Meadow River Lumber Co.Download PDFNational Labor Relations Board - Board DecisionsApr 2, 1970181 N.L.R.B. 906 (N.L.R.B. 1970) Copy Citation 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meadow River Lumber Company and United Brotherhood of Carpenters and Joiners, Local 2528, AFL-CIO. Case 9-CA-5285 April 2, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND J ENKINS On January 13, 1970, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, together. with a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Meadow River Lumber Company, Rainelle, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order 'Although the testimony that Gray expressed the preference that the matter of change from hourly to salary first be taken up with the Union representative by the employee related only to Alley, the Trial Examiner's treatment of this as related to both employees in no way affects the decision In the absence of exceptions thereto, we hereby adopt, pro forma. the finding that, after Alley and Vestal were transferred to salary status, they continued to "work the same hours and receive the same wage" as formerly TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner This case, heard at Beckley, West Virginia, on November 13, 1969,' pursuant to a charge filed the preceding August 7 and a complaint issued September 17, presents two closely related questions first, whether Respondent, herein called the Company, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by changing the terms and conditions of employment of two members of a bargaining unit without bargaining with their statutory representative over such change, and, second, whether the Company violated Section 8(a)(3) and (1) of the Act by taking this action in order to discourage membership in the Charging Party Upon the entire record, and after due consideration of the brief filed by General Counsel and the oral argument of counsel for the Company, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a West Virginia corporation, operating a lumber mill at Rainelle, West Virginia, annually ships materials valued in excess of-$50,000 to points outside the State, and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act The Charging Party, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act II THE UNFAIR LABOR PRACTICES A Background - the 1966 and 1969 Strikes The Company in addition to operating a lumber mill furnishes electric power and water to the general public in and about Rainelle Since 1943 the Union has represented the Company's employees for purposes of collective bargaining, but the bargaining unit has excluded salaried employees Included in the unit, at least up to the time of the events of this case, were the powerhouse operators, whose work related both to the lumber production and the public utility aspects of the Company's business. In 1966 when a contract between the Company and the Union expired, the latter called a strike. At that time, however, the Union agreed that the six powerhouse employees could continue to work during the strike to prevent interruption of the public utility aspect of the business The powerhouse employees at that time, including Albert Alley and William Con Vestal with whom we are here concerned, worked throughout the strike. On July 16, 1969, when the next contract expired the Union again went out on strike, but prior to the walkout the union membership had voted to permit the six powerhouse men to continue working during the strike B. The Company Purports to Transfer Two Hourly Paid Men to Salary Status During the bargaining negotiations preceding the strike the Company had mentioned to the Union the necessity of keeping the powerhouse open to provide utility services to the town, but the Union had declined to discuss the matter However, on the day of the strike (which began at 12 01 a m. July 16) four powerhouse men continued to work, in accordance with the vote the Union had taken. Apparently there was some dissention over this matter, for one of the powerhouse employees, Albert Alley, testified that he "was afraid the Union was going to pull me out," and another, William Vestal, had received "a good cussing" from a powerhouse employee who worked the last shift before the strike and "wanted to run us [Vestal 'All dates herein refer to the year 1969 except where otherwise stated 181 NLRB No. 145 MEADOW RIVER LUMBER COMPANY 907 and another powerhouse worker] out." Shortly after the strike began Alley and Vestal separately asked Company President Gray if he would put them on a salary basis so that they would not be within the unit represented by the Union, but Gray told them that he would prefer that they first discuss the matter with Lloyd Fowler, president of the Union They then approached Fowler, who gave them each a noncommital reply, which they in turn relayed to Gray On July 17, the second day of the strike, Gray asked Fowler about putting the two men on salary "to hold them in the powerhouse during the time of the strike " Fowler replied, "I will see what I can do " By the fourth day of the strike, all the powerhouse employees except Alley and Vestal had stopped work. On this day, July 19, Gray handed to Fowler letters stating that effective that date the Company was moving Alley and Vestal from the hourly rated payroll to the salaried employees payroll Gray advised Alley and Vestal that they were now "on salary." Each of them immediately canceled the checkoff of his union dues, and notified the Union that he was no longer a member' Each man continued to work the same hours and receive the same wage that he had formerly received, and later received an increase of 15 cents per hour (22 1/2 cents for overtime). They were, however, paid monthly like other salaried personnel, rather than biweekly as they had been paid prior to the letters transferring them to salaried status C. Contentions and Concluding Findings General Counsel urges that on the facts set forth above the Company treated Alley and Vestal in a different fashion from other employees (i e., "discriminated" with respect to