Independent Stave Co., Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1986

278 N.L.R.B. 593 (N.L.R.B. 1986)

INDEPENDENT STAVE CO.
Independent Stave Company, Inc. " and Local , 42
Coopers' International Union of North America,
AFL-CIO. Cases 17-CA-12350 and 17-CA-
12419
18 February 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 24 September 1985 Administrative Law
Judge David L. Evans issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel filed an answering
brief, limited cross-exceptions, and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Independent Stave Company, Inc., Leba-
non, Missouri, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Insert the following as paragraph 1(e).
"(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
I The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an 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
In the penultimate paragraph in sec 1II,A,2 of his decision, the judge
incorrectly referred to a meeting occurring on 19 October rather than 19
November We shall modify the judge's, recommended Order to include
the customary narrow cease-and-desist provision which he inadvertently
omitted,
We grant the Respondent's request to make the Regional Director's I
November 1984 partial dismissal letter in Case 17-CA-12350 part of the
record, since the letter involves matters of which the Board may take ad-
ministrative notice, and we deny the General Counsel's motion to strike
the Respondent's references in its exceptions to the letter. We note, how-
ever, that consideration of the letter does not affect the result herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
593
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten our employees with plant
closure if the Union attempts to make any job into
a unit position.
WE WILL NOT threaten any employee with dis-
charge if the employee does not withdraw charges
filed pursuant to the National Labor Relations Act.
WE WILL NOT threaten any employee with un-
specified reprisals if the employee does ' not with-
draw charges filed under the Act.
WE WILL NOT withhold from David Dame the
1984 prize frbm the contractually established deer
rifle contest program because charges have been
filed under the National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL award to David Dame a deer rifle of
like kind and quality to-that which was awarded in
1983 pursuant to our deer rifle contest program.
INDEPENDENT STAVE COMPANY, INC.
Donald Zavelo, Esq., for the General Counsel.
Donald W. Jones, Esq ., of Springfield, Missouri, for the
Respondent.
Ernest D. Higdon, of Louisville, Kentucky, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This
matter was tried before me on 21 May 1985 in Lebanon,
Missouri. The consolidated complaint alleges that Inde-
pendent Stave Company, Inc. (Respondent), has commit-
ted certain violations of the National Labor Relations
Act. The complaint is based on charges filed by Local
42, Coopers ' International Union of North America,
AFL-CIO (the Union or -the Charging Party). The
charge in Case 17-CA-12350 was filed on 9 October
1984,1 and complaint on that charge issued on 16 No-
vember . The original charge in Case 17-CA-12419 was
filed on 3 December , and it was amended on 17 Decem-
ber 1984 and 16 January and 4 March 1985. An order
r All dates are in 1984 unless otherwise specified.
278 NLRB No. 89
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consolidating cases, consolidated complaint, and notice
of hearing in both cases issued on 5 March 1985. The
complaint alleges that on three occasions in October an
agent of Respondent threatened employee David Dame
in violation of Section 8(a)(1). The complaint further al-
leges that on 19 November, and thereafter, Respondent,
in violation of Section 8(a)(4), refused to award a deer
rifle to Dame because the Union had filed charges under
the Act. This deer rifle was the prize in a contractually
established contest among Respondent's employees.
On the entire record, and on my observation of the de-
meanor of the witnesses, and after careful consideration
of briefs filed by Respondent and the General Counsel, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Missouri corporation engaged in the
manufacture and wholesale distribution of wooden bar-
rels at a facility located in Lebanon, Missouri. In the
course and conduct of its business operations, Respond-
ent annually purchases goods and services valued in
excess of $50,000 directly from sources located outside
the State of Missouri. Therefore Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
awarded to the employee/deerhunter, who brings in
the largest rack from the season's kill. The rifle will
be presented to the employee within one (1) week
following the end of the deer season.
The vice president of the Union at the time was Claude
Cromer Jr. He testified that during the negotiations the
contracting parties agreed that "the Union officers would
do the measuring" of the racks which were entered by
employees in each annual contest.
