Pine Products Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1965

153 N.L.R.B. 581 (N.L.R.B. 1965)

PINE PRODUCTS CORPORATION 581
Pine Products Corporation and Central Oregon District Council,
Lumber and Sawmill Workers Union, affiliated with United
Brotherhood of Carpenters and Joiners of America , AFL-CIO.
Case No. 36-CA-1342. June 28, 1965
DECISION AND ORDER
On April 29, 1965, Trial Examiner James R. Hemingway 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 Deci-
sion. Thereafter, the Respondent filed exceptions and 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 [Members Fanning, Brown, and Jenkins].
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, brief, and the entire record in the
case, and hereby adopts the findings,2 conclusions, and recommenda-
tions of the Trial Examiner .,3
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and'orders
that Respondent, Pine Products Corporation, Prineville, Oregon, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order .4
I The Respondent's request for oral argument is denied as the record, including the ex-
ceptions and brief , adequately presents the issues and positions of the parties
2In view of our affirmance of the Trial Examiner 's 8(a) (3) finding , we find it unnec-
essary to pass upon his 8 ( a) (4) finding inasmuch as such a finding would not alter the
scope of our Order and The Remedy herein.
3 We hereby grant the Charging Party's unopposed motion to delete the word "and"
which appears after the date "1964" in the section of the Trial Examiner's Decision
entitled "The Remedy." We also note and hereby correct the Trial Examiner's in-
advertent error in referring to the testimony of Gilbertson and lllergel as indicating that
both men left the filing room on July 21 at 3 35 p.m. rather than 3 25 p in.
4 The telephone number for Subregion 36, appearing at the bottom of the Appendix
attached to the Trial Examiner 's Decision , is amended to read: Telephone No. 226-3431.
153 NLRB No. 57.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The original charge initiating this case was filed on July 29, 1964, by Lumber and
Sawmill Workers Union against Pine Products Corporation, herein called the
Respondent. An amended charge was filed on August 25, 1964, by Central Oregon
District Council, Lumber and Sawmill Workers Union, affiliated with United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, herein called the Union.'
Upon the charge and amended charge, the General Counsel for the National Labor
Relations Board, on behalf of said Board, caused a complaint to issue against said
Respondent on September 3, 1964, alleging violations of Section 8(a)(1), (3), and
(4) of the National Labor Relations Act, as amended, 29 U.S.C. Section 151 et seq,
herein called the Act.
In substance, the complaint alleged that on or about July 22, 1964, the Respondent
discharged its employee, Manley Marge], and thereafter failed and refused to rein-
state said employee because he had joined or assisted the Union or engaged in other
union activities or concerted activities for the purpose of collective bargaining or
mutual aid and protection, or because he was named in a previous charge filed against
Respondent, or gave testimony under the Act. The Respondent's answer, filed on
September 17, 1964, admitted that Respondent had discharged said employee and
had failed and refused to reinstate him, but it denied the cause alleged.
Pursuant to notice, a hearing was held on October 20, 1964, at Prineville, Oregon,
before Trial Examiner James R. Hemingway. All parties were represented by coun-
sel and were afforded full opportunity to examine and cross-examine witnesses and
to adduce evidence bearing upon the issues. At the conclusion of the General Coun-
sel's case in chief, the Respondent moved to dismiss. The motion was denied. At
the close of the hearing, the Respondent again moved to dismiss and ruling was
reserved thereon. Respondent's motion is now denied for the reasons hereinafter set
forth.
Upon the entire record and from my observation of the witnesses, I hereby make
the following:
FINDING OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is, and has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the State of Oregon. Respond-
ent has maintained its principal office and place of business at Prineville, Oregon,
and is, and has been at all times material herein, engaged at said location in the manu-
facture, sale, and distribution of lumber and related products.
During the past fiscal year, Respondent, in the course and conduct of its business
operations, manufactured, sold, and distributed products valued in excess of $3 mil-
lion, of which products valued in excess of $2 million were shipped from Respond-
ent's plant located at Prineville, Oregon, directly to States of the United States other
than the State of Oregon. Jurisdiction is not contested. I find that the Board has
jurisdiction and that it will effectuate the policies of the Act to assert jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Discrimination
A. The history of Mergel's employment and working practice before Apiii 1964
Manley Mergel, prior to his discharge, had been continuously in Respondent's
employ for more than 25 years. During the last 7 years of his employ, Mergel had
been a sawfitter, sometimes called a filer's helper. His duties involved sharpening
of saws and fitting.
The sawfiler, during Mergel's last 6 years or so of employment, was Clyde Gilbert-
son, the head filer. The Respondent in its brief refers to Gilbertson's position as
equivalent to that of a leadman. Gilbertson had the full responsibility for keeping
1 In each case, the signer of the charge was S D. Nelson, an International representa-
tive, and the address given for the Charging Party was the same in each charge I find
that the Charging Party was the same on each.
PINE PRODUCTS CORPORATION 583
the saws of the mill in condition . He received a monthly salary of $830 , whereas
Mergel was paid by the hour. Gilbertson directed Mergel in his work, assigning cer-
tain jobs to him, determining the total hours that Mergel worked , determining the
time taken on the morning and afternoon breaks, and the time when Mergel went
home.
