Oettinger Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1966

158 N.L.R.B. 1249 (N.L.R.B. 1966)

OETTINGER LUMBER COMPANY, INC., ETC. 1249
Oettinger Lumber " Company, Inc., The Leon Corporation, and
Elm Trucking Co., Inc. and United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, Local 2230. Cases Nos. 11-
CA-2744 and 11-CA-2788. June 1, 1966
DECISION AND ORDER
On February 21, 1966, Trial Examiner Laurence A. Knapp issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging,in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that the Respondent had
not engaged in certain other unfair labor practices alleged in the
complaint and recommended that such allegations be dismissed.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision.
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 [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the entire rec-
ord in this case, including the Trial Examiner's Decision and the
Respondent's exceptions, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Trial Examiner Lawrence A. Knapp heard this case in Greensboro , North Caro-
lina, on November 2, 1965, following prehearing procedures in compliance with the
National Labor Relations Act, as amended, herein called the Act.'
The violations charged against Respondent in this proceeding have, in the General
Counsel 's view, a setting in common with those recently committed by Respondent,
as found by the Board in another unfair labor practice case involving the same
parties (155 NLRB 313, decided October 25, 1965) of which decision I take notice
as requested at the hearing by counsel for the General Counsel.
IIn Case No. 11-CA-2744 a charge and an amended charge were filed on June 1 and
August 23 , 1965, respectively , and in Case No. 11-CA-2788 the charge was filed on July 26,
1965, all duly served on the companies collectively constituting the Respondent herein.
On August 31, 1965 , the General Counsel issued an order consolidating the two cases and
a complaint and notice of hearing , and thereafter Respondent duly answered denying the
commission of any unfair labor practices.
158 NLRB No. 121.
221-731-67-vol . 188-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Prior Unfair Labor Practice Case.
In the prior case, the Board found that in January 1965 2 there developed among
Respondent's employees a union organizing movement as an incident of which some
of these employees prepared and circulated among their fellows for signature a
"petition" (1) for various improvements in wages and other working conditions, and
(2) "for the Union." The Board found that on February 1, the day this petition
was being circulated among the employees for signature, Respondent, with knowl-
edge of and in retaliation against this union activity, unlawfully (1) interrogated
various employees concerning their participation and that of other employees in the
organizing movement; (2) threatened that employees would be discharged for such
activity and that production would be curtailed or discontinued if a union came in
the plant; and (3) laid off four truckdrivers because of their signatures on the peti-
tion . The Board further found that on the next day, February 2, Respondent laid
off three additional employees because they had signed the petition. As the Board
further found in that case, Respondent recalled all seven laid-off employees to work
on February 26, and contended that these employees were not needed during the
time they were on layoff due to a seasonal slump in business occasioned by bad
weather adversely affecting the construction industry served by Respondent. While
recognizing that Respondent's business position at this time would have afforded
economic justification for some reduction-in-force program, the Board found, on
the basis of Respondent's precipitate and overt antiunion interrogation, statements,
and threats accompanying the layoffs, that Respondent utilized the economic justi-
fication claim merely as a pretext to cover its true purpose of retaliating against the
seven employees because they signed the petition.
(The record in the instant case also refers to an election held among Respond-
ent's employees on March 30 (presumably conducted by the Board) at which the
employees designated the Union as their collective-bargaining representative by a
vote of 40 to 13, and to ensuing collective-bargaining sessions between Respondent
and the Union over a period extending into July.)
The Instant Proceeding
The complaint in this case, in obvious reference to this same setting of union
activity among Respondent's employees, charges Respondent with (1) making,
through its General Manager Larkin, certain coercive statements to employees in
late March, April, and July; (2) a discriminatory reduction of the work of several
employees in a "Glazing Department" hereinafter described, for a period of about
3 weeks in March and April; (3) a discriminatory layoff of two employees in that
department for a period of about 3 weeks beginning about April 27; and (4) the
discharge of one employee on July 20 because of his union activity and because he
gave testimony at the hearing in the prior case (held on May 17). Respondent's
responses to these charges as developed at the hearing are that: (1) General Man-
ager Larkin did not make the statements attributed to him by the General Counsel's
witnesses; (2) it did put into effect the work reduction and layoffs among the glaz-
ing department employees but that these actions were taken solely due to lack of
work in that department occasioned by a peculiar business development later
described; and (3) the discharge complained of was solely based on the misconduct
of the employee in question.
-As will be seen , with respect to the major charges,of the complaint herein-those
referring to the work reduction, layoffs, and the discharge-the General Counsel
offered at the hearing in this case no significant evidence of conduct on Respond-
ent's part immediately related to these actions which directly establishes or tends
directly to establish, that they were antiunion retaliatory measures. Rather, as indi-
cated at the hearing and in the subsequent brief filed with me by counsel for the
General Counsel, he considers that the two cases manifest but a single and continu-
ing set of responses on Respondent's' part to the union movement among its employ-
ees. Accordingly, the General Counsel relies primarily upon the Board's findings of
Respondent's antiunion conduct and hostility in the prior case in contending that the
same motivation actuated the conduct of Respondent challenged by the complaint
in this case.
