Silver Bay Local Union No. 962

National Labor Relations Board - Board Decisions

Aug 7, 1972

198 N.L.R.B. 751 (N.L.R.B. 1972)

SILVER BAY LOCAL UNION NO. 962 751
Silver Bay Local Union No. 962, International Broth-'
erhood of Pulp, Sulphite and Paper Mill Workers,
AFL-CIO, (Alaska Lumber & Pulp Co., Inc.) and
Earl J. Niesen . Case 19-CB-1700
August 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 5, 1972, Trial Examiner James T. Barker
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed a
brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding, to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order.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 Trial Examiner and hereby orders
that Respondent, Silver Bay Local Union No. 962,
International Brotherhood of Pulp, Sulphite and
Paper Mill Workers, AFL-CIO, Sitka, Alaska, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's recommend-
ed Order.
i The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C.A. 3). We have carefully examined the record and
find no basis for reversing his findings.
In adopting the Trial Examiner's findings of fact, however, we do not rely
on his finding that Turner, chairman of the Union's standing committee,
specifically informed the Respondent's members at their February 9, 1971,
meeting "that the Company had the impression that only a small group of
employees was seeking Niesen's removal from his supervisory position " We
find that this is not supported by the record However, the record clearly
supports all other findings made by the Trial Examiner in regard to
Respondent's aforesaid membership meeting.
Finally, we note that the Trial Examiner inadvertently stated in his
conclusions that "Respondent avers that Respondent's motive in seeking
Niesen's removal was solely related to his efforts on behalf of management
to `tighten the running of the woodroom' and that its protest relating to
violence was groundless and a mere cloak" However, that contention is
properly to be attributed to the General Counsel.
2 Respondent has requested oral argument This request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER , Trial Examiner : This matter was
heard at Sitka, Alaska, on January 19 and 20, 1972,
pursuant to a complaint and notice of hearing issued by
the Regional Director of the National Labor Relations
Board for Region 19 on October 21, 1971. The complaint
,and notice of hearing arose from charges filed by Earl J.
Niesen, an individual , on June 7, 1971.1 The complaint
alleges that Silver Bay Local Union No. 962, International
Brotherhood of Pulp, Sulphite and Paper Mill Workers,
;AFL-CIO, hereinafter called the Union or Respondent,
violated Section 8(b)(l)(B) of the National Labor Relations
Act, hereinafter called the Act, by causing or attempting to
cause Alaska Lumber and Pulp Co ., Inc., hereinafter called
the Company, to terminate Earl Niesen from his position
of employment as a supervisor with authority to represent
the Company for purposes of collective bargaining and
adjustment of grievances. The General Counsel and
Respondent timely filed briefs with me on February 28,
1972.
Upon consideration of the briefs of the parties and upon
the entire record in the case and my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
At all material times herein Alaska Lumber and Pulp
Co., Inc., has been a State of Alaska corporation with its
place of business in Sitka, Alaska, where it has been
engaged in the business of processing wood pulp.
During the 12-month period immediately preceding the
issuance of the complaint herein, the Company sold and
[shipped from its Sitka, Alaska, location to points located
outside the State of Alaska material valued in excess of
$50,000.
Upon these admitted facts, I find that at all times
material herein the Company has been an employer
i The record reflects the proper spelling of the Charging Party's name to
be as shown and the caption of the case has been corrected accordingly
198 NLRB No. 107
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Silver Bay Local Union No. 962 , International Brother-
hood of Pulp , Sulphite and Paper Mill Workers , AFL-CI-
O, is conceded to be a labor organization within the
meaning of Section 2(5) of the Act. I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The initial issue in this case is whether the General
Counsel proved by preponderance of the credible evidence
that the Respondent caused or attempted to cause the
Company to terminate the services of Earl Niesen.
The Respondent denies the commission of any unfair
labor practices and initially contends that the evidence
does not support the contention of the General Counsel
that it threatened a strike in order to require the Company
to remove Niesen from his position as supervisor in the
woodroom. In this regard, the Respondent contends that it
sought by its interposition with the Company through the
contractual grievance procedures to insulate employees
from direct supervisory contact with Niesen, which action
was protected by Section 7 and not unlawful under Section
8(b)(1)(B) of the Act. Moreover, by way of affirmative
defense, the Respondent contends that, in the event it is
found that it, is responsible for threatening a strike to
obtain Niesen's removal, its objective in so doing was
solely for the purpose of protecting unit employees from an
imminent threat to their physical well-being. In this latter
regard, the Respondent contends that employees over
whom Niesen had direct supervision had personal aware-
ness of a propensity on the part of Niesen to engage in acts
of physical violence against employees of the Company,
and other individuals, away from the company premises
which instilled employees with fear of Niesen.
The Respondent's affirmative defense directly raises the
issue of the propriety of the Trial Examiner's ruling made
at the hearing excluding evidence pertaining to altercations
engaged in by Niesen away from the plant's premises and
on nonworking time.
In his offer, counsel for Respondent proffered testimony
of nine separate witnesses who assertedly would testify to
purported incidents involving Niesen which were in the
nature of either physical combat or assault, or threats
thereof. Three incidents involved employees of the Compa-
ny and allegedly transpired during Niesen's employment as
a supervisor. Three separate further incidents involved
nonemployees and related to the period of Niesen's
supervisory tenure. An additional proffer related to
testimony of a nonemployee which assertedly would have
substantiated the account given by employee McCoy at the
meeting of February 12, as found below, which related to
Niesen. The proffered testimony of two witnesses related
to alleged events transpiring before Niesen's selection as a
supervisor, and two witnesses would have testified to
incidents transpiring after Niesen's termination. These
proffers were rejected.
My ruling rejecting these proffers was grounded essen-
tially on the premise that these incidents were not work-
related and that a threat to strike , absent a showing of
imminent danger to the physical well-being of employees,
would not be justified on the basis of events transpiring
away from the plant and involving Niesen in his private
life. My ruling is affirmed and is fortified by considerations
infra revealing that the purported incidents did not
formulate the basis for decisions reached and action taken
by the Respondent.
B. Pertinent Facts
1. Background facts
a. The bargaining agreement
At all material times the Respondent has been the
exclusive bargaining representative of employees of the
Company in an appropriate bargaining unit . Millard Lamb
has been an international representative of the Union and
Jerry Turner has been chairman of the standing and
negotiating committees of the Union.
The collective-bargaining agreement between the Com-
pany and the signatory union, specified in the agreement as
"International Brotherhood of Pulp, Sulphite and Paper
Mill Workers and its Silver Bay Local No. 962," 2 provides
for a standing committee comprised of four representatives
of the Company and four representatives of the Union
whose auspices are invoked either at the request of the
Company or the Union as the second step in the grievance
processing procedures existing under the contract. Under
the agreement, before the next step in the grievance
procedure may be invoked, 5 days are allowed the standing
committee to resolve the issue before it.
The agreement also contains the following provision with
respect to strikes:
It is agreed that there shall be no strikes, walkouts, or
other interruption of work, during the period of this
Agreement, or upon its expiration, except with the
express and specific sanction of the Signatory Union. It
is agreed that there shall be no lockouts by the
Signatory Company during the period of this Agree-
ment.
b. The 1969 work stoppage
On May 8 through 12, 1969, employees at the Company's
Sitka operation engaged in a work stoppage which was not
officially authorized or sanctioned by the International.
