’s organizer) was going to give them a beer party,
that he used to do such things but no longer does so ‘‘since
I got right with the Lord.’’
‘‘I also told them,’’ Hankins continues (16:3988, 4084),
‘‘that we was losing money bad, and that I was giving them
a 60-day notice of me closing that mill down. If we went
to making money within that 60 days, I would keep the mill
operating. If I didn’t, I’d shut it down. After the 60 days,
I would keep a timberman there for a certain length of period
of time [Hankins had Aubrey Cannon in mind. 16:4081.] and
if we could buy timber where we could make money, I
would open the mill back up. If I could not do that, I would
cut the mill down and haul it off somewhere where we could
make money or carry the equipment back to Grenada.’’
(16:3988-3989, 4081-4085.)
Hankins also recalled that his oral addition included his re-
marking that it was not the (production) employees’ fault
that the Melvin mill was losing money, that the (production)
employees had performed well, but that the timbermen were
responsible for some of the losses, with market conditions
also being a factor. Respecting the 60-day notice, Hankins
advised the employees that he was giving them that notice
‘‘because I’m required to do that by law, to give a 60-day
notice before I close this plant down.’’ (16:3989, 4076,
4096.) Recall from my earlier description of HLC’s business
that Hankins, by letter (GCX 4) dated October 24, gave the
employees their written 60-day notice of the probable closing
of Melvin.
(2) Discussion
What happened, I find, is that the General Counsel’s wit-
nesses recalled various points addressed by Hankins, but that
their faded memories recalled only a garbled version of what
Hankins actually said, merging, at times, phrases from the
different speeches, particularly a ‘‘cut it up and haul it off’’
version of Hankins’ oral addition to the October 10 speech.
For example, when Billy Ray Foster (2:440, 464), J. C.
Hicks (3:634), Earnest Frost (4:942), Jeffrey Parker (4:1161),
and Jessie Prestage (4:1223) testified that in the October 4
speech Hankins said that if the Union came in he would shut
down/close the mill, their memories were distorting two
statements from Hankins’ first speech (RX 15.)
The first statement the employees distorted, appearing at
page 3 of the text, reads: ‘‘If they drive our costs up and
we’re forced to close this mill for economic reasons, that af-
fects each and every one of you.’’ The second, at page 13,
the text, reads: ‘‘If a union got in here and started demand-
ing wages that we could not afford, we wouldn’t have many
choices—we could end up shutting down. [Frost recalls that
Hankins made that statement. 4:976.] As I told you, we are
losing a lot of money right now. There is no way we could
afford some of the things the Union is promising now.’’
Similarly, when Foster (2:441) and Anthony McGee
(3:804–805) testified Hankins said that if the Union came in
the employees would or could lose their paid holidays, vaca-
tion pay, bonuses, Thanksgiving turkey, and (Earnest Frost,
4:943) ‘‘all our benefits,’’ or ‘‘risk losing all those things’’
(Hicks at 3:633–634), what they really were misdescribing,
I find, were statements in the written text which Hankins de-
livered. The first (RX 15 at 3) reads: ‘‘If the Union bargains
away a holiday or your overtime—that affects everyone
whether you join or not.’’
The second (a series of statements, actually) follows an
explanation of the bargaining process. Correcting a
misimpression that bargaining begins with employees’ enti-
tled to keep what they have and negotiations proceed upward
from there, Hankins, holding up a blank piece of paper
(some of the General Counsel’s witnesses, such as Hicks at
3:634, 744 and Frost at 4:976, 1002, confirm that Hankins
held up a blank sheet of paper) told the employees that such
was how ‘‘the contract looks when the Company and the
Union begin bargaining.’’ Hankins then told the employees
(RX 15 at 6–7):
As you can see, it’s blank.
Not one paragraph, not one sentence, not one word
goes on that paper unless Hankins agrees to it first.
You do not start with what you have and just go up
from there. What about benefits and wages and even
overtime that you enjoy now? You don’t see them on
this paper, do you? Everything is fair game for bargain-
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing—including your holidays, insurance, vacation—ev-
erything. What you have may remain unchanged or it
may be bargained away—lost! If we don’t agree to
something then it doesn’t go into the contract. It’s that
simple. The Union has absolutely no power to get any-
thing for you that we don’t agree to first. You will al-
ways receive the wages and benefits we agree to pay
. . . and nothing else!
Some of you may not realize what you have now in
the way of benefits—without a union—is really pretty
good. And you got it without having to pay union dues
or worrying about the Woodworkers’ fines, fees,
strikes, violence and other trouble that have hurt so
many others. For instance, the Company pays your en-
tire health insurance premium for you. The Company
pays $85–$90 per month every month for insurance for
each of you. That’s like money in your pocket. The
Company also pays for your life insurance. What if you
had to buy your own?
You have five paid holidays a year as well as a week
off with pay for the holidays. You get turkeys for the
[Thanksgiving?] holiday and a $100 bonus for July 4th.
That’s just some of what you have now. It would all
go on the table with the Union—a union puts it all at
risk—with a guarantee of nothing in return—except
union dues.
The second prepared text, delivered on October 10, is
quite short, and I quote it here (RX 40):
I want everybody to listen up, and to listen up good.
I’m damn mad and I don’t care who knows it. Some
of you just aren’t listening to what we’re telling you.
Sure, most of you have told Johnnie and me that you
are backing the Company 100%—and that’s great, I
thank you—but some of you still seem to think that the
Union has all the answers. But you are wrong—dead
wrong. The Union is wrong for you. It’s wrong for
your family. It’s wrong for this mill and it’s wrong for
this town. Let me tell you why. If the Woodworkers get
voted in here, and make good on the big money they
are promising [PAUSE] we will have to shut down!
[Earnest Frost recalls that Hankins made this last re-
mark. 4:977.]
There are no two ways about it. The Woodworkers
got into General Box in Meridian and it closed. They
got into Harrison’s in Laurel and it closed. Coastal
Lumber closed in Meridian and so did Pilliod Furniture.
I don’t know why they closed, but we’ll close too if the
Union and its big money promises make a bad situation
worse. We’re already losing our shirts and big money
raises just are not in the picture.
Do you remember what it was like not to have jobs?
After Masonite closed, and before I opened the place
back up, most of you didn’t have jobs. Now you do.
But there is no guarantee this mill will stay open for-
ever.
Better stop and think before it’s too late. Joy Lynn
Smith is a paid professional saleswoman. It’s her job to
talk you into the Union. But Union promises are not
going to buy your bread or pay your bills. Before you
make a mistake that you could regret for the rest of
your life, just ask yourself who’ll pay for that mistake.
It’s not the Union bosses or those guys coming over
from Quitman—it’s you and your family. Vote ‘‘NO’’
next week. Do the right thing for you, your family, and
this community.
(End talk and walk away.)
Instead of ending his speech at that point Hankins, as I
summarized earlier, added some additional comments, in-
cluding the graphic one about cutting down the mill and
hauling it away. Witnesses of the General Counsel merged
elements of this second speech, including the ‘‘damn mad’’
and fist pounding, plus the cutting down and hauling away,
with the first speech. I find that Hankins delivered the speech
as it appears in the text, plus the oral remarks which he
added at the end. I further find that Hankins’ October 10 re-
marks (text plus unwritten addition) are not violative of the
Act.
Having found that none of the remarks delivered by Bur-
ton Hankins on either October 4 or 10, 1990, unlawfully, as
alleged, threatened plant closure or loss of benefits, I shall
dismiss complaint paragraphs 9(a) and 9(b), Case 15–CA–
11394.
3. The layoffs
a. Overview
Paragraph 10 of the first Melvin complaint (Case 15–CA–
11394) alleges that HLC laid off all unit employees about
(Monday) October 22. Respondent admits. (As we are about
to see, not all were laid off.) On November 1 and 5, para-
graph 11 alleges, Respondent laid off 16 named employees.
HLC admits but asserts that all unit employees were in-
volved. On October 19, the day of the election, about two
dozen employees (apparently all supporters of the Union)
went home. The General Counsel classifies (Br. at 57, 72)
the October 19 incident as a layoff. Denying any layoff (Br.
at 130), HLC counters that the event occurred when union
supporters left work early apparently to celebrate their elec-
tion victory.
The evidence respecting the October 19 matter was pre-
sented as part of a theory of an unalleged change in benefits
of not sending employees home early. At the hearing HLC
objected to evidence on this point. (2:500.) The General
Counsel and the Union explained that the evidence, in effect,
was background to the layoff and closure allegations, and
that the General Counsel was not seeking to amend the com-
plaint, or to litigate by implied consent, an allegation of
changed benefits. I therefore overruled the objection. (2:500–
504; 3:643–645, 812, 890–892; 4:953.)
Aside from the October 19 matter, the layoffs alleged in
the complaint involve selections of employees for layoff or
retention. The case of the General Counsel and the Union fo-
cuses on the insignia and hats worn by the employees. Near-
ly all the employees, at least by election day, wore one color
or the other, with green designating Union and red saying
Vote No. Plant Manager Stephens testified that he distributed
the red ‘‘Vote No’’ hats to those employees who would take
them. Some employees would not take them. (11:2839.) The
complaint does not allege such distribution by Stephens to
have been an unlawful interrogation. See Lott’s Electric Co.,
293 NLRB 297, 303–304 (1989), enfd. mem. 891 F.2d 281
(3d Cir. 1989).
855HANKINS LUMBER CO.
6 ‘‘Dinner: The meal Southerners eat while Northerners are eating
lunch. When the Northerners are eating dinner, Southerners are eat-
ing supper.’’ Steve Mitchell, How To Speak Southern (1976, Bantam
books).
The Government points to the payroll records which show
that a far greater percentage of employees wearing green
(Union) were laid off, or at least selected first, than were
those wearing red. As a consequence, the reds also worked
more hours. Extrapolating from these payroll facts (plus reli-
ance on allegations of threats) the Government argues that
the selections were tainted by antiunion animus.
Viewing the same facts through a different prism, HLC ar-
gues that another conclusion applies. HLC contends that the
factors guiding the selection for layoff/retention were (1) na-
ture of the job and (2) versatility of the employees. Seniority
was indirectly involved in this respect in the October 22 lay-
off, and expressly a factor in the November 5 layoff. As
most of the greens occupied jobs paying lower rates, jobs not
deemed ‘‘key’’ positions by HLC were less versatile in their
skills, and generally held less seniority than the reds, it is not
surprising, HLC argues, that the greens were laid off while
the reds were retained or laid off later.