2 All dates herein refer to the 3 ear 1965 unless otherwise stated
OETTINGER LUMBER COMPANY, INC, ETC 1251
Upon the entire record of this case, and upon the findings of the Board in the
prior case to the extent subsequently indicated , and upon my observations of the
witnesses , I make the following
FINDINGS OF FACT
I THE BUSINFSS OF RESPONDENT, THE LABOR ORGANIZATION INVOLVED
As alleged in the complaint and admitted in Respondent's answer, I find that the
three corporations named as Respondent constitute a single integrated enterprise
engaged in the production and sale of lumber and millwork at Greensboro, North
Carolina, and that as alleged and admitted herein Respondent shipped from its
Greensboro plant directly to points outside the State of North Carolina finished
products valued in excess of $50,000 in the 12 month period preceding issuance of
the complaint herein Respondent is engaged in commerce and in operations affect-
ing commeice within the meaning of Section 2(6) and (7) of the Act
I further find that the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Local 2230, herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
Because in my view the case best lends itself to such an order of treatment, I
will deal first, and jointly, with the work reduction and layoff of employees in the
glazing department, and thereafter with the discharge case Thereafter, I will deal
with the alleged coercive statements forming the remaining issues
1 The glazing department "Rotation' and layoffs
From the rather skimpy record before me, it appears that Respondent sells cer-
tain lumber and millwork pioducts, largely to enterprises in the construction Indus-
try The millwork products, consisting so far as this record mdicat(s of window
units and door units, are fabricated or assembled in a corresponding department
or departments in Respondent 's plant In addition, Respondent has a lumberyard
from which it supplies lumber items of various types, sizes, and dimensions
The other main and regular operation performed in Respondent's plant, so far as
this record shows, is the manufacture or assembly of sash windows Respondent
purchases "knocked down" wooden window sash parts which somewhere in
Respondent s plant are assembled into window frames In the glazing department
the frames, after a "back-bedding" operation, are "glazed," I e , the glass is inserted
in the frame and then fixed there with glaziers points and putty At times mate-
rial to this case, there were five employees in the glazing department, four ordinary
employees and a fifth, McCoy, in charge of the group 3
In line with its normal practice to maintain inventories of sash parts and glass
needed in the assembly and glazing of sash windows, in January Respondent placed
with its regular supplier orders (1) for sash parts, and (2) for glass, with the sash
parts coming from a west coast supplier and the glass from Europe By mid-March
these supplies had not arrived 4 On March 15, Respondent placed with a nearby
manufacturer an order for ready made sash windows and the quantity so ordered
was delivered on March 17 On the latter date, Respondent placed a second order
for additional ready-made sash, which was received in part on April 12 and in part
on April 17 5
$ The complaint alleges and the answer denies that McCoy is a supervisor within the
meaning of the Act This issue was also tendered but was not resolved in the prior
case To the extent that the Issue may be material herein the record in this case like
wise does not permit of its deteimination since no evidence specifically directed to de
scribing McCoy's functions authority or responsibilities was adduced by my party (see
antra)
4 Toward the end of March Respondent receh ed some unidentified portion but not all
of the sash parts the record fails to show when the balance was received The glass
order was received about the middle of May
5 Accoi ding to McCoy whose testimony I credit over Manager Larkin's denial when the
first batch of ready made sash arrived on March 17, Larkin said to McCoy "You boys
taught me something " and when McCoy inquired what Larkin meant, Larkin said he had
found out that Respondent could purchase ready made sash cheaper than the cost to
Respondent in having "you boys make it" McCoy thereafter informed the four
men under him of Larkin' s statement
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About April 6, an approximation I make from the imprecise and indirect evi-
dence of record, Respondent placed the employees in all its so-called manufacturing
departments, that is, the employees in the glazing, window unit, and door unit
departments, on "rotation," a term meaning that these employees worked one day,
laid off the next, and so on. On April 27, Respondent laid off two of the four ordi-
nary workers in the glazing department, Thomas and DeBerry. According to Gen-
eral Manager Larkin, he directed Superintendent Daves to make these layoffs
because the glazing department was not manufacturing enough windows. Larkin
and Daves then met with McCoy, and told McCoy they had to layoff those two of
his men who had been last hired, whom McCoy identified to them as Thomas and
DeBerry. In the course of this conversation, according to the testimony of McCoy
which, on demeanor and other bases I credit over Larkin's general denial that he
had ever made any such statement to any employee, Larkin told McCoy: "I told
you [see footnote 5, supra] that we could buy ready-made sash cheaper than we
could pay you boys to glaze it, so we have to lay off somebody." 6 At the end of
the day on April 27, Superintendent Daves met Thomas and DeBerry at the
timeclock where he told them that the Company had tried "rotating" without
accomplishing anything that way and hence they were being laid off. In so doing,
Daves gave the two men slips stating "No work available" as the reason for the lay-
offs. On May 20, before any charges were filed with respect to the layoffs, the two
men reported back to work pursuant to telegrams of recall dispatched to them by
Respondent on May 18. They worked for 1 day in the glazing department and
then were assigned to work elsewhere in Respondent's plant.?
