Philo Lumber Co.

National Labor Relations Board - Board Decisions

Apr 22, 1977

229 N.L.R.B. 210 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Philo Lumber Company and Local Union 3-469,
International Woodworkers of America. Case 20-
CA-10719
April 22, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On October 22, 1976, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, General Counsel, Charg-
ing Party, and Respondent filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The General Counsel and Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3,
1951). We have carefully examined the record and find no basis for
reversing his findings.
2 The Administrative Law Judge concluded that Respondent did not
violate Sec. 8(aXl) of the Act when, during the course of interviewing ex-
employee Kossow for hire again on June 16, 1975, approximately 2 months
pnor to the commencement of the union campaign, Foreman Clary asked
Kossow whether he "had anything to do with that union deal" (refernng to
a union campaign in 1974 which Kossow had mentioned during the course
of the interview). The Administrative Law Judge reasoned that the question
was occasioned by "conventional inquisitiveness rather than abided
interrogatory intent."
The Administrative Law Judge further concluded that Respondent did
not violate Sec. 8(a)(l) of the Act when, on or about the second week of
September 1975, Clary asked employee Hill whether he had posted a notice
on the sawmill bulletin board informing employees of a union meeting
scheduled for September 17. The Administrative Law Judge characterized
this as "privileged Section 8(c) expression."
We find it unnecessary to pass upon whether Respondent's conduct in
these instances establishes a violation of Sec. 8(aXl) inasmuch as the
incidents are isolated in nature and therefore would, in any event, be
insufficient to support a Board order.
Chairman Fanning does not agree with the above disposition of these
allegations. He is satisfied that each of them constitutes a violation of Sec.
8(a)(1) and would issue the appropriate remedial order and notice.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at Ukiah, California, May 25-28 and July
7-9, 1976, based upon a charge (with three amendments)
originally filed October 17, 1975, and amended complaint
issued May 14, 1976, alleging that Philo Lumber Company,
called Respondent, violated Section 8(a)(1), (3), and (5) of
the Act by interrogating an employee concerning his union
activities, by discharging Craig Saunders, Charles Bass,
and Steven Hill (after first demoting Hill only) because of
activities on behalf of Local Union 3-469, International
Woodworkers of America, called the Union, or because the
named employees engaged in other protected concerted
activities and by refusing to bargain collectively with the
Union as assertedly exclusive representative of all employ-
ees in an appropriate unit.
Upon the entire record,' my observation of the witnesses,
and upon consideration of briefs filed by each party, I
make the following:
Findings of Fact and Resultant Conclusion of Law
The facility involved is one of several owned by Landis
Morgan. 2 He oversees various locations (primarily within
Mendocino County) from a central office in Ukiah. The
Philo sawmill operates on day shift basis with approximate-
ly 42 employees supervised directly by an onsite foreman.3
About July 8, Morgan received correspondence from the
Loss Control Engineering Department of Lumbermens
Mutual Casualty Company, advising of "Fire Prevention
and Protection Recommendations resulting from our
recent survey." Among these was an item urging control of
employee smoking practices at the green lumber sorting
table. A copy of this material was furnished Philo mill
' General Counsel's motions to correct par. IX of the amended
complaint and certain transcript errors are both granted.
2 Respondent corporation has this sawmill in Philo, California, annually
selling goods valued in excess of $50,000 directly to customers located
outside California which constitutes it an employer engaged in commerce
within the meaning of Sec. 2(6) and (7) of the Act. The Union is a labor
organization within the meaning of Sec. 2(5).
3 All dates and named months hereafter are in 1975, unless indicated
otherwise.
229 NLRB No. 27
210
PHILO LUMBER COMPANY
Foreman Bill Clary, who posted a typed notice dated July
20 near the timeclock reading, "Any employee caught
smoking in the mill area or on the green chain is subject to
dismissal." 4
On August 21 employees grouped at breaktime formulat-
ed the collective intent to achieve higher wages. Watson
assumed the initiating role and spoke to Morgan who was
present nearby at the time. Once so begun, about 10 more
employees were emboldened to gather around. Reacting to
this, Morgan inquired if anyone was spokesman. Saunders
replied that he wasn't, but discussion continued as the
group's purpose became apparent. Morgan stated a 6-
percent wage increase might be accorded soon, although
adding (as he read off a small notebook) that several
comparable mills had recently closed for unprofitability.