them by putting them on a salary basis with monthly paydays) for the purpose of inducing them to resign from the Union and thereby to free themselves from any union pressure to stop work during the strike. This, according to General Counsel, is discrimination with respect to a term or condition of employment for the purpose of discouraging union membership, and hence violates Section 8(a)(3) and (1) of the Act. Further, so General Counsel contends, the Company changed the terms of Vestal's and Alley's employment without bargaining with the Union about the matter, and this unilateral action violated Section 8(a)(5) and (1) of the Act. The Company contends that it acted pursuant to Alley's and Vestal's requests, and that it therefore did not discriminate against them or discourage their union membership. The Company further contends that it did discuss the problem of the powerhouse workers with the Union and that it was therefore not guilty of unilateral action Further, the Company argues, the letters to Alley and Vestal purporting to put them on a salary basis did not really have that effect as their wages continued to be computed at a given hourly rate, and all that was changed was their pay period which went from biweekly to monthly The Company reasons from that premise to the conclusion that the status of Alley and Vestal in the bargaining unit was unaffected, and the Company did not diminish the unit by its action Somewhat inconsistently with the contention that its action was nugatory, the Company also argues that it did bargain with the Union over the matter before taking the action reflected in the The contract which expired July 15, 1969, had contained a union-security clause and a provision for voluntary checkoff letters I find merit in the position of General Counsel The sole reason for the Company's maneuver in this case was to separate Alley and Vestal from the Union's ranks The fact that they welcomed this move does not detract from the fact that it was a change of status intended to facilitate their getting out of the Union. Cf. Medo Photo Supply Corp v. N L R B, 321 U.S. 678, 687 Even if the change in working conditions was nothing more than a change in pay periods (and it comes with somewhat ill grace from the Company to contend that the letters expressly removing the employees from the hourly payroll to the salaried payroll did not have the effect that the Company intended the employees to think they had), this was a bargainable matter never negotiated with the Union Although the parties had "bargained" prior to the strike about keeping the powerhouse men at work (and indeed the Union acquiesced in that matter, as it had on the occasion of a previous strike), the mechanics of achieving that result by transferring them to salary status was not explored prior to the strike According to Union Representative Fowler, he was at work building a shelter for pickets on the second day of the strike when Company President Gray approached him and "went into a discussion of the men being put on salary to hold them in the powerhouse during the time of the strike " Fowler gave Gray a noncommittal reply, and 2 days later without further discussion with the Union the Company took the action This is scarcely "bargaining to an impasse" after which unilateral action is permissible' Finally, it is no defense that the Company acted to preserve the public utility aspect of its business Employees of utilities have the same rights as other employees under the Act, and unions .representing them are not to be bypassed, even in a good-faith belief that such action will avoid labor difficulties. Indeed, so far as this record shows the Union was prepared to cooperate 'On cross-examination Fowler testified as follows Q As a matter of fact, didn ' t we discuss it on several occasions and try to reach an agreement with you on some amicable way of just keeping the utilities going in the City of Ramelle - the Town of Ramelle`' A As I said before, the Union at that time was in no position to discuss such things with the Meadow River Lumber Company, because we were still working at that time Q But you had said you were going out on strike if you didn't reach an agreement A At that time, a vote had not been taken I do not think I said anything at any time , that we was going to strike I'm positive that I never at no time made a statement of that kind during the negotiations Q Well, now, you're saying that after the strike occurred , this matter of these two men on salary and keeping the boiler and the power plant going was not discussed" A I believe I said before that it could have been discussed by the Meadow River Lumber Company at these bargainings Q We brought it up at the bargaining table, didn't we' A You brought it up Q Yes, and offered to negotiate on it - on some amicable way of keeping the power from being shut off in the City A The Union was in no position at that time to discuss that matter I do not read the last three questions and answers quoted above as establishing that prior to the strike the parties discussed the question of putting these men on salary status Company counsel in his question referred to this matter as being discussed "after the strike occurred " Fowler' s reply and the next questions referring to the bargaining sessions deal with the general subject of keeping the powerhouse open, not with putting the men on salary The testimony of each of the witnesses (Fowler, Gray, and Alley) indicates that the salary issue was first raised after the strike began 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Company in maintaining these services Of course Vestal and Alley had a right to work during the strike, a right which not only their employer, but also apparently their Union, and if necessary the Government was prepared to protect.