Employees refused to perform certain assigned duties
although directed by supervision to do so. The employees
asserted that their refusal was based upon the dangerous
nature of the assignments given them and refused to
perform the work. As a consequence, the Company closed
down operations for a period of days. The Union accused
the Company of a lockout.
2 The agreement was executed for the "Signatory Union" by officers of
the International
SILVER BAY LOCAL UNION NO. 962
The matter was resolved adversely to the Union in an
arbitration proceeding.
c. Niesen's employment history
Earl Niesen was initially employed by the Company as a
rank-and-file employee in April 1964. He remained in the
employ of the Company until he was terminated on
February 12, 1971'.3 Niesen became a member of the
Union in May 1964 and remained a member until July 1,
1970. Niesen terminated his membership preparatory to
being installed in the supervisory position of relief
woodroom supervisor.
During the 6-year period preceding his appointment to a
supervisory position, Niesen worked in rank-and-file jobs
of increasing responsibility. Similarly, during the 6 years of
his membership in the Union, he held a series of elective
offices in the Union, including shop steward, department
shop steward, shift shop steward, chief shop steward, vice
president, and member of the standing committee for
maintenance and chairman of the standing committee.
After approximately 18 months of service on the standing
committee, Niesen resigned his committee membership
but, as found, retained his membership in the Union until
July 1, 1970.
d. Niesen's 1969 assault and battery conviction
On April 28, 1969, pursuant to a trial upon a criminal
complaint, Earl Niesen was found guilty- in the District
Court of the State of Alaska of assault and battery. He was
sentenced to 180 days of imprisonment, 60 of which were
suspended. He was placed on parole until April 28, 1970.4
e. The woodroom department
Pertinent to the Company's wood pulp processing
operation is the woodroom department which is housed in
a large, three-story building. The physical facilities encom-
passed within the woodroom operation which include the
pond, log deck, conveyors, storage silos, surge, bms and the
woodroom itself, extend over an area of more than a
quarter of a mile in length. Approximately 46 employees
are employed in the woodroom department on three shifts.
In late June 1970, management of the Company met to
consider the selection of a successor to the incumbent
supervisor of the woodroom whose serious illness was
anticipated as requiring his absence for a substantial
period of time. Discipline in the woodroom was declared
deficient as evidenced by absenteeism, lateness, and job
performance reports. It was decided that Earl Niesen
would be designated as woodroom supervisor. On July 1,
1970, Niesen was informed of his selection by Ralph
Magnusson, production superintendent, who discussed
with Niesen the problem of lateness and absenteeism
S Unless otherwise specified, all dates herein refer to the calendar year
1971.
4 Documentary evidence of record establishes the foregoing.
5 The foregoing is based upon a composite of the credited testimony of
Earl Niesen and Michael Morrin and documents of record.
6 The foregoing is based upon the credited, and unrefuted testimony of
Earl Niesen.
T The General Counsel introduced documentary evidence assertedly
supporting the testimony of Niesen. The General Counsel contends that the
753
among- the employees' and the high machine maintenance
costs in the department. Niesen expressed his opinion that
matters could be improved. A circular dated July 2,
announcing Niesen's appointment as relief woodroom
supervisor was circulated and posted on company bulletin
boards. Niesen assumed his responsibilities on July 6, 1970.
The work of employees in the department was directly
supervised by foremen who reported to Niesen and Niesen,
in turn, was responsible to the production superintendent .5
f. Niesen's supervisory efforts
Shortly after assuming his duties as relief woodroom
supervisor, Niesen called together the woodroom crews on
each of the three shifts and spoke with them. He -instructed
the crews to read the collective-bargaining agreement,
advising them that the agreement would be enforced, with
respect to absenteeism, lateness, and job performance. He
further stated that he expected some changes in the future
with respect to these and other related matters. He invited
employee suggestions for improving the operation and
stressed the need for teamwork, cooperation, and safety
awareness. He observed that unless improvements were
wrought there "was a good chance the entire operation
would go down." 6
Niesen testified that in the months that followed his
appointment, absenteeism and lateness decreased, pro-
duction increased, overtime decreased and "downtime" for
maintenance purposes dropped.7
g. The July 29 grievance meeting
Pursuant to action taken at a regular meeting of the
Union, the Union requested a mill managers' meeting for
the purpose of discussing issues relating to the matters of
"reprisal, seniority and harassment" involving Niesen's
exercise of his duties as woodroom foreman. The meeting
was attended by officials of the Company and the Union,
including Michael Morrin, supervisor of personnel services
of the Company, and Millard Lamb, an international
representative of the Union. During the course of the
meeting, the alleged bases for the employees' complaints
were aired. Thus, a woodroom representative appearing in
a representative capacity for the Union asserted that
Niesen had stated there was going to be a job analysis and
the union representative noted his apprehension over the
application of seniority rules in the event of a reduction
from a three-shift to a two-shift operation in the wood-
room. Another employee representative of the Union
accused Niesen of surveillance by sitting in his car on the
road outside the mill. He added that he didn't think
"anybody should be looking down [the employees ] throats
in that manner." Additionally, another employee appear-
ing as a representative of the Union at the meeting
evidence introduced reveals a decline in the number of written warnings,
suspensions, and terminations effectuated for lateness, absence, deficiencies
in the performance of assigned duties, and other related reasons. However,
the document on which the General Counsel relies is not susceptible of
meaningful evaluation because it covers, with respect to the various types of
personnel actions, time periods neither comparable nor identical in length.
Moreover, in principal part, it does not permit a determination of the
number of personnel actions of pertinent variety taken by Niesen during his
tenure in his supervisory position.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contended that Niesen had "jumped him," over crashing a
boom boat into logs. He asserted further that Niesen had
forbidden employees to have oilcans underneath the boom
shack where the employees rested.
During the meeting, Lamb stated that he recognized that
Niesen was "controversial" and had good points. Lamb
stated that Niesen was a "diamond in the rough" and that
management would have to take "the rough edges off." It
was from this observation that the discussion of "seniority,
harassment and threats" evolved.
In accordance with established procedures, the Company
responded in writing. The response of the Company, in
pertinent part, was as follows:
It was stated to management that in the Union's
opinion the Woodroom problems are narrowed to three
items, namely, reprisal, harassment and seniority. The
company will not condone reprisal or harassment of its
employees any more than the Union would condone
reprisal or harassment of the company.
I was pleased to note in this meeting that the Union
made it very clear they did not condone retaliation on
the part of their members toward the Company.
Reference was also made that employees only
receive their instructions from their foremen. Generally
I would agree with this statement except that the
supervisor must be able to communicate with his
employees if he deems it necessary. Supervisors are
expected to work with their foremen in evaluating the
employee's work performance and discuss various
problems that operators may have and help the
operator solve whatever problems that may come up
from time to time.
The seniority was also discussed. The Labor Agree-
ment in our opinion clearly sets forth the provisions to
handle the various questions raised in this regard.
'Reference was also made to job analysis. It seems that
there was some misunderstanding regarding the intent
of this statement as used by Mr. Niesen. Again, Section
20 is very clear on this matter.
The matters brought up in this meeting have
received serious consideration by all concerned levels
of management as we are desirous of a continuance of
the harmonious labor-management relationship that
has existed over the past two years. We are humans
dealing with humans and there is no doubt that from
time to time there will be differences of opinion. It is
hoped that with goodwill and effort by both manage-
ment and labor that these differences can be resolved
for the satisfaction of all.