As group conversation progressed, Saunders was heard to
say a 6-percent increase, if granted, would not match the
national rise in cost of living. The employees then dispersed
to resume mill functions.
Largely stemming from this episode (in which he was
passively present), Charles Bass contacted the Union that
day and arranged an organizing meeting at his home for
August 27. This was held with various interested employees
in attendance. Authorization cards were signed by those
present and blank ones taken for circulation to other
employees. Such activity proceeded at and around work
premises, in subsequent meetings at the nearby Bass home
and during a meeting of interested employees at the Philo
Cafe on September 17. On September 18 Bass, accompa-
nied by Steven Hill, handed a paper to Clary saying it was
a list of 10 persons (himself and Hill included) who
intended organizing for the Union on their own time.5 The
Union made a written recognitional demand on Respon-
dent dated September 24 (concededly received "in due
course") and on September 25 filed a representation
petition docketed 20-RC-13078 with supporting authoriza-
tion cards for showing of interest.6
On June 16 Rick Kossow, Jr., was hired as a strippuller
by Clary. Kossow testified that in the course of interview
Clary alluded to past employment by inquiry asking if he
had "anything to do with that union deal." 7 Kossow
negatived saying he must have been erroneously connected
with the father's advocate role upon which Clary remarked,
4 This notice reiterated previously existing, little-enforced prohibition
against smoking at work in combustible areas. Additionally, several signs
around mill premises forbade smoking in the interest of fire prevention. I
reject testimony that such notices were not traditionally present, since
sufficient witnesses including not only Clary but employees Ray Blanken-
ship, Ramon Watson, and Craig Saunders recalled such. However, this
objective was largely ignored pnor to mid-summer 1975 as Clary and
employees so choosing smoked at will. It is credibly established that Clary
ceased smoking at work after July 20 and embarked on a policy of
frequently cautioning employees against high-nsk smoking. Blankenship
testified that Clary once "chewed him out" for smoking and that "two more
warnings" would result in his dispatch (discharge) "down the hill," while
James Price recalled that Clary once asked employees to "watch your
smoking." On a related facet I reject Clary's assertion he painted a green
outlined smoking area at a time in July. since more convincing recollections
show this did not appear until late September.
5 The following day Bass, Hill, and Patrick Roebling traveled to another
Morgan-owned sawmill at Laytonville, where they located a receptive
employee who in turn assisted with further contacts resulting in several
signed union cards for that facility. At about the same time news releases to
Ukiah's daily paper and Philo's weekly one publicized organizing efforts at
the Philo mill, as did a Ukiah radio station broadcast interviewing Bass on
the matter.
"Okay - Go to work." This exchange, flatly denied by
Clary, was corroborated by Bass, who recalled Clary's
question to be "something like" whether Kossow had "a
part in that union business." Kossow also testified that in
early September, while alone with Clary as a truck
passenger, the latter answered "Yes" to Kossow's inquiry
of whether he thought Morgan would shut down the mill if
the Union came in. Clary testified that this instance
occurred during conversation after he had offered Kossow
a ride home from work, but recalled his response to the
particular question was "not [knowing] what would
happen." Hill testified that after posting bulletin board
notice of then-planned Philo Cafe meeting in September,
Clary had inquired whether he did so adding, "Well you're
making a big mistake. The Union can't do anything for
you. You might get a 6-cent raise or something like this.
They really can't do anything for you." Clary remembered
asking whether Hill "was the one that had posted [notice
of] the Union meeting," but he denied any further
utterance at the time.
Clary testified that on August 29, and against a
background of several smoking warnings to each, he
discharged Saunders and Grady Wilhite for smoking on
the green chain and associated horseplay.8 Saunders
admitted he was smoking at the time, adding that other
unaffected employees had also smoked at work that day.
Respecting Bass, a rough lumber grader on the green
chain, Clary testified that against a background of two
recent warnings about smoking he saw this employee in the
act on September 22 from his office window. He effected
immediate discharge, recording it with explanation that "at
least 6" warnings had occurred, Bass had "started [a] fire"
the prior week and seemed "unconcerned."9 Bass testified
he was discharged in mid-morning at a time when not then
smoking, although having done so earlier.