-But the Company cannot protect it by simply issuing its ipse dixit that they are transferred out of the bargaining unit and on to the salaried payroll, particularly as there was no change in their duties I find the Company's action violative of Section 8(a)(5), (3), and (1) of the Act. CONCLUSIONS OF LAW By transferring two employees from hourly rated to salaried employees for the purpose of procuring their defection from the Union, and without negotiating over the matter with their bargaining representative, the Company engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(l), (3), and (5) and Section 2(6) and (7) of the Act. THE REMEDY I shall recommend that the Company cease and desist from its unfair labor practices, that it return Alley and Vestal to their hourly paid status, that it reimburse the Union for the dues revenue the Union lost by the resignations of Alley and Vestal, and that it post appropriate notices. Although the contract between the Company and the Union had expired at the time Alley and Vestal stopped paying union dues, there can be no doubt that they would have continued to pay their $4.25 monthly dues but for the Company's action, here found to have been committed in an unlawful manner It is noteworthy that they did not stop their union membership when the contract expired, but several days later, after, and as a direct result of, the Company's unlawful action The dues liability here found should bear interest at 6 percent, and be computed in the same manner as if it were backpay under the formula set forth in Isis Plumbing & Heating Co , 138 NLRB 716 1 would order the dues reimbursement in this case even if I had found violation of only one of the subsections of Section 8(a), or in other words I regard the remedy as appropriate for the violation of either Section 8(a)(3) or Section 8(a)(5). The dues liability, moreover, is not predicated upon the checkoff authorizations. The Company would be liable for these dues even in the absence of a checkoff, because its illegal act caused the Union to lose the two men as members., Cf N L.R B v Sheridan Creations, Inc , 384 F2d. 696 (C.A. 2); Creutz Plating Corp, 172 NLRB No. 1; Crescent Bed Company, Inc , 157 NLRB 296, 299. Finally it hardly needs stating that notwithstanding the violations here found, nothing herein limits in any way the right of Alley and Vestal to continue working during the strike, or their right to refrain from union membership (subject, of course, to the limitations of a valid union-security contract should one exist) Consequently, the Company will remain liable to the Union for the dues of these employees only until they are returned to the bargaining unit as hourly paid employees At that time the Company's dues liability to the Union will cease, and the question whether Alley and Vestal will owe subsequent dues to the Union will depend upon the relationship then existing between them and the Union. 'General Counsel 's failure in his brief to seek this reimbursement remedy does not preclude my providing it. See Associated Home Builders of the Accordingly, upon the foregoing findings and conclusions and upon the entire record, I recommend pursuant to Section 10(c) of the Act issuance of the following: ORDER Respondent, Meadow River Lumber Company, its officers, agents, successors, and assigns, shall- 1 Cease and desist from: (a) Refusing to bargain with United Brotherhood of Carpenters and Joiners, Local 2528, AFL-CIO, as the exclusive bargaining representative of all production and maintenance employees employed by the Respondent at its place of business in Rainelle, West Virginia (excluding all office clerical, salaried, and supervisory employees as defined in Section 2(11) of the Act), by changing the terms or conditions of employment of any employees in the bargaining unit without first bargaining with the aforesaid labor organization over such changes. (b) In any other manner interfering with the efforts of the aforesaid labor organization to bargain collectively on behalf of the employees in the unit described above (c) Changing the terms or conditions of employment of any of its employees to discourage membership in any labor organization. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Notify, in writing, the aforesaid labor organization and employees Albert Alley and William Con Vestal that Alley and Vestal are being restored to their prior status as hourly paid employees. (b) Reimburse the aforesaid labor organization in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy" for losses it sustained as a result of its failure to receive Alley's and Vestal's union dues (c) Post at its plant in Ramelle, West Virginia (and, if the strike is still current at the time of compliance with this order, furnish to the aforesaid labor organization for posting at its premises), copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material.' (d) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, Greater East Bay, Inc v N L R B, 352 F 2d 745, 753-754, and fn 14 (C A. 9) 'In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's 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 be changed to read "posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " MEADOW RIVER LUMBER COMPANY what steps have been taken to comply herewith.' 'in the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 9, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES Posted by Order of the National Labor Relations Board an agency of the United States Government WE WILL NOT transfer employees from hourly paid to salaried status or otherwise change their terms or conditions of employment without first bargaining with United Brotherhood of Carpenters and Joiners, Local 2528, AFL-CIO, over such proposed changes WE WILL NOT change the terms or conditions of employment of employees to discourage their membership in a labor organization 909 WE WILL reimburse United Brotherhood of Carpenters and Joiners Local 2528, AFL-CIO, for loss of dues it suffered as the result of the resignations from membership of employees Albert Alley and William Con Vestal in July 1969 Dated By MEADOW RIVER LUMBER COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 2407, Federal Office Building, 550 Main Street, Cinncinnati, Ohio 45202, Telephone 513-684-3686. Copy with citationCopy as parenthetical citation