The report was served on the Union in due course.8
2. The alleged unlawful conduct
a. Walters and Niesen converse
On February -2, employee George Walters spoke to Earl
8 The foregoing is based upon the credited and undisputed testimony of
Michael Momn and the official minutes of the meeting.
9 The foregoing is based upon the credited and undisputed testimony of
Earl Niesen.
10 It is conceded that Walters frequently wears a hearing aid and that the
Niesen in Niesen's office. Walters claimed entitlement to 2
or 3 hours of compensation for time worked which had not
been included in his last paycheck. Niesen instructed
Walters to speak with his immediate foreman concerning
the matter and Walters responded that he was going
directly to the payroll department. Niesen asserted that
company policy required Walters to speak directly with his
foreman. Niesen invited Walters to speak with him again if
the foreman did not resolve the matter satisfactorily.
Thereupon, during the course of the conversation, Walters
stated that he was entitled to an additional 30 minutes of
overtime pay for time which he had spent in discussing the
pay shortage matter with Niesen. Niesen disputed this,
asserting that Walters had come voluntarily to speak with
him and that Walters had done so after working hours.9
b. The February 3 incident
On the morning of February 3, at approximately 8 a.m.,
Larry Judy, a shop steward of the Union, was waiting in
the foreman's office adjacent to the office occupied by Earl
Niesen. The foreman's office is separated from Niesen's
office by a floor-to-ceiling partition. The entry door to the
foreman's office is situated in a very proximate relationship
to the entry door to Niesen's office. While Judy was
waiting in the foreman's office, George Walters entered
and requested that Judy go with him to Niesen's office to
discuss with Niesen the matter of certain unpaid overtime.
In the meantime , Niesen was engaged in his office in a
discussion with Francis Eddy, pond foreman, and employ-
ee Harlan Bacon on a separate grievance matter.
After the Bacon matter had been disposed of and Bacon
had left Niesen's office, Niesen beckoned Judy and
Walters to come into his office. They did so and Eddy was
present. Niesen thereupon asked Walters what he wanted
and Walters renewed his claim for unpaid overtime.
Additionally, he reiterated his asserted entitlement to 30
minutes' overtime compensation for time which he had
spent in discussing the initial pay shortage with Niesen.
Niesen became irritated and told Walters that he did not
wish to discuss the matter further. He instructed Walters to
leave his office, motioning with his hand in the direction of
the door. Despite Niesen's instructions, Walters continued
to pursue the matter, but Niesen arose from his chair
situated behind his desk and went in front of his desk to
where Walters was standing. In a loud voice and shaking
his finger in Walters' face, Niesen instructed Walters to
"get out." 10 Again Niesen motioned in the direction of the
door. Walters remained and Niesen placed his hand on
Walters' shoulder and pushed Walters 12 or 18 inches.
Walters told Niesen not to push him, whereupon, with a
backward motion of his arm, Niesen brushed Walters aside
and opened the office door. He told Walters to "get the
hell out" of the office. Judy intervened and told Walters
that he should leave. Walters did so and Judy remained in
the office."
noise level is high in the work area contiguous to Niesen 's office
ii The foregoing is based principally upon the credited testimony of
Larry Judy. I credit the testimony of Earl Niesen only to the extent that it is
consistent with the foregoing findings . Specifically, I do not credit Niesen's
testimony to the effect that Judy and Walters burst into his office uninvited
SILVER BAY LOCAL UNION NO. 962 755
c. The February 5 mill managers' meeting
On February 5, a meeting of the standing committee was
convened in a mill managers ' meeting. Present representing
the Company were George Gouker , mill manager, and
other representatives of the Company including Earl
Niesen and employee Francis Eddy. Representing the
Respondent were six individuals , including Jerry Turner
and employees Larry Judy and Harlan Bacon . Turner
opened the meeting and directed the attention of those in
attendance to the February 3 incident which had involved
George Walters and Niesen . Turner called upon Walters to
explain his version of the incident , which Walters did. In
the course of describing the occurrence , Walters stated that
he had been physically thrown out of Niesen's office and
that, prior to being ejected by Niesen , Niesen had used
abusive language to him and had shouted at him.
During the course of the meeting, Niesen gave his
account of the incident wherein , in substance , he denied
pushing Walters or speaking to him in other than
conversational tones. Niesen conceded that he touched
Walters but denied that he pushed him.
Francis Eddy related his account of the incident which,
in substance , confirmed that of Niesen.
At the meeting, with respect to the alleged loud
conversation which transpired during the course of the
events of February 3, Niesen stated that because Walters is
in need of a hearing aid, which he does not wear at work,
and because of the noise level which normally pertains in
the woodroom , he has developed a habit of speaking in a
loud voice in order to be -heard . In substance, Niesen
averred that any loud conversation during the course of the
incident of February 3 derived from that set of circum-
stances.
As the meeting progressed , Turner stated that the Union
wanted Niesen relieved from his responsibilities as wood-
room supervisor. Gouker responded that he would give the
Union his answer in writing within the 5 days allowed
under the contract period . Turner responded that he hoped
that it would not take "any five days" to give an answer on
the matter.12
Thereafter , George Gouker, Lloyd Rice, personnel
director, and Michael Morrin participated in the prepara-
tion of a letter which was dated February 8. The letter was
addressed to Jerry Turner. Turner was contacted by
telephone and requested to come to the office to obtain
delivery of the letter. The letter was delivered to Turner on
February 8 at the mill.13 The letter read as follows:
In view of the serious implications of the Union
demand for settlement of the George Walters and Earl
Niesen incident, and the Union's statement that the
Company give an answer within the time limits less
than provided by the Labor Agreement, the Company
recommends that this grievance be referred to the next
step in adjustment of complaints.
As an alternative, the Department of Labor should be
asked to investigate all facets of'this matter.
d. The February 9 special meeting
During the days following the Niesen-Walters incident,
there was discussion among the employees concerning it.
Jerry Turner, chairman of the Union's standing committee,
became aware that a petition had been circulated calling
for a special meeting of the membership to be held on
February 9. The petition, bearing purported signatures of
10 unit employees, subsequently came to the attention of
Turner. The caption of the petition read: "Strike vote Earl
Nieson [sic] woodroom case . We would like to hold a
special meeting on Tuesday, February 9."
Separate meetings were held in due course on February
9.14 A total of approximately 210 individuals attended the
meetings. Jerry Turner and Larry Loitz, a union member
of the standing committee, were the principal speakers at
the meetings. No representative of the International Union
was in attendance. Approximately half of the meeting
time 15 was spent in discussing the events involving Niesen
and Walters which had given rise to the meeting. In
speaking to the employees at the meetings, Turner, in
substance, informed-the employees in attendance of the
status of discussions between the Union and the Company
and, in so doing, stated that the Company had the
impression that only a small group of employees was
seeking Niesen's removal from his supervisory position.