The regular hours were 6:30 a.m. to 3.30 p.m. with 1 hour for lunch. Sometimes
when Mergel would start 15 minutes to a half an hour earlier in the morning, Gilbert-
son might let him go early in the afternoon if they were caught up with their work.
More often than not, however, both Gilbertson and Mergel worked overtime. For
the 2 years immediately preceding the time when Respondent undertook to eliminate
Mergel's overtime in April 1964, Mergel had fairly consistently worked from 48 to
60 hours a week, and Gilbertson customarily worked longer hours than Mergel.
At the Respondent's mill, the head filer was under the plant superintendent. How-
ever, as Gilbertson testified, as head filer, he was "more or less on his own," and the
plant superintendent did not interfere with Gilbertson in his day-to-day functions.
If Gilbertson took a longer break than the usual 15 minutes, the plant superintendent
said nothing to Gilbertson, and if Gilbertson was able to leave early in the afternoon,
nothing was said about that. Charles Rhoden, the plant manager, testified that it
was "a known fact that nobody bothers the filer as long as the saws are cutting" and
if the filers were sitting down he would "figure the saws are in good shape and there's
no more work to do at that time."
Mergel and Gilbertson usually took their coffee break about 9 a.m. and again at
2 p.m., but the time of the break and whether or not they took it at all would be
dependent upon the amount of work to be done at the time. There were occasions
when Gilbertson and Mergel were obliged to work through a break and sometimes
through their lunchtime. For this reason, when work was not so pressing, Gilbert
and Mergel might take more than the usual 15 minute break. Mergel customarily
went with Gilbertson when they took their break, and usually they would go to the
electric shop or the pond shack for their break. Gilbertson was the one to determine
the length of the break and nothing was said to him with respect to taking too long
a break period. Nor was there any complaint that the work of the filer and his assist-
ant was not being done or was not being done properly. The only complaint voiced
by the plant superintendent concerned the amount of overtime necessary in the filing
room, a subject which will be discussed hereinafter. I do not take this necessarily
to establish, however, that Gilbertson and Mergel were not doing their work during
regular hours, because the work in the filing room was not steady work; there would
be times when there would be little or nothing to do, and then all of a sudden there
would be a rush of work that would have to be handled right away and could run
into overtime. Because of this irregularity in rush times, I deduce that Sweet could
not be certain, when he saw Mergel away from the filing room, that Mergel was not on
his lunch hour. Sweet once saw Mergel greasing his car "on company time" as he
put it, but he said nothing about it to Mergel or to Gilbertson. Mergel admitted
having greased his car several times during the coffee break and Gilbertson knew
where he was at the time. I deduce that Sweet said nothing to Mergel or Gilbertson
when he saw him greasing his car, first, because he did not know but that Mergel was
on his free time and, second, because Sweet did not care as long as Mergel took care
of the work as it came in, and there was no complaint that he did not do so.
Although Mergel's title was sawfitter, he had, for some years, also done sawfiling
and, by 1962, Gilbertson considered Mergel experienced enough to be a filer. When
saw salesmen would visit mills, they would hear about fitters who had become quali-
fied filers and, if, in their rounds, they heard of a mill where a filer was needed, they
would act, as Gilbertson put it, as a kind of employment agent. Gilbertson had told
a saw salesman about Mergel in 1962. If Mergel had had a chance to become a saw-
filer, he might, by 1964, have been willing to take the job, according to Gilbertson,
and leave the Respondent. This, however, I consider speculation on Gilbertson's
part, because Mergel owned his home in Prineville and carried on a small floor sand-
ing business on the side. Taking a job as filer would mean moving and giving up both
his home and his sideline business, as Mergel had to do after he was discharged by
the Respondent. Mergel testified that, at the time he was discharged, he had no other
job and was not looking for one.
Mergel had formerly had an ulcer, and he frequently took crackers and milk dur-
ing working nine in the morning. This was possible during the 9 or 10 minutes while
the automatic sawfilers were making a cut. Sometimes Gilbertson would have a cup
of coffee at the same time. Before the time of his discharge, Mergel had never been
criticized for his practice of eating on the job.
Norm Sweet, an employee of the Respondent for some 8 years up to 1964, was
made mill superintendent early in 1962. Soon after this time, Mergel offered to file.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some saws for Sweet at Mergel's home workshop, and Sweet gave him permission to
do so, saying that he would give Mergel time, meaning credit toward overtime pay.
However, after Mergel had done saws for several employees at the mill (saws which
were used on the job), Sweet objected to giving Mergel any more overtime for it.
Mergel then ceased to put in for overtime, but he continued to file saws at home after
work, nevertheless.