During the November 1983 hunting season, Cromer,
Lester Brayman (union recording secretary), and Kerry
Miller (shop steward) measured about a dozen deer
racks. The racks were brought by employees to Re-
spondent's parking lot for measuring which was conduct-
ed before starting time or during the lunch break. Racks
are measured in points; the more the points, the "bigger"
or "larger" the racks. At the end of the season Fesler
and Cromer reviewed the measurements compiled by
Brayman , Miller, and Cromer. Fesler and Cromer agreed
that Lou Sousa, who held no union office, had entered
the largest rack. Fesler and Cromer presented Boswell
with their tabulations, and Boswell agreed that Sousa
had won. Shortly thereafter, in a nice ceremony, Boswell
presented Sousa a Remington, .30/06 caliber, rifle which
was purchased by Boswell for $305.71. Boswell never
questioned whether Sousa actually shot the deer whose
rack Sousa entered in the contest.
II. LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background-contest of 1983
Respondent manufactures whiskey barrels at its Leba-
non, Missouri plant.2 Respondent's chief officers at the
plant are John Boswell, president, and Don Smith, vice
president. Respondent employs about 130 production em-
ployees who are represented by the Union. There has
been a succession of contracts between Respondent and
the Union, the most recent of which was executed on,
and was effective from, 15 April 1983; that contract ex-
pires 14 April 1989. During the negotiations for the con-
tract the parties reached an agreement regarding an em-
ployee contest. As another employer in the area was al-
ready doing, Respondent agreed to award annually a
hunting rifle as a prize to the employee who shot the
deer which had the largest rack of antlers. The agree-
ment was memorialized in a letter, dated 14 April 1983,
from Boswell to Myron Fesler, who was then the presi-
dent of the Union. The letter states:
In accordance with our meeting on Wednesday
night, April 13, 1983, the Company will provide a
deer rifle each year, for the next six (6) years to be
2 Respondent also manufactures barrels at a plant in Lebanon, Ken-
tucky
2. Alleged threats to Dame
Two of the classifications at the plant are jointermen
and graders. Jointermen operate jointers which plane oak
boards down to suitable sizes for barrels staves. Graders
inspect the boards for recutting or rejection. Being a
grader is physically easier than being a jointerman.
David Dame has been employed by Respondent for
approximately 13 years. About 7 November 1983, at a
time when he was working as a jointerman, Dame sus-
tained an on-the-job injury to his back. Dame received
corrective surgery but was required to stay off work for
about 9 months. He returned to full-time employment
about 12 August, again as a jointerman.
On 1 October Supervisor John D. Franklin issued
Dame a disciplinary notice entitled "Official Warning
No. 2." It stated that Dame had been running about half
the production that he should as a jointerman. The warn-
ing further recited that Dame had received several
verbal warnings prior to this written one, and it conclud-
ed Respondent would discharge him for his next offense.
On 2 October Dame was elected president of the
Local Union.
On 3 October Dame filed a grievance over the warn-
ing notice received 1 October. Also on 3 October Dame
received a letter from Respondent's vice president,
Smith. The letter stated that Dame was being placed on
involuntary medical leave of absence "effective immedi-
ately" and that he would have to obtain a medical doc-
tor's written statement that he was able to work as a
stave jointer before returning to full employment. The
letter continued, "We must place you on medical leave
until the above conditions are met since you have indi-
INDEPENDENT STAVE CO.
cated that you are not able to perform your job assign-
ments." Dame was off work on 4, 5, and 8 October be-
cause of this involuntary medical leave for which he was
not paid.3
Dame testified that on 4 October he went to Smith's
office to discuss the letter of 3 October. According to
Dame:
And I told him that I could-I could do my job
and that I didn't want to go to the doctor. And he
said that I'd have to go to the doctor or I'd be
fired.
And then I asked him about a grading job, why I
couldn't have a grading job, and he said there
wasn't one. But in mid-September they had hired a
new man and put him to grading on a grader job.
And I asked him how's come that job wasn't
posted, and he said he didn't have to post a job for
35 days because it wasn't a job, and he didn't have
to post one because a new man that they hired, they
don't have to put in the Union for 35 days... .
And then I asked him about the pin-maker, they
had put a new deal in the plant making dowel pin
heads and I asked him why we couldn't sign him up
in the Union. And he said it wasn't going to be no
union job, that he would close the place down
before he made it a Union job.