Turner suggested that a strike vote be taken in order to
demonstrate to the Company that the "entire body" was
supporting hum in his negotiations on the matter. Although
Turner stressed the desirability of a vote of strengh to
demonstrate backing for the union members of the
standing committee, he discounted, in his comments to the
membership at the meetings, the likelihood of an actual
strike and discouraged actual resort to a strike. Turner
during the course of his discussion with Bacon. The testimony of Judy lends
no support to this aspect of Niesen 's testimony and, indeed, Niesen initially
testified that Judy and Walters entered his office after the discussion with
Bacon had been completed . I find it unlikely that Walters , having sought
the aid of Judy, a shop steward who was awaiting his turn to speak with
Niesen on official business , would have acted as impulsively as Nresen
depicts in entering Niesen's office. Rather, on this score , I find Judy's
testimony the more plausible.
Moreover, I am unable to credit Niesen 's version of the extent to which
he made physical contact with Walters. I am convinced that Judy accurately
recounted the nature of this contact and that Niesen, angered by Walters'
recalcitrance and insistence upon overtime compensation which Niesen
considered unjust, acted in a more vigorous manner than his accounting of
the incident would indicate
Further, I am convinced that any dialogue which Nresen had with Judy
after Walters was evicted from the office transpired with Judy alone as a
preliminary to the discussion of the substantive aspects of the separate
grievance with which Judy was principally concerned . I am convinced,
contrary to Niesen's testimony , that Walters was not present during this
latter phase.
12 The foregoing is based upon the credited and undisputed testimony of
Earl Niesen and Michael Mornn The testimony of Niesen and Mornn
gains support from the official minutes of the February 5 meeting.
13 Jerry Turner testified that he received the February 8 letter at the
plant but was uncertain as to when he received it. He conjectured that he
received it before the evening of February 9 The record reveals that under
normal procedure it would have been hand-delivered on February 8
14 Two meetings were held to accommodate employees on the swing
shift.
is The meeting attended by the largest number of employees lasted
approximately 2 hours
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made no specific recommendation to the group as to the
manner in which they should vote.16
Turner testified that he had not contacted or consulted
any International representative concerning the matter of
the strike vote. Moreover, Turner testified that he had not
sought strike sanction from the International prior to the
strike vote on, February 9.
Millard Lamb, International representative of Respon-
dent, testified that he possessed no authority to grant strike
sanction to the Local. He further testified that at
approximately the time in question he was scheduled to go
to Sitka on a grievance matter pertaining to a discharge.
Enroute to Sitka from a previous location, he stopped over
at his residence and was informed by his wife that Jerry
Turner had called by telephone and had mentioned that a
special meeting of the Local was to be held. Lamb testified
that that was the extent of his information concerning the
special meeting when he arrived at Sitka on February 10.
Lamb 'testified further that the Local had not taken the
necessary steps to obtain strike sanction from the Interna-
tional and to gain authorization to actually engage in a
strike authorized under the provisions of the Respondent's
constitution and bylaws.'7
e. The strike rumors
In the meantime, on the evening of February 8, Michael
Morrm received a phone call from Bill Winnop, a yard
supervisor, who informed him that he had heard rumors to
the effect that there was going to be a strike vote taken by
the Union over the Niesen incident. Thereafter, Morrin
contacted Lloyd Rice, personnel director, and transmitted
Winnop's intelligence to Rice. The following morning
Morrin went to the security office at the plant and
observed two separate notices posted in the vicinity of the
timeclock. These notices, in substance, related to a special
meeting of the Union to be held at separate hours and at
separate meeting halls for the purpose of "strike vote
-woodroom case." i8
f. Turner and Rice converse
Thereafter, on February 10, Turner went to the office of
Lloyd Rice to confirm the third-step grievance meeting
which had been scheduled for February 11. In conversing
with Turner, Rice asked Turner how the meeting had gone
on the previous night. Turner responded, in substance, that
the meeting had gone "about as expected." Rice then
asked, "When is this to take place?" Turner stated that he
had a grievance to file on the matter and as a consequence
of this, Rice and Turner set a time for a meeting to be held
on February 11.19
g. The February 11 meeting
On February 11, representatives of the Company and the
Union met in a meeting which lasted virtually the entire
16 The foregoing is based upon a composite of the testimony of Jerry
Turner, Bernard McCoy, Wesley Brown, and Larry Judy. With respect to
the substantive aspects of the meetings, I credit the testimony of McCoy,
Brown, and Judy, which is mutually corroborative in salient aspects.
17 The testimony of Lamb and documents in evidence establish that the
membership of Respondent had not complied procedurally with the
day. The purpose of the meeting was to discuss the Niesen
matter. Present representing the Company were Clarence
Kramer, administrative assistant to the resident vice
president; Lloyd Rice, personnel manager ; Michael Mor-
rin, assistant personnel manager; and Ralph Magnusson,
production superintendent and Niesen's immediate superi-
or. Present representing the Union were Millard Lamb,
International representative; Jerry Turner, Larry Loitz,
and Glen Harriman. As the meeting convened and the
representatives took their respective places at the confer-
ence table, Kramer asked Rice to show Lamb the
photographs which had been taken of the strike notice
which had been posted in the timeclock area in the plant.
Rice did so, and, after the photographs had been passed
around, Kramer said, "This is a hell of a way of starting to
negotiate, with a strike vote hanging over your head. What
type of negotiations is this?" In response, Lamb stated that
he didn't like a strike, but the men wanted to get the matter
settled and that the strike vote was the only way they could
handle it. Lamb added that Niesen's situation had reached
a point where something had to be done. He denied that
the Union was trying to tell the Company who they could
hire, but said that the Union represented the employees
with respect to wages and working conditions and,
therefore, had a legitimate interest in the matter. Lamb
observed that Niesen had a' lot of talent but not as a
woodroom supervisor. Lamb further asserted that Niesen
had had 6 months to adjust to his job and that he didn't
seem able to handle it. He said that the Local Union had
gone along with the Company's selection of Niesen for the
supervisory position. Lamb stated, however, that Niesen's
nature had been the same for a long time and asserted that
he was not going to change. He urged that the parties not
argue whether or not the Union could strike but endeavor
to settle the "real issue."
During the morning as the meeting proceeded, the Union
took the position that the Company must do something to
curb the violent propensities of Niesen. The Union further
stated that it did not want Niesen to have any direct
contact with employees which it represented. The Compa-
ny, on the other hand, took the position that it was obliged
to defend not just Niesen but all supervisors and their right
to supervise. After the meeting had progressed for some
time, the representatives of the Company met separately in
a caucus. As a consequence of discussions, the Company
made the following written offer which it presented to the
Union at approximately 2 p.m. on the afternoon of
February 11:
The Company makes the Union the following offer in
settlement of this grievance.
The Company will place a senior member of manage-
ment in the woodroom for a period of time to
determine that Mr. Niesen's performance is acceptable.
In addition, the Company will arrange to have Mr.
Niesen attend a supervisory training course.
The Company does not condone harassment or
provisions governing authorized strike activities.
is The foregoing is based upon the credited and undisputed testimony of
Michael Morrin.
is The foregoing is based upon the credited and undisputed testimony of
Jerry Turner.
SILVER BAY LOCAL UNION NO . 962 757
intimidation by its supervisory personnel and will work
with the Union in any reasonable manner so that
differences can be resolved to the satisfaction of all.
