Prineville Stud Co.

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1845 (N.L.R.B. 1977)

PRINEVILLE STUD CO.
Prineville Stud Company and Lumber , Production and
Industrial Workers Local 2902 , United Brother-
hood of Carpenters & Joiners of America, AFL-
CIO. Case 36-CA-2820
January 31, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On September 29, 1976, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Decision of the
Administrative Law Judge.
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, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified.2
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, as
modified below, and hereby orders that the Respon-
dent, Prineville Stud Company, Prineville, Oregon, its
officers, agents, successors , and assigns, shall take the
action set forth in the said recommended Order as so
modified:
1. Insert the following as paragraph 1(e):
"(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 The Respondent has 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 credibili-
ty 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 It appears that the Administrative Law Judge inadvertently omitted
from his recommended Order and notice the usual provision requiring
Respondent to cease and desist , in any other manner, from interfering with,
coercing, or restraining its employees in the exercise of the rights guaranteed
them by Section 7 of the Act Since the unfair labor practices found herein
are of such a serious nature that they go to the very heart of the Act, we find
that a broad cease-and-desist order is necessary and we shall, accordingly,
modify the recommended Order and notice by adding such a provision.
N L R B v Entwistle Manufacturing Company, 120 F 2d 532 (C.A. 4, 1941)
227 NLRB No. 270
APPENDIX
1845
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question our employees about
their or other employees' activities on behalf of
Lumber, Production and Industrial Workers Lo-
cal 2902, United Brotherhood of Carpenters &
Joiners of America, AFL-CIO.
WE WILL NOT threaten our employees with
closure of the mill if they choose to be represented
for collective-bargaining purposes by the above
labor organization.
WE WILL NOT close our mill and terminate our
employees for choosing to be represented by the
above labor organization for collective-bargaining
purposes.
WE WILL NOT continue in our refusal to
recognize and bargain with the above labor
organization concerning the rates of pay, wages,
hours, and working conditions of:
All employees employed by us at our stud
mill operation at Burns, Oregon, excluding
office clerical employees, guards, profession-
al employees and supervisors as defined in
the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them in Section 7 of the Act.
WE WILL offer David Armstrong, Dene Ben-
nett , Thomas Bowen, Jerry Brewer, Ronald Car-
roll, Harold Conklin, Benny Daugherty, Ray
Galvin, Max Gee, Michael Greiner, John Jones,
John Koyle, Elmer Kruse, Ronald Looney, Har-
vey Miller, Larry Minniear, and Edward Tyner
immediate and full reinstatement to their former
jobs, or substantially equivalent jobs if their
former jobs no longer exist, without prejudice to
their seniority and other rights and privileges, and
WE WILL make them whole by payment to them of
the money they would have received but for their
unlawful termination from the date they were
terminated to the date they were or are reinstated,
less net earnings during that period, with 6-
percent interest on the sum due.
WE WILL recognize and bargain with the above-
named labor organization at its request concern-
ing the rates of pay, wages, hours, and working
conditions of our employees in the unit set out
above.
PRINEVILLE STUD
COMPANY
1846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN , Administrative Law Judge: On
May 19 and 20, 1976,1 I conducted a hearing at Burns,
Oregon , concerning issues raised by a complaint issued on
March 15 pursuant to a charge and amended charge filed
by Lumber, Production and Industrial Workers Local 2902,
United Brotherhood of Carpenters & Joiners of America,
AFL_CIO,2 on January 20 and March 15.
The complaint alleged at times pertinent Clayton Dicker-
son was a supervisor and agent of Prineville Stud Compa-
ny,3 acting on its behalf; that, since January 14 , the Umon
has represented a majority of the Company 's employees
within an appropriate unit for the purpose of bargaining
collectively with the Company concerning their rates of
pay, wages , hours , and working conditions and, since
January 15 , the Company has refused to comply with the
Union 's request for recognition and bargaining over those
employees ' rates of pay , hours , and working conditions.