The barrel heads are held together by dowel pins. Smith
testified that in the past Respondent had purchased
dowel pins from other suppliers. At some time before the
4 October exchange with Dame, Respondent purchased
four machines which were designed to make dowel pins.
Respondent had hoped to use these machines to make
the dowel pins from the oak which was left over from
the stave-making process. However, the oak proved too
brittle and the machines ultimately proved unusable.
Smith testified that when Dame asked about putting the
job into the unit, he replied that the job existed only on a
temporary basis because Respondent did not know if it
was going to be feasible to make its own dowel pins, and
that, "the way it was looking then, that it was not, and I
would probably do away with the job." Smith denied
telling Dame that Respondent would shut the plant
down before it would recognize the Union as the collec-
tive-bargaining agent of the dowel pin maker; Smith
added he would not have made such a statement "be-
cause of a six or seven dollar [an] hour job."
On 5 October Dame filed with Smith a grievance over
the 1 October warning slip, the refusal to. allow Dame to
transfer or bump to a less strenuous position, and the fail-
ure to post job openings for graders jobs as required by
the contract.
Dame testified that on 8 October, when he was at his
home on the involuntary medical leave, he was tele-
phoned by Smith. Smith asked Dame to come immedi-
a Smith testified that the reason for Respondent's 3 October letter was
that Dame had been working I or 2 hours and then complaining that he
could work no more. At that time Respondent was very busy, and Smith
considered Dame's work habits intolerable . There is no allegation that
either the warning notice of 1 October or the placement on medical leave
by letter of 3 October was discrumnatorily motivated.
595
ately to ,the plant- which Dame did. Further, according
to Dame, when he reached the plant Smith took him to
the conference room where he handed Dame a letter.
The letter states that Dame was to report " as soon as
possible" to work as a stave-grader. The letter further
stated that "we must have a medical report from your
doctor" about Dame's condition and ability to work.
Dame testified that as Smith handed him this letter,
Smith stated that Respondent wanted Dame to come in
the next day to begin grading work "if you'll drop the
grievances." Dame testified that he replied that he
wanted to be paid for the 3 days work that he had lost.
"Dame testified that Smith said he would be paid but
you still have to go to the doctor."
Dame further testified:
I told him that I wouldn't drop the part of the
grievance that applied to the job postings and
making the pin makers in the union. And he said,
.,all right," and he handed me the [1 October] warn-
ing, And then he had [5 October] grievance and he
wrote "dropped" on it and I signed my name to it.
Smith testified about the meeting:
He-well, first of all, he asked me what I wanted to
talk to him about. And then I said, lets work out
something and get rid of these grievances and the
unfair labor practice charge and if you'll agree to
go to the doctor and get a doctor's slip saying that
you're all right to work.
And for this I would pull the [1 October] warning
... and he would do away with both grievances
outstanding and he would do away with the NLRB
charge.
And he said that his attorney or something was
going to file [the unfair labor practice charges] and
he would get to him and have them dropped.
Smith further testified that at the conclusion of the 8 Oc-
tober meeting Dame laughed and said that Respondent
should pay for the 3 days that he had been off and he
told Dame to "forget that." On cross-examination Smith
was asked when Dame first mentioned that he was filing
NLRB charges. Smith responded, "that was before the
8th meeting, it might have been around the fourth or
fifth, something like that."
Dame denied that he told Smith that he was going to
file Labor Board charges or have them dropped. Dame
further denied on cross-examination that he knew that
Smith was under the impression that a settlement agree-
ment of the unfair labor practice charges, or an agree-
ment not to file unfair labor practice charges, had been
reached.
On 9 October the original charge was filed in Case 17-
CA-12350. It was served on Respondent on 10 October.
It contained allegations of violation of Section 8(a)(3),
(5), and (1), to wit: discrimination against Dame because
he had been elected president of the Union, filling jobs
without posting them as required by contract, and "by
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adding a job in the unit and stating that it would not be
covered by the contract."