As I read the cursory brief filed by counsel for the General Counsel, it is his con-
tention that Respondent made its purchases of ready-made sash in order to create
a situation on the basis of which it could, and did, for antiunion reasons, discrimi-
nate against the men in the glazing department through the rotation system and the
ensuing layoffs of Thomas and DeBerry. In this regard, counsel points particularly
to the Board's findings in the prior case that, as part of Respondent's immediate
reaction to the organizing movement evidenced by the "petition," General Man-
ager Larkin directed McCoy to inform the "boys" in the glazing department that
"they are only hurting themselves. If they get a union in here, we will only be
buying and selling. We won't be making anything"; and to the Board's accompany-
ing findings that what Larkin meant was that Respondent would purchase rather
than manufacture glazed "windows and doors."
It is not so easy to identify Respondent's explanations, which have never been
explicitly stated by counsel for Respondent and which must, therefore, be primarily
sought in the testimony of Respondent's key witnesses, General Manager Larkin
and Assistant Manager Paiewonsky.
Combining the testimony of Larkin and Paiewonsky, their story is that they
became aware about March 15 that the sash parts and glass ordered in January
O According to McCoy, Larkin also stated he could continue the rotation system among
the glaziers but this would make them "unsatisfied" or "unhappy" and he did not want
unhappy men working for him. I attach no particular significance to this testimony, not
denied by Larkin, because there is other testimony by laidoff glazier Thomas, and by McCoy,
which, read together, indicates that the glazing employees had expressed their dissatisfac-
tion with the rotation system ; and because in actually laying off Thomas and DeBerry
later that day, Superintendent Daves indicated that Respondent was taking this action
because of the unsatisfactory results of the rotation system.
McCoy also testified that during his conversation with Larkin and Daves, Larkin made
some remark to the effect that the layoffs would not "cause trouble with the Union." I
have not been given any hint as to what significance the General Counsel believes should be
attributed to this remark, not denied by Larkin, but in any case I consider it referable to
the decision to make the layoffs on a seniority basis and in this light the statement is
wholly devoid of any suggestion of discriminatory intent.
4 Thomas who quit Respondent's employ about October 1, apparently did not return
to the glazing department until September. The record is entirely silent as to whether
DeBerry ever returned to glazing. In this connection, the record suggests that Respond-
ent continued to purchase ready-made windows in transactions subsequent to the two
March ones previously described. Thus, Larkin referred in his testimony to one ship-
ment being awaited at the date of the hearing If these further purchases account for
Thomas' delayed return to the glazing department or the failure, if that was the case, of
DeBerry to be returned there, the General Counsel has not challenged the propriety of
Respondent's conduct in this regard.
OETTINGER LUMBER COMPANY, INC., ETC. 1253
would not arrive in time to meet the demands of Respondent's customers , that their
inventories of these materials were low, and that , as Larkin put it , "to recover
quickly, to get glazed windows in stock and to continue our [apparently the window
unit manufacturing ] operation it was necessary to purchase these winodws." 8
With respect to the effect of the window purchases on the work available in the
glazing department , Paiewonsky stated that buying "ready -glazed sash" operated to
"slow down the number of people in the glazing department" (while enabling
Respondent to continue operating the "window unit" department ). In the light of
Larkin 's testimony that all manufacturing departments were put on "rotation"
because business had fallen off during this period , I infer that Respondent attributes
the rotation of the glaziers both to the purchases of sash and the reduced level of
operations generally. As to the decision to lay off Thomas and DeBerry, Larkin
testified that he made this decision by telling Daves he had to let some of the
glaziers go "because we were not producing enough windows." Asked why he did
not continue the rotation system and thus keep on spreading the work among the
glaziers, Larkin explained that the rotation system "became a burden on the older
members . they were taking home part-day 's pay" and he thought it only fair
to give the older men a full week and lay off the newer employees.
Larkin testified that he was unaware of any union activities on the part of
Thomas and DeBerry and that he assumed practically every employee belonged to
the Union in view of the Union 's overwhelming victory-40 votes to 13-in the
earlier (March 30 ) election . There is no evidence of record indicating any union
activities on the part of Thomas or DeBerry or that, if they had voted for the
Union , Respondent was aware of this fact ; nor is there any evidence which would
in this regard demark them , or the other glaziers, from any other of Respondent's
employees . There is also no evidence of record which would justify me in hold-
ing that , viewed apart from the preceding "rotation," the layoffs of Thomas and
DeBerry were discriminatory . There is no such direct evidence , and, with the
record not establishing that either was even a union adherent , there is no conceiv-
able reason to regard either individual as a likely or probable choice for a discrim-
inatory layoff at Respondent 's hands if that were its purpose.