When Sweet became mill superintendent, he asked Gilbertson to hold the overtime
down as much as possible. Apparently, this did not reduce overtime, however, for
there would be many weeks when the total hours in the file room ran more than 50
hours per week for each of the two men, and the amount of work done from week to
week varied widely. For example, in August 1962, Mergel's high week was 61
hours as against a low of 48 hours. During all of 1963, the hours put in by Mergel
and Gilbertson totaled more than 100 hours a week most of the time. This continued
to be true until toward the end of April 1964. Because the change in hours which
occurred at that time coincided with certain other events which will be related here-
inafter, a relation of the facts regarding the change will be deferred.
B. Mergel's union activities
The Union commenced an organizational drive at the Respondent's plant in Febru-
ary 1964.2 Mergel actively participated in this campaign by passing out union cards
to various employees and collecting them again, and he discussed the Union with
other employees during breaks. Although Mergel and Gilbertson sharpened saws
only in two places in the mill, they inspected the lumber and saws in operation in
other parts of the mill to see if the saws were in good condition. This could take
them to almost any place in the plant except, perhaps, the millpond. These trips to
other departments apparently made it possible for Mergel to deliver union cards or
to discuss the Union with employees throughout the plant during company time. Of
course, during a morning or afternoon break he could go to other parts of the mill on
his free time in connection with his union activities. Merge] testified that he delivered
some union cards to a man in the "small mill" shortly before that mill was shut down,
but he did not fix the time of day nor even the date very well .3 The only place where
Mergel would have no occasion to be on company business would have been the
pond shack. He had been observed there on at least one occasion by Superintendent
Sweet, apparently during the union campaign. Manager Rhoden was also aware
that Merge] had been to the pond shack. Sweet testified to one instance when Mergel
had been in the electric shop during his break and had remained there for 15 min-
utes and, when he left, had gone to the pond shack and spent another 15 minutes.
Sweet did not, however, stop Mergel to ask him why he was at the pond shack, and he
never warned Mergel about this then or on any other occasion when he may have
taken too much time on the coffee break. Nor did Sweet say anything to Gilbertson,
who usually took the same break as Mergel.
On one occasion when Gilbertson was at the electric shop, in early spring , during
the union campaign, Ed Smith, the head electrician, told Gilbertson to caution Mergel
about his union activity, saying that he would get himself into trouble. Smith testi-
fied that he thought Mergel should not stir things up and get the men active. The
men should just be allowed to make up their own minds. The General Counsel
contends that Smith was a supervisor within the meaning of the Act. The record is
not entirely clear on this, but Smith appeared to be a leadman like Gilbertson. Smith
held a contractor's and supervisory license from the state and was responsible for the
work of one man 4 He had occasions to be in the office section of the plant and he
testified that he had there picked up from a desk a pamphlet for supervisors and read
the instructions about how supervisors should not influence the employees regarding
the Union. Whether or not Smith's position was such as to make his statements
attributable to the Respondent, his conversation with Gilbertson, his testimony indicat-
ing his belief that Mergel was stirring the men up regarding the Union, and other
evidence in the record all convince me that Mergel was generally known to be actively
engaging in promoting the Union during the union organizational campaign.
The record does not show the date on which the Union filed a petition for certifi-
cation, but the Respondent signed a consent-election agreement and an election was
2 Other unsuccessful attempts at organizing had been made by the Union in 1960 and
1961 (Cases Nos. 36-RC-1585, 36-RC-1586, and 36-RC-1702).
3 This mill was closed down in February 1964; It opened again in mid-April and again
was closed about May 1, 1964. It is uncertain to which closing Mergel referred.
* Smith and his assistant worked 44 hours a week. Apparently, their overtime was
never eliminated.
PINE PRODUCTS CORPORATION 585
scheduled for May 13, 1964. At least until that date Mergel continued his part in
the Union's campaign. In the last of March or early April, Charles Rhoden, the
plant manager, heard that Mergel was passing out union information,5 but he testified
that he had not paid much attention. He testified that he had known for years that
Mergel was a union man , and he testified that he had hired union men from other
companies that had gone out of business. Rhoden, as well as Sweet, had seen Mergel
at the log pond and at various places about the mill but did not stop to check what
Mergel was doing. I deduce, however, that Rhoden believed that Mergel was at the
log pond in connection with union activity.
On Wednesday, April 15, 1964, Mergel encountered Jack Rhoden, the assistant
plant manager, in the electric shop, and said, "Hi, Jack." Rhoden did not respond.