On 19 October, as he was grading staves, Dame was
approached by Smith. According to Dame, Smith called
him to the back of the building, near an exit door. Dame
testified:
We, he had some papers in his hands and handed
me the paper and asked me, "what the hell are
these?" And I said "if I was guessing, I say they
was labor charges." And he said, "you're going to
drop these charges." And I said, "I'm not because
you haven't paid me what you was supposed to.
You haven't made the pin-makers in the Union.
And you haven't posted any jobs." And he told me,
he said "well," he said "the warning sticks." And
he said, "just because you're in the position you're
in doesn't mean you can't be fired."
According to Smith:
I said "I thought you had agreed to drop all of
these."... He says, "no." And I said , "we agreed
you were going to drop the grievances and we
were going to drop our [1 October] warning for
you, and then you were supposed to go to the
doctor and that's the way you got on a grading
wheel-or as a grader." And I said, "if you're going
to be that way, then the warning is going to stick."
Smith further testified that during this 19 October con-
versation he told Dame "he was going to get his ass in
trouble." Smith testified that, by this, he was:
referring to that [Dame] had signed an affidavit to
the NLRB saying that we have not agreed to these
statements, and that's why I was saying he was
going to get his ass in trouble because as far as I'm
concerned you don't lie to the NLRB. And that's
what I construed he was doing.
Dame testified that on 22 October at 9 a.m., as he was
working, he was again approached by Smith. According
to Dame:
Well, he come up to me and asked me, he said, "are
you going to drop those labor charges?" And I said,
"no" and he told me, he said, "you're going to keep
fooling around and get your ass in a lot of trouble,"
and turned and walked off.
Smith did not deny this testimony; he stated that he
could not remember any discussion about NLRB charges
subsequent to the exchange of 19 October.
Smith generally testified that he never made any state-
ment to Dame that he was going to take action against
him if he did not withdraw his NLRB charges. Smith
added that he had, in fact, told Dame he could file any
charges he wanted to. When asked when he had done
this Smith testified that he made such a statement in the
19 October meeting:
can file them from now on." I said, "I'm not saying
you can't file them," I said, "but you're going to get
your ass in trouble for lying, you know, for signing
that affidavit." "That's what I meant."
When asked what affidavit he was talking about, Smith
replied that he had given an affidavit, and the NLRB
agent had told him that Dame had given one also. How-
ever, Smith did not give an affidavit until January 1985.
3. Contest of 1984
In 1984 the deer hunting season in Missouri was be-
tween 10 and 18 November. In the several weeks prior
to the opening of season , copies of Respondent's 8 April
1983 letter (regarding the deer rifle contest) was posted
throughout Respondent's plant.
On 11 November Dame shot a deer which he took for
registration to a game warden station in Buffalo, Missou-
ri. Conservation Agent Reginald Sharp tagged the deer
and recorded it according to State-required procedures.
Sharp appeared at the hearing identified Dame as an in-
dividual who registered a deer with him during the 1984
season. After the deer was registered, Dame transported
it to his home where he cleaned it and cut off the head.
He placed the head in the back of his pickup truck in
order to transport it to the plant for measurement.
On 12 November Dame did not bring the deer head to
the plant.4 On that date employee Jerry Kimrey brought
to the plant a deer rack which measured 77 points. The
measuring, as in 1983 , was done by the union officers.
For 1984 the measuring officers included Dame, Vice
President Kenneth Decker, and Financial Secretary
Lloyd Henson . Kimrey testified that,, as his deer was
being measured , Dame commented that he thought he
had shot one which would have more points.
On 13 November Dame brought his deer rack to the
plant. It was measured by the union officers and wit-
nessed by Kimrey. It measured 81 points. Two other em-
ployees brought deer heads to the plant during the deer
season, but neither measured as much as Kimrey's or
Dame's. (Decker testified that he killed a deer during the
1984 season but , after he saw Kimrey's and Dame's, he
did not bother to bring its rack in to be measured be-
cause he knew it would not have as many points.)
On 16 November, as mentioned above, the complaint
in Case 17-CA-12350 issued; it, alleged that Respondent,
by Smith, had made threats against an employee. The
substance of the alleged threats is the same as alleged
herein, to wit: that on 4, 19, and - 22 October, Smith
threatened "an employee" with plant closure if the
Union attempted to make the barrelhead dowel pin-
making job into a unit position; threatened "an employ-
ee" with discharge if he did not withdraw Board
charges; and threatened "an employee" with unspecified
reprisals if he did not withdraw such charges. Of course,
the only employee to whom the allegations could have
referred was Dame.