Before beginning the summary, I note that whatever risk
there is in relying on the outward symbols of party support
(greens and reds) is immaterial. The point is that such em-
ployees openly identified themselves, and it is unlikely that
contrary assurances to the other side would persuade anyone.
Thus, I attach no significance to the uncontradicted testimony
(10:2629) of Stephens that J. C. Hicks, a green, told Ste-
phens that he favored the Company and not the Union.
b. October 19, 1990
(1) Facts
The representation election in Case 15–RC–7533 was con-
ducted at Melvin from 10 a.m. to 12 noon on Friday, Octo-
ber 19, 1990, with the ballots being counted immediately
thereafter. (2:462, 565; 10:2647–2648.) The noon lunch
(‘‘dinner’’ to most of the witnesses; for example, 2:437;
5:1270; 8:2042;)6 period was 12 noon to 12:30 p.m. (3:664;
10:2507, 2630.) Counting of the ballots apparently was com-
pleted close to 12:30 p.m. Word quickly passed among the
employees that the Union had won. J. C. Hicks testified that
employee Mearl Horne reported that fact to him. (3:719.)
Leo Mitchell, one of the Union’s two election observers
(Earnest Frost being the other), testified that Horne ‘‘got
caught up in the room when we counted the vote.’’ (4:1081.)
Soon afterwards, Hicks testified, his supervisor, Doyle
Dikes, came and told him that the ‘‘Man’’ (that is, Plant
Manager Stephens) said to ‘‘knock off and go home.’’ Hicks
was scheduled to work that day until 4:30 p.m. Although
Hicks was in the midst of unloading the kiln, he stopped and
went home. (3:661–663, 716–719.) Others testified similarly.
As HLC’s pay records for the week ending October 20
(GCX 3–7, 8, 9) reflect, Hicks (GCX 3–8) was paid for 5
hours that Friday, October 19, as were some 25 others.
(10:2637.) From record identifications by Stephens, Joy Lynn
Smith, and others of those wearing union insignia and those
wearing ‘‘Vote No’’ red caps and shirts, it can be determined
that all of the 26 but 1, John D. Evans, wore union insignia.
(10:2663.) Evans, a trim saw operator (9:2372–2373), wore
the Vote No red cap. (9:2420; 10:2661–2662.)
There is a problem reconciling the various time frame ref-
erences. Several of the witnesses refer to the departure time,
or notice to leave time, as being around 11 a.m. To some
extent that seems to reflect knowledge that the payroll sheets
(GCX 3–7, 8, 9) show that the two dozen or so worked,
were paid for, only 5 hours that day. It also assumes that the
shift began at 6 a.m. When business was stronger, in the
months before September 1990, the shift did begin at 6 a.m.
and ended 10-1/2 hours later at 4:30 p.m., Monday through
Friday, unless the employee worked, frequently at his own
request, after that. (Weekends also could be worked.)
But even the Government’s witnesses, or at least some,
agree that by mid-September log deliveries began to curtail
and hours were reduced. Whether the starting time was ever
changed to 7 a.m. is not clear. Jeffrey Parker testified that
on election day he worked from 6 to 11 a.m. (4:1169, 1190.)
Jessie Prestage testified that beginning about mid-September
the normal shift was reduced so that the hours were from 6
a.m. to 3 p.m. (4:1234.) Stephens testified that the shift
began at 6 a.m., and that pay for 5 hours meant that the em-
ployee worked from 6 to 11 a.m. (10:2630.) Stephens implies
that the 6 a.m. starting time apparently prevailed even when
the normal hours were reduced to 40 hours a week, for the
40 hours consisted of 4 days at 10 hours. (10:2448, 2450.)
The confusion about the 5 hours’ work that day possibly
caused several of the witnesses, including Stephens
(10:2507), to recall that the election ended at 11 a.m. But
while the witnesses may have misremembered the hours of
the election, nearly all of them, including J. C. Hicks (3:719)
and Stephens (10:2508, 2649), clearly remember that the bal-
lots had been counted and the results reported before the
Union’s supporters departed. As the Board’s election data are
the most reliable factor here, I find that counting of the bal-
lots concluded at close to 12:30 p.m., about when the 12
noon to 12:30 p.m. lunch period also was ending.
Shortly after the lunch period ended, Plant Manager Ste-
phens testified, Stephens observed about 25 men in the park-
ing lot preparing to leave the plant. According to Stephens,
he thought they were union supporters and that they were
leaving in celebration at the Union’s election victory.
(10:2500, 2505–2506, 2637, 2644–2646, 2650, 2654, 2663;
11:2806.) Moments later Stephens’ sawmill foreman, Jerry
Turner (9:2377), and planer mill foreman, Doyle Dikes
(9:2379), informed Stephens that a lot of their employees had
departed and that there were not enough employees left to
operate the mill. (10:2503–2504, 2638–2640, 2644.) Stephens
told them to send some others home but to retain the ‘‘key’’
employees and cleaning personnel. (10:2502, 2505, 2643–
2644, 2663–2664.) Not many (additional) employees were
sent home, Stephens testified, and he could not recall who
they were. (10:2664–2665.)
Billy Foster, a union supporter and a forklift operator in
the kiln area under Supervisor Haskell Doggett, testified that
he worked until around ‘‘2:00 something,’’ having been told
by Doggett to work until he loaded the kiln. (2:454, 499,
566.) The payroll record (GCX 3-9) reflects that he was paid
for 7-1/2 hours that day. The half-hour mark suggests that
Foster worked until about 2:30 that afternoon. Harvey
Conner, who wore a Vote No hat, also was paid for 7-1/2
hours that day as was union supporter Jerry Bonner. (GCX
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3–7.) The hours for the others vary, with several working 6
hours and others, for example, 8, 9, 11, and 12 hours. Most
of these employees wore Vote No caps. As Stephens ex-
plains when discussing the dates alleged in the complaint,
these other employees however held key jobs, usually at
higher pay levels, or were cleanup personnel. Union sup-
porter Rex Philon worked 12-1/2 hours that day. (GCX 3–
9.) Philon was one of the boiler operators. (9:2385, 2397.)
Stephens testified that the boilers, which must be operated 24
hours a day 7 days a week. (9:2431.) This certainly applies
during any cold weather, when the temperature could drop
to freezing, because the boilers contain water. (10:2493.)
And it apparently applies so long as the mill is operating.
(9:2382.) Of course, for any long-term shutdown of the mill,
presumably the boilers likewise would be shut down and the
water drained.
Stephens denies instructing the foremen to send the 25
home early on election day (10:2498–2499), and he denies
sending any employees home early that day because of the
Union or because of the election results. (10:2506–2507.)
(2) Discussion
Disbelieving Plant Manager Stephens, and crediting J. C.
Hicks and the others who testified similarly, I find that Ste-
phens told his foremen to send home the employees wearing
the green hats (the union supporters) and to retain as many
red hats (company supporters) as they could. Finding Ste-
phens’ testimony false, I infer that he sent the men home for
another reason—an unlawful purpose. That unlawful purpose,
I find, was to punish the employees for their election vote.
The Melvin mill apparently had enough logs to finish out
that Friday (10:2656), and even if the logs would have run
out before the day finished, under established practice HLC
simply would have assigned the employees to clean their
equipment and areas to complete the day. So Respondent’s
purpose in sending home the union supporters was two-fold.
First, to punish the employees for their union vote. Second,
to let them know that their vote also had cost them their pre-
existing benefit of cleanup work during work interruptions in
the course of a day.
Respecting retention of the so-called ‘‘key’’ employees, as
the mill did not operate the balance of that Friday, there is
no showing that HLC needed the ‘‘key’’ employees (mostly
red or company hats) or that the key employees in fact did
any work. The mill foremen did not testify, and Stephens did
not testify that he walked through the areas and observed the
retained employees working at thus and so. By its action,
therefore, HLC demonstrated animus against the employees
who supported the Union. Although there is no complaint al-
legation concerning this event, I shall consider this animus
in evaluating the layoffs which are alleged to be unlawful.
c. October 22, 1990
(1) Introduction
Because there were not enough logs, Plant Manager Ste-
phens testified, only certain employees worked the week of
Monday, October 22. The planer mill was not affected that
Monday, and for that day everyone at the planer mill
worked, with only certain ones working the balance of the
week. (9:2367–2369; 10:2609–2610, 2650, 2668; 11:2825.)
As reflected by the record, the following table shows the
retention/layoff roster, party affiliation (g for green or Union;
r for red or Company), job category, and hourly pay rate for
the week of Monday, October 22 (pay period ending October
27, 1990; GCX 3–10, 11, 12; RX 18.) Rather than listing
them alphabetically, as they roughly are on the payroll
sheets, I arrange them by descending rank of pay rate—to
closer reflect the basis of their retention or layoff.
For job classifications I have relied on, in addition to the
testimony, HLC’s October 25 WARN letter (GCX 6), re-
ferred to earlier when I described HLC’s business. That letter
lists the job classifications of all employees. The classifica-
tion there shown as having the largest number of employees,
15, is that of ‘‘lumber puller,’’ with ‘‘lift operators’’ next
with 5. Lift operator, forklift driver, and loader operator ap-
pear to be used interchangeably. The term I use in the tables
here is ‘‘lift.’’
(2) Sawmill—Employees retained
Name Party Position Rate
1. J. L. Turner r saw filer $8.00
2. Jimmie Carney r saw filer 7.00
3. Donald Mayo Jr. r sawyer 7.00
4. Ray Craft r scaler 7.00
5. Ray Abston r lift 5.75
6. James Nicholson r Sherman gang 5.25
7. Clovest Smith r lift 5.00
8. Albert McLendon Jr. r cleanup 4.00
9. Cleveland Scruggs r watchman 4.00
(3) Sawmill—Employees laid off
Name Party Position Rate
1. Nathan Baker r millwright $6.50
2. Otto Whitfield* r millwright 5.25
3. Earnest L. Frost Jr. g edger 5.00
4. John D. Evans r trim saw 4.75
5. John Rodgers r edger helper 4.50
6. Jerry Bonner g unscrambler 4.25
7. Harvey Conner* r debarker 4.25
8. Lee Dell Nicholson g lumber puller 4.25
9. Franklin Johnson g lumber puller 4.20
10. Elmore Nicholson g lumber puller 4.10
11. Joe Murphy Jr. g lumber puller 4.00
12. Tommy Stewart g lumber puller 4.00
13. Ronnie Graham g lumber puller 3.90
14. Kelvin Kirksey g lumber puller 3.90
15. Leo Mitchell g lumber puller 3.90
16. Cleveland Miller g lumber puller 3.80
17. Douglas Jones g lumber puller 3.80
The two employees whose names are marked by an aster-
isk, Otto Whitfield and Harvey Conner, worked part of the
week. Conner worked 8 hours on both Thursday and Friday.