When Mergel mentioned this to Gilbertson, the latter said, according to Mergel,
"No wonder he didn't speak, he's cutting your overtime off." Earlier, Gilbertson
had had a conversation with Jack Rhoden and Sweet in which they had told Gilbert-
son that they wanted to cut down Mergel's overtime. About April 16, 1964, the
Respondent did reduce Mergel's overtime hours and confined Mergel to fitting, while
having Gilbertson do all the filing and benching of saws. Gilbertson could not have
handled all the additional work by himself; so to make it possible for Gilbertson to
do all the filing to the exclusion of Mergel, the Respondent relieved Gilbertson of
the job of filing of the molder saws and transferred that job to the planer. The filing
of the molder saws was about the only job done by Gilbertson and Mergel away from
the filing room. At this time, the Respondent first told Gilbertson that Mergel was
to be cut to 40 hours a week, but Gilbertson apparently had doubts that he could
handle all the work because he told Sweet that this change might work out if the
Respondent would allow 9 hours a day for Mergel. This was agreed to, and for a
couple of weeks thereafter Mergel's total hours were confined to 45 a week. Although
Gilbertson held Mergel to the 45 hours a week, he did not keep Mergel within the
usual starting and quitting time; he would keep him a little longer one night and let
him go a little earlier the next. Just after this reduction in Mergel's hours, the small
mill, which had been shut down in February, was reopened. Around the first of
May 1964, the Respondent decided to cut Mergel to a straight 40 hours a week, and
at this time it removed the grinding of the chipper knives from the filing room and
gave this work to another man. About this time the small mill was closed down for
the second time. Sweet, at this time, told Gilbertson that Mergel was not to work
more than 40 hours a week and was to work from 6:30 a.m. to 3:30 p.m., with an
hour for lunch. Gilbertson testified that Sweet had said to hold Mergel to 40 hours
a week even if they ran out of saws. Sweet denied the last part. If Sweet did not
expressly say that Mergel was to be held to 40 hours a week even if they ran out of
saws, Gilbertson had reason to believe that this was Sweet' s meaning.
The Union lost the election which was held on May 13, 1964. On May 22, 1964,
the Union filed a charge against the Respondent in Case No. 36-CA-1333 in which
it alleged, among other things, that the elimination of Mergel' s overtime was a dis-
crimination in violation of the Act.
At the hearing, Superintendent Sweet, on direct examination by the Respondent,
read into the record notes that Sweet testified he had kept of Mergel's long breaks
and leaving early. Sweet testified that he kept this record because Mergel was always
complaining about not being able to get his work done. The use of the word "always"
I take to be an exaggeration, and, from Sweet's own testimony, I conclude that the
word "complaining" was misused. Sweet gave two instances of Mergel's so-called
complaining. The first occurred around April 20, when his overtime was first cut
and when the grinding of the molder saws was given to the planer. At this time,
Sweet quoted Mergel as commenting that "it wouldn't work out," and that "at that
particular mill, two filers would be needed in that mill and that one filer could not
handle it." This, it will readily be observed, was not a complaint that Mergel did
not have time to do his work but was rather an opinion that Gilbertson could not do
all the filing by himself. Nevertheless, Sweet responded to leading questions by
Respondent's counsel by testifying that, after that, he got complaints from Mergel
that he could not do his work in 45 hours. As an example of this, Sweet testified
that on or about May 1, when Respondent moved the chipper-knife grinder from the
filing room to the planer, Mergel had asked Sweet what was going on, and that he
5 Manager Rhoden at first gave the time of his noticing Mergel's union activities as in
March or early April. But when asked if this were shortly before Mergel's hours were
cut, Rhoden testified, "No, it was about the time that the-I don't remember-about
the time of the election."
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Sweet) had replied, "I think maybe by taking this work away from you and if you
will stay in the filing room, instead of all over the plant, that you will be able to do
your work up in forty hours." Another example, according to Sweet, occurred in
mid-May in the electric shop during a break when Mergel, according to Sweet, said,
"The company won't allow us time enough to take care of the saws in the mill the
way they should be taken care of," and when Sweet, according to Respondent's wit-
nesses, told Mergel that if Mergel would stay in the filing room "instead of spending
an hour on the smoke break and chasing all around the plant, that he'd probably have
time to do his work in the filing room." 6 Again, it will be noticed that Mergel was
quoted only as complaining that the saws were not given the care they should have,
not that he could not do his work within the time he was held to. Since Mergel at
this time had been limited to fitting and was no longer doing any filing or benching,
the statement attributed to Mergel by Sweet hardly appears to have been a complaint
concerning any lack of time for fitting. Nevertheless, Sweet would have it believed
that this "complaint" by Mergel caused Sweet to start keeping a record of Mergel's
time on breaks and his leaving early. Sweet was not examined closely about how
soon after the first two supposed incidents recorded he had started making entries in
his record, and the actual date when Sweet first started the record is not clear. The
first date read into the record by Sweet was May 18, when Mergel was recorded as
having taken a 35-minute break in the afternoon. He was recorded as having left
his job at an unknown time and returned at 1:50 p.m. on May 21. That was the
date when the charge, on behalf of Mergel, was signed by the Union's representative.
It was actually filed on May 22. The following week, Sweet's records of Mergel's
time on breaks became more consistent, and they were recorded each week until
June 17. The charge filed on May 22 was withdrawn on July 7. Between June 17
and July 20, no entries were made. On July 20 Mergel was recorded as having
25-minute breaks each in the morning and afternoon and as having left work at
3:15 p.m., 15 minutes early. The same identical record was made for July 21, 1964.
Sweet testified that both Gilbertson and Mergel had left early on both days. Gilbert-
son denied having left early on July 20, but both he and Mergel admitted that they
had left early on July 21, although, according to their testimony, they had not left
the filing room until 3.35 p.m. and that they then walked to the parking lot and did
not leave the grounds until after 3.30 p.m. I question the accuracy of Sweet's memory
as to July 20. There is no way of determining whether Sweet or Mergel and Gilbert-
son were more accurate in fixing the time of their departure on July 21. None of
them was asked how he fixed the time. The disparity could have been caused by a
slow or fast watch.