After studying the Company's offer and after learning
that the supervisory training course which the Company
had in mind was, one being offered at a nearby university
and one which would encompass 1 week of training, the
Union indicated skepticism of the value of the course. In
explanation of its position, union representatives noted
that, at an earlier time when Niesen was serving as a
representative of the Union, he had personally shown
disdain for a similar course which the Company was
proposing for the training of another supervisor with
respect to whom the Union had leveled criticism. As the
discussion proceeded, Lamb stated that he doubted the
value of a 1-week course and asked if there were not other
schools which provided a more lengthy training course.
Thereafter, at approximately 2:45 p.m., the Union
submitted a written reply to the Company's proposal. The
reply read as follows:
The Union accepts the Company's proposal as a
sincere effort to resolve our joint problems with Mr.
Niesen. However, the Union is firmly convinced that a
one-week supervisory training will not correct his deep-
rooted belief that the answer to all questions is physical
violence.
We concur with the Company's suggestion to place a
senior member of management in the woodroom for a
period of time to determine when Mr. Niesen's
performance is satisfactory. In fact, this period of time
for observance should be in effect until the parties
jointly agree such observation is no longer necessary.
The Union's position, at this moment, is progress has
been made but it is still necessary for the parties to
consider some other proposal.
As the discussion proceeded during the afternoon,
Kramer, on behalf of the Company, advised the Union
that on a previous occasion when the Union had objected
to the conduct of a supervisor, the supervisor had been
enrolled in a training course and had benefited thereby to
the extent that the Union leveled no further complaints
against him. As a consequence, Kramer stated he felt that
the Company was making a valid offer to the Union. Lamb
responded that he was pleased to learn of the progress with
respect to _ the other supervisor but expressed doubt
whether a similar training course would be of value to
Niesen. He stated that he did not feel that Niesen was
capable of changing. Kramer insisted that Niesen had
shown great improvement and Lamb conceded that this
had been so. He asserted, however, in substance, that he
20 The foregoing is based upon a composite of the credited testimony of
Michael Morrm and Millard Lamb. I have also considered the documents
in evidence which represent notes taken by rhpresentatives of the Company
and the Umon during the course of the meeting . I have evaluated them for
their impeachment value. However, the notes were not verbatim and I place
no reliance upon them in finding facts concerning the meeting which were
not substantiated testimonially . In this regard , it is noted that Millard Lamb
and Jerry Turner, principal union participants, were called as witnesses but
were not interrogated extensively by Respondent's counsel concerning the
details of the meeting. I do not credit the testimony of Moran to the effect
that, in the opening stages of the meeting, Lamb stated that the Union did
not care whether the strike was legal or illegal or whether it accorded with
the contract. The notes taken by Lloyd Rice, a representative of the
doubted that Niesen's propensity for physical violence
could ever be sufficiently curbed. Kramer insisted upon
union documentation of instances of violence by Niesen as
a supervisor on plant premises. The Union offered no such
documentation during the course of the February 11
meeting. As the discussion pursued, Kramer stated, "Well,
you might as well write it down that you are going to give
us 72 hours and shut it down." Lamb responded, in effect,
that the Union had given the Company the chance to solve
the Niesen problem. Lamb reiterated that the Union did
not want Niesen in contact with any of the "union
employees." The parties agreed that they would meet again
the following day.zo
h. The meeting of February 12
A meeting was held as scheduled on February 12. In
addition to those present at the February 11 meeting were
employees Kenneth McCoy, Bernard McCoy, Dave Baker,
and Wes Brown. Lamb opened the meeting with a
statement that he had present with him four employees
who would describe incidents involving Niesen which they
had observed and which would reveal that Niesen was a
violent person. Thereupon, Wes Brown described an
incident wherein Niesen and his companion, Ron Thom,
were shooting pool when Niesen and Thom ejected a
young man who had either whistled or called out to a girl
who had walked by the backdoor of the poolroom. The
young man whom Niesen and Thom had ejected later
returned with some friends, but an altercation was avoided.
Brown's account of the incident was supported by the
description of the same incident given by Dave Baker.
Thereafter, Bernard McCoy described an occasion when
Niesen had been called "outside" by another individual
and had engaged in a fight and had subdued his opponent.
McCoy further asserted that although Niesen had accom-
plished what he had set out to do he "continued to beat on
[his opponent]."
Kenneth McCoy was the last employee at the meeting to
describe an incident involving Niesen. McCoy asserted
that he had been called a vulgar name by Niesen and
observed that he did not think that this was proper conduct
on the part of a supervisor.
The Union also informed the company representatives
that a young woman had been contacted who was on her
way to the plant to recount an act of violence involving
Niesen which she had observed. Kramer responded, in
substance, that this would be unnecessary as it did not
involve conduct at the plant during worktime.
The incidents referred to by the employees in their
Company, contain no such specific reference and the notes taken by Larry
Loitz, a union representative , are similarly devoid of any such specific
reference . I find, rather, on this score that the response which Lamb made
was as above found.
In a similar manner, I am unable to credit the testimony of Lamb that
dunng the afternoon portion of the meeting he, or any other representative
of the Union, stated in terms , or as a counterproposal , the Union's
unqualified willingness to consider the Company's proposal concerning a
training course for Niesen if the course were of longer duration . The notes
of the meeting which are in evidence do not lend support to Lamb's
testimony in this regard and Momn's testimony is not, in this respect,
supportive.
75l DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respective accounts transpired at various times from 3 to 6
months prior to the February 12 meeting.
After the employees had finished their descriptions of the
alleged events involving Niesen, the Company caucused.
Thereafter, upon returning to the meeting room, Kramer
presented the Union with a written proposal. The proposal
was as follows:
The Company withdraws its offer of February 11, 1971
and in its place makes the following offer:
From this point forward there will be no direct contact
between E. Niesen and Woodroom and Log Deck
hourly personnel except through the Woodroom
foremen. This procedure will be confined to this
situation only until conditions return to normal.
Upon being presented with the proposal, Lamb studied
it. He then stated that the proposal would not work and
added, "We don't want Mr. Niesen in any contact with our
people, whatsoever." He then passed the document
containing the Company's offer to Turner who stated that
it was "not going to work." Turner added, "We don't want
him here." Lamb interjected, "We do not want Bud Niesen
anywhere near our people in this mill. We don't care what
you find for him, if you want to put him out on Buco Point
counting chip barges, that's all right with us but that's as
close as we want to see Mr. Niesen to the union people in
this mill." 21 Lamb further stated that he objected to the
Company's proposal because it was more unilateral in
character than the Company's initial proposal. In this
regard, Lamb referred to the indefinite character of the
term "until conditions return to normal." At this point in
the meeting, the Company again caucused.
After a discussion among members of management,
Kramer met with Lamb.
Kramer and Lamb met together in Kramer's office
pursuant to a request which Kramer initiated. Kramer
commenced the conversation with Lamb by stating his
"shock" at Lamb's involvement in "an illegal procedure"
and asserted that the matter was going to "haunt" Lamb
for a "long time." Kramer stated that management was
going to give in to the Union's request. He said that this
was being done because the Company would not "take a
strike" and that "if we contact Tokyo that we're faced with
work stoppages," Tokyo would instruct management to
discharge anyone in the mill that might be causing the
stoppage. Kramer stated that Niesen would be terminated
today. Lamb responded, "That will take care of that."
Kramer thereupon asked Lamb to intervene in order to
persuade George Walters to dismiss or withdraw the
charges which Walters had filed against Niesen with local
authorities. Lamb gave Kramer assurances that he would
21 Buco Point overlooks a bay and is situated approximately one quarter
of a mile from the entrance to the null. It is an area where no work activity
is earned out.