The main remaining question is whether the General Counsel has succeeded in
establishing that the purchase of the ready-made sash , and the ensuing rotation and
layoffs among the glaziers , were but a single integrated plot on Respondent's part
to wreak vengeance upon any employees within reach because of the union move-
ment and the resulting designation of the Union as bargaining representative for all.
On this record , I must answer this question in the negative . Respondent 's testi-
mony concerning the circumstances which led to the two purchases of ready-made
sash are plausible and, while Respondent's testimony concerning the urgency of its
need was not substantiated by record evidence which must have been available to
Respondent , this testimony was not drawn into question by the General Counsel in
appreciable degree, either during cross -examination or by demanding production of
such of Respondent 's records as would have been pertinent to appropriate lines of
cross-examination .9 For all I know , therefore , or have any right to think, Respond-
ent's reasons for the two purchases of ready-made sash were genuine and Respond-
ent's testimony to that effect is to some degree supported by the fact that the glass
necessary to make windows did not arrive from Europe until mid -May, 2 months
after the purchase orders were placed . 1° Moreover , as previously noted (footnote
OThere is no evidence of record showing the actual state , at this time, of Respondent's
inventories of sash parts or glass, or the extent of or delivery dates of orders on hand
for or requiring the use of sash windows.
9I have in mind the actual state of Respondent 's inventories of sash parts and glass
when the purchase orders were placed ; the corresponding levels of inventories at similar
periods of slow business in prior years ; the volume of purchase orders on hand on March 15
calling for sash windows, whether alone or as part of window units , and their delivery
dates, and the corresponding data for prior years ; the extent to which Respondent needed
to replenish inventories to have stocks on hand in anticipation of the spring revival of
the construction industry ; what proportion of Respondent 's sash windows were sold as
such , rather than as incorporated into window units, and the respective volumes of these
lines of trade during this period; etc.
10I recognize that the supporting effect of the late arrival of the glass depends upon
Respondent 's lack of sufficient glass inventories in March to meet its requirements for
some extended period , but, as previously indicated , this record affords no basis for ques-
tioning the Insufficiency of this glass inventory
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.7, supra ) Respondent was still receiving ready-made - sash at the time of the
hearing."
Counsel for the General Counsel emphasizes Larkin's remark to McCoy when
the first batch of purchased sash arrived, to the effect that he had found out that
Respondent could purchase sash windows cheaper than it could make them and
construes this remark as a fulfillment of the threat Larkin made to McCoy on Feb-
ruary 1, as found in the first case, that Respondent would purchase rather than
manufacture its fabricated items if the employees brought a union in . Conceding
the general parallelism in thought of the two remarks, I could accept counsel's
concluding inference only if there were evidence satisfying me that Respondent's
explanations for the sash window purchases were not credible or, at the least, drawn
into quite serious doubt. Moreover, counsel overlooks the fact that at some inde-
terminable point after February 1, but before the first ready-made sash arrived,
Larkin told McCoy of his intention to make some such purchases, an advance dis-
closure Larkin probably would not have made if he had had underfoot a discrim-
inatory plot.
I find, therefore, that Respondent made the purchases of ready-made sash for
the reasons it gave. Given this finding, there naturally was insufficient work avail-
able for the glaziers after these stocks began to arrive, as McCoy conceded, and this
fact, as well as the slack business of the period, provided ample warrant for the
initial rotation of the four glaziers and the following temporary layoff of the two
junior ones. And the fact that rotation was also followed in other manufacturing
departments (presumably over a similar period), without challenge by the General
Counsel, renders it all the more difficult to conclude, as the complaint in effect
charges, that Respondent singled out the employees in the glazing department for
discriminatory treatment in rotating them.12 Hence, I find no violations on these
charges.
2. The discharge of Clinton
On July 20, Respondent discharged Clyde Clinton, a truckloader having a con-
siderable number of years of service with Respondent. Clinton was a member of
the union committee which for some considerable prior period had been negotiating
with Respondent respecting an agreement.
As a truckloader, Clinton receives each day a set of shipping invoices which indi-
cate the items. called for and to be collected and loaded by him on Respondent's
(or the customers') trucks, for delivery to the corresponding customers. Among
such items are doors or door units manufactured in the door unit department. To
obtain a door unit item, the loader proceeds to the door department where, by use
of the invoice number, he picks up the item if and when the door department has
completed its manufacture. (The door department manufactures against copies of
invoices routed to it, and affixes the invoice number to the product when ready for
loading.)
On July 20, Clinton had an order calling for a number of such door units to be
sent out on delivery that day. According to him, he called at the door shop twice
in the morning for these units but they were not ready, of which fact he informed
Keen, the shipping supervisor and his superior. Thereafter, he testified, the door
units began to become available from the door shop and as he was loading some
of them around noon, Keen approached and asked Clinton if the doors were ready.