We had words back and forth about something and
I think he advised me that he can file all them he 4 Dame testified that his truck would not start, on 12 November, so he
wanted to, and I said, "that's your prerogative, you rode to work with his wife on that date.
INDEPENDENT STAVE CO.
On 19 November, about noon, Dame approached Bos-
well in the office of Raymond Scott, Respondent's office
manager. According to Dame:
Well, when I walked in Mr. Boswell said, "what do
you want?" and I told him, I said, "I want to know
about the deer gun that's to be given away this
year." And he said, "if you want a rifle go to the
NLRB to get it." And I just said, "O.K." and start-
ed to walk toward the door. And he walked out a
little ways with me and he said "I'll see Junior
Cromer about it."
According to the testimony of Boswell:
He just came right in and said he wanted his deer
rifle and that he had won the deer rifle and that he
had, you know, he had measured it. And I didn't
believe him and he said he would collect it one way
or the other. And I told him, you know, if you
want your deer rifle, you can get it from the NLRB
but you're not getting it from me.
At the time Boswell did 'not tell Dame that he did not
believe that Dame had shot the deer.5
Later in the day, Boswell approached Cromer, who
was no longer an officer of the Union. Boswell asked
Cromer if he thought Dame had really killed the deer.
Cromer replied that he could not say because he had not
been there when the deer was shot. Boswell asked
Cromer if he knew anything about the NLRB charges
that had been filed against Respondent. Cromer replied
that he did not. Boswell, as he admitted in his testimony,
told Cromer that he Boswell had told Dame that, if he
wanted the deer rifle; he should "get it from the
NLRB."
At the hearing Boswell testified that it was solely his
decision not to give Dame the deer rifle. He further testi-
fied that he did not believe that Dame had shot the deer.
Boswell made no effort to find out who had shot the
second largest deer or if the measurements were taken in
a fair manner.
B. Credibility Resolutions, Analysis, and Conclusions
1. Alleged violations of Section 8(a)(1)
Dame testified that on 4 October Smith told him that
he would close the plant before he would put the pin-
maker job in the unit. Smith denied this testimony and
testified that he would not have threatened to close the
plant over the placement of a $7-per-hour job which was
going to be phased out anyway. Smith's logic is superfi-
cially appealing. Respondent's operations at both plants
were at full production at the time; business was good. It
is unlikely that any employer would, in fact, close a
thriving business because it had to recognize a union as
representative of one more employee; this would espe-
5 At an unrelated grievance meeting in held January 1985, Boswell did
tell a group of management and union representatives, including Dame,
that he did not award the rifle to Dame simply because he did not be-
lieve that Dame had shot the deer. (On hearing this Dame walked out of
the meeting.)
597
cially be true of a prosperous employer which has a gen-
erally amicable relationship with its union, as is the case
here.
However, Dame was more convincing than Smith
who created an unfavorable impression by: (1) professed
forgetfulness at various unlikely points; (2) a persistent
refusal to answer questions except in conclusive terms;
(3) a claim that the "first" thing he said in the 8 October
meeting was that the unfair labor practice charge should
be settled, even though it had not been filed;6 (4) a claim
at one point that he was referring to an affidavit-taking
session that had not occurred; and (5) by an palpable
seething hostility toward Dame. Moreover, even though
it is, in retrospect, an illogical thing to have said, it is
just the kind of answer which would come naturally to a
supervisor who had such hostility toward an inquiring
employee such as Dame . That is, who I believe, and
find, that Smith gave the response as described by Dame.
The statement, that Respondent would close rather
than put the pin-maker job in the Union, was a threat to
close if a grievance was filed over Respondent's refusal
to recognize the Union as the representative of the em-
ployee doing that work. While there exist arguments as
to why such a grievance would have been ultimately un-
successful , the lack of merit is not determinative; em-
ployees have a right to invoke contractual protections
free from interference such as threats by employers. That
is, Smith's statement on 4 October that he would close
the plant rather than place the pin-maker job in the
Union was a violation of Section 8(a)(1), as I so find and
conclude. Vincent Brass & Aluminum Co., 264 NLRB
334, 339 (1982); Interior Alterations, 264 NLRB 677, 681
(1982); Smyth Mfg. Co., 247 NLRB 1139, 1143 (1980).