Hill was employed in May, working successively as
strippuller, spotter, and trimmerman. The last classification
was one broken into gradually over several weeks until
assumption on regular assignment around early August.
Morgan testified that he observed Hill improperly operat-
ing the trim saws and spoke to him concerning job
performance about three times. Quality Control Inspector
Miles Buck testified that he first altruistically encouraged
s The parties stipulated an appropriate bargaining unit at the Philo
facility to be all production and maintenance employees excluding
salesmen, truckdrivers, grading inspectors, office clerical employees,
managerial employees, guards and supervisors as defined in the Act.
I Kossow, son of a Philo attorney, had bnefly worked for Respondent on
two former occasions. In 1974, a representation proceeding involving
Respondent's production and maintenance employees was filed, which
reportedly resulted in Kossow, Sr. "trying to prosecute" Morgan. Kossow
described such legal services as "case processing against Philo Lumber for
terminating some of the employees for union activities."
h The green chain transports planed lumber to be segregated by quality
or length.
9 Bass recalled prior warnings from Clary were, respectively, when an
insurance investigator (early summer) and fire marshal (late summer) were
at the mill. He concedes that "smoldering" occurred near his workplace
about September IS and opines it probably resulted from his toss of a
cigarette butt. Clary testified that on this occasion he had put out the
smoldering and upon cautioning Bass heard him reply "so solly." Bass'
recollection of the interchange was that Clary enigmatically shook his finger
without a conversational exchange, but subsequently Bass expressed
contrition by telling Clary he was "sorry" for the occurrence.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hill, then came to feel he appeared a slow learner of the
trim function, and ultimately concluded from his numerous
observations that Hill was unsatisfactory. He conveyed this
opinion to Morgan. Clary testified that he found Hill an
average worker who he once complimented for doing a
"good job." Acting on Morgan's instructions he removed
Hill from the trim saw operation because of composite
management appraisal that "we were getting too much
short lumber." An assignment to debarker cleanup was
made September 29 and Hill performed the active physical
duties of this job until October 10 when assigned for that
day as replacement operator on the retrim (hula) saw.' 0
Clary observed Hill "behind in his work all day" and spoke
to him thusly at end of the shift, adding he had been
talking excessively during his prior assignment to debarker
cleanup. Clary testified that with this Hill cast down his
coat saying, "I have had enough of your goddamn
bullshit." Clary fired him on the spot, rejecting an apology
tendered moments later for "blowing my cool." Hill
testified that lumber came fast all that day and didn't slack
off until the last half hour of the shift. Upon finishing, he
had the same number of accumulated boards as when the
day began. When he stepped away from the work station,
Clary approached saying, "Pretty tough job, isn't it" to
which Hill answered, "Not really ... it could be learned."
Hill's continuing version is that Clary then said, "I've got
to send you down the road" to which Hill protestingly
asked why and was told, "you haven't been doing a good
job." In angry exasperation Hill threw his coat on the
ground saying, "This is a bunch of bullshit" and he knew
"what was going on." He then asked Clary outside to
escape existing noise and there apologized for his reaction.
Clary remained adamant, ultimately recording "insubordi-
nation" on Respondent's payroll change record as reason
for Hill's discharge.
This essentially constitutes General Counsel's case, one
which primarily brought to litigation whether pretextual
reasons were advanced for the three discharges at issue. I
first find that no independent 8(a)(1) violation is present.
The allegation so pertaining relates to the Clary-Kossow
dialogue of June." Although I discredit Clary's seemingly
evasive denial of so speaking, cross-examination of Kossow
undercut the necessary thrust of such an exchange. This
refinement to Kossow's testimony shows Clary's opening
inquiry as the innocuous, "Why did you leave [before]" to
which Kossow then volunteered the probability of misiden-
tification based on resemblance to his father's name. The
critical point is that this version, which I am persuaded is
the more accurate reconstruction of respective utterances,
shows mere conversational inquisitiveness rather than
J0 This operation is cutting lumber to lengths indicated by grading marks
made after primary trimming.
i" While Bass' testimony paralleled certain of the claimed phrasing, he
had only passing exposure to what was said when his attention "perked up"
at the words "union business' as the spirited Kossow vaulted down a
stairway without break in the dialogue.