Clinton told Keen that the door shop people were then finishing the last one. Keen,
looking at his watch, replied "That's half a day gone already and nothing done."
At the same time, according to Clinton, Foreman Wills of the door department
explained to Keen that his department had had trouble manufacturing the door
11 Whether , and if so, to what extent , Respondent had previously purchased ready-made
sash windows is one of the many pertinent subsidiary fact questions left in limbo by the
record in this case. Larkin testified that there had been such purchases in prior years,
while McCoy testified that he could not recall any such prior purchases Since the only
satisfactory manner in which to resolve this question was by recourse to Respondent's
records, I can make no finding on this question and, in particular so far as the General
Counsel 's charges are concerned , any finding that there never had been any such purchases.
It is only fair to add, however, that counsel for the General Counsel does not contend for
such a finding in his brief or in anything he said gat the hearing.
12 The fact of Respondent 's unfair labor practices in the first case , and the findings of
violation in other respects I make in this case, do not require that similar findings be
made, regardless of the other pertinent evidence, concerning the rotation and, layoff of
the glazlers.
OETTINGER LUMBER COMPANY, INC., ETC. 1255
units in question. About 3 p.m. that day Keen told Clinton that Foreman Wills
had told Keen that the door units in question had been ready since 10 a.m. that
morning. In response, Clinton told Keen that Wills had told Keen "a damn lie"
and that he, Clinton, would tell Wills so. At about 4:55 p.m. Keen sent for Clinton
and thereafter told Clinton that he was to see Mr. Larkin. Clinton proceeded to
Larkin's office where Larkin told Clinton he was being discharged because his work
was "unsatisfactory" and gave Clinton a discharge slip reading accordingly.
In substantial conformity with Clinton's testimony, Keen testified that he
checked with Clinton several times during the day as to why the door units had not
yet been loaded and in each instance was told by Clinton that the door department
had not yet completed their manufacture. After the last such instance, Keen testi-
fied, he "checked with" Wills, the door department foreman, and was told that the
door units had been ready for loading since 10 a.m. that day. Keen then reported
Wills' statement to Clinton, who replied that Wills was a liar and he, Clinton,
would tell Wills so. According to Keen; he then told Clinton that he did not have
the right attitude and seemed to be making quite a few mistakes of late.
Both on his direct and cross-examination, Keen, who had authority to discharge
the loaders under his supervision, testified that he made the decision to discharge
Clinton, albeit after first discussing the matter with Larkin in view of the "difficulty"
Respondent had been experiencing since "the union election." As his reasons, Keen
referred to Clinton's "misconduct" in calling Wills a liar, to Clinton's "poor attitude
toward everything," to Clinton's allegedly increasing "mistakes" in loading items in
the months following the election, and his alleged indifference to those mistakes.
But after dilating at length, both on direct and cross, on Clinton's alleged mistakes
in the postelection period, Keen finally admitted on cross that Clinton's alleged mis-
takes had nothing whatever to do with his discharge.
As to the "liar" incident, Keen testified that he kept watch over the loading of the
door order because of the insistent demands of that customer for prompt delivery.
But if Keen had been actually so concerned and attentive as he sought to make out,
it would have been natural for him to have been in contact with Foreman Wills of
the door department; where the doors were being made, rather than with Clinton,
during the forepart of the day.13 Moreover, I find, on the basis of Clinton's
uncontradicted testimony, that the doors were not all ready until some time after
the noon hour.14 These circumstances warrant the inference that Keen was look-
ing for something to pin on Clinton rather than on avoiding a delivery delay or
ascertaining where responsibility lay for the loading delay which, in fact, was tak-
ing place. Thus, they cast doubt on his credibility' and indicate the existence of a
discriminatory intent on his part toward Clinton, just as do his prolonged but
eventually abandoned efforts to ascribe Clinton's discharge to his alleged mistakes.
And other aspects of Keen's testimony furnish additional reasons for discrediting
him, as I do.15
Larkin, too, is entitled to a low mark in the credibility course, for while he testi-
fied that he discharged Clinton on the basis of Keen's report to him-that Clinton
did not have the right attitude and was not cooperating with Keen (specifications
referable to Clinton's alleged mistakes and related indifference) and because Clin-
ton was "cursing out our supervisors," he did not contradict Clinton's testimony
that the only reason he gave Clinton was the vague charge of "unsatisfactory
work."
Finally, upon the basis of its virulent antiunion disposition as found in the first
case and my findings of continued violations in this one (including a contempo-
raneous discharge threat, see infra), I am satisfied that Respondent still harbored
such a deep-seated antipathy at the time of Clinton's discharge. In the light of this
fact, of Clinton's prominence as a bargaining representative, and all the facts and
circumstances more immediately surrounding Clinton's discharge, I am persuaded
This is especially so because it is Respondent's practice to load door units prior to
other products to be delivered in the same truck, as was the case in this instance
14 Moreover, in this regard, Respondent' s failure to call Wills to the stand suggests
that he would not stand back of his allegedly 10 a.ni. ready time.