On 19 October, when Smith received the original
charge in Case 17-,CA-12350, he approached Dame. It is
undisputed that he, demanded in profane terms to know
what the charges were. According to Dame, Smith de-
manded that he withdraw the charge and 'when Dame
refused Smith told him that "just because you're in the
position you're in doesn't mean that you can't be fired."
Dame further testified that he was again approached by
Smith on 22 October and was asked by Smith if he was
going to withdraw the charges. When Dame refused, ac-
cording to Dame, Smith replied, "You're going to keep
fooling around and get your ass in a lot of trouble."
Smith testified 'to only one exchange about the
charges, and he placed it on 19 October; he disclaimed
memory of any meeting with Dame on 22 October.
Smith stated that when he asked Dame what the charges
were he also told Dame that he thought there had been
an agreement that Dame would drop the grievances and
unfair labor practice charges if Respondent let Dame
return to work as a grader and dropped the 1 October
warning notice against Dame.
6 On cross-examination, Smith testified that Dame had mentioned the
unfair labor practice charges on "the fourth or fifth, something like that "
However, on direct examination Smith did not testify to any mention of
unfair labor practice charges on the fourth or the fifth, and in this Smith
was obviously concocting an explanation for his supposed 8 October ref-
erence to charges which had not been filed.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith admitted telling Dame that he was going to "get
his ass in trouble." Smith added that, by his remarks he
"was referring to" an affidavit which had not, as then,
been given. But even-if such an affidavit had been given,
what Smith was "referring to" is not the test under Sec-
tion 8(a)(1); the test is: what was said and what was its
likely impact on the employee hearing it? Here Smith
presented Dame with a copy of the Board charge and
told him that he was going to "get his ass in trouble" for
filing it.7 This was a threat of unspecified reprisals and I
find that, as alleged , it occurred on 22 October; and I
conclude that by this conduct Respondent violated Sec-
tion 8(a)(1) of the Act.
I further find, as Dame credibly testified, that Smith
told the employee on 19 October that he could be fired
for filing the charge. The reminder that Dame could be
fired could have had no other intent or effect than to
interfere with the employee's right to file charges under
the Act; accordingly I conclude that, by this further con-
duct of Smith, Respondent has violated Section 8(a)(1) of
the Act.
2. Refusal to award the deer rifle
The above statements by Smith clearly prove that Re-
spondent bore animus against Dame for the Union's
having filed charges with the Board. However, even
stronger evidence of animus is found in Boswell's admit-
ted reply on Dame's inquiry about the award: "get it
from the NLRB." If an employer tells an employee that
the employee is being unlawfully discriminated against, it
may be inferred that the employee is being unlawfully
discriminated against. Chef Nathan Sez Eat Here, 181
NLRB 159; (1970), enfd. 434 F.2d 126 (3d Cir. 1970).
That is, Boswell's reference to the invocation of Board
processes was an admission that Dame was being dis-
criminated against because the Union had filed charges
over the same topics Dame had filed grievances about.
Moreover, Boswell's response came just 3 days after the
complaint issued in Case 17-CA-12350. In view of the
timing, as well as the substance of the response by Bos-
well, it must be concluded that the General Counsel has
presented a prima facie case that Respondent was with-
holding the award because the Union had filed charges
which had resulted in the original complaint herein.
Respondent has presented no plausible factual defense.
It does not contend that Dame did not, in fact, shoot the
deer in question;8 it does not contend that any other deer
scored more points in the contest; it does not contend
that the agreement of 14 April 1983 required a certain
number of employees to enter the contest, or that the
agreement prohibited the judging union officers from en-
tering the contest; and it does not contend that some
other employee was the real winner of the contest.
° Smith testified that at one point, which "might have been the meet-
ing of the 19th" he told Dame that he could file all the charges he
wished. This testimony was added as an afterthought, and Smith was par-
ticularly incredible in giving it.