(9:2372; GCX 3–10.) Whitfield worked 6 hours of Friday
and 9.25 hours on Saturday. (9:2377–2378; GCX 3–10.)
Stephens testified that on Monday morning, October 22,
he told the mill foremen to lay off their employees except
for ‘‘key’’ employees such as the sawyer (9:2370–2371), the
saw filers (who file the saws which cut the logs, 9:2372,
2376–2377), mechanics, log lift operators (they unload the
trucks, 9:2370–2376; 11:2819, 2828), log scaler (9:2372;
11:2819), boiler operators, cleanup personnel (required by in-
surance, 9:2374), night watchman (9:2376), and Sherman
857HANKINS LUMBER CO.
gang (to perform maintenance, 9:2375.) Later that day he re-
viewed with the foremen the ones they had retained and laid
off. Seniority was not an express factor in this temporary
layoff. According to Stephens, the employees were laid off
or retained based on their skills. (10:2666–2667; 11:2825–
2834.) Those laid off, such as the lumber pullers, were laid
off, Stephens testified, because there was no lumber to be
pulled or, or further example, logs to be edged. (9:2372–
2378.) Stephens denies that their party colors had anything
to do with their layoffs. (9:2368; 10:2494.)
(4) Planer mill—Employees retained
Name Party Position Rate
1. John C.
Rhodes r planer $8.00
2. John Haley Jr. r mechanic 6.90
3. Floyd Conner r lift 5.75
4. Bobby L.
Dikes r lift 5.00
5. Freddie Hill r cleanup 4.00
The only witness to identify Rhodes’ party affiliation was
Jessie Prestage who testified that Rhodes wore red. (4:1213.)
Although Stephens did not list Rhodes, Stephens testified
that as of election day nearly everyone had openly declared
his party affiliation. (9:2420; 10:2614, 2629.) Moreover, Ste-
phens, who walks through the plant several times a day,
knows the men. (11:2838.) He knew which ones were wear-
ing what color. (10:2615.) Crediting Prestage that Rhodes
wore red, I find that Stephens knew that fact.
(5) Planer mill—Employees laid off
Name Party Position Rate
1. Arthur McGee g lumber grader $5.75
2. J. C. Hicks Jr. g lift 5.00
3. Billy Jones g trim saw 4.50
4. James Prestage g lumber bander 4.35
5. Lencie Bonner g trim saw 4.25
6. Terry Kirksey g machine feeder 4.25
7. Jessie Prestage g lumber stamper 3.90
8. Elston Everett g stick layer 3.90
9. V. Bernard Hicks g lumber puller 3.90
10. Tony R. Hives g lumber puller 3.90
11. Clarence Mitchell g lumber puller 3.90
12. Michael Mitchell g lumber puller 3.90
13. Jeffrey Parker g lumber puller 3.90
14. Michael Grayson g lumber puller 3.80
Respecting the planer mill, Stephens testified that it oper-
ated Monday of that week and then it, too, ran out of lum-
ber. (9:2379.) Testifying about the list of planer mill employ-
ees for that week (GCX 3–11), Stephens identified those re-
tained as holding key positions, and those laid off as having
limited-skill jobs, such as lumber pullers, for which there
was no work that week. (9:2378–2386.)
Stephens testified (9:2381) that John C. Rhodes was re-
tained as a ‘‘key’’ person because he not only operated the
planer but also set up and maintained that equipment—
‘‘when we got lumber to run.’’ (9:2381.) Moreover, Rhodes
could grade lumber, Stephens testified. (11:2813.) Haley, the
sole mechanic (GCX 6 at 2), was needed to maintain the
forklifts, according to Stephens. (9:2379.) Stephens testified
that forklift driver Floyd Conner was retained ‘‘because we
had to have somebody to load the lumber trucks.’’ (9:2379.)
That need is unclear in view of the fact no lumber was being
produced that week. Stephens possibly means that there was
finished lumber on hand still to be loaded onto trucks, but
he did not so testify. Conner, Stephens testified, also could
do the shipping. (11:2845.) There is no description of what
shipping work Stephens meant.
Stephens testified that Bobby L. Dikes was retained be-
cause he not only could drive a lift but he also could load
a truck or do ‘‘just about anything,’’ including helping with
the boilers and kilns. (9:2378.) One of the Union’s questions
on cross-examination, apparently confusing Stephens’ testi-
mony about Dikes’ ability with boilers with lift driver Floyd
Conner, asked about that ability. Stephens answered that
Conner could not run a boiler. (11:2845.) As Stephens never
testified that Bobby Dikes could fire a boiler, I find that
Dikes’ skill in that area was limited to the status of helper.
Freddie Hill was retained, Stephens testified (9:2380), be-
cause, as cleanup, his presence was required by the insurance
carrier. (Presumably the fire insurance carrier.) HLC has one
cleanup person assigned to each area of the plant.
These five who were retained, all wearing red (Company),
worked that week anywhere from 41 hours to (John Rhodes)
60 hours. The others, all openly declaring their support of the
Union by wearing green insignia, worked no further hours
after Monday, October 22, 1990. (GCX 3–11.)
Arthur McGee, the only Melvin employee classified by
HLC as a lumber grader (GCX 6 at 2), and who worked
there as a lumber grader (3:796, McGee), was laid off. He
wore green. Stephens testified that when the planer mill is
operating it needs a lumber grader, but if the mill is not op-
erating no lumber grader is needed. (11:2811.) At one point
Stephens identified Billy Jones as a grader (11:2809), but
earlier he testified (9:2380) that Jones was a trim saw opera-
tor who only assisted the grader. I find that Jones only
helped the sole grader, Arthur McGee.
Stephens testified that lift driver J. C. Hicks was sent
home because, with the planer mill out of lumber to run,
Hicks was not needed to lift lumber onto the planer machine.
(9:2379.) As Hicks explains, with his forklift he removed the
lumber from the kiln (now dry lumber) and transferred it to
the planer mill. After the lumber had been planed, lift driver
Floyd Conner lifted it and loaded it onto trucks. (3:694–698.)
The two trim saw operators laid off, Lencie Bonner and
Billy Jones, wore green. The only other trim saw operator
(GCX 6 at 1), however John D. Evans, who worked in the
sawmill wore red and he was laid off. The others laid off
from the planer mill, such as the lumber pullers, had no lum-
ber to work on and were sent home.
(6) Boiler/kiln
In the boiler/kiln area 12 employees worked under the su-
pervision of James H. Doggett. Nine wore red caps, and only
three wore the green union caps: Joe Cunningham, Billy Fos-
ter, and Rex Philon. Cunningham and Philon worked no
hours after that Monday, and Foster worked none at all that
week. Foster was a lift driver who transferred ‘‘green’’ lum-
ber, that had come from the sawmill, to the kiln to be dried.
(2:533–537; 3:694.) Stephens testified that, as there was no
lumber leaving the sawmill that week, Foster’s services were
not needed. (9:2383.)
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cunningham and Philon, two greens, worked as boiler
firemen with two reds, brothers (9:2382) Garyie Davis and
Carl Davis. (GCX 6 at 2.) The Davis brothers were paid
more ($5.26 for Garyie and $5 for Carl) than Cunningham
($3.80) and Philon ($4.75.) This pay difference reflected the
longer experience and greater skill of the Davis brothers.
(9:2410.) Stephens testified that the four (two worked days
and two worked nights) usually arranged their work schedule
by agreement so that each would have a week off every
month. (9:2394–2395.) Other than that, Stephens had no
knowledge of why they worked whatever hours the payroll
records show. (9:2382–2383, 2397.) Those records (GCX 3–
12) reflect that Garyie Davis worked 24 hours that week,
Carl 50.5, Cunningham 15 (but no hours after Monday), and
Philon 12.5 (all on Sunday, October 21).
Windell Whitfield, one of the two persons at Melvin clas-
sified as maintenance (GCX 6 at 1), worked 6 hours on
Thursday and 3.25 on Saturday. Stephens does not know
about Whitfield’s hours other than that he worked at the boil-
er. (9:2381–2382.)
J. W. Dew worked 58 hours that week. In addition to
being the cleanup person for the boiler/kiln area, Dew ran
the mill’s errands for Stephens. (9:2382; GCX 6 at 2.)
In the stacker work area (where green lumber is stacked
after emerging from the sawmill) four employees (Mearl
Horne, James Johnson, Fred McLendon, and Terry Dikes, all
red hats) worked zero hours that week, as did Billy Foster,
a green hat. (9:2383-2385.) Apparently through error Ste-
phens refers to Foster as a lumber puller who pulled lumber
from the green chain when the sawmill operates. (9:2383.)
That leaves William P. Jordan (red hat, the other employee
classified as maintenance) who worked 5 hours that Tuesday
in maintenance at the boiler room. (9:2384.)
(7) Discussion
As earlier mentioned, the General Counsel focuses on the
fact that those sent home were mostly union supporters
(greens), and those retained were mostly company supporters
(reds.) HLC stresses that the selections were based on job
functions, skills, and pay rates of the two groups, with the
Union/Company hat colors indicative of nothing other than
the fact that, for the most part, it was the lower paid and rel-
atively unskilled employees who wore the green hats of the
Union, while the more skilled or ‘‘key’’ workers wore the
red hats to announce that they supported the Company.
In short, HLC argues that the hat colors are grouped where
they are not because of any unlawful motivation, but because
support of or opposition to the Union was divided along job
lines. On the color monitor of a computer, a vertical job and
pay graph would display mostly red at the top of the column,
with the bottom of the column colored mostly in green. That
distribution is not something caused by HLC, but is the prod-
uct of factors such as experience, seniority, and skill.
The primary problem with HLC’s argument is that the mill
was not operating, yet all these ‘‘key’’ employees were re-
tained. What they did is a mystery. The mill foremen did not
testify, and in most cases Stephens had no personal knowl-
edge of what an employee did on a particular date. Respect-
ing one or two employees Stephens testified, in effect, that
HLC had to keep the person on the payroll regardless of the
circumstances or he, having a skill in great demand, would
leave for another employer, possibly a competitor, if he lost
any time at all. Donald Mayo, the sawyer, is one example.