22 The foregoing findings with respect to the substantive aspects of the
convened meeting of February 12 among the representatives of the
Company and the representatives of the Union is based principally upon the
credited testimony of Michael Moron, as supported by that of Ralph
Magnusson and Lloyd Rice. The findings with respect to the meeting
between Kramer and Lamb during a recess in the meeting is based
principally upon the testimony of Clarence Kramer I credit the testimony
of Millard Lamb with respect to the two events only to the extent that it is
consistent with the aforesaid findings. Specifically, I credit the testimony of
Morrin and reject the denial of Lamb to the effect that during the course of
speak with Walters and that from prior consultation with
Walters the outlook was "very hopeful."
Thereafter, the meeting between the representatives of
the Company and the Union reconvened. Kramer asked
Lamb if he had informed the union representatives of the
decision which management had reached. Lamb stated
that he had told the "union people" that Niesen would no
longer be working at the mill. A document dated February
12, executed by Kramer and Lamb, was circulated at the
reconvened meeting. Under the caption, "G. Walters-E.
Niesen Incident" was set forth: "Mr. Kramer and Mr.
Lamb announce jointly that this matter has been re-
solved." 22
Kramer testified that he did not personally contact the
Japanese owners of the Company in Tokyo concerning the
Niesen matter. However, he testified that daily correspond-
ence was conducted concerning the matter and that there
was contact with Tokyo through Seattle counsel and the
Company's executive office.
i. Niesen terminated
In the early afternoon of February 12, Niesen was called
to the mill manager's office and informed of his termina-
tion. In addition to the mill manager and Niesen, present
were Kramer, Morrin, Rice, and Magnusson. Kramer
recounted to Niesen the efforts which the Company had
undertaken in discussions with the Union to resolve the
matter short of termination. Kramer added, however, in
effect, that because of underlying considerations and the
Union's position with respect to Niesen that the Company
had decided to terminate him.23
Michael Morrin and Clarence Kramer testified that at no
time during the meetings with Lamb on February 11 or
February 12 did Lamb, in terms, demand that Niesen be
terminated. This coincides with Lamb's testimony.
Conclusions
In agreement with the General Counsel, I find that
Respondent violated Section 8(b)(1)(B) of the Act by
achieving the removal of Earl Niesen from his supervisory
position through a strike threat. The record establishes,
and I find that, at material times, Niesen possessed
authority to adjust employee grievances.
The evidence of record reveals that, prior to the events
pertinent herein, Niesen had achieved certain notoriety in
the community and among his fellow employees as an
individual with a propensity for engaging in physical
altercations. His reputation was gained in encounters away
from the plant and, until February 3, no employee in the
the principal meeting Lamb made reference to placing Niesen on Buco
Point. Moron's testimony on this score is supported by that of Magnusson
and Rice. Further, I reject Lamb's truncated version of the separate meeting
or conversation between him and Kramer which punctuated the principal
meeting. I was impressed by the demeanor of Kramer as a witness and am
convinced his accounting of the incident was factual. On the other hand,
Lamb impressed me as evasive in this aspect of his testimony and I do not
credit his version of the manner in which the meeting commenced and the
extent of Kramer's statements to him during the opening phases of their
conversation in Kramer's office.
23 The foregoing is based upon the credited and undisputed testimony of
Earl Niesen.
SILVER BAY LOCAL UNION NO. 962
plant had been thus involved with Niesen, and there had
been no in-plant, worktime incidents.
The Niesen-Walters incident of February 3 was the
catalyst giving rise to the events which presaged and
culminated in Niesen's termination. Respondent concedes
that the February 3 brush between Niesen and Walters was
innocuous in its own right. But Respondent contends, with
validity, that the encounter must be assessed against the
backdrop of Niesen's established reputation for violence. It
is Respondent's contention that the employees learned of
Niesen's encounter with Walters and decided to draw the
line. It is Respondent's view also that the strike vote
culminated from a crescendo of employee concern and
from a desire to display a united front to the Company.
That the February 3 incident was the catalyst for
subsequent action is clearly established. That the Respon-
dent through its agents resolved early in the affair to
demand Niesen's removal from his supervisory post is
shown by Turner's declaration at the mill managers'
meeting of February 5 to the effect that the Union wanted
Niesen relieved of his supervisory responsibilities in the
woodroom.
Despite the gloss which -Respondent attempts to attach
to the special meeting of the union membership held on
February 9, it seems readily apparent that the meeting was
called by authority of the Local pursuant to notice which
was posted at the plant in customary places. Officers of the
Local attended, presided, and were principal speakers.
These officials urged and officially endorsed the strike
vote, although the necessity or likelihood of actual,
ultimate resort to a strike was discounted. It may fairly be
concluded, in the circumstances, that the actions of the
membership at the special meeting had the imprimatur of
regularity and the stamp of approval of the officers of the
Local. It necessarily must be concluded that, with respect
to the aftermath of the meeting, no efforts were taken by
the Local to maintain secrecy concerning the results of the
affirmative strike vote achieved at the meeting. Indeed, it is
apparent from the record that officers and representatives
of the Local knew and expected that the Company would
become aware of the vote, for Turner, the principal union
functionary involved in guiding the meeting, stated prior to
this strike vote that he wanted the Company to know that
he had the support of "the entire body" in his negotiations.
The vote was to be "a show of strength." Against this
backdrop, it is not significant that Respondent undertook
no effort to publicize the results. It was foreseeable that the
results would become known; the vote carried the
attributes of its own publication.
It was in this framework that grievance negotiations
ensued and the International, represented by Millard
Lamb, entered the picture. The events of February 11 and
12 were characterized by two principal features: The
demand of the Respondent that Niesen be removed from
supervision of employees in the plant and the tenacious
refusal of Respondent ever to deny the efficacy of the
strike vote. The early "willingness" of Respondent to
permit the Company to enroll Niesen in a training course
and to subject him to a period of supervisory oversight
proved to be nothing more than tactical window dressing.
Respondent rejected these proposals after giving them lip
759
service, offering only an alternative which vested it with an
equal voice in determining the duration of the supervisory
oversight to which Niesen would be subjected in the
conduct of his own responsibility as foreman of the
woodroom. This attempt by Respondent at gaining a veto
power in an area of management prerogative was not, one
calculated to resolve the issue amicably. The Respondent
must have known it was one which the Company would
not countenance.
It is, of course, factitious to argue as Respondent does
that Respondent did not seek to dispose of Niesen but
merely to create a buffer between him and the rank-and-
file who, in any event, had initial, firstline contact with
their own immediate foremen, and not Niesen. To so
artificially delimit and curb the exercise of supervisory
responsibility is to effectively erode supervisory authority.
Respondent's assertion appears to be but a rehash of
arguments advanced at the July 29 grievance meeting
wherein attacks upon Niesen's authority as a supervisor
were aired. There the Company correctly highlighted the
necessity of the right of supervisors to communicate with
their employees.
But, in any event, the record is clear that Respondent
sought the physical isolation of Niesen, as well as
communicative isolation. This is clearly established
through the demands of Lamb and Turner at the February
11 and 12 meetings. "Respondent intended Niesen to
vegitate. No more effective means for neutralizing supervi-
sory influence could be devised short of actual termination.