C Mergel's discharge
On Wednesday, July 22, 1964, when Mergel arrived for work at the beginning
of his shift, Sweet met Mergel at the door and told him not to put on his overalls.
Mergel quoted Sweet as saying that he was turning in Mergel's time. Mergel asked
why. He quoted Sweet as saying that Mergel had gone home early the day before,
that he had taken too long for a coffee break,7 and that he had come and found
Mergel eating on the job. Mergel testified that Sweet had added, "And others."
Mergel argued with Sweet that he had not left 15 minutes early the day before, but
Sweet insisted it was 15 minutes and walked away.
9 Mergel had no recollection of such a conversation. The Respondent called as a
witness, to corroborate Sweet's testimony, Charles Sumner, the millwright, who testified
that he was present and overheard the conversation He testified that Mergel would
come to the electric shop with Gilbertson during the coffee break but would not always
leave with Gilbertson He testified that someone else was present when Sweet made the
aforesaid statement but did not remember who it was. Gilbertson was not asked if he
was present on the occasion testified to. Sumner was not an unbiased witness Sweet,
in an affidavit given to the Board, had stated the reasons for Mergel's discharge and in
the affidavit had said that lie had not spoken to Mergel about the causes for his discharge
and had only told Mergel and Gilbertson that Mergel was to work from 6 B0 a m. to 3 30
p.m. and Gilbertson from 6 30 a in to 4 30 p in with an hour for lunch I am not fully
convinced that Sweet made the statement quoted above but, if he did, he did not, as he,
himself, admitted, consider it as a warning.
7 Sweet testified that he showed Mergel his list of times when Mergel had taken long
breaks. Mergel was not specifically asked whether or not he had seen the list before
the time of the hearing
PINE PRODUCTS CORPORATION 587
D Concluding findings
Manager Charles Rhoden testified that Mergel had long been known to be a union
man and argued that, if he were going to discharge Mergel for his union connec-
tions, he would have done it long before . However, Rhoden disclaimed any part
in Mergel's discharge and testified that he was away when it happened. Sweet took
exclusive credit for having discharged Mergel, and he claimed that he did not know
and did not even suspect that Mergel was engaged in union activity.8 Even stand-
ing alone, this testimony would strike me as incredible, but this was not the only
testimony which Sweet gave which I consider incredible. Sweet never satisfactorily
explained why he had kept a record on Mergel's time on breaks. His testimony that
he did so because Mergel complained about not having time to do his work and
still took long breaks is not convincing. As heretofore pointed out, Sweet's charac-
terization of Mergel's statements (first, in April, when the grinding of the molder
saws was turned over to the planerman, that it would not work out and second, when
Mergel allegedly remarked that the Respondent would not give him and Gilbertson
time enough to keep the saws in the condition in which they should be kept) as
complaints was an unjustifiable interpretation, and it demonstrated bias on Sweet's
part. Obviously, Sweet was not making a record on Mergel in order to show it to
Mergel, since before Mergel's discharge he did not do so. Furthermore, Sweet did
not even warn Mergel about long breaks. He testified rather vaguely that he "once"
mentioned it to Gilbertson, adding, "In a way, I figured that he might get together
with Manley and chop down on the long breaks." Gilbertson denied that anyone
had said anything to him about long breaks and I credit his testimony. Sweet admit-
ted that Gilbertson was also taking long breaks but that Gilbertson was paid by the
month and put in overtime 9 I find no indication that Sweet directed Gilbertson to
cut down the time he and Mergel took on breaks, although Sweet concededly had
a right to do so. Under the circumstances, the record which Sweet was keeping on
Mergel clearly assumes the aspect of an attempt to build a case for an anticipated
discharge. Mergel and Gilbertson testified to their general practices regarding their
hours and their breaks from the time they began working together some 5 or 6 years
before Mergel's discharge. There is absolutely no evidence that such practices
changed in 1964. If Mergel had been taking too long on coffee breaks during all
that period, the Respondent had made no issue of it before April or May 1964, and
even in May, when Sweet allegedly started his record, he did not pretend that he
had made it other than surruptitiously. Even Sweet's testimony concerning his
keeping this record stretches credulity. He was questioned about an entry made on
May 26, 1964, showing that Mergel was supposed to have taken a 45-minute break,
and testified that he (Sweet) had remained and watched Mergel for the entire 45
minutes. He testified that he was "back someplace where he [Mergel] couldn't see
me." Yet Sweet explained the absence of notes on certain days on the ground that
he was too busy to watch Mergel all the time. The very thought of a mill superin-
tendent standing in a concealed position to watch an idle employee for so long is
difficult to believe, but it is even more difficult to believe that the superintendent
would not have confronted the idling employee and berated him or sent him to his
job. Sweet's testimony as a whole gives evidence of exaggeration and bias. I do
not, therefore, credit it as against Mergel's and Gilbertson's testimony.