(9:2370–2371.)
Even if that is true as to Mayo, and Stephens’ testimony
on the point is only skimpy, Stephens did not testify simi-
larly respecting all the other ‘‘key’’ persons. Thus, the pres-
ence of the two saw filers, Jimmie Carney and J. L. Turner
(GCX 6 at 1), is not shown to have been necessary for the
40 hours (GCX 3–10) each worked, or was paid, that week.
No doubt their work of sharpening the saws is necessary, as
Stephens testified (9:2372, 2376–2377.) But with no logs
being sawed that week, would they need more than 1 day
to catch up on sharpening all the saws? The record does not
tell us.
Whose burden was it to tell the record? The General
Counsel’s burden was to establish a prima facie violation.
With no significant findings of animus favoring the General
Counsel, the Government’s prima facie case depends on the
color groupings in the layoffs and retention dates (a factor
which, standing alone, would be insufficient in light of the
job and pay data), plus inconsistency of purpose in the layoff
and retention selections, departure from past practice (re-
tained to clean up when work interrupted by equipment fail-
ure), and timing.
The problem with the departure from past practice factor
is that, outside of the election day incident, Melvin had never
experienced log shortages of this nature. Such shortages as
there had been in the past had merely reduced the workday
from 10 hours to 8 hours. There had been no mill shutdowns.
So that factor is no aid here to the General Counsel, for it
would be unreasonable to say that HLC owed a duty under
the Act to expand downtime cleanups for the balance of a
day into an unemployment benefit of several days, a full
week, or more. The timing factor suffers similarly. Unless
the General Counsel prevails on the unlawful closing allega-
tion, the timing factor here would seem to have no weight
here.
HLC’s treatment of the lift driver classification raises a
question. There were six forklift drivers, four (Ray Abston,
Clovest Smith, Floyd Conner, and Bobby Dikes) wore com-
pany hats and two (J. C. Hicks and Billy Foster) wore union
green. Abston and Smith worked at the sawmill and Conner
and Dikes at the planer mill. Hicks worked at the planer mill,
and Foster worked under the boiler/kiln supervisor. Stephens
testified that Ray Abston (9:2370) and Clovis Smith (9:2376)
were needed to unload any trucks bringing in logs. On cross-
examination by the Union Stephens testified that ‘‘the lift
driver and log scaler’’ are necessary, but (11:2823) ‘‘If the
mill is running, we have to have two lift drivers and the log
scaler.’’ As the sawmill did not run that week, the suggestion
seems to be that HLC could have done without the services
of either Abston or Smith. Indeed, unless log deliveries were
expected or anticipated, there was no need for any of the
three, including the log scaler. The record does not state.
At the planer mill, it seems logical that J. C. Hicks would
not be needed on the forklift as no lumber was passing
through the kiln to the planer mill. But why was Floyd
Conner needed? As earlier mentioned, Stephens testified that
Conner loaded finished lumber from the planing mill onto
trucks. (9:2379.) He did not say whether Conner actually did
any such loading that week. As the planer mill was not oper-
ating, one has to assume (because Stephens did not say) that
859HANKINS LUMBER CO.
any loading Conner did was of lumber planed before that
week and waiting to be loaded.
But what did Dikes do? Stephens says only that Dikes
could help here and there (with boilers and with loading
trucks, 9:2378), but there is no showing that Bobby Dikes
was needed for or did anything that week. Bobby Dikes was
paid $5 an hour. So was J. C. Hicks. (GCX 3–11.) Dikes,
who wore a company/red hat, was retained. Hicks, who wore
union green, was laid off. HLC offered no evidence that it
had some preexisting system, geared to insurance or bonuses,
for example, which classified any employees as ‘‘key.’’ The
WARN letter of October 25, for example, does not describe
any employees as being ‘‘key.’’ Is ‘‘key’’ merely a euphe-
mism for company supporter and a term adopted sometime
after 1990?
Although the issue is close, I find that HLC retained the
employees it now calls ‘‘key’’ in an effort to reward as many
company supporters as it could by retaining them on the pay-
roll regardless of whether there was work to do, yet at the
same time laying off as many union supporters as possible.
Because the union greens fell mostly in the lower paying
jobs, a natural vehicle for getting rid of them was available
to HLC. Even assuming, however, that the log shortage was
not a device arranged by HLC before the election to frighten
the workers into voting against the Union, and used after the
election to get rid of the union greens, then the fact which
has to be faced is that HLC had to respond to an economic
crisis. It had to lay off employees.
But while HLC could not be required to retain everyone
during an economic crisis, HLC was not at liberty to jettison
the union greens while retaining the company reds. And that,
I find, is the basis on which HLC made its layoff and reten-
tion selections, with ‘‘key’’ being a convenient euphemism,
adopted well after the events in question, to give a surface
justification for its selections. HLC has failed to demonstrate
that, absent this unlawful motivation, it would have made
this disparity of selection in any event. Accordingly, I find
that, as alleged in complaint paragraph 10 and the conclusory
paragraphs, HLC violated 29 U.S.C. § 158(a)(3) when it laid
off employees the week of Monday, October 22, 1990. It
therefore must pay them backpay, with interest.
To the extent that a few union greens were not imme-
diately laid off, or that a few company reds were swept away
when mostly the greens were laid off, that mixture of results
does not absolve HLC. HLC, I find, achieved its goal. That
it could not do so with laser precision does not shield HLC
from the adverse consequences of its unlawful action. Thus,
HLC will have to make whole those who were laid off, in-
cluding those who wore company red. HLC was free to lay
off everyone in response to an economic crisis. But it was
not free to reward as many company reds as it could while
trying to get rid of as many union greens as it could. Having
made this disparity choice, HLC must now make whole all,
even the reds that were swept away with the union greens.
d. November 1, 1990
(1) Facts
On brief the General Counsel does not expressly address
the November 1 allegation.
The payroll register for the pay week ending Saturday,
November 3 (GCX 3–13, 14, 15), reflects that everyone in
the sawmill and planing mill worked the first 3 days (Mon-
day, Tuesday, Wednesday) of that week. After that there
were more temporary layoffs. Stephens testified that Melvin
had enough logs to run 3 days that week in the sawmill plus
an additional 1-1/2 hours into Thursday at the planer mill.
(9:2388–2394, 2398.) Stephens testified that the employees
who were retained and sent home are essentially the same
ones, and for the same reasons, as in the previous week.
(9:2399–2401.)
Again, Stephens displayed little personal knowledge about
specific individuals, and it is clear that he was recalling his
overall approach to the layoffs, and his instructions to his
foremen to retain the ‘‘key’’ people. As to individual work-
ers and their hours worked, Stephens, for the most part, was
merely interpreting and projecting from the payroll register
data. I later observed that such a procedure would leave the
record ‘‘fuzzy’’ as to the specifics. (10:2455–2462.)
Those retained or sent home the balance of the week gen-
erally follow the pattern set the week of Monday, October
22 to 27, with some variation on Friday, November 2, when
several of the ‘‘key’’ people did not work. At the sawmill
the ‘‘key’’ employees not paid that Friday were the two saw
filers (Turner and J. L. Carney), the sawyer (Mayo), Sherman
gang (J. E. Nicholson), and the cleanup person, Albert
McLendon. The nightwatchman, Cleveland Scruggs, doubles
as a cleanup person at night. (9:2376, 2420; 10:2464, 2497–
2498.)
As reflected by the payroll register (GCX 3–14), the
planer mill’s retention/layoff, after the 1-1/2 hours worked by
everyone on Thursday, was a replay of the previous week.
At the planer mill, therefore, all the company reds were re-
tained whereas all of the union greens were laid off. Of the
three lift drivers, two (Floyd Conner and Bobby L. Dikes)
worked all week (50 hours), whereas J. C. Hicks was sent
home Thursday after 1-1/2 hours. Although there is no evi-
dence concerning what lift driver Bobby Dikes did that day,
neither is there any evidence that there was additional work
which lift driver J. C. Hicks could have done that Dikes did,
or in addition to what Dikes may have done.
Presumably the mechanic, John Haley, used the day to
perform equipment maintenance, but there is no evidence he
did so. The planer operator, John C. Rhodes, was paid for
12 hours on both Thursday and Friday, for a total that week
of 60 hours. Just what Rhodes did after the planer mill had
to shut down after 1-1/2 hours that Thursday is not shown
in the record. Planer operator Rhodes, a ‘‘key man,’’ appar-
ently could and did, in the past, maintain the planing equip-
ment, as Stephens testified. (9:2381.) Whether he did so on
this occasion is not shown.
In the boiler/kiln department, where 75 percent of the em-
ployees wore company red on election day, everyone, except
J. W. Dew, was laid off at least part of the week. Recall that
Dew was cleanup and that he also ran errands for Stephens.
(9:2382; 10:2466.) Cunningham, a boiler fireman who wore
union green, worked 40 hours that week, although Rex
Philon, another green, worked only 13 hours. The Davis
brothers, the two boiler firemen who wore company red,
worked 25 hours (Carl) and 31 hours (Garyie). Lift driver
Billy Foster, a green, worked 29-1/2 hours. The hours of the
others generally are in the 25- to 35-hour range.
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(2) Discussion
As previously discussed, I find that the evidence shows a
prima facie violation, and that HLC has not demonstrated
that it would have made the layoff in the manner it did in
the sawmill and in the planing mill absent the Melvin em-
ployees having voted for the Union in the election.
Some employees in the boiler/kiln area worked staggered
shifts, and therefore the hours of that department do not
automatically coincide with those of the sawmill or planing
mill. The hours worked in that department do not reflect,
prima facie, discrimination.
As to the sawmill and planer mill employees laid off,
therefore, HLC must make them whole, with interest.
e. November 5, 1990
(1) Facts
Focus now on the last layoff alleged in the complaint, the
week beginning Monday, November 5, 1990. This is the pay
week ending Saturday, November 10, and the pay register for
the week is in evidence as GCX 3–16, 17, 18.
The layoff this week, as Stephens testified, differs from
the previous ones in two respects. First, Stephens expressly
used seniority as a factor in addition to versatility of skills.
(9:2403; 11:2833.) Second, those selected were permanently
laid off. (9:2411.) Those selected and laid off permanently
November 5 were:
Name Party Position Rate
Sawmill
1. Joe Murphy Jr. g lumber puller $4.00
............