The complaint also alleged the Company , shortly after
learning of the employees ' selection of the Union as its
employees' collective -bargaining representative , interrogat-
ed employees concerning their union activities , threatened
them with plant closure in the event they chose the Union
as their collective-bargaining representative , and, on Janu-
ary 16, closed its operations at Burns and terminated its
employees because they chose the Union as their collective-
bargaining representative. The complaint alleged that by
the above actions the Company violated Section 8 (a)(1),
(3), and (5) of the National Labor Relations Act, Series 8, as
amended (hereafter referred to as the Act).
The Company denies Dickerson at any time was a
supervisor and agent acting on its behalf; denies the Union
at any time represented a majority of its employees within
the unit ; denies it committed any unlawful interrogations or
threats ; denies it closed its Burns operations and terminat-
ed its employees because they selected the Union as their
collective-bargaining representative ; and denies it commit-
ted any violation of the Act.
The issues before me are: (1) whether , at times pertinent,
Dickerson was a supervisor and agent of the Company
acting on its behalf, (2) whether the Union has represented
a majority of the Company 's employees within an appropri-
ate unit since January 14 , (3) whether the Company
interrogated employees concerning their union activities
and threatened them with plant closure in the event they
chose the Union as their collective -bargaining representa-
tive, (4) whether the Company closed the plant and
terminated the employees to avoid recognizing and bar-
gaining with the Union , (5) whether the Company refused
to bargain with the Union, and (6 ) whether a bargaining
order is warranted in this case.
Read 1976 after all future date references omitting the year
z Hereafter called the Union
Hereafter called the Company
I find at all times pertinent Rhoden and Jones were supervisors and
agents of the Company acting on its behalf
S The complaint alleged , the answer admitted, and I find that at times
pertinent Simmons was superintendent of the Bums mill and a supervisor
and agent of the Company acting on its behalf
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine and
cross-examine witnesses , argue, and file briefs. Briefs have
been received from the General Counsel and the Company.
Based upon my review of the entire record, observation
of the witnesses and perusal of the briefs, I enter the
following:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleged, the answer admitted, and I find
that at times pertinent the Company was an Oregon
corporation with offices and places of business at Prineville
and Bums, Oregon; that it was a manufacturer of lumber
products; that in the past year it manufactured, sold, and
shipped to points outside Oregon products valued in excess
of $50,000; and that the Company was an employer
engaged in commerce in a business affecting commerce as
those terms are defined in Section 2(2), (6), and (7) of the
Act.
IL LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
that at all times pertinent, the Union was a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company's operations commenced in 1967 with the
opening of a mill at Prineville. In 1973 the Company
opened a second mill at Bums (about 170 miles east of
Prineville). The Company stock is held in equal shares by
two persons, Jack Rhoden and John Crawford of Prineville.
Rhoden at times pertinent actively managed the Company,
assisted by Robert Jones.4 The headquarters of the Compa-
ny was located at Prineville. Rhoden and Robert Jones
visited the Burns mull sporadically but kept in close touch
with management at Burns by telephone. At all times
pertinent, the day-to-day operations of the Burns mill were
managed by Ted Simmons.5
Both company mills were somewhat unique in that they
were designed to produce 8-foot studs rather than 16-foot
studs produced at most mills from trees classified as "older
dead" rather than "green."6
The Company's two mills produce studs from those
portions of the trees which are useable for stud production
and produces wood chips for paper manufacture from the
balance. The sawdust and wood shavings, produced in the
manufacturin&process, are also marketed. The operations
at both plants consist of a sawmill operation and a planing
mill operation.