15Keen's efforts to establish an increase in loading mistakes on Clinton's part, and to
pin responsibility on Clinton for any such " mistakes ," were distinctly unpersuasive and,
indeed, were in some respects suggestive of an effort to "ride" Clinton. Thus, he testi-
fied that in ' the postelection period he kept a record of Clinton's "mistakes," but after
asserting that they were on the increase he then conceded that he had not recorded and
did not know what number of "mistakes" Clinton had made in a period of corresponding
length immediately preceding the election. '
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and find that Respondent seized upon Clinton's calling Wills a liar as a pretext to
rid itself of a union leader among its employees. In so doing Respondent violated
Section 8(a)(3) and (1) of the Act.16
3. The allegedly unlawful statements
a. In support of a corresponding allegation in the complaint (then) employee
Ray Johnson testified that about mid-July he was sitting in the shipping office on a
"break" when Larkin entered. According to Johnson, Larkin approached him and
asked what had happened to the Union. (At this period of time, bargaining was in
progress between Respondent and the Union, and Johnson was a member of the
Union's negotiating committee (like Clinton, supra).) According to Johnson, he
replied he did not know whereupon Larkin said he wished "everyone of you would
go on strike so I could fire you." Larkin denied having made any such statement
to Johnson. Both because I think Johnson's testimony more in line with the proba-
bilities (bearing in mind Respondent's previous and blatant threats of this general
character) and because Johnson impressed me more favorably than Larkin in the
demeanor area, I credit Johnson's testimony. Accordingly, I find that, since it is
a violation of the Act to discharge employees because they exercise the right to
strike, by this discharge threat Respondent violated Section 8 (a)( I) of the Act.17
b. The General Counsel adduced testimony through employee Graves, a truck-
loader like Clinton, that at a general employees' meeting called by Respondent and
addressed by Larkin on March 29, the day preceding the election, Larkin, among
other things, was critical of the competence of the loaders (and truckdrivers) and
said that if the Union got in the loaders would have to pay for their mistakes.
Graves and Clinton also testified that at some point after the election, Larkin
called them and a third loader to the office where be complained of recurring mis-
takes and told them that Respondent would not be responsible for them any more.
According to Clinton, Larkin gave as his reason for this pronouncement to the three
employees that they were no longer working for him, "we was working for the
Union." This latter incident, however, is not charged in the complaint, no such
amendment was moved, and this evidence was not adduced on notice to Respond-
ent that the General Counsel was litigating this incident also as an asserted unfair
labor practice. I assume, therefore, that the General Counsel offered this evidence
for such support as it might add to the evidence relating to the alleged similar con-
duct charged in the complaint.
The record contains quite considerable evidence on the subject of delivery of
items not in conformity with those ordered by customers, evidence which, so far
as the alleged violation here under consideration is concerned, is pertinent mainly as
indicating that such mistakes were, in fact, far from infrequent. And since the
loaders were responsible for such mistakes where lumberyard items are con-
cerned, there was to this extent a basis for Respondent's concern in this regard,
irrespective of the disputed question, which I see no need to resolve, whether the
delivery of incorrect manufactured items was the fault of the loaders or of the
employees of the corresponding manufacturing department.
Larkin testified that he dealt with this subject only once, namely, at the employ-
ees' meeting he addressed on the day before the election. On that occasion, he
testified, he told the employees that "if the Union forced on us higher wages if
the Union came in, we would have to charge these mistakes back to the loaders."
In this instance, I prefer to credit Larkin's version of what he said, namely,
that he conditioned the threat of charging mistakes to the loaders on the Union
getting in and "forcing" Respondent to pay higher wages. Graves could not recall
whether Larkin had said anything more on the mistake subject than the cursory
formulation Graves gave, although he admitted that Larkin talked " a lot." 18
16 There is no evidence warranting a finding that Respondent discharged Clinton be-
cause he testified in the prior case . Accordingly, that allegatlon.of the complaint should
be dismissed.
17 As previously indicated, I rely upon this incident as manifesting Respondent's con-
tinued antiunion inclination at the time of Clinton's discharge and of a purpose to im-
plement this inclination in discharging Clinton.
18 Moreover , I have learned from considerable experience to entertain doubt of the
capacity of working people accurately to recall precisely what, and how much, an em-
ployer spokesman said months previously when making a propagandistic speech of con-
siderable length in opposition to union representation at such a preelection general
employee gathering as took place on this occasion.