2. Ronnie Graham g lumber puller 3.90
3. Leo Mitchell g lumber puller 3.90
4. Cleveland Miller g lumber puller 3.80
5. Douglas Jones g lumber puller 3.80
Planer Mill
1. J. C. Hicks Jr. g lift $5.00
............
2. Lencie Bonner g trim saw 4.25
3. V. Bernard Hicks g lumber puller 3.90
4. Tony R. Hives g lumber puller 3.90
5. Clarence Mitchell g lumber puller 3.90
6. Michael Mitchell g lumber puller 3.90
7. Jeffrey Parker g lumber puller 3.90
8. Michael Grayson g lumber puller $3.80
............
Boiler/Kiln
1. Joe Cunningham g boiler fireman 3.80
Complaint paragraph 11 names two more (Rex Philon and
Barbara Smith) for a total of 16. There is no evidence that
Philon was laid off. Stephens testified that the foreman
(James Doggett) reported that Philon, who wore union green,
quit that week. (9:2424–2425, 2433.)
Neither party discusses Barbara Smith who is the 16th and
final employee named in complaint paragraph 11. Barbara
Smith was one of the employees permanently laid off begin-
ning November 5. (CPX 60.) Although listed in the office
section of the payroll register (GCX 3-18), she apparently
was the shipping clerk. (GCX 6 at 2.) There is no evidence
that Barbara Smith openly supported the Union or that HLC
considered her a union supporter. I shall dismiss the com-
plaint as to Barbara Smith.
Plant Manager Stephens testified that he made these per-
manent layoffs in order to use a consolidated crew to operate
the sawmill the first 3 days of the week and the planer mill
the last 2 days. This allowed those who were laid off to file
for unemployment benefits rather than having many of them
working on, in effect, a share-the-misery option because of
the lack of logs. (9:2403, 2411–2412; 10:2438–2442.) Ste-
phens denies that union considerations resulted in 100 per-
cent of those permanently laid off to have been union sup-
porters. (11:2798.)
(2) Discussion
Recall that this November 5 layoff, unlike the previous
dates when employees were sent home temporarily for lack
of work, was permanent. Based on HLC’s economic situa-
tion, and Stephens’ decision to consolidate the crews into
one, there seems little basis for finding discrimination in the
selection of the five lumber pullers laid off from the sawmill.
These were persons from the lower ranks of skill, pay, and
seniority. The General Counsel advances no other choice
HLC could have made. I shall dismiss complaint paragraph
11 as to those five.
This conclusion holds respecting the six lumber pullers se-
lected from the planer mill, and I shall dismiss as to them.
Some question arises as to lift operator J. C. Hicks and
trim saw operator Lencie Bonner. Respecting Hicks, recall
that Stephens testified (9:2378–2379; 2408; 11:2845), with-
out contradiction, that Hicks did not have the range of skills
possessed by the other two lift operators, Floyd Conner
($5.75) and Bobby Dikes ($5.00, same rate as Hicks.)
Conner and Dikes wore company red. Hicks was hired Janu-
ary 24, 1985 (CPX 60), but the seniority of Floyd Conner
and Bobby Dikes is not shown. As the evidence is insuffi-
cient to show a prima facie violation, I shall dismiss as to
J. C. Hicks.
Lencie Bonner was hired March 26, 1984. (CPX 60.) John
C. Evans, the sawmill’s trim saw operator, and a company
red, was not laid off. His $4.75 pay rate was higher than
Bonner’s $4.25, and his seniority date of March 5, 1984
(CPX 60) was slightly earlier than Bonner’s. Billy Jones, the
planer mill’s other trim saw operator, had a later hire date
of August 14, 1985 (CPX 60), but a pay rate of $4.50. Jones,
who wore union green, was retained. I shall dismiss as to
Lencie Bonner.
Although boiler fireman Joe Cunningham wore union
green, he was at the bottom of the list in both skill (as re-
flected by his $3.80 pay rate, as Stephens testified, 9:2410),
and seniority (9:2410), having been hired on May 22, 1990.
(CPX 60 at 2.) I shall dismiss as to Cunningham.
Similar layoffs, although not alleged, occurred thereafter
until Melvin was closed about Saturday, December 22, 1990.
(10:2494.) The pattern of these layoffs generally followed
those of the permanent layoff of November 5. There were
union greens who worked during the last week. Of the 19
employees laid off on Thursday, December 20 (CPX 60 at
2; GCX 3–36, 37, 38) after 3 days’ operation that final week
(10:2490–2494), 14 were union greens. Of the nine employ-
ees who worked that final Friday, December 21 (GCX 3–36,
37, 38), all had worn company red on election day.
861HANKINS LUMBER CO.
The General Counsel (Br. at 67) points to the stipulated
fact (5:1280; 7:1637–1641; CPX 20 at 3) that in late Decem-
ber 1990 and early January 1991 seven of the laid-off em-
ployees, all wearers of company red, went to work at HLC’s
Quitman mill (with two more hired there later in 1991). The
parties never agreed whether these former Melvin employees
were transferred to Quitman or employed there as new-hires
(with applications and new seniority dates), and no other evi-
dence was adduced on the point. As HLC observes (Br. at
142 fn. 131), no evidence was presented that any of the
union greens applied for jobs at Quitman and were rejected.
Thus, the General Counsel’s description of this postclosure
fact as ‘‘extremely compelling’’ (for a conclusion of dis-
crimination, presumably) is merely a rhetorical flourish not
based on matters of substance.
Nothing in these subsequent events shows that the perma-
nent layoff of November 5 alleged in the complaint was un-
lawfully motivated. Accordingly, I shall dismiss complaint
paragraph 11 of the first Melvin complaint, Case 15–CA–
11394, respecting the permanent layoff of November 5,
1990.
4. Refusal to bargain
a. Facts
HLC does not address this issue either in its posthearing
brief or its reply brief. As stated by the General Counsel (Br.
at 71), the Government’s allegation is established by the
pleadings.
As I mentioned in the statement of the case, the parties
stipulated that the Union won the October 19, 1990 election
in the following bargaining unit:
All production and maintenance employees employed
by Hankins Lumber Company, Inc. at its Melvin, Ala-
bama facility; excluding all office clerical employees,
professional employees, guards, and supervisors as de-
fined in the Act.
Complaint paragraph 14, admitted by HLC’s answer, al-
leges that the Union was certified as the exclusive represent-
ative of the employees in the bargaining unit. Complaint
paragraph 15 alleges, and HLC’s answer denies, that at all
times since ‘‘on or about’’ October 19, 1990, the Union has
been the exclusive bargaining representative for the employ-
ees in the bargaining unit. (Apparently through inadvertence,
the Regional Office used the phrase ‘‘on or about’’ to refer
to the election’s specific date of October 19.)
Exhibiting the first evidence that it was confused over the
applicable law, HLC, denying paragraph 15, answers that the
Union was ‘‘not certified’’ until October 29, 1990.
Complaint paragraph 16 alleges that the layoffs of October
22 and November 1 and 5 were mandatory subjects of bar-
gaining. True but, HLC answers, it had no duty to bargain
with the Union over those layoffs.
HLC, complaint paragraph 17 alleges, made the layoffs of
October 2 and November 1 and 5 without notice to the
Union and the opportunity to bargain respecting ‘‘such acts
and conduct and the effects of such acts and conduct.’’ (Al-
though vaguely stated, the allegation apparently alleges a
failure to bargain over the decision as well as over the ef-
fects.) Admitting that the October 22 and November 1 lay-
offs ‘‘were implemented without prior notice to the Union,
HLC denies as to November 5, and ‘‘affirmatively states that
it had no obligation to notify or bargain with the Union until
it was certified as the exclusive bargaining representative of
the Union.’’ (Emphasis added.)
By letter (GCX 7) dated November 2, Hankins notified the
Union of HLC’s decision to lay off employees:
This is to inform you that due to economic condi-
tions beyond our control, Hankins Lumber Company,
Inc. (Melvin Division) will soon begin operating with
alternating work days in the saw mill and planer mill.
This will entail the layoff of approximately 30 employ-
ees. Unless we hear from you immediately, this deci-
sion will go into effect in seven days or less.
Please contact Kenneth E. Lauter, McGlinchey, Staf-
ford, Cellini & Lang, 643 Magazine Street, New Orle-
ans, Louisiana 70130 (telephone: 504/586–1200) if you
wish to discuss this matter.
Joy Lynn Smith, the Union’s organizer, testified without
contradiction that she received the letter about November 5
(a ‘‘Received’’ date stamp of November 5 appears on the
face of the letter), and that the letter was the first notification
of any layoffs. (7:1788–1789.)
By letter (GCX 8) dated November 5 the Union, by Vice
President Randall L. Rice, acknowledged receipt, requested
that any future correspondence be sent to his attention, and
advised that the local union had no current authority to deal
with HLC. Rice neither protested the layoffs nor requested
bargaining.
b. Discussion
Contrary to HLC’s apparent misconception, an employer’s
duty to avoid unilateral changes in wages, hours, and work-
ing conditions attaches when the Union wins the election.
The employer is not free, during the time between the elec-
tion and the certification, to make material unilateral
changes. And it acts at its peril when it does so absent com-
pelling economic considerations. Venture Packaging, 294
NLRB 544, 547, 548 fn. 4 (1989), enfd. mem. 923 F.2d 855
(6th Cir. 1991); Celotex Corp., 259 NLRB 1186, 1193
(1982). The certification date is when the employer’s limited
duty to bargain, following the Union’s election victory, rip-
ens into the employer’s plenary statutory obligation. Celotex,
supra at 1194 fn. 45.
Although Hankins referred to ‘‘economic conditions be-
yond our control’’ in his letter of November 2, log shortages,
indications of which had begun several weeks earlier, fall far
short of meeting the Board’s compelling economic consider-
ations.’’ The nature of these log shortages was unprecedented
at Melvin. In the past, employees would clean up during
work interruptions such as machine breakdowns. The layoffs
here may have been a reasonable response to an economic
problem, but HLC first was required to notify and bargain
with the bargaining representative the employees had se-
lected on October 19.
HLC’s November 2 letter was not received until Novem-
ber 5, after employees already had been told they perma-
nently were laid off. Thus, HLC’s November 2 letter pre-
sented the Union with a fait accompli regarding the perma-
nent layoff of November 5. Notice of a fait accompli did not
satisfy HLC’s statutory obligation respecting the permanent
layoff of November 5, and the Union therefore did not waive
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its right to charge here that HLC acted unlawfully. Intersys-
tems Design Corp., 278 NLRB 759 (1986).