6 The Forest Service requires timber harvesters to clear dead trees as well
as green trees from publicly owned areas in which they operate. Such
harvesters (as well as the Forest Service ) follow the practice of selling the
dead trees to companies such as this Company at salvage prices The
Company employs "gyppos" to harvest dead trees purchased directly from
the Forest Service
PRINEVILLE STUD CO. 1847
B. The Supervisor, Unit, and Majority
Representative Status Issues
In early January, besides Simmons and Dickerson, the
Company employed the following persons at its Bums mill:
David Armstrong, Dene Bennett, Thomas Bowen, Jerry
Brewer , Ronald Carroll, Harold Conklin, Benny Daugher-
ty, Ray Galvin, Max Gee, Michael Greiner, John Jones,
John Koyle, Elmer Kruse, Ronald Looney, Harvey Miller,
Larry Mmniear, and Edward Tyner. In early January
Carroll contacted the Union and arranged a January 13
meeting between Union Representative Gene Tedrick and
he, Tyner, and Bennett . At that meeting Carroll, Tyner, and
Bennett signed cards authorizing the Union to represent
them for the purpose of bargaining collectively with the
Company concerning their rates of pay, wages, hours, and
working conditions. The meeting attendees agreed to
schedule a second meeting the following day and invite the
other employees. At or before the second meeting Bowen,
Brewer , Conklin, Daugherty, Gee, Greiner, Koyle, Looney,
and Minniear signed cards authorizing the Umon to
represent them for the purpose of bargaining collectively
with the Company. All cards were turned over to Tedrick.
Armstrong, Galvin, John Jones, and Miller did not sign
cards.
On January 15 Tedrick addressed a letter to the Compa-
ny at its Prineville headquarters advising the Company the
Union represented a majority of its employees at the Bums
mill in a unit consisting of "all employees employed at the
Company's stud mill operation at Bums, Oregon, but
excluding office-clerical employees, guards, professional
and managerial employees, and supervisors as defined in
the Act." The Union asked the Company to recognize the
Umon as the collective-bargaining representative of its
employees within the aforementioned unit and to meet with
the Union to negotiate a contract covering their rates of
pay, wages, hours, and working conditions.
It is undisputed all the employees at the Bums mill except
Simmons and Dickerson were within the unit specified in
the Union's January 15 request. It is undisputed Simmons
was excluded from such unit.
The parties dispute Dickerson's status, with the Umon
alleging he was a foreman and supervisor of the planing
operations and the Company contending he was a working
leadman.
Dickerson testified he assigned work to the men em-
ployed in the planer operations, gave them orders, pro-
cessed their requests for time off, and assigned them
overtime, all without checking with Simmons. Dickerson
further conceded on one occasion he recommended an
employee in the planer operation with a drinking problem
be dismissed and Simmons subsequently dismissed the
employee in question. It is undisputed Dickerson kept time
records on the men employed in the planer operation and
turned in such time records, on a weekly basis, to Simmons.
Dickerson also carried out the function of ordering rail cars
when a sufficient amount of studs accumulated for ship-
ment. Robert Jones testified when he introduced Simmons
7 Jones denied Dickerson was a supervisor with power to hire and fire, in
his pretrial statement, however, he stated Dickerson did have such power.
8 Bowen , Koyle, and Minmear
9 The fact Dickerson spent most of his time grading lumber does not
as the new superintendent at the Bums plant in July 1975,
he informed the men Dickerson would stay on as planing
mill foreman; Jones further testified Dickerson "supervises
the chipping and planing." 7 Several witnesses employed in
the planer operation testified they looked to Dickerson for
orders and assignments and unquestioningly accepted his
direction and supervision.8
Section 2(11) defines "supervisor" as any individual with
authority in the interest of his employer to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward,
or discipline other employees, or responsibly to direct them,
or to adjust their grievances, or effectively to recommend
such action, provided the exercise of his authority is not
merely routine but requires independent judgment.
The description of the functions which qualify a person
as a supervisor is stated in the disjunctive, that is, any one
or more of the functions performed by the individual in an
independent manner makes him a "supervisor."
The evidence establishes Dickerson effectively recom-
mended the discharge of an employee, directed the work of
the planer employees, gave them orders, assigned overtime
to them, kept their time records, and otherwise acted as
independent overseer of the planing operations; on the
basis of these factors, I fmd and conclude at times pertinent
Dickerson was a supervisor and agent of the Company
acting on its behalf.9
The complaint alleged, the answer admitted, and I find
that the following unit at all times material was an
appropriate unit for collective-bargaining purposes within
the meaning of Section 9(b) of the Act: all employees
employed by the Employer at its stud mill operations at
Bums, Oregon, excluding office clerical employees, guards,
professional employees and supervisors as defined in the
Act.