OETTINGER 'LUMBER COMPANY, INC., ETC. 1257
Nevertheless, I find and hold that Larkin's remarks were coercive threats. In
the first place, I fail to see how Respondent could evolve any formula for determin-
ing the cost of "mistakes" of the kind described in this record. What would be
the cost to Respondent if a customer received 20 foot moulding lumber rather
than 25-foot pieces, or the wrong size of door or window units, particularly if the
incorrect materials were promptly replaced by the right ones, or if the incorrect
materials were later sold, or if the incorrect materials or the later correct ones
were, or were not, included in a larger load to be delivered in any event? Plainly,
mistakes impose some extra cost burden on Respondent but it would appear not
susceptible of precise determination on the basis of clearly applicable and fair cri-
teria. And where manufactured items are concerned the record satisfies me that
there obviously would be, in some instances, imposing difficulties in the way of
ascribing the fault to the loaders rather than the employees of the manufacturing
departments concerned, at least where clear and definite instructions and criteria
on the subject do not exist, as is the case here.
Moreover, even if fair formulations could be evolved to satisfy the foregoing
difficulties (and perhaps others not obvious to me as one not expert in the man-
agement and operating affairs of such an enterprise as Respondent's) on what
basis could Respondent fairly threaten to charge one small segment of its employ-
ees with some portion of, or all, or perhaps more than all, of the added wage
cost it might choose to agree upon in collective-bargaining negotiations with the
representative of all the employees? Similarly, would any increase in the wage
level, no matter how insignificant or whether within Respondent's capacity or
willingness to pay, serve to pull the pin of the grenade Larkin poised in the direc-
tion of the loaders?
In the light of such circumstances and questions as these, and of the inherently
threatening character, in general, of Larkin's remarks, and Respondent's previously
established disposition to penalize its employees for their union organizing and
affiliating activity, it is abundantly clear, and I find, that Larkin uttered his
remarks for the purpose of intimidating the loaders to vote against the Union.19
c. As previously noted (footnote 6), Larkin twice made to McCoy the statement
that Respondent could buy sash windows cheaper than McCoy and his men could
make them. The first occasion was incident to the arrival of the first batch of
purchased sash (March 17), and the second was incidental to Larkin's notification
to McCoy on April 27 relative to laying off two of his men. Incident to the first
occasion McCoy relayed to his men what Larkin had said, but there is no such
evidence relative to the second occasion.
In connection with these allegations it has been previously noted (supra, foot-
note 3) that while the General Counsel's complaint alleges, and Respondent's
answer denies, that McCoy is a supervisor within the meaning of the Act, the
record contains no evidence sufficient to determine this question one way or the
other. All there is consists of McCoy's description of himself on direct examina-
tion as "a glazier and glazier room supervisor," and as "supervisor" of his depart-
ment on cross. With counsel for the General Counsel no doubt aware that the
burden was on him to establish McCoy's supervisory status to the extent necessary
to make out violations of the Act alleged, I cannot accept McCoy's mere con-
clusionary characterizations as the equivalent of testimony on any of the specific
criteria of supervisory status laid down in Section 2(11) for the very purpose of
permitting such determinations. Since McCoy may in fact be a supervisor, and
since on the state of the pleadings the General Counsel would seem precluded
from contending otherwise, I find and conclude that Larkin's remarks to McCoy
on April 27 did not violate the Act by virtue merely of their utterance to McCoy,
and since there is no evidence that McCoy relayed them to any of the other workers
in the glazing department there exists no alternative basis for finding they were
coercive of nonsupervisory employees.
Contrariwise, I find that Larkin's remarks of March 17 violated the Act because
of their nature, because Respondent intended or had adequate reason to anticipate
that McCoy would relay them to his coworkers, and because they were in fact so
relayed. While Larkin denied making these statements I have found that he did
utter them, and I accept his testimony that any such assertion concerning relative
10 In so finding I attach some significance to the fact that Larkin made no reference to
added wage costs when , after the election , he made, as I find he did , similar remarks to
the three loaders and , on that occasion clearly tied his threat with merely the advent and
election victory of the Union . But I would reach the same conclusions relative to his
March 29 remarks even if this second incident had never taken place.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
costs was untrue. In the circumstances, Larkin clearly was making use of pur-
chases which I have held were not discriminatorily motivated, to drive home,
nevertheless, Respondent's continued antipathy to the union movement. "You boys
taught me something" could only refer to that activity and Respondent's con-
tinued purpose to instill in its employees the perils of penalization at Respondent's
hands which their adherence to the Union would entail for them. And the fact
that Larkin's statement referred twice to "you boys" shows that he intended that
McCoy should pass it on to the other men. In any event, he had every reason
to know, in view of such references, that McCoy would report the statement to the
whole group to which it was in fact. albeit indirectly, addressed. Accordingly, in
this respect, Respondent has engaged in a further violation of Section 8(a)(1).
III. THE REMEDY
The order I recommend, as set forth below, requires Respondent to cease and
desist from engaging in any further such violations. In view of the grave charac-
ter of a discriminatory discharge and of Respondent's continued propensity toward
flouting the rights- of its employees as manifested both in this case and the
closely related prior one, the order contains a broad injunctive provision coter-
minous with the provisions of Section 8(a)(1) of the Act.