I therefore find that HLC violated 29 U.S.C. § 158(a)(5)
when it unilaterally decided to and did lay off employees
without giving the Union notice and opportunity to bargain
over the decision and its effects to lay off employees on Oc-
tober 22 and November 1 and 5, 1990. Indeed, the Union al-
ready had been certified by November 1. Even if HLC did
not unlawfully close its Melvin facility, HLC must make
whole, with interest, all employees for their unlawful layoffs.
E. Melvin—Closure—Case 15–CA–11523
1. Introduction
Paragraph 7 of the complaint in Case 15–CA–11394, in
conjunction with the conclusory allegations in paragraph 8,
alleges that about December 24, 1990, HLC closed its Mel-
vin facility and terminated all the mill’s employees because
the employees joined or supported the Union. Admitting the
closure and terminations, HLC denies any unlawful motiva-
tion.
There is some discussion in the record and in the briefs
concerning whether the closing was permanent or temporary.
As I earlier mentioned in the section ‘‘HLC’s Business,’’
some four employees have remained employed at Melvin
performing watch to comply with fire insurance require-
ments. The parties stipulated that as of January 1992 mail
was still being received at Melvin, forklifts and other equip-
ment remained, and an operating telefax machine was at the
office.
HLC has not placed the facility for sale, and HLC seems
able to resume operation of the mill on short notice (assum-
ing that employees are available to staff the mill). Melvin ap-
pears to have been closed indefinitely (that is, neither perma-
nently nor temporarily) to await favorable market conditions.
In his October 10 impromptu remarks following his second
speech, Hankins said that he would reopen if he could make
money there. If not, he would cut the mill down and either
move it to where it could make money or move the equip-
ment to Grenada. As of the May 22, 1992 closing of the
hearing, HLC apparently had not collapsed the Melvin facil-
ity and moved it. On brief HLC ‘‘readily admits that the clo-
sure was initially intended to be temporary until the market
changed to a degree sufficient to allow the Company to oper-
ate at a profit.’’ (Br. at 83 fn. 82.)
2. The Government’s prima facie case
The General Counsel relies heavily on the factor of timing.
The timing factor does favor the General Counsel. Only min-
utes after the election tally revealed a union victory, HLC,
in a mean-spirited departure from past practice, sent many
employees (mostly union greens) home for the balance of the
day. Less than a week later Hankins notified the employees
(GCX 4) and the Union (GCX 5) that it appeared he would
have to close the plant by December 24 ‘‘unless market con-
ditions improve’’ as reflected by HLC’s profit-and-loss state-
ments for October and November. On Saturday, December
22, Melvin closed indefinitely.
Although the General Counsel has not shown that HLC’s
figures are false, the Government stresses that 97 percent of
Melvin’s 1990 losses were attributable to tract losses. It is
meaningless for the General Counsel at times to refer to
these tract losses as events occurring ‘‘outside the mill’’ (Br.
at 73, 79) as if they bore no relationship to HLC’s money.
Significantly, the tract losses were attributable to a single
timber buyer, Gary Graham, who left in mid-September after
Hankins all but fired him 3 or 4 weeks earlier for causing
the tract losses by overcruising.
The significance of Melvin’s tract losses is twofold. First,
they were limited to 1990. Second, they were potentially
damaging to HLC’s bank credit for 1991. Respecting the first
item, because Graham left in mid-September, in October–De-
cember 1990 Hankins was able to evaluate Melvin’s eco-
nomic future with no real fear of more tract losses. Such an
evaluation would show that, compared with 1990’s tract
losses of $734,266, Melvin’s other losses for all of 1990
were a relatively small $22,785. (CPX 33.) From this the
question arises, why would HLC close Melvin when its non-
recurring 1990 losses were less than half of the mill’s 1989
losses. As HLC did not close Melvin when it lost $51,627
in 1989 (RX 12), perhaps an inference of unlawful motiva-
tion can be drawn by HLC’s closing Melvin in 1990 soon
after the Union’s election victory.
Disparity. While Melvin sustained nontract losses of
$22,785 in 1990, the Sturgis mill suffered more than seven
times as much—$173,947. (RX 12.) Despite its far greater
loss at Sturgis, HLC never even considered closing that mill.
(9:2207, Smith; 16:4010, Hankins.) At least on the surface
perhaps it can be said that HLC’s failure even to consider
closing Sturgis, while closing Melvin, supports an inference
that HLC reacted so strongly at Melvin because the employ-
ees there had voted in the Union. There is no evidence of
any contemporaneous union organizing at Sturgis.
Although the General Counsel advances other contentions,
I find no merit to any. One of these pertains to repairs and
capital improvements. Hankins (16:3901–3903, 4013) and
Smith (8:1989–1990, 2080; 9:2195) acknowledge that as
early as their June 9 monthly meeting Hankins mentioned he
might have to close Melvin (or to cease operations there) be-
cause of its losses, the high price of timber and low price
for lumber, Melvin’s inefficiency, the bleak U.S. economy,
and the poor prognosis for a positive change in these factors.
Smith suggested that Hankins think about it some more be-
cause Melvin had made money in the past. (16:3903, 4015,
4027.)
In attacking the credibility that Hankins, as early as June
9, expressed to Smith the idea of closing Melvin, the General
Counsel argues (Br. at 90) that the various repairs and capital
improvements made during 1990 support a finding of unlaw-
ful closing. This is so, it is argued, because ‘‘it is unlikely
Respondent would have made such improvements had it ac-
tually contemplated,’’ in June 1990, closing the facility based
on the losses reported through May.
While Hankins held off closing Melvin after June 9, re-
pairs continued. Those expenditures however are not incon-
sistent with that wait-and-see approach. Indeed, the parties
stipulated (10:2510–2517, 2545) that a list (GCX 19) of most
of the repairs was for routine repairs. Some additional repairs
and improvements were made in May–June and in the sum-
mer of 1990, with a dispute concerning whether repairs of
$5684 on fuel tanks occurred in 1990 or 1989. (RX 34; GCX
23; 16:3857–3868.) One of the stipulations is that
repairs/improvements of $7448 were made to log runs in
May or June 1990. (10:2511, 2517.)
863HANKINS LUMBER CO.
The routine repairs (GCX 19) for 1990 totaled $98,642.
This total includes repairs to the mill. (GCX 19.) (Shown as
repairs for machinery and equipment on the 1990 operating
statement, CPX 54 at 2 L. 3.) Repairs to the buildings totaled
$26,205 (CPX 54 at 2 L. 5), and expenses for the dry kiln
($5602) and boiler ($22,362) are shown on the 1990 operat-
ing statement. (CPX 54 at 2 LL. 29, 30.) HLC’s 1989 profit
and loss statement (CPX 53; apparently another name for
1990’s operating statement) shows expenses of $69,291 for
machinery and equipment, $773 for building repairs, and
$41,035 for the mill. (CPX 53 at 2 LL. 14, 16, and 34.)
Although the evidence and documents on this point are not
entirely clear, and even though the parties have not briefed
the issue in detail, it is clear enough that the expenditures
Hankins made in 1990 were consistent with the normal busi-
ness goal of maintaining Melvin while trying to make a prof-
it.
Expenses in the range of $7448 to improve log runs (con-
crete for places where logs are stacked), for example, hardly
persuade that on June 9 Hankins really did not discuss with
CFO Smith the idea of possibly closing Melvin. Anyone who
ever has sold a home knows that he has to maintain the
property in good repair if he expects to be able to attract a
buyer at a reasonable sales price.
Rather than $7400 repair items, what the Government real-
ly needed to adduce, in order to make its point, is that in
July (or at any time that summer after June 9) Hankins de-
cided to make any of the mega-investments Melvin needed
to make it a first-class sawmill. The first of these would be
to convert Melvin from an inefficient circle saw operation to
the efficiency of a bandsaw operation. A good part of the
record is devoted to the inefficiency of Melvin’s operation,
including the nature of the principal saw. Converting to a
bandsaw operation would be expensive. Very expensive.
Plant Manager Stephens gives his rough estimate of at least
$1 million. (11:2847–2848.)
Testifying that modernizing Melvin would also require a
drop sorter (an automatic counting and sorting device,
16:3951) as well as a bandsaw, Hankins puts the cost of in-
stalling both at $1.5 million to $2.5 million. (16:3952, 4020.)
That does not include adding fill dirt to provide the extra
land, for the topography at Melvin currently is not suitable
for the longer lumber that would be, and should be, produced
at a modernized operation. (16:3953, 4021, 4030–4031.)
Another big item that would have been impressive is a rail
spur. Melvin has never had a rail spur. This absence contrib-
utes greatly to Melvin’s inefficiency as even Bruce Young
observes. (2:278–279.) A former cruiser at Quitman and a
principal witness for the Government, Young testified that
the lack of a rail spur means that lumber has to be trucked
from the mill at, he assumes, higher costs than by rail.
(2:279, 284.) At Melvin lumber is shipped by truck.
(16:3950.) CFO Smith confirms that rail costs are cheaper
than shipping by truck (8:1992–1996), although he personally
has not checked the difference respecting shipments from
Melvin. (9:2166.)
The record contains no evidence whether HLC would have
to pay to add a rail spur at Melvin, although presumably
HLC would have to pay at least part of the cost. But aside
from any cost which Melvin would incur, the record does not
show that HLC (in 1990, but particularly that summer) made
any effort to add a rail spur at Melvin. Had Hankins made
an effort that summer to add a rail spur at Melvin, particu-
larly if adding a rail spur would have been an expensive item
for HLC, such a fact perhaps would tend to support the point
the General Counsel attempts to make here.
In short, I find the item about 1990 repairs and improve-
ments at Melvin fails to support the General Counsel’s prima
facie case.
One of the other contentions of the General Counsel (Br.
at 84–86) is that HLC failed to terminate Gary Graham,
Melvin’s timber buyer, either in April 1990 when Hankins
warned Graham that his tracts had to ‘‘cut out,’’ or in Au-
gust 1990 when Hankins confronted Graham with a list of
the specific tracts. The General Counsel does not articulate
what this failure means.
In fact Hankins did fire Graham in their August meeting
but, out of ‘‘Christian’’ compassion, immediately suspended
that action when Graham pleaded that his family was packed
and ready to depart on vacation. Whatever his faults, Graham
was no fool. Concluding that he had no future at HLC,
Graham soon thereafter found employment elsewhere.