In the course of his testimony, Robert Jones conceded
Armstrong, Bennett, Bowen, Brewer, Carroll, Conklin,
Daugherty, Galvin, Gee, Greiner, John Jones, Koyle,
Kruse, Looney, Miller, Minniear, and Tyner were em-
ployed by the Company at its Bums, Oregon, mill within
that unit. I therefore fmd and conclude that on or about
January 14 there were 17 employees in the unit.
The record establishes that by January 14, 11 of those 17
men signed cards authorizing the Union to represent them
for the purpose of bargaining collectively with the Compa-
ny concerning their rates of pay, wages, hours, and working
conditions. On the basis of those signed authorization
cards, I find and conclude that since January 14 the Union
has represented a majority of the Company's employees
within the unit.
C. The Alleged Unlawful Threats and Interrogations
1. Simmons
Bennett, one of the three employees who made the initial
contact with Umon Organizer Tedrick on the evening of
Tuesday, January 13, testified he was approached by
Simmons at the mill between 8 and 8:30 a.m. on the next
affect the foregoing, Simmons also spends most of his time performing
production and maintenance work In a small work force, this is neither
uncommon nor determinative of supervisory status
1848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day; that Simmons asked him whether a report Simmons
received that Bennett and others attended a union meeting
the previous evening was true; that he confirmed the truth
of the report; that Simmons then asked how things looked;
that he replied most of the employees were interested in
union representation; that Simmons suggested the employ-
ees would be wise to hold off securing union representation
until they saw what the employees received at Prineville; io
that Simmons went on to state the Company undoubtedly
would give the Bums employees whatever wage improve-
ments , etc., it gave the Prineville employees, and the
employees at Bums then might decide they did not need a
union; and that he replied the union move was already
underway and he doubted it could be stopped.
Bennett testified he had a second conversation with
Simmons later the same day at which time he asked
Simmons if Simmons thought the Company would shut
down the mill if the employees did go union and Simmons
replied he could not say yes or no, but it was a good
possibility since Mims 11 told him Robert Jones said if any
union activities started at the Bums mill , the Company
would shut it down.
Tyner, another of the three employees who made the
initial contact with the Union, testified Simmons ap-
proached him about 9 a.m. on Wednesday, January 14, and
asked him if there had been a union meeting the previous
evening; that he replied there was; that Simmons told him
he already knew Tyner, Bennett, and Carroll attended that
meeting and asked Tyner what took place; and that he
refused to tell Simmons what transpired at the meeting
other than to tell Simmons another meeting was scheduled
for that evening. Tyner further testified Simmons asked him
if he planned to attend, he replied he did, Simmons asked
him why, he replied he wanted to hear what the Union had
to say, and Simmons closed the conversation with a
statement the men had better watch out what they were
doing.
Tyner also testified Simmons approached him later the
same day and asked him if he had any cards; that he asked
Simmons if he meant the cards the Union gave him the
previous evening and, on receiving an affirmative response,
stated that he had five such cards in his car; that Simmons
then asked him who else was giving out cards and he replied
he would rather not say, but his were still unsigned. He
testified Simmons then asked him who signed cards and he
replied his were unsigned and he did not know if others had
been signed; that Simmons then said he still would like to
know what happened at the meeting the previous evening
and he replied there was going to be another meeting that
night; that Simmons then commented that, while he was
not supposed to say this, if the men went union the mill
would be shut down the next day and, when Tyner asked if
he meant "tomorrow," Simmons replied maybe not tomor-
row, but it certainly would be shut down.
10 On September 19, 1975, Western States Regional Council 3, Interna-
tional Woodworkers of America, AFL-CIO (hereafter called IWA), was
certified as the duly selected collective-bargaining representative of "all
employees employed by the Employer at its facility located at Lamonta
Road, Prineville , Oregon, but excluding all office clerical employees, guards
and supervisors as defined in this Act " The Company and IWA have been
engaged in negotiations since that date but, at the time of the hearing in this
case, had not yet reached any agreement.
Brewer testified he was approached by Simmons about
8:30 a.m. on Wednesday, January 14, at his work station;
that Simmons asked him if he knew anything about a union
meeting, that he replied there was a union representative in
town; that Simmons asked him if he was going to the
meeting and he replied that he was; that Simmons asked
him why he was going and he stated he was going to hear
what the union representative had to say.