12 I believe Bass' accentual and inflectional manner of speaking resulted
in semislurred phoneticism more resembling "solly" than "sorry" as a
behavioral component of the smoldering episode; a moment not lost on
Clary as he drew together a final assessment of this employee's smoking
habit.
13 Clary's remark to Hill concerning the notice of meeting did not go
beyond privileged Sec. 8(c) expression. The doctrinaire portion of what he
abided interrogatory intent. Finally, Bass added that
Kossow had persevered in the mill's hiring practice by
coming early on several previous mornings trying to get a
job. Since no factor was known to have impinged on June
16 other than that Clary chose to add a worker that
particular day, it is unrealistic to say this discourse
reasonably tended to coerce Kossow (or Bass) in Section 7
rights. Cf. Blackstone Corporation, 225 NLRB 172 (1976);
The William Carter Company, Inc., 225 NLRB 550 (1976).
A substantial portion of this record related to smoking
practices, engagement in which claimedly led to justifiable
discharge of both Saunders and Bass. There is some
certainty on the subject, and much uncertainty. I first give
ordinary weight to July reemphasis on safe smoking
practices. The fire insurer's proposals were of common
business origin, and no union activities existed at the time
to view summary warnings against smoking as clever
components of anticipated pretextual action. An express
cautionary notice particularly addressed smoking at the
green chain, and each dischargee was (or immediately had
been) smoking at the time. In Saunder's case the offense
was compounded by intolerable roistering, while Bass
absorbed unheeded warnings and only scant days before
had ignited sawdust.12 Concern for accidental combustion
in sawmill operation cannot be gainsaid, and although
renewed enforcement was not uniform the general sanction
is obvious. General Counsel theorizes that Saunders'
outspokenness on August 21 was influential, but this
remains only speculative without some evidentiary connec-
tion and given the effective employment continuity of the
more vocal Watson. Bass' case intrigues more compelling-
ly, with discharge timing at the height of the union
campaign and only days following his diversified, overt
activism. Here the countervailing factor is failure to show
hostility toward these activities as instead button-wearing,
list furnishing, and community publicity evoked no
modification to Clary's simple equanimity during Septem-
ber.13 Evaluation of Hill's discharge requires a threshold
finding of verbal sequence immediately at the end of his
October 10 shift on retrim work. I am satisfied that Clary
did not, as Hill believed, announce his discharge prior to
the act of throwing. Given noisiness at the spot and Clary's
bucolic vocal style, I believe it more accurate to hold, as
Clary credibly testified, that he spoke reprovingly to Hill
but did not escalate the matter to discharge until the
unsettling (and to Clary's mind unprovoked) reaction had
occurred. This actionable behavior was the sole cause of
Hill's discharge and was so recorded. A contrary conclu-
sion would require postulating that Clary either lured Hill
into such conduct or exploited the incident as it unfolded.
uttered is common employer-oriented rhetoric, while the reference to a 6-
percent wage raise did no more than recount what Morgan had earlier
predicted in response to collective employee pressure. I discredit Kossow's
testimony that while in Clary's truck, the latter plainly predicted closing of
the mill in the event of unionization. Here Clary is persuasive in his contrary
testimony that the subject arose, but he parred it by disclaimer of
knowledge. Neither incident supplies a showing that Respondent harbored
retaliatory intent likely to manifest with deliberate discharge of employees,
nor do later credibly described remarks that Clary would "show all these
guys" by harsh behavior "nothing more than" what they were already
exhibiting with "bad mouths" necessarily mean violative purpose. Cf. Ernst
Construction, Division of Ernst Steel Corporation, 212 NLRB 78, 84-85
(1974).
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PHILO LUMBER COMPANY
Neither theme has validity from probative evidence as a
whole, as contrasted with bare suspicion or an impression
that supervisory authority was exercised arbitrarily. The
issue of Hill's discharge must be taken in larger context
that of proven commonality of discharge and rough-hewn
employee relations. The separate allegation respecting
Hill's "demotion" (no change of wage rate was involved)
from trimmerman equally fails ofprimafacie persuasion, as
here the observations of Morgan, and more significantly
the highly credible Buck, led to managerially justified
reassignment.s Overall General Counsel reconstructed a
classic organizational drive, identified key adherents, and
sought to associate a series of discharges with unlawful
motive. The totality of evidence does not warrant adding
inferential findings essential to a pretext case.