Respondent recognized that the Company would not retain
an anomaly but would, in the nature of things, terminate
Niesen as surplusage rather than retain him in an
unproductive capacity.
Realistically viewed, it is apparent that the Respondent
entered the grievance meetings with the fixed purpose of
requiring the Company to remove Niesen from his
supervisory assignment. While professing a conciliatory
attitude, Respondent maintained a fixed course, never
overtly threatening strike action, always carefully avoiding
assurances to the Company that the Niesen matter could
be settled without a strike. In the circumstances, it is not
significant that no strike threat was uttered. It was implied
and the implication was unambiguous. That strike sanc-
tions had not been obtained from the International does
not significantly affect the matter . The Company had
previously experienced an unauthorized work stoppage;
and Lamb, the International representative, resolutely
refrained during the 2 days of meetings from ruling out the
possibility of a strike. By remaining constant in its demand
for the removal of Niesen, by rejecting company offers
designed to resolve complaints against Niesen's attitude as
a supervisor, by failing to offer reasonable avenues of
solution and by eschewing opportunities to disclaim strike
intentions, Respondent left the Company with no alterna-
tive for peacefully resolving the Niesen matter. As a
consequence, the Company took the only course open to it
short of a strike to accede to Respondent's demand. It
terminated Niesen.
Accordingly, I find that the Company discharged Niesen
from his supervisory post at the insistence of- Respondent
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in realization of the strike threat for'which Respondent
was responsible, and which was efficacious.
It is well settled that strike pressure by a labor
organization and threats to engage in a strike for the
purpose ofs influencing an employer in his choice of a
bargaining or grievance processing representative consti-
tutes coercion within the meaning of Section 8(b)(1)(B) 24
In Local 423, the Board observed:
A threat directed to an employer to shut down a job
unless the employer complies with a union demand to
remove a supervisor and its "representative" from the
job is the most obvious kind of statutory coercion.
The General Counsel properly observes that it is the
threat of a strike and not its actual fruition that determines
the violation.25
It is the contention of the General Counsel, as I
comprehended it, that, given the strike threat and Respon-
dent's termination demand in positive terms, a violation of
Section 8(b)(1)(B) of the Act is established. However, the
Respondent by way of affirmative defense26 contends that
its conduct was not directed at Niesen's supervisory status
but solely to his resort to violence, and that its protest
constituted legitimate protected activity not proscribed by
the Act. The General Counsel asserts, however, that the
strike threat itself renders Respondent's conduct so
unreasonable in law as to vitiate its affirmative defense.
Alternatively, the Respondent avers that Respondent's
motive in seeking Niesen's removal was solely related to his
efforts on behalf of management to "tighten the running of
the woodroom" and that its protest relating to violence was
groundless and a mere cloak.
In cases arising under Section 8(b)(1)(B) of the Act, the
Board has scrutinized the record to determine the
character of supervisory conduct against which the union
was protesting in demanding, in whatever manner, the
removal, reassignment, or discipline of a supervisor.27
Thus, in Laborers, Local 423, threatening a strike, the
union demanded the removal from the jobsite of a
supervisor who had directed a change in the method of
performing certain on-site work. The Board assessed the
evidence and made the specific finding that in reaching the
decision against which the union had protested the
supervisor had been engaged in a supervisory act. The
Board found the threat by the union to shut down the job
to obtain the foreman's removal coercive and violative of
Section 8(b)(1)(B).
This analytical process of evaluating the character of the
supervisory conduct against which a union is directing its
strike threat is not the equivalent of one designed to
determine whether the employees in demanding removal or
termination of a supervisor are engaged in protected,
concerted activity in the Section 7 sense. The two concepts
are independent and stand alone. The Board's recent
24 Local 423, Laborers' International Union of North America, AFL-CIO
(Mansfield Flooring Co, Inc, d/b/a Columbus Cement Floors), 195 NLRB
No. 35, International Typographical Union, 86 NLRB 951, United Slate, Tile
& Composition Roofers, Damp & Waterproof Workers Association, Local No.
36 (Roofing Contractors Association of Southern California, Inc.), 172 NLRB
2248; Painters District Council No. 36, AFL-CIO, and Commercial Drywall
Constructors, Inc, 155 NLRB 1013.
25 International Typographical Union, supra.
26 1 have rejected Respondent's principal defense that no strike threat
decision in Cubit Systems Corporation, 194 NLRB No. 87,
adds nothing of importance here that was not established
in N. L. R. B. v. Phoenix Mutual Life Insurance Co., 167 F.2d
983 (C.A. 7). In Phoenix, it was held that the Section 7 right
of employees to engage in concerted activities for their
mutual aid or protection included the right of employees to
endeavor by a written document to influence management
in the choice of their supervisor. In reaching this
conclusion, the court in Phoenix stated: "Conceding they
[the employees] had no authority to appoint [a supervisor]
or-even recommend anyone for the appointment, they had
a legitimate interest in acting concertedly in making known
their views to management without being discharged for
that interest." The Board's decision in Laborers; Local 423,
supra, derogates neither from Phoenix nor Cubit. Neither
Phoenix nor Cubit involved a strike threat and in Laborers,
Local 423, the Board merely found that the union's resort to
coercion in order to dictate the employer's choice of a
grievance representative was proscribed. I do not view this
as a proscription against legitimate concerted activity. The
Board amplified:
Schunatz [the foreman ] was engaging in a supervisory
act when he assigned to himself the job of unloading
buggies and plywood from the truck. Section 8(b)(1)(B)
bars the Union from using coercive tactics to secure a
supervisor's removal from the job for such conduct.
That does not mean that the Union was powerless to
prevent Schunatz from performing work in violation of
the collective-bargaining contract. It could file a
grievance, as it did; it could sue for breach of contract;
it might also strike in protest against the foreman's
performing manual labor unless striking was prohibited
by the contract; but it could not insist by coercive
means that the Company remove him entirely from the
job as its representative. [Footnote citations deleted.]
In other words, although the objective sought by the union
in Laborers, Local 423, may have been legitimate, as the
Board inferred it was, coercive tactics were nonetheless
proscribed when those tactics were used in order to dictate
the choice of a bargaining or grievance representative. In
the instant case, one might reach the conclusion that the
Respondent was engaging in protected Section 7 activity in
demanding Niesen's dismissal in order to protect the future
physical well-being of employees presently supervised by
him. However, to so find, is not to grant validity to
Respondent's contention that the complaint must be
dismissed.
I reach this conclusion because I am convinced that the
February 3 encounter between Niesen and Walters arose
from and was an integral facet of Niesen's exercise of
supervisory authority to discuss, process, and resolve
employee grievances. It is clear that Walters was present in
Niesen's office on February 3 in furtherance of his claim to
was advanced and no demand for Niesen's termination was articulated by
the Union. 1
27 Local 423, Laborers ' International Union of North America, AFL-CIO
(Mansfield Flooring Co., Inc., d/b/a Columbus Cement Floors), supra; Sheet
Metal Workers' International Association, Local Union 49, AFL-CIO
(General Metal Products, Inc.), 178 NLRB 139, 141; New Mexico District
Council of Carpenters and Joiners of America (A. S. Horner, Inc.), 177 NLRB
500.