Gee testified Simmons contacted him prior to the start of
the shift (7:30 a.m.) on January 14 and asked him if he
knew who was passing out union authorization cards
among the employees and he replied he did not know.
Simmons conceded he had several conversations with
Bennett but testified Bennett volunteered information he
was going to campaign for union representation of the
Burns employees, that he met with a union representative
and that he on second thought believed the men had best
wait and see what benefits the Prineville employees
received before seeking union representation. He denied
questioning Bennett about the employees' union activities
or telling him Jones told Mims the Company would shut
the mill if any union activities occurred. Simmons also
conceded he spoke with Tyner on January 14, but stated
Tyner volunteered information there was going to be
another union meeting and denied questioning Tyner
concerning the union meeting the previous evening and
whether and why he planned to attend another union
meeting. He also denied questioning Tyner regarding the
distribution of union authorization cards or telling Tyner
the men had better watch out what they were doing or
telling Tyner the Company would shut down the mill if the
employees went union. Simmons denied asking Gee who
was passing out union authorization cards but conceded
Brewer "fessed up" he was going to a union meeting.
Simmons testified to each of the remarks allegedly volun-
teered by Bennett and Tyner concerning the union cam-
paign, he replied he could not talk about any union
activities at the plant.12
Bennett 's, Tyner's, Brewer's, and Gee's testimony was far
more plausible and convincing than Simmons' version of
their various conversations. Simmons corroborated some of
their testimony and his explanation of what transpired was
lame, hesitant, and somewhat incredible, given the interest
of the Burns employees in following the Prineville employ-
ees' lead and the obvious constant verbal interchanges
between Simmons and the employees at this small mill. I
therefore credit the testimony of the four employees and
discredit that of Simmons where they conflict.
Based upon the foregoing, I find and conclude that on
January 14 the Company, by Simmons, interrogated
Bennett, Tyner, Brewer, and Gee concerning their and
other employees' union activities and threatened Bennett
and Tyner with plant closure in the event the employees
11 Roy Mums, a former company foreman and friend of Robert Jones,
frequently visited the Burns mill and was in close touch with management
i2 Robert Jones and Simmons testified Robert Jones gave Simmons a list
of "do's and don'ts" with regard to union organizational campaigns
following union organization of the Prineville employees and one of the
"don'ts" was to refrain from discussing union activities at the plant with any
employees
PRINEVILLE STUD CO. 1849
persisted in seeking and securing union representation,
thereby violating Section 8(a)(l) of the Act.
2. Dickerson
Bowen testified that in December 1975, in the course of a
discussion with Dickerson concerning the pros and cons of
union representation,13 Dickerson said the Company would
shut down the Burns mill if the Burns employees tried to
secure union representation. Bowen testified Dickerson
repeated that observation in a second discussion later in
December 1975.
Minniear testified that in late December 1975 he entered
the grinding room and heard Dickerson and Miller talking
about the possibility of union representation of the Bums
employees; that he joined in the conversation; and that
Dickerson, in the course of the conversation, stated if the
Bums employees did anything to secure union representa-
tion the Company would shut the Burns plant.
Looney testified he had a conversation with Dickerson in
the mill around the first of January; that Dickerson asked
him what his feelings were concerning the Burns employees
securing union representation; that he avoided an answer;
and that Dickerson stated the Company would not stand
for union representation among its Bums employees and
would close the plant before dealing with a union.
Bowen testified to another conversation with Dickerson
concerning union representation of the Bums employees in
early January, wherein he asked Dickerson what Dickerson
thought about the Union's status at Prineville and what the
chances were for a union at Burns ; that Dickerson replied
the Union was not really in at Prineville14 and the Bums
mill would be shut down if the employees tried to get a
union in there.
Koyle and Looney testified that on either January 12 or
13 they and Miller were discussing pros and cons of union
representation in the grinding room at the mill; that
Dickerson entered the grinding room while they were
talking and, in the course of the continued conversation,
again stated the Company would terminate its operations at
Bums rather than deal with a union.