(13:3146–3148, 3259; 16:3958–3959, 4055.) Assuming that
there is some relevance to Hankins’ suspending his August
discharge of Graham, I find that it adds no weight to the fac-
tors advanced by the General Counsel as the Government’s
prima facie case.
The General Counsel also contends that HLC manipulated
both the prices it bid for timber and its log supplies in order
to avoid purchasing timber for Melvin and, apparently, to di-
vert logs to HLC’s other mills as shown by their ample in-
ventories. This contention ignores the all-important efficiency
or overrun factor and the fact that HLC’s bidding procedure
and its scaling procedure had been in place for years. The
fact is that Melvin’s low efficiency factor knocked it out of
the competition for timber. The higher overrun factor en-
joyed by the other mills explains their success at obtaining
logs. I attach no weight to this contention. Nevertheless, I
have found a prima facie case based on the factors earlier
discussed.
I turn now to summarize and discuss HLC’s burden to es-
tablish, by a preponderance of the evidence, that it would
have taken the same action of indefinitely closing Melvin
even if the Union had never appeared at Melvin or, if ap-
pearing, had lost the election. HLC (Br. at 34) appears to
suggest the three-stage process devised by the Supreme
Court for certain Title VII cases in defining a two-step shift-
ing of the burden of going forward with the evidence. The
test for Board cases, which test the Supreme Court has ap-
proved, does not merely shift the burden of going forward
to the respondent employer. Instead, the employer’s burden
is one of persuasion, similar to an affirmative defense, and
it must discharge its burden by a preponderance of the evi-
dence. Merillat Industries, 307 NLRB 1301 (1992). And see
Hyatt Corp. v. NLRB, 939 F.2d 361, 374–375 (6th Cir.
1991).
3. HLC’s defense
a. Introduction
CEO Hankins and CFO Smith confer every Saturday on
HLC’s finances. In addition to a general weekly review, the
first Saturday of each month after the first full week, the two
review the financial situation based on the previous month’s
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
financial records. (8:1989, 1991, 2079–2080, 2107; 16:3901,
4008, 4038, 4040.) When Hankins and Smith held their regu-
lar monthly meeting on Saturday, December 8, 1990, and
discussed Melvin, Hankins decided to close the mill. (8:2042,
2081–2083, 2108–2113; 9:2315, 2326.) For the following
reasons, Hankins testified, he decided to close Melvin
(16:3971, 4070):
1. Poor U.S. economy
2. Cost-price squeeze on timber/lumber
3. Melvin’s unprofitability
4. Credit standing with banks
5. 60-day notice deadline approaching
Hankins never satisfactorily explained how the 60-day pe-
riod, about to expire, was a factor in the decision as distin-
guished from the timing for the decision to close. His notice
had left an option to remain open if profits improved. I shall
attach no weight to this reason.
The Union’s election victory, Hankins testified, played no
part in his decision, and even if the Union had lost, Melvin
still would be closed today. (16:3971–3972, 3990.)
b. Poor U.S. economy and cost-price squeeze
In the section summarizing HLC’s business, I earlier re-
ferred to the cost-price difference which has been squeezing
U.S. softwood producers since about mid-1987. The pressure
from this squeeze was compounded by the poor U.S. econ-
omy having fewer housing starts and suffering a decline in
construction.
In operating his business, Hankins belongs to several lum-
ber organizations, serves on industry committees, and reads
several industry and general publications in order to keep
abreast of such matters as silviculture, taxes, environmental
issues, and market conditions. Among the industry journals
he reads are Madison’s Canadian Lumber Reporter and
Mark Layman’s Pine Page, copies or excerpts from which
are in evidence as RXs 35 and 36. (16:3886–3894, 3906–
3911, 4004–4005.)
Copies in evidence of Madison’s (RX 35) and Pine Page
(RX 36) describe the problems facing the industry. For ex-
ample, the November 23, 1990 issue of Madison’s (RX 35–
33) is headlined, ‘‘US housing drops for 9th month in a
row.’’ The opening sentence of the article reports that U.S.
housing starts, through October 1990, had dropped ‘‘to the
lowest rate since the 1981–1982 recession.’’
Mark Layman’s Pine Page, a weekly newsletter devoted
to Southern Yellow Pine (SYP) analysis, states, in the Au-
gust 24 issue (RX 36-3):
HOUSING IS IN A RECESSION! Call it what you
want but business stinks. Interest rates are high, lumber
prices are declining, housing starts and permits are
barely able to stay above 1 million, and disposable in-
come has been disposed of.
Right now, the only thing that will turn the SYP
market around is loss of production or if prices get
cheap enough to spec on. That is not likely to happen
until lumber values move appreciably lower.
The November 16 Pine Page reported (RX 36–13):
Lower [lumber] prices are further confirmation of a
buyers market and a housing recession. A $15 decline
in lumber futures in three days this week was also a
vote of no confidence. Retail yards are buying much
less than normal for the spring.
Buying opportunities are still available for the hard
core speculator, but producers and consumers alike are
expecting lower prices in the weeks ahead.
Only modest mill closures have occurred. Hardly
enough to create a shortage.
The November 30 Pine Page (RX 36–14) was still looking
for a ‘‘missing miracle’’ in the market, while reassuring that
the market ‘‘never goes as low as you think it could.’’ Madi-
son’s, which all summer and fall detailed the adverse news
about SYP, reports in its December 7 issue (RX 35–37, 38),
the final issue in evidence, that sales of single family homes
in the U.S. had dropped from September to October, and,
through October, 16 percent from 1989. SYP buyers were
described as ‘‘cautious.’’
With the December 7 Pine Page (the last issue introduced
in the record), Layman reports that producers ‘‘are paying
higher log costs.’’ ‘‘The choices,’’ Layman asserts, ‘‘are to
continue running and keep a weak stream of cash flowing,
or to shut down completely and see how long the banker is
willing to gamble on a strategy that the market will soon re-
bound.’’ Layman encourages with, ‘‘We will survive!’’ Even
so, in this final issue of record, he advises (RX 36–15):
It is time to get to know your banker, because he is
one of the wolves whose bite is much worse than his
bark.
A graph (RX 39) in evidence portrays the python-like
squeeze which faced the industry in 1990. Entitled ‘‘U.S.
Softwood Lumber Producers Have Been Caught in a Cost-
Price Squeeze,’’ the graph lines begin in 1985 with lumber
prices moving above log costs. In 1986 log prices are well
above log costs. By late 1987 log costs had caught and by-
passed lumber prices—a trend that continues off the chart
into 1991. (The chart is drawn from data published by the
U.S. Bureau of Labor Statistics and the industry publication
Random Lengths (one of the publications Hankins reads,
16:3891), and prepared by a law firm representing the South-
eastern Lumber Manufacturers Association ‘‘and the Coali-
tion for Fair Lumber Imports in the Canadian Lumber Dis-
pute.’’ (16:3974, 3994–3995; RX 39–2.))
By early 1990 the gap, with log costs high and lumber
prices low, was big. Pointing to that gap, Hankins testified
that it was nearly impossible to make a profit. (16:3973,
4102.) The gap reaches its greatest distance at the close of
the third quarter, or by September 30. While the gap retains
most of that distance during the fourth quarter, the graph ac-
tually shows both lines proceeding upward. The wideness of
the gap however would be no cause for joy. A glimmer of
hope appears, however, from the fact that the line for lumber
prices appears to be rising faster than the line for log prices.
By March 31, 1991, the line for lumber prices, climbing
steeply, had closed nearly half the gap, only to begin a steep
drop while the log costs line proceeded higher. There the
chart ends. Hankins testified that during late 1990 and early
1991 over 200 softwood lumber mills closed across the
country. (16:3972.)
865HANKINS LUMBER CO.
The evidence overall supports a finding, which I make,
that as of December 8 and continuing at least through De-
cember 22, 1990 market conditions for sawmill companies
were bad and there appeared to be very little hope for any
recovery in the foreseeable future. In other words, I find that
HLC proved that severe adverse economic conditions did
exist during all of the last quarter of 1990, including Decem-
ber.
c. Melvin’s unprofitability
Addressing Hankins’ unprofitability reason, I shall exclude
tract losses from the discussion although I shall include that
item when covering the bank credit factor. Because tract
losses are an item limited to 1990, Hankins should have ex-
cluded that item from his forecast of potential unprofitability
for 1991. As a loss of hard cash, certainly the huge tract
losses hurt in 1990 and were potentially damaging to HLC’s
bank credit. But they were not a recurring loss item for 1991.
Two other factors, however, had to be weighed by
Hankins: (1) low mill efficiency and (2) no rail spur. I sum-
marized the first item, also called the overrun factor, in the
initial section, HLC’s business. As shown there, Melvin’s
overrun of 160 (60 percent) was the lowest of the four saw-
mills, with Quitman and Sturgis at 179 and 196 for Grenada.
Also as previously noted, when the cost-price has a gap with
costs the high graph line, a mill with a low overrun cannot
compete with a mill enjoying a high overrun. As HLC
phrases it, ‘‘In this Darwinian economic struggle, inefficient
mills such as Melvin were fated to perish.’’ (Br. at 45.)
With log costs up (and lumber prices down), Melvin’s low
overrun number severely hampered its ability to bid competi-
tively on timber in order to get logs for the mill. Thus, al-
though Aubrey Cannon, Gary Graham’s replacement, tried to
purchase timber for Melvin, he was unsuccessful. He was
able to buy some ‘‘gate logs.’’ He was never told to stop try-
ing to buy timber for Melvin.
Gate logs differ from ‘‘stumpage’’ logs in their source.
Stumpage logs are those cut from tracts of timber and then
transported to the mill. These also are known as company
logs because the company already has purchased the standing
timber. As the name implies, gate logs appear at the gate,
transported there by independent loggers who seek the best
place and price to sell their logs. Usually the cost is a bit
cheaper than that for stumpage logs. The mill buys gate logs
only at time of delivery.
Ideally a company would prefer to be able to operate sole-
ly with gate logs, but, understandably, gate logs are not con-
sidered a dependable source of supply. After his first week
or so at Melvin, Cannon testified, Melvin purchased gate
logs only. (14:3415–3416.) That 100 percent of Melvin’s log
supply compares to a percentage of 20 to 30 during normal
times at Melvin. Unfortunately, those gate logs were not
nearly enough to keep the Melvin mill open.
Refocus now on the overrun factor. Hankins attributes
most of Melvin’s inefficiency to at least two structural short-
comings there. First, and as I have mentioned, Melvin had
a circle saw rather than a bandsaw for its breakdown saw.