8 Boswell did state at trial (and to other witnesses beforehand) that he
did not believe that Dame had shot the deer. However, this expressed
disbelief is plainly pretextual in view of Boswell's failure to investigate
the matter other than to ask the opinion of Cromer who was not even a
union officer at the time and had nothing to do with the contest.
Respondent's only defense herein is a legal one: that
the agreement memorialized in the 14 April 1983 letter
violates Section 302 of the Act.
Section 302 was passed by Congress in an attempt to
stop bribes of labor union officials by employers. It pro-
vides in relevant part:
Sec. 302. (a) It shall be unlawful for -any employ-
er or' association of employers or any person who
acts as a labor relations expert, adviser, or consult-
ant to an employer or who acts in the interest of an
employer to pay, lend, or deliver, or agree to pay,
lend, or deliver, any money or other thing of
value-
(1) to any representative of any of his employ-
ees who are employed in an industry affecting
commerce; or
(2) to any labor organization, or any officer or
employee thereof, which -represent, seeks to rep-
resents, or would admit to membership, any of
the employees of such employer who are em-
ployed in an industry affecting commerce;
(3) to any employee or group or committee of
employees of such employer employed in an in
dustry affecting commerce in excess of their
normal compensation for the purpose of causing
such employee or group or committee directly or
indirectly to influence any other employees in the
exercise of the right to organize and bargain col-
lectively through representation of their own
choosing; or
(4) to any officer or employee of a labor orga-
nization engaged in an industry affecting com-
merce with intent to influence him in respect to
any of his actions, decisions, or duties as a repre-
sentative of employees or as such officer 'or em-
ployee of such labor organization.
Section 302 contains several exceptions including, at sub-
paragraph (c):
(c) The provisions of this section shall not be ap-
plicable (1) in respect to any money or other thing
of value payable by an employer . . . to any officer
or employee of a labor organization, who is also an
employee or former employee of such employer, as
compensation for, or by reason of, his service as an
employee of such employer .. .
Of course, employees who win the contest would claim
the prize neither as a representative of other employees,
nor a labor organization , nor ,as an employee who was
seeking to influence other employees about anything, nor
as an officer of an employee of a labor organization who
could be influenced in any respect. Moreover, even if the
winning employee-hunter could be said , in some strained
sense, to fall into any of those categories, the award is
exempted under the exception contained in Section
302(c), as discussed in the recent case of BASF Wyan-
dotte Corp., 274 NLRB 978 (1985).
In BASF Wyandotte the Board held that it would, as
the Board had done in the past, consider Section 302 ar-
guments when a respondent is alleged to have unilateral-
INDEPENDENT STAVE CO. 599
ly changed an agreement . If an agreement violates that
section of the statute, a party cannot be said to have vio-
lated Section 8(a)(5) or Section 8(b)(3) by its failure or
refusal to honor the agreement . After arriving at this
holding, the Board rejected a contention that a contrac-
tual grant of paid time for stewards for the conduct of
union business violated Section 302. The Board reasoned
(274 NLRB at 979):
Section 302(c)(1) excepts from these prohibitions
payments by an employer to any representative of
his employees or to any officer or employee of a
union when that person also is an employee of the
employer and the payment is made as compensation
for, or by reason of, his services as an employee of
the employer. In finding violative of Section 302
BAS]F's practice of allowing the chairman of the
Union's workmen's committee to devote 4 hours of
paid time per day to union business, the judge relied
on the court of appeals decision in Iron Workers
Local 426 v. Bechtel Power Corp., 634 F.2d 258 (6th
Cir. 1981). In that case, an industry steward fund to
which employers were to contribute was found to
violate Section 302 when the stewards whose com-
pensation was derived from the fund were not em-
ployees of any of the contributing employers. That
case is significantly different from the one before us,
in that here the recipients of the various privileges
extended by BASF were employees of BASF who
served as union stewards, committeemen, or chair-
man. These individuals would not have received
these privileges, such as paid time to attend to
grievances of unit employees, but for the fact that
they were employees of BASF. Accordingly, we
conclude that the money or other things of value
that BASF provided in the way of privileges are
encompassed within the exception set forth in Sec-
tion 302(c)(1) for payments made as compensation
for, or by reason of, the services of union officers as
employees of the employer. [Footnote omitted].