Although eating on the job, according to Mergel, was mentioned by Sweet when
he discharged Merge!, Sweet testified that Mergel 's eating on the job was not a
reason for his discharge. The only reasons for Mergel's discharge, Sweet testified,
were Mergel's complaining that he could not get the work done, the long breaks,
and leaving early. Sweet was unable to testify as to whether or not Mergel had
worked during his lunchtime. He testified, "The way he was eating his lunch or had
his lunch hour, it was hard to tell when his lunch hour was or when his break was,
until I put him on a certain time [in May]. Before that, I have went in at 8 o'clock
in the morning, and he'd be eating his lunch-both of them-Gilbertson and Merge!
both. But that didn't matter to me as long as they were i°-whether they'd eat at
8 o'clock or 11 o'clock, until we put them on certain hours "
Sweet testified that on July 20 as well as on July 21, Gilbertson and Mergel had
left 15 minutes early at the end of the day and that on each occasion he noticed it
Sweet knew of the charge filed in May on Mergel's behalf.
Late in the summer of 1964 Gilbertson collected 2 years' back overtime pay from the
Respondent through the Wage and Hour Division of the Department of Labor
"It seems obvious that Sweet was going to say "as long as they were doing their work."
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because he had come to the filing room when he needed a filer in the mill, and each
time found both Gilbertson and Mergel gone. Sweet testified that on July 20, he,
himself, "fixed the saw on the wheel." He testified ". . . I let it go at that time ..
and then the next day, Tuesday, July 21st, the same thing happened again . . . . I
wanted a man to fix the resaw. At 3.15, I went in the filing room and they were
both gone, so I had to change the saw-on the resaw." It is difficult to tell from
Sweet's testimony just what he would have had Mergel or Gilbertson do if he had
found them present on either day." His testimony was "we needed a filer." Gilbert-
son was the filer. Mergel had been taken off that work. If Sweet merely wanted
someone to change a saw, he must have wanted it changed for the night shift,
because at the time he was supposedly looking for Gilbertson and Merge], the saw
would not have been changed in time to do the day shift much good. Sweet had
given specific instructions that Mergel was not to work after 3:30 p.m. Gilbertson
usually stayed an hour longer. If anyone had caused inconvenience to Sweet, it
was Gilbertson. Yet Sweet admittedly did not speak to Gilbertson about leaving
early on either July 20 or 21. Placing the blame on Merge] while exculpating
Gilbertson for such incident, under the circumstances, is inconsistent with honesty,
fairness, and even sensible management practice. It is much more so when con-
sidered with the fact that Mergel was terminated for such an offense without prior
warning of the consequences of slight irregularities in his working time.
Although the Respondent was concerned about overtime work and wages through-
out the plant and had spoken to Gilbertson about attempting to hold it down as
early as May 1962, no definite steps to reduce the overtime in the filing room were
taken until April 1964, at the time when the Union's campaign was in full swing
and when Mergel was seen all over the plant. Then the steps taken to reduce over-
time were aimed specifically at Merge], within 3 weeks of the date of the election.
There is no evidence that overtime was reduced in other places around the plant
other than in the filing room.
Considering the fact that until the time of the union campaign in 1964, no effec-
tive steps were taken to reduce overtime and the fact that, when steps were taken,
they were taken against an active union organizer, and considering this in the light
of all the facts above related, I am unable to avoid the inference that the reduction
of Mergel's overtime was related to his union activity. The inference is increased
by the fact that almost coincidently with the filing of the Union's charge in Case
No. 36-CA-1333 in which Mergel was named as a discriminatee, Sweet began his
surveillance of Mergel and the making of notes concerning his break periods with-
out warning Merge], a tactic designed to prepare for a discharge. Making such a
record is something that had not been thought of, apparently, during the several
years preceding 1964, although Gilbertson and Mergel both admitted that they
sometimes took longer than the usual breaks, balancing out those times when they
were unable to take any The fact is that until the time of Mergel's union activity,
when Sweet eliminated Mergel's overtime and confined him to a definite lunchtime,
Sweet, like Rhoden, paid little attention to the time when Mergel and Gilbertson
ate or took their breaks
Although Manager Rhoden testified that he was away at the time of Mergel's dis-
charge and did not know of it until a couple of days later, I am struck by the fact
that Rhoden took the position that Mergel was trying to get himself discharged.
The only basis he gave for such a belief was that an unidentified laborer had said so,
and that Merge] "was doing things he didn't do before." 12 The quoted words were
explained by Rhoden as, "Oh, I saw him around in the plant more or less and as
far as that goes, it's just a little of everything that I can't just name any specifics."
Except on one hypothesis, there is no logic in the theory that Mergel was inviting
discharge, a tactic that certainly would not fit with an assumption that Mergel
already had another job, for if Merge] had another job, there would be no sense in
his inviting a discharge. He would simply have quit when he was ready. A dis-
charge in such event might even be injurious to Mergel's acceptance by another
employer. The only hypothesis that could explain an invitation to be discharged
is that Respondent, in cutting Mergel's overtime, was attempting to cause Merge]
to quit, but because quitting under such circumstances might have affected Mergel's
n I have already found that Gilbertson did not leave early on July 20 and this, among
other things in the record, leads me to believe that Sweet was fabricating his testimony
regarding needing a man at 3:15 p.m. on July 20.