(16:3932-3933.) HLC’s other mills have bandsaws. A circle
saw has several disadvantages, and a principal one is the
greater kerf it cuts. Because the blade of a circle saw is
thicker than that of a bandsaw, the kerf (the gap cut by the
blade) is wider. The wider kerf means more waste. A band-
saw produces more lumber and that means more money.
Second, because of Melvin’s terrain the mill could not
produce lumber longer than 16 feet. This factor lost sales in
some areas of the country that specified lumber 18 and 20
feet in length. The longer lengths also sell at higher prices.
Aside from its low overrun factor, Melvin, as I have de-
scribed, has never had a rail spur. That lack adds to Melvin’s
shipping costs.
Observing that Melvin’s structural problems and lack of a
rail spur were preexisting conditions, the General Counsel
(Br. at 89) contends, in effect, that these defects should be
considered makeweight arguments. The problem with the
General Counsel’s position is that it disregards the graph
lines moving from favorable for Melvin in HLC’s first 3
years there to the python-like squeeze suffocating Melvin in
1990. It is clear that while the structural defects and the lack
of a rail spur had not prevented Melvin from earning a profit
before 1989, they now were contributing to HLC’s economic
crisis and were two of the reasons for Hankins’ decision to
close Melvin.
Thus, even though Hankins was well aware, when pur-
chasing Melvin in 1984, that the circle saw (16:4019) and
absence of a rail spur (16:4027) were disadvantages, in the
early years, before the 1989 loss of $51,627 (RX 12), the ad-
verse factors had not prevented Melvin from earning a profit.
(16:3901, 4025–4027.) But by 1989, Hankins testified
(16:4027), the ‘‘lumber business was going into a different
mode than we’d been in in years.’’ The chart (RX 39) dis-
playing the python’s cost-price squeeze graphically dem-
onstrates that the constriction began suffocating the industry
about September 1989. (16:4102.)
The suffocation caused by the python’s cost-price squeeze
and Melvin’s low overrun number are the reasons, as
Hankins testified, that Melvin could not afford to buy logs
during the fall of 1990 when Quitman could. (16:4098,
4100–4101.) Because Melvin could not afford to buy logs in
the latter half of 1990 (or even slightly earlier), the mill
could not operate and therefore closed. Of course Melvin
needed logs—but at a price it could make a profit. As
Hankins puts it, ‘‘We didn’t need them if we was going to
lose money.’’ (16:4062, 4106.)
While a repetition of 1990’s loss is not shown to have
been likely, it seems quite reasonable for Hankins to have
concluded, as he did, that the mill could not make money in
1991 given the combination of the python squeeze, Melvin’s
low overrun, and the lack of a rail spur. I find that HLC
proved that Melvin, during the relevant time, including De-
cember 1990, was an unprofitable mill and that 1991 loomed
as another loss year at Melvin in Hankins’ view.
d. Credit standing with banks
There is no dispute that Hankins’ nephews left in 1988
and that in September 1989 Hankins bought their interests
with a $2.5 million bank loan. (16:3884–3885, 3971–3972,
4019.) Coupled with the problems facing Melvin, and steep
drops in earnings at the other mills, even a loss at Sturgis,
Hankins understandably became alarmed that his credit line
at the banks was in jeopardy. In Hankins’ words (16:3971):
And I couldn’t afford to put our business in the
shape if I went to the bank, they’d turn me down, and
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I had to make steps to be sure our company was on
sound ground and could stay on sound ground.
I find that HLC factually established this reason.
e. No pretext
I have found that for 1990 HLC was suffering a setback
in revenue, and that in December at Melvin HLC truly faced
an economic crisis. I also find that HLC did not create the
economic crisis at Melvin, or manipulate timber bids and log
supplies, to take advantage of economic problems in order to
justify closing the Melvin mill in retaliation against the em-
ployees there because they voted on October 19 for the
Union to be their collective-bargaining representative.
Granted, HLC hurt its own cause when it, clearly in a fit
of spite, sent many employees (mostly union greens) home
the day of the October 19 election, and by temporarily, and
unlawfully, laying off employees on October 22 and Novem-
ber 1. This spiteful attitude did not carry over to the perma-
nent layoff of November 5, and it clearly did not cause
Melvin’s closure.
HLC similarly does not advance its defense by stressing
the huge 1990 losses at Melvin when in fact 97 percent of
those losses, because limited to Gary Graham’s 1990 over-
cruising, would not have been a recurring factor for 1991.
Nevertheless, HLC’s stressing this item as if it were to be
a recurring factor in 1991 does not convert the real economic
crisis into a pretext. Moreover, the balance of the losses,
amounting to $22,785 (CPX 33), is still a loss of money.
I find no disparity respecting Hankins’ failure to consider
closing the Sturgis mill despite its own large loss of
$173,947 (RX 12) for the year. Sturgis had a 70-percent
overrun, a rail spur, suffered no tract losses, and could still
buy logs. (12:3033; 16:4010.) And let us not forget Bruce
Young’s testimony that if he had to close one mill it would
have been Melvin. He would chose Melvin, other items
being equal, because of its close proximity to Quitman and
because Melvin had no rail spur. (2:278–279.)
Finally, aside from ending the uncertainty at Melvin, and
foreclosing the possibility of another loss there in 1991 (for
the third consecutive year), closing Melvin had the potential
for a positive benefit. Ceasing production of limber at Mel-
vin, Hankins testified (16:3902–3905, 4016–4017), could
serve to help raise lumber prices by virtue of cutting back
on the supply of lumber available. Hankins included this
among his June 9 concerns when discussing closure with
CFO Smith. (16:3902–3905.) Although he did not expressly
repeat that potential positive factor when giving his reasons
of December 8, I find that it was implied when he referred
to the ‘‘economy,’’ ‘‘bad lumber business,’’ and ‘‘no way
for that mill to make money.’’ (16:3971, 4069.)
Clearly this was only an incidental benefit, and only a po-
tential one at that. No evidence was presented addressing
what impact, if any, Melvin’s closure had on lumber prices.
The python graph (RX 39) however shows that lumber prices
rose steeply the first quarter of 1991 before again dropping
sharply. I attach only incidental weight to this factor.
Toward the end of Respondent’s brief, HLC’s attorneys,
quoting a proverb from Mark Layman’s Pine Page of August
10, 1990 (RX 36–1) that ‘‘A clean conscience is a soft pil-
low,’’ assert (improperly offering purported facts from out-
side the record) that Burton Hankins enjoys a clear con-
science and sleeps well. (Br. at 212.) It is well that such is
so, but as the prophet warns: ‘‘Never will I forget a thing
they have done.’’ Amos 8:7.
f. Summary
To summarize, I have found that the Government pre-
sented a prima facie case showing timing, animus in tem-
porary layoffs, misplaced emphasis on tract losses, and sur-
face disparity respecting no consideration for closing the
Sturgis mill which suffered a far greater loss (excluding
Melvin’s nonrecurring tract losses) than did Melvin.
Rebutting that prima facie case, HLC, I have found, re-
sponding to the legitimate economic crisis it faced at Melvin,
demonstrated that it would have closed Melvin in December
1990 even had there been no union on the scene. Accord-
ingly, I shall dismiss the closure allegation, complaint para-
graph 7 of Case 15–CA–11523 (the third complaint).
Having earlier dismissed the allegation against Supervisor
Hamburg, the only other unfair labor practice alleged in the
third complaint, I now shall dismiss in its entirety the third
complaint, Case 15–CA–11523.
CONCLUSIONS OF LAW
1. HLC violated 29 U.S.C. § 158(a)(1) about late August
1990 by threatening employees at its Melvin, Alabama saw-
mill with discharge for supporting the Union.
2. HLC violated 29 U.S.C. § 158(a)(3) and (1) when it
temporarily laid off employees at its Melvin sawmill on Oc-
tober 22 and again on November 1, 1990.
3. HLC violated 29 U.S.C. § 158(a)(5) and (1) when it uni-
laterally laid off employees on October 22 and November 1
and 5, 1990, at its Melvin sawmill without notifying and, on
request, bargaining with the Union concerning the decisions
to lay off employees and the effects of those decisions.
4. HLC did not violate the Act when it closed its Melvin,
Alabama sawmill on December 22, 1990.
5. HLC did not otherwise, as alleged, violate the Act at
either of its sawmills at Melvin, Alabama, or Quitman, Mis-
sissippi.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily laid off employ-
ees, ordinarily it must offer them reinstatement and make
them whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of layoff to date of
proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). Here, however, some would have
been, and some were, included in the permanent layoff of
November 5, 1990. In any event, the backpay period would
have closed for all with the Melvin mill’s last day of Satur-
day, December 22, 1990.
Moreover, the usual remedy described above appears to be
subsumed in HLC’s backpay obligation incurred as a result
of its unilateral action in the layoffs of October 22 and No-
867HANKINS LUMBER CO.
vember 1 and 5, 1990. In Lapeer Foundry & Machine, 289
NLRB 952, 955–956 (1988), the Board held that an employ-
er’s backpay liability for unilateral layoffs runs from the date
of the layoff until the employees are reinstated or have se-
cured equivalent employment elsewhere. Here, of course, the
mill closed indefinitely on December 22, 1990. Under
Lapeer, therefore, HLC must make whole the employees,
with interest, from the date of the layoffs until December 22,
1990, because it did not bargain with the Union about the
decisions and their effects.
Had bargaining occurred, it may well be that many or
most of the employees would have been laid off before De-
cember 22. That is something we will never know because
HLC’s unilateral action bypassed the bargaining process.
‘‘The consequences of Respondent’s disregard of its statutory
obligation should be borne by the Respondent, the wrongdoer
herein, rather than by the employees.’’ Lapeer at 956. Ac-
cordingly, I shall order HLC to make all unit employees
whole from the date of their layoffs until December 22,
1990. The backpay period for each employee shall be deter-
mined at the compliance stage.
Because HLC’s Melvin, Alabama plant has been closed in-
definitely for economic reasons, I shall order HLC to mail
copies of the notice to employees to each employee on the
payroll as of the October 19, 1990 election. Copies shall be
mailed to such employee at his or her last known mailing ad-
dress. I also shall order that copies of such notice be posted
at HLC’s Quitman, Mississippi plant because the close prox-
imity of the two plants, the organizational drive at both
plants, and the hiring at Quitman of some of the laid-off
Melvin employees render it likely that employees at Quitman
became aware of the Melvin conduct found unlawful.
[Recommended Order omitted from publication.]