The same is true here: No hunter would have been eligi-
ble for the deer rifle award if he had not been an em-
ployee of Respondent.
Even closer on point is a case cited with approval in
BASF Wyandotte and New Orleans Public Service, 197
NLRB 725 (1972). In that case the employer awarded
tuition reimbursements to employees who took certain
educational courses. The employer refused to award the
tuition reimbursement to union officers on the ground
that to do so would run afoul of the proscriptions of Sec-
tion 302. The Board, relying on the above-quoted excep-
tion contained in Section 302(c)(1), held that the with-
holding of the tuition reimbursements from union officers
was unlawful discrimination under Section 8(a)(3) of the
Act.
There is no essential distinction between the tuition
program in New\Orleans Public Service and the deer rifle
program herein; employees of Respondent, and only em-
ployees of Respondent were eligible for the award; that
is, they were eligible "by reason of" their employment.
Therefore, it must be held that Respondent's failure to
award the prize in 1984 was not justified under Section
302 of the Act.9
Accordingly, I conclude that Respondent has failed to
rebut the General Counsel's prima facie case, and that by
withholding of the deer rifle from David Dame since
about 19 November 1984 Respondent has violated Sec-
tion 8(a)(4) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with its operations described in sec-
tion I above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
1. The Respondent, Independent Stave Company, Inc.,
is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce or in an industry affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 42, Coopers' International Union of North
America, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the following acts and conduct Respondent has
violated Section 8(a)(1) of the Act:
(a) Threatening an employee with plant closure if the
Union attempted to make the barrelhead dowel pin-
making job into a unit position.
(b) Threatening an employee with discharge if the em-
ployee did not withdraw charges filed under the Act.
(c) Threatening an employee with unspecified reprisals
if the employees did not withdraw charges filed under
the Act.
4. By its failure and refusal, since about 19 November
1984, to award to David Dame a deer rifle, Respondent
has violated Section 8(a)(4) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Sections 8(a)(1)
and (4) of the Act, I shall recommend that it be ordered
to cease and desist from engaging in such unfair labor
practices. I shall further recommend that Respondent be
ordered to award to David Dame a deer rifle of like kind
and quality to that which was awarded in 1983 pursuant
to the contractually established deer rifle contest- pro-
gram.
9 In the brief, counsel for Respondent argues that the agreement for
the deer nfle program failed to satisfy certain provisions of Sec. 302
(c)(5)(A), (B), and (C) which apply to trusts. The obvious answer to this
contention is that the deer rifle program, as established by the 1983 nego-
tiations, was not a trust, it was an executory agreement as was the case in
both BASF Wyandotte and New Orleans Public Service.
600 DECISIONS OF NATIONAL LABOR REtAT1QNS OARD
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
edio
ORDER
The Respondent , Independent Stave Company, Inc.,
Lebanon , Missouri, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees that it would close its plant
if the Union attempts to make a job into a unit position.
(b) Threatening an employee with discharge if the em-
ployee does not withdraw charges filed under the Act.
(c) Threatening an employee with unspecified reprisals
if the employee does not withdraw charges filed under
the Act.
(d) Withholding from employee David Dame a deer
rifle duly won pursuant to an employee contest because
of the filing of charges under the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Award to David Dame a deer rifle of like kind and
quality to that which was awarded in 1983 pursuant to
the contractually established deer rifle contest program.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
records necessary for the determination of the award
under the terms of this order.
(c) Post at its. Lebanon, Missouri , place of business the
attached notice marked Appendix. t i Copies of the
notice, on forms provided by the Regional Director for
Region 17 , after being signed by the Respondent's au-
th®rized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notice is not altered , defaced , or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
10 If no exceptions are filed as provided by Sec . 102.46 of the Board 's 11 If this Order is enforced by a judgment of a United States court of
Rules and Regulations , the findings , conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation-
Order shall , as provided in Sec. 102 48 of the Rules , be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals 'Enforcing an Order of the National
poses Labor Relations Board "