Determination of majority status is based initially on
General Counsel's Exhibit 3 containing 64 employee names
(including two handwritten) for the period August 1-
October 15, plus Respondent's Exhibits 5, 6, 8, and 10
showing pertinent payroll record changes during that
period, supplementing General Counsel's Exhibit 3 to
which Respondent's counsel withdrew earlier stipulation of
accuracy. The resultant total of 67 employees requires
point-in-time analysis, and several classifications or indivi-
duals are in dispute. Express exclusionary stipulations
cover Clary, Buck, and Cecil Ball. My conclusions
regarding Saunders, Bass, and Hill eliminate them from
any count upon their respective discharge dates. All
persons employed as cleanup nightwatchman (including
Robert Rackliff, hired September 25) are excluded upon
sufficient showing that the primary duty of this classifica-
tion is to guard Respondent's premises within the meaning
of Section 9(b). The particular duties of these employees,
performed during nonoperating hours, are more akin to
West Virginia Pulp and Paper Company Hinde & Dauch
Division, Detroit Plant, 140 NLRB 1160 (1963), than to
Arkley Lumber Co., 169 NLRB 1098 (1968). Cf. Larand
Leisurelies, Inc., 222 NLRB 838 (1976). Employee Carl
(William) Witheral (Witherell), crane operator during the
logging season, experiences temporary layoff during winter
months with clear expectancy of recall warranting his
inclusion. Joseph Doughty's testimony that permission was
granted for his absence from work, beginning September
24, was uncontradicted, mandating a conclusion that he
remained a bargaining unit employee until reappearing for
work on September 26 and being discharged on that date.
" Hill himself recalled one critical comment from Morgan and about
three from Buck. I reject Hill's equivocation on this point dunng rebuttal.
is I treat September 25, for purposes of comprehensiveness, as the likely
date on which the Union's written claim of majority was received by
Respondent. Notably, General Counsel does not assert a majority existed
until September 30.
Michael Smith's hire as a saw filer on September 29 was
unqualified from the evidence, and the fact that he quit a
week later does not, without more, remove him as a unit
employee. Michael Santana was a yard employee engaged
essentially in storage and shipping tasks of a physical
nature. His access to the mill office and occasional
document preparation does not disturb a primary showing
of equipment operation for lumber handling, storage and
shipment, a function closely similar to forklift operator
Danny Johnson and otherwise reflective of common
employment interests with the basic bargaining unit.
Gordon Hicks worked comparably to Ball, the latter
excluded by stipulation as Respondent's certified grader.
Their functions were to grade lumber following main
trimming and mark pieces for further processing. Their
work stations were close together and they occasionally
interchanged respecting flow-through of boards. Hicks was
shown to be experienced in grading, but not possessor of a
formal certificate as was Ball. Mindful of this similarity I
nevertheless conclude Hicks' actual duties, which intimate-
ly involved him in the sequence of mill processes, outweigh
any significance attached to the parties' agreed exclusion of
Ball. I therefore include Witheral, Doughty, Smith, Santa-
na, and Hicks within the unit.
The documentary evidence identified above lists 67
names overall. Of these, 16 terminated or were discharged
(including Saunders and Bass) prior to September 25.
Stipulated individual exclusions (3), coupled with the guard
exclusion (4), reduce the working number to 44 as of
September 25 (Smith and Michael Heath were at that point
not yet employed). Individual inclusionary resolutions are
dovetailed into final adjustment yielding bargaining unit
complement/showing of interest ratio at 42/19, 42/20, and
41/19 on September 25, September 30 (date of card signing
by Dennis Scovell and Vester (Lee) Simms), and October
15, respectively. The Union thus did not represent a
majority of included employees in the appropriate collec-
tive bargaining unit at any material time.' 5
Accordingly, I render a conclusion of law that Respon-
dent has not violated Section 8(aXl), (3), or (5) as alleged,
and issue the following recommended:
ORDER '6
The amended complaint is dismissed in its entirety.
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
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.
213