12 After the charge in this case, there was an apparent attempt to induce Gilbertson
to testify to this effect. Gilbertson refused so to testify.
PINE PRODUCTS CORPORATION 589
chances of getting unemployment compensation, Mergel, assuming that he suspected
such a motivation by the Respondent, would not likely have quit but would have
stayed on the job until he was discharged, thus preserving his chances for unem-
ployment compensation. This hypothesis did not aid the Respondent.
The Respondent points to its past record as inconsistent with any union animus.
The absence of prior overt antiunion acts is a factor to be considered in evaluating
the evidence . It is not, however , conclusive . If an employer is reasonably sure
that his employees would vote against a union in an election , he can afford to be
neutral even if he prefers not to have his plant organized. The evidence in this
case leads me to infer that the Respondent felt that if its employees, without influ-
-ence, were given a chance to vote in a union election, they would vote against the
Union, but that the Respondent could not be certain of the result if the employees
were influenced by arguments of active union organizers. It is fairly inferable, from
all the evidence in this case, that the Respondent was concerned, not so much with
the time taken by Mergel on breaks, as with his being all over the plant apparently
actively campaigning for the Union. If the Respondent believed that Mergel was
using company time to campaign, to the detriment of his work, it was free to speak
to Mergel about this and to limit the time of his campaigning. Instead of doing so,
however, it undertook to remove from the filing room jobs that might have taken
Mergel to other places in the plant and to cut down his overtime.
The Respondent, in an effort to prove that Mergel had unnecessarily put in over-
time, offered in evidence a record of hours put in by employees in the filing room
both before and after Mergel's discharge. This record shows that, beginning in the
last week of April 1964, the weekly hours of Mergel and Gilbertson together were
reduced by 12 and that, after Mergel's hours were cut to a straight 40 hours a week,
their combined hours came to 90 a week. In the week before Mergel's discharge,
there was a total of 101, with only 40 being Mergel's and the rest Gilbertson's, and
in the week of Mergel's discharge (he was discharged after he had worked 2 days in
the week), the total for Mergel, Gilbertson, and Mergel's successor was 106. Gil-
bertson was absent for the better part of 3 weeks in August. For the first week, no
one took Gilbertson's place and only 40 hours was put in by Mergel's successor.
During the next 2 weeks of Gilbertson's absence, the total hours for the filing room
were 101 and 110, respectively. After Gilbertson returned, the number of hours
dropped to between 80 and 861/2, except on two occasions, when it was lower and
when Gilbertson put in only 42 and 35 hours and Mergel's successor put in 32 and
40 hours, respectively. This data might have been more enlightening if it had
included the total number of hours that the mill operated during the same period or
if it had included the number of board feet produced. Even this, however, would
not give a complete picture of the situation. Both Mergel and Gilbertson testified
that after Mergel's overtime was eliminated, a lot of things were let slide. Fur-
thermore, the amount of overtime put in was often affected by mishaps to the saws
and therefore the amount of overtime would depend on fortuitous circumstances.
But even if conditions were the same before and after Mergel's discharge, except for
the number of hours put in, I would not be convinced that Mergel's discharge was
not discriminatory.
Because of the timing of the cut in Mergel's overtime with relation to his union
activity, because of the obvious attempt to make a record for Mergel's discharge
without warning him, following the filing of a charge on Mergel's behalf, because
Mergel, with 25 years of service in Respondent's employ, was discharged in the
middle of the week for a slight cause and without warning, because of the Respond-
ent's ineffectual attempt to magnify the weak grounds for Mergel's discharge, because
of the absence of any warning to Gilbertson, who was more at fault than Mergel for
going home early,13 or for not holding down the amount of time taken on breaks,
because Respondent's actions were totally at variance with the actions of an employer
who is making a discharge for honest cause, especially the discharge of an employee
of 25 years' service, and upon the entire record in the case, I conclude and find that
the alleged reasons for Mergel's discharge were not the real reasons and that Mergel
was in fact discharged discriminatorily because of his union activity and because of
the filing of a charge on Mergel's behalf, in violation of Section 8(a)(1), (3), and
33 Regarding Gilbertson's leaving early, Sweet testified that he had no objection to
Gilbertson's leaving early if he had his work done. When Gilbertson and Mergel left
early on July 21, 1964, their work apparently was done. Gilbertson could never have
left early if he had to wait to 3:30 p.m. sharp, although he had already cleaned up his
work, in order to see if something unexpected would come up to require his presence.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) of the Act. Although the charge in Case No. 36-CA-1333 was not filed by
Mergel but was filed on his behalf by the Union, the proscription of Section 8(a)(4)
of the Act carries to the latter situation as well.14
IV. THE REMEDY
Having found that the Respondent has committed certain unfair labor practices,
I shall recommend an order requiring it to cease and desist therefrom, and to take
certain affirmative action which I find will effectuate the policies of the Act.