Bennett and Carroll testified that on January 14, during
the lunchtime break, several employees were discussing
pros and cons of union representation in the lunchroom at
the mill ; that Dickerson came in , listened for awhile, and
stated the employees had better stop talking about any
move to secure union representation; if they kept it up, the
Company would shut the plant down; the Company would
not go for any union in the Burns plant.
Dickerson conceded he entered the grinding room on
either January 12 or 13 and heard Carroll, Looney, and
Miller discussing organization of a union but denies saying
the Company would shut down the plant if the employees
sought union representation but rather stated that if
production did not increase, they could not afford any
union.15 Dickerson also corroborated Bennett's and Car-
13 All the Burns employees were aware the IWA had been certified in
September 1975 as the exclusive bargaining representative of the Company's
Prineville employees and that the Company and TWA were in negotiations
for a contract.
14 Despite negotiations between the IWA and the Company over a period
extending from September 1975 to the date of the hearing (May 19-20, 1976),
no agreement was reached between the parties.
roll's testimony that he joined an employee discussion of
union representation on January 14 at the lunch break, but
testified he did not recall saying if the men kept talking
about union representation the Company would shut down
the plant and recalled only that he said if production did
not improve the Company would have to shut down the
mill. Dickerson denied the December 1975 and January
comments attributed to him by Bowen, Minniear, and
Looney.
I credit the testimony of Bowen, Minniear, Looney,
Koyle, Bennett, and Carroll. In a small work force such as
that at the Bums mill, it is natural the Prineville negotia-
tions would cause speculation among the Burns employees
concerning whether they would benefit by securing union
representation and that Dickerson would participate there-
in. As to Dickerson's denials of any interrogation or threats,
in my judgment the forthright testimony of the six employ-
ees deserves credit rather than such denials.
I therefore find and conclude that the Company, by
Dickerson, interrogated Looney concerning his views on
union representation and threatened Bowen, Minniear,
Looney, Koyle, Bennett, and Carroll with plant closure in
the event the Burns employees chose union representation
on various dates in December 1975 and January 1976
thereby violating Section 8(a)(1) of the Act.
D. The Plant Closure Issue
It is undisputed the Company announced it was closing
the Bums plant the morning after a majority of its
employees at Bums signed cards authorizing the Union to
represent them for the purpose of bargaining collectively
with the Company concerning their wages, hours, and
working conditions, just as Simmons and Dickerson pre-
dicted. There is no question Simmons knew a majority of
the employees signed cards authorizing union representa-
tion prior to his announcement.16
The Company contends Rhoden and Robert Jones were
completely unaware there was any union activity at the
Bums mill at the time Jones instructed Simmons to close
the plant 17 and contends it closed the mill due to adverse
weather conditions, a weak market for its products, and a
projected change in Forest Service definition of "older
dead" trees.
In essence the Company contends its closure of the Burns
mill, in accordance with the Simmons-Dickerson prophe-
cies , the day following the employees' selection of the
Union as their collective-bargaining representative, was
pure coincidence.
The Company's position is weakened by the fact Sim-
mons cited economic conditions (weakness in the stud and
chip market) as the reason for the shutdown when he
announced it at the beginning of the January 15 work shift,
neither citing weather conditions nor possible changes in
the Forest Service definition as grounds for the closure. The
testimony of Rhoden and Robert Jones that they were
is Apparently meaning wages and benefits could not be increased if the
operation was not profitable.
16 Simmons testified Tyner so advised him the previous evening
17 The evening of January 14.
1850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unaware of the union campaign among the Company's
Bums employees prior to Simmons' advice on the evening
of January 14 18 appears incredible; Simmons was instruct-
ed by Jones in "do's and don'ts" prior to the Union's
organizational campaign; Simmons testified Jones com-
mented during their January 14 conversation he was not
surprised a majority of the employees "went union" earlier
that evening; it strains one's credulity to believe Rhoden
and Robert Jones received no feedback from Simmons and
Dickerson concerning the employees' interest in union
representation following organization of the Prineville
employees; and Simmons' interrogation of employees
concerning the progress of the union campaign clearly
evidences the Company's interest therein.