As affirmative relief I find necessary to effectuate the policies of the Act in
respect of Respondent's unfair labor practices, the order I recommend, in addition
to requiring Respondent to post the usual notices, requires Respondent to offer rein-
statement to Clyde Clinton and make him whole for his lost earnings, with
interest thereon, according to the respective formulas set forth in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact and upon the entire record in the case, I
make the following: .
CONCLUSIONS OF LAW
1. By discharging Clyde Clinton because of his membership or activities in the
Union, Respondent has engaged in an unfair labor practice in violation of Section
8(a)(3) of the Act.
2. By the said discharge, and by threatening to discharge employees if they
should exercise the right to strike, by threatening to impose upon employees the
cost of loading mistakes if the Union- were designated the employees' bargaining
representative, and by utilizing its purchases of ready-made windows as a means
of threatening its employees with reduction or loss of work because of their affili-
ation with or support of the Union, Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
3. The aforesaid are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
4. Respondent has not engaged in any other unfair labor practices alleged in
the complaint herein.
Accordingly, upon the foregoing findings and conclusions and upon the entire
record of the case, I recommend that the Board issue pursuant to Section 10(c) of
the Act the following order:
ORDER
Oettinger Lumber Company, Inc., The Leon Corporation, and Elm Trucking
Co., Inc., their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, Local 2230, by discrimination in regard to hire or tenure
of employment or any term or condition of employment.
(b) Threatening to discharge employees because they exercised or if they should
exercise the right to strike as guaranteed to employees by Section 7 of the Act,
threatening to impose upon employees the cost of mistakes by reason of their desig-
nation or support of the Union; utilizing or threatening to utilize the purchase of
ready-made products as a means of threatening its employees with reduction or loss
of work because of their designation or support of the Union; and from in any other
manner interfering with, restraining, or coercing employees in the exercise of any
of the rights guaranteed to employees by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act and adequately to remedy Respondent's violations thereof:
(a) Offer to Clyde Clinton immediate and full reinstatement to his former or a
substantially equivalent position without prejudice to his seniority or other rights
OETTINGER LUMBER COMPANY, INC., ETC. 1259
or privileges, and make him whole in the manner described in the portion of the
Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suf-
fered by reason of the discrimination against him.
(b) Preserve and make available to the Board or its agents, upon request, for
examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due Clyde Clinton under the terms hereof.
(c) Post at its Greensboro, North Carolina, place of business copies of the
attached notice marked "Appendix." 20 Copies of said notice, to be furnished by
the Regional Director for Region 11, shall, after having been signed by Respond-
ent's representative, be posted by it and be maintained for 60 consecutive days
thereafter in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 11, in writing, within 20 days from
the date of the receipt of this Trial Examiner's Decision and Recommended Order
what steps the Respondent has taken to comply herewith 21
(e) Except as Respondent has hereinabove been found in violation of the Act,
the complaint herein is dismissed.
m In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted' for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by, a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
m In the event that this Recommended Order Is adopted by the Board this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against any employee
because he has joined,- designated, or supported Local 2230 of the United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other
labor organization.
WE'WILL offer to Clyde Clinton reinstatement to his former or a substan-
tially equivalent position and will reimburse him for any wages he lost as a
result of our discharging him.
WE WILL NOT threaten to discharge employees because they exercised or if they
exercise the right to strike guaranteed to them by the National Labor Relations
Act, as amended.
WE WILL NOT. retaliate against our employees because of their union mem-
bership or activities by (1) threatening to impose upon our employees the cost
of loading mistakes; or (2) implying that we have used or might use the pur-
chase of ready-made sash windows or other products as a means of such
retaliation.
All our employees are free to form, join, or assist the above-named or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and are free to refrain from any or
all such activities.
OETTINGER LUMBER COMPANY, INC., THE LEON CORPORATION, AND
ELM TRUCKING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify Clyde Clinton, if presently serving in the Armed Forces
of the United States, of his right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Serv-
ice Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may comunicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Tele-
phone No. 723-2911, Extension 302.
Russell-Newman Manufacturing Co., Inc. and International
Ladies' Garment Workers' Union, AFL-CIO. Case No. 16-CA-
2318. June 1, 1966
DECISION AND ORDER
On December 7, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Charging Party and the General Counsel filed ex-
ceptions to the Trial Examiner's Decision and supporting briefs, and
Respondent filed a reply 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 [Chairman McCulloch and Members Fanning and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and adopts the findings of the Trial Examiner only to the
extent consistent herewith.
The basic facts are as follows. Pursuant to a Decision on Review
issued by the Board on December 7, 1964, an election by secret ballot
among the employees of Respondent in the appropriate unit was con-
ducted by the Regional Director for Region 16 on January 26, 1965.1
The tally of 'ballots indicated that the Union had received a majority
of the votes cast. Thereafter, Respondent filed Objections to conduct
affecting results of the election. On March 5, the Regional Director,
after an investigation, issued a supplemental decision in which he
overruled Respondent's objections, and certified the Union as the
'Except where otherwise indicated , all dates are in 1965.
158 NLRB No. 117.