Since I have found that Respondent discriminated in regard to the hire and tenure
of employment of Manley Mergel in violation of Section 8(a)(3), (4), and (1) of
the Act, I shall recommend that it offer said Mergel immediate and full reinstate-
ment to his former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any loss he may
have suffered by reason of the Respondent's discrimination against him, including,
but not limited to loss of earnings. His loss of earnings shall be computed on the
basis of what he normally would have earned in Respondent's employ between
July 22, 1964, and the date of his discharge, and the date of receipt by him of the
Respondent's offer of reinstatement, less his net earnings elsewhere during said
period, in accordance with the Board's policy as set forth in F. W. Woolworth Com-
pany, 90 NLRB 289, but including interest upon his net backpay at the rate of 6
percent per annum, in accordance with the Board's decision in 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. Respondent, at all times material hereto, has been engaged in and is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Manley Mergel on July 22, 1964, because of his union activity
and by thereafter failing and refusing to reinstate him, Respondent has discouraged
membership in a labor organization within the meaning of Section 8(a)(3) of the
Act.
4. By discharging said Mergel because a charge was filed with the Board on his
behalf, the Respondent has committed an unfair labor practice within the meaning
of Section 8(a) (4) of the Act.
5. By the aforesaid unfair labor practices, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, it is hereby ordered that the Respondent, Pine Products Corporation,
Prineville, Oregon, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Central Oregon District Council, Lumber and
Sawmill Workers Union, affiliated with United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or in any other labor organization, by discharging,
or in any other manner discriminating against, any employee because of his union
activities, or because a charge has been filed by him or on his behalf with the
National Labor Relations Board.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form, join, or assist any 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 as guaranteed in Section 7 of the Act, or to refrain
from any or all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act.
14 Kanmak Mills, Inc., et al. , 93 NLRB 490; Vogue Lingerie, Inc, 123 NLRB 1009.
PINE PRODUCTS CORPORATION 591
2. Take the following affirmative action which I find will effectuate the purposes
of the Act:
(a) Offer to Manley Mergel immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights
and privileges, and make him whole for any loss suffered by him as a result of the
discrimination against him in the manner set forth in the section above entitled "The
Remedy."
(b) Notify the above-named employee if presently serving in the Armed Forces
of the United States of America of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(d) Post at its place of business in Prineville, Oregon, copies of the attached notice
marked "Appendix." 15 Copies of said notice, to be furnished by the Regional
Director for Region 19 of the Board, shall, after being duly signed by the Respond-
ent's representative, be posted immediately upon receipt thereof, and be maintained
by Respondent for 60 consecutive days from the date of posting, in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken to ensure that such copies of the notice are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 19 of the Board, in writing, within
20 days from the date of receipt of this Decision and Recommended Order, what
steps Respondent has taken to comply herewith.16
15 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 be 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".
:161n the event that this Recommended Order shall be adopted by the Board, this pro-
vision shall be modified to read, "Notify said Regional Director, in writing, within 10 days
from the date of this Decision, what steps 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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Central Oregon District Council,
Lumber and Sawmill Workers Union, affiliated with United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, or in any other labor organiza-
tion by discharging, refusing to reinstate, or in any other manner discriminating
against any of our employees in regard to their hire or tenure of employment,
or any term or condition of employment
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to join or assist said Union or
any other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in any other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities except to the extent that such right may be
affected by an agreement in conformity with Section 8(a)(3) of the National
Labor Relations Act, as amended.
WE WILL offer Manley Mergel immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges, and we will make him whole for any loss he may have
suffered as a result of the discrimination against him.
PINE PRODUCTS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of America of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, 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 communicate directly with the Board 's Regional Office, 612
Lincoln Building, 208 SW. Fifth Avenue, Portland Oregon, Telephone No. 226-3361,
if they have any questions concerning this notice or compliance with its provisions.
Dura Corporation and Local 620, Allied Industrial Workers of
America, AFL-CIO and John Zarate, James Skinner, Hal L.
Myers, and Billy Ireland . Cases Nos. 7-CA-4899 and 7-CB-
1266. June 28, 1965
DECISION AND ORDER
On April 16, 1965, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled case, finding that the Respondents had
engaged in certain unfair labor practices alleged in the complaint and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondents filed exceptions to the Decision and
briefs in support thereof. The General Counsel filed a brief in answer
to Respondent's exceptions and the Charging Party filed cross-excep-
tions to the Decision and 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 these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 and the entire record in the case, including the
exceptions and briefs, and hereby adapts the findings, conclusions, and
recommendations of the Trial Examiner to the extent consistent
herewith.
1. We agree with the Trial Examiner that Respondent Company,
hereinafter referred to as Company, violated Section 8(a) (2) and
(1), and Respondent Union, hereinafter referred to as the A.I.W.,
violated Section 8(b) (2) and 8(b) (1) (A), by executing a union-secu-
rity agreement (called the supplemental agreement) covering the
employees at its new Adrian plant at a time when the A.I.W. did not
enjoy a majority status at that plant.
153 NLRB No. 54.