The Company's allegation it decided to close the Burns
plant because of a possible change in the definition of
"older dead" trees (which would increase the price it would
have to pay) is weakened by the fact the definition was not
changed, the fact the Company's Prineville mill, which
relied on the same supplies, continued to operate through
the period the Bums mill was closed and the fact the
Company continued to purchase and store trees at Bums
during the period the Bums mill was closed (it was closed
on January 16 and reopened on February 23). As to
economic conditions defense, Rhoden testified stud prices
were rising at the time the mill was closed and the price of
wood chips did not change over the 4 months prior to the
shutdown.
As to the allegation of poor weather conditions, Brewer
and Tyner testified without refutation Simmons announced
in December the Bums mill would not be shut down that
year during the winter (their testimony is credited); the mill
did not close in 1974, when similar weather conditions
prevailed; prior to the 1975 limited closure, the Company
reduced the employee workweek to 4 days and then gave
the employees several weeks notice prior to shutdown.19
I therefore find the Company's defenses without merit
and find, on the basis of the timing of the shutdown and its
prediction, the Company shut the Bums plant because the
employees sought union representation and, through the
Union, improved rates of pay, wages, hours, and working
conditions thereby violating Section 8(axl) and (3) of the
Act.
E. The Refusal To Bargain and Bargaining Order
Issues
Findings have been entered heretofore since January 14
the Union has represented a majority of the Company's
Bums employees within an appropriate unit for collective-
bargaining purposes and that on January 15 the Union
addressed a letter to the Company notifying it of the
Union's majority representative status within the unit 20
and requesting recognition and bargaining.
The Company admitted in its answer to the complaint it
has failed and refused to comply with the Union's request
at all times subsequent to January 15.
18 Jones and Simmons testified Simmons advised Jones a majority of the
employees selected the Union as their collective-bargaining representative
after Jones instructed Simmons to shut down the plant
19 By way of contrast, the employees received no notice of the instant
shutdown and were told by Simmons and Robert Jones they did not know
when or if the plant would reopen
The Company contends it should not be required to
bargain with the Union on the ground its unfair labor
practices are not sufficiently serious to warrant the issuance
of such an order based on a card showing of majority
representative status. I reject this contention; the Compa-
ny's unfair labor practices were basic and far-reaching
interferences with its employees' right to representation of
their choosing; it questioned its employees about their
union activities, threatened them with loss of employment if
they persisted in seeking representation and promptly
discharged them when they defied those threats. It would
be difficult to devise a more effective means for dissipating
the Union's majority representative status!
It is the teaching of the Gissel decision 21 that a bargaining
order based upon a majority card showing is appropriate in
such circumstances.
I therefore find and conclude the Company violated
Section 8(a)(1) and (5) of the Act by its admitted failure and
refusal to recognize and bargain with the Union as the duly
selected representative of a majority of its employees within
an appropriate unit at its request, and that an order
directing the Company to recognize and bargain with the
Union at its request concerning the rates of pay, wages,
hours, and working conditions of its employees within that
unit is warranted in this case.
CONCLUSIONS OF LAW
1. At all times pertinent the Company was an employer
engaged in commerce in a business affecting commerce and
the Union was a labor organization within the meaning of
Section 2(2), (5), (6), and (7) of the Act.
2. At all times pertinent Rhoden, Robert Jones, Sim-
mons, and Dickerson were supervisors and agents of the
Company acting on its behalf.
3. Since January 14 the Union has been the duly
selected representative of a majority of the Company's
employees within an appropriate unit (all employees
employed by the Company at its stud mill operation at
Bums, Oregon, but excluding office clerical employees,
guards, professional and managerial employees and super-
visors as defined in the Act) for the purpose of bargaining
collectively with the Company concerning those employees'
rates of pay, wages, hours, and working conditions.
4. Since January 15 the Company has failed and refused
to recognize and bargain with the Union pursuant to its
request concerning the rates of pay, wages, hours, and
working conditions of its employees within the above unit
and thereby violated Section 8(a)(1) and (5) of the Act.
5. Between December 1, 1975, and January 14 the
Company by Simmons and Dickerson interrogated its
employees concerning their union activities and threatened
them with plant closure in the event they persisted therein
thereby violating Section 8(a)(l) of the Act.