SILVER BAY LOCAL UNION NO. 962
overtime compensation. It is reasonably to be inferred
from the evidence as a whole that Niesen's agitation with
Walters was over the assertedly invalid character of
Walters' overtime demands. The minor pushing incident
evolved directly from Niesen's efforts to terminate a
grievance discussion which he concluded lacked merit. The
means which Niesen used in seeking to end the discussion
was, of course, improper, but it was innocuous and hardly
sufficient foundation for strike action.28 It was closely
related to Niesen's supervisory responsibility to process
grievances. In these circumstances, and without attendant
considerations, given the strike threat and the entire
context of Niesen's behavior towards Walters, the General
Counsel, in my view, has adduced evidence sufficient to
sustain the allegations of the complaint.
Additionally, however, the record convincingly establish-
es that the early resentment against Niesen for his efforts
to tighten up and improve the woodroom operation
continued to smolder among the employees in February.
The Walters incident accorded the employees the opportu-
nity for contesting Niesen's authority. To lend ballast to
their effort they seized upon Niesen's purported reputation
as a town bully. For documentation the employees relied
upon two separate events which involved neither unit
employees nor work-related causation. These were the
incidents recounted to the membership prior to the strike
vote of February 9 and were the incidents repeated at the
February 12 grievance meeting between the Union and the
Company. Significantly, Niesen's 1969 assault and battery
conviction was not stressed, and no emphasis was placed
upon other asserted violent conduct of Niesen. The
incidents related at the February 9 meeting for employee
consideration clearly were not of a character or severity to
warrant the conclusion that the unit employees were placed
in fear of imminent or foreseeable physical danger either at
the mill or away from it.29 This being so it may not be
concluded that on and after February 9 conditions existed
which required the employees or Respondent to resort to
extraordinary protective measures . As in Laborers; Local
423, other avenues were open to Respondent which
rendered its insistence by coercive means upon Niesen's
removal from his supervisory position unlawful.
In light of the integral relationship between Niesen's
exercise of supervisory authority and his improper but
innocuous use of physical force to terminate the grievance
interview with Walters; the absence of imminent or
foreseeable danger to the physical well-being of unit
employees; and the channels open to Respondent to
pursue other solutions short of a coercive strike threat to
resolve any grievances the employees might have had
against Niesen, I find, in analogy to Laborers', Local 423,
28 I reject as devoid of foundation Respondent's suggestion that Niesen
may be found to have forfeited his rights under the Act by reason of his
conduct toward Walters. The right protected by Sec. 8(bXIXB) of the Act is
the employer 's right to be free of union coercion in the selection of his
collective-bargaining or grievance processing representative.
29 Indeed, it is to be remembered that the events pertinent herein
occurred among individuals employed in a frontier community in a
vocation or occupational process which, through the random operations of
the laws of natural selection , tend to screen out the timid or faint of heart.
30 Factually inapposite and without controlling the effect herein is
Carpenters District Council of Sabine Area and Vicinity (Miner-Dederick
Construction Corporation), 195 NLRB No. 28 , cited by Respondent as
761
that Respondent violated Section 8(b)(1)(B) by coercing
the Company to replace Niesen as its representative for
resolving grievances .30 In the circumstances of this case,
given the strike threat, the Respondent's conduct is not
excused because it did , in fact, engage in grievance
discussions with the Company concerning Niesen and
because ultimately the Company terminated Niesen's
employment as a supervisor.31
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Company set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Company terminated the employ-
ment of Earl Niesen from his supervisory position in the
woodroom in sole and direct response to a strike threat for
which the Respondent was responsible, and having found
that, as a consequence, Respondent did thereby violate
Section 8(b)(1)(B) of the Act, I shall order that Respondent
cease and desist from such unlawful conduct and post
appropriate notices. I shall further order Respondent to
make whole Earl Niesen for any loss of earnings he may
have suffered by reason of his termination resulting from
the unlawful conduct of Respondent found herein.
Backpay shall be computed on a quarterly basis in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289, together with interest in accordance with the policy of
the Board set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Alaska Lumber and Pulp Co., Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Silver Bay Local Union No. 962, International
Brotherhood of Pulp, Sulphite and Paper Mill Workers,
determinative of the issues herein . However, here , contrary to Carpenters,
Niesen was the supervisor of the employees who sought his removal ; Niesen
had substantial supervisory authority over the employees; and he was
engaged in a supervisory act for which Respondent threatened a strike. In
the circumstances, I do not consider myself bound by the dictum contained
in the Trial Examiner's Decision to the effect that the test of whether the
attempt to remove a supervisor or to otherwise discipline him violates Sec.
8(b)(I)(B) turns "more on the Union 's motivation" and is determined by
whether his removal or discipline is sought because of his supervisory
conduct or for some other reason.
31 Local 423, Laborers' International Union of North America, AFL-CIO,
supra.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By demanding, upon threat of strike action, that
Alaska Lumber and Pulp Co., Inc., remove Earl Niesen
from his supervisory position in the woodroom, Respon-
dent restrained and coerced an employer in the selection of
his "representative for the purposes of collective bargain-
ing or the adjustment of grievances," in violation of
Section 8(b)(1)(B) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 32
ORDER
Respondent, Silver Bay Local Union No. 962, Interna-
tional Brotherhood of Pulp, Sulphite and Paper Mill
Workers, AFL-CIO, its officers, agents, and representa-
tives, shall:
1. Cease and desist from restraining and coercing
Alaska Lumber and Pulp Co., Inc., in the selection of its
representatives for the purpose of collective bargaining or
the adjustment of grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Notify Alaska Lumber and Pulp Co., Inc., in writing,
with a copy to Earl Niesen, that the Respondent has no
objections to Earl Niesen's employment as woodroom
supervisor in the Sitka, Alaska, facility of the Company, or
in any other supervisory position.
(b) Make whole Earl Niesen in the manner set forth in
the section of this Decision entitled "The Remedy."
(c) Post at its business office and meeting halls copies of
the attached notice marked "Appendix." 33 Copies of said
notice, on forms provided by the Regional Director for
Region 19, shall, after being duly signed by an official
representative of the Respondent, be posted by it immedi-
ately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Mail or deliver to the Regional Director for Region
19 signed copies of the attached notice marked "Appen-
dix" for posting by the Company, if willing, in places
where notices to employees of the Company are customari-
ly posted.
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of the receipt of this
Decision, what steps Respondent has taken to comply
herewith.34
32 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, recommendations , and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings , conclusions, and Order , and all objections
thereto shall be deemed waived for all purposes.
33 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
34 In the event that this recommended Order is adopted by the Board,
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 19, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Alaska Lumber and
Pulp Co., Inc., in the selection of representatives
chosen, or likely to be chosen, for the purposes of
collective bargaining or the adjustment of grievances.
WE WILL notify Alaska Lumber and Pulp Co ., Inc.,
that we have no objection to the Company employing
Earl Niesen as supervisor of the woodroom, or in any
other supervisory capacity.
WE WILL make whole Earl Niesen for any loss of
earnings he may have suffered as a result of our
unlawful conduct which caused Alaska Lumber and
Pulp Co., Inc., to terminate Earl Niesen from his
supervisory position in the woodroom.
SILVER BAY LOCAL UNION
No. 962, INTERNATIONAL
BROTHERHOOD OF PULP,
SULPHITE AND PAPER MILL
WORKERS, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 10th
Floor, Republic Building, 1511 Third Avenue, Seattle,
Washington 98101, Telephone 206-442-5692.