6. On January 16 the Company closed its Burns
operation and terminated its employees within the unit
specified above because a majority of those employees
20 Which the Company already knew, Robert Jones having been so
informed by Simmons on January 14
2i N LR B v Gissel Packing Co, Inc, 395 U.S. 575 (1969)
PRINEVILLE STUD CO.
signed cards authorizing the Union to represent them for
the purpose of bargaining collectively with the Company
concerning their rates of pay, wages, hours, and working
conditions thereby violating Section 8(a)(1) and (3) of the
Act.
7. An order directing the Company to recognize and
bargain with the Union at its request concerning the rates
of pay, wages, hours, and working conditions of the
employees within the aforementioned unit is warranted in
this case.
8. The aforesaid unfair labor practices affect interstate
commerce.
THE REMEDY
Having found the Company engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
Act, I shall recommend the Company be directed to cease
and desist therefrom and take affirmative action designed
to effectuate the purposes of the Act.
It shall be recommended the Company be ordered to
-cease and desist from interrogating its employees concern
ing their and other employees' union activities, threatening
its employees with plant closure in the event they chose
union representation, closing its plant and terminating its
employees because they chose union representation and
continuing in its failure and refusal to comply with the
Union's request for recognition and bargaining concerning
the rates of pay, wages, hours, and working conditions of its
employees within the unit heretofore specified.
Having found the Company's employees within the
aforesaid unit were terminated on January 16 because of
their union activities, it shall be recommended the Compa-
ny be directed to offer those employees immediate and full
reinstatement to their former jobs or, in the event those jobs
no longer exist, to substantially equivalent jobs, without
prejudice to their seniority and other rights and privileges,
and to make them whole for any wage losses they may have
suffered by payment to them of the sum of money they
would have earned from the date they were terminated to
the date they are reinstated, 22 less any net earnings they
have received in the interim. Their lost wages shall be
computed in accordance with the formula prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), with interest
thereon at 6 percent per annum, computed in accordance
with the formula prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
It shall finally be recommended the Company be ordered
to recognize and bargain with the Union at its request
concerning the rates of pay, wages, hours, and working
conditions of the unit employees.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I recommend the issuance of the following:
22 The record indicates all unit employees were offered reinstatement on
or about February 23; in the absence of evidence how many were actually
reinstated , the dates of such reinstatement, etc., I shall leave the backpay
computation question to the compliance state.
23 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
ORDER 23
1851
Respondent Prineville Stud Company, Prineville, Ore-
gon, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their and
other employees ' union activities.
(b) Threatening its employees with plant closure in the
event they choose union representation.
(c) Closing its plant and terminating its employees
because they chose union representation.
(d) Continuing in its failure and refusal to comply with
the Union's request for recognition and bargaining con-
cerning the unit employees ' rates of pay, wages , hours, and
working conditions.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer David Armstrong, Dene Bennett, Thomas
Bowen, Jerry Brewer, Ronald Carroll, Harold Conklin,
Benny Daugherty, Ray Galvin, Max Gee, Michael Greiner,
John Jones, John Koyle, Elmer Kruse, Ronald Looney,
Harvey Miller, Larry Minniear, and Edward Tyner imme-
diate and full reinstatement to their former jobs, or
substantially equivalent jobs if their former jobs no longer
exist, without prejudice to their seniority and other rights
and privileges, and make them whole in the manner set out
in the "Remedy" section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records necessary for the determination of the
amount of backpay and other payments and obligations
due under this Order.
(c) Recognize and, at its request, bargain with the Union
concerning the rates of pay, wages, hours, and working
conditions of the unit employees.
(d) Post at its premises at Burns, Oregon, copies of the
attached notice marked "Appendix." 24 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being signed by an authorized representa-
tive of the Company, shall be posted immediately upon
receipt thereof and maintained by it for at least 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
24 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted. Reasonable steps shall be taken to insure that said (e) Notify the Regional Director for Region 19, in
notices are not altered , defaced, or covered by any other writing, within 20 days from the date of this Order, what
material. steps the Respondent has taken to comply herewith.