T & H Investments, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1988

291 N.L.R.B. 409 (N.L.R.B. 1988)

T & H INVESTMENTS 409
T & H Investments , Inc and International Wood
workers of America, Local Union No 3 10,
AFL-CIO Case 19-CA-19057
October 24 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On December 28 1987 Administrative Law
Judge Walter H Maloney Jr issued the attached
decision The Respondent filed exceptions and a
supporting brief and the General Counsel filed an
answering brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings I and
conclusions and to adopt the recommended Order
as modified
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The judge granted the General Counsels request that the Order in
clude a visitatonal clause We find no need for such remedial provision in
the circumstances of this case See Cherokee Marine Terminal 287 NLRB
1080 (1988)
In finding that the Respondent violated Sec 8 (a)(3) the judge did not
specifically cite Wright Line 251 NLRB 1083 (1980 ) enfd 662 F 2d 899
(1st Cir 1981) cert denied 455 US 989 (1982) approved in NLRB v
Transportation Management Corp 462 U S 393 ( 1983) however he made
the right analysis We find that the General Counsel made a prima facie
showing that union activities were a motivating factor in the Respond
ent s decision to discharge five employees The judge s decision fully sets
forth the 8(a)(1) violations the timing of the layoffs and other facts that
more than adequately make a prima facie case This evidence effectively
shifted the burden to the Respondent to demonstrate that it would have
taken the same action even in the absence of the union activity Although
the Respondent attempted to show that the termination was for economic
reasons the Respondent has failed to do so and hence has not met its
burden Despite Plant Manager Hopkins claim that he did not foresee
any future work the Respondent hired 4 new employees within 3 weeks
of the discharge of the 5 union supporters on the stickenng crew and it
hired 15 new employees during August September and October As to
this latter group the Respondent made no effort to justify why it hired
inexperienced unskilled individuals in preference to its own experienced
employees
Member Cracraft finds it unnecessary to rely on the judges finding
that the Respondents use of the label troublemaker was synonymous
with union activist
Additionally Member Cracraft agrees that the Respondents actions in
its April 2 meeting and in preparation for such meeting amounted to a
solicitation of grievances in violation of Sec 8 (a)(1) of the Act In light
of this finding she finds it unnecessary to pass on the other findings of
solicitation of grievances as they would be cumulative and would not
affect the remedy herein
judge as modified below and orders that the Re
spondent T & H Investments Inc Dover Idaho
its officers agents successors and assigns shall
take the action set forth in the Order as modified
1 Insert the following as paragraph 2(b) and re
letter the subsequent paragraphs
(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis
charges will not be used against them in any way
2 Substitute the following as relettered pars
graph 2(e)
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
3 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representa
tees of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT coercively interrogate employees
concerning their union sympathies and activities or
the union sympathies and activities of other em
ployees
WE WILL NOT engage in the surveillance of the
union activities of our employees
WE WILL NOT create in the minds of our em
ployees the impression that their union activities
are the subject of company surveillance
WE WILL NOT threaten to close the plant if em
ployees unionize
WE WILL NOT solicit employee grievances with a
view toward adjusting them
WE WILL NOT blame the Union for our refusal to
grant improvements in wages and benefits during
the pendency of a representation petition
WE WILL NOT discourage membership in or ac
tivities on behalf of International Woodworkers of
291 NLRB No 70
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
America Local Union No 3 10 AFL-CIO or any
other labor organization by discharging employ
ees revising our layoff and discharge practices or
otherwise discriminating against employees in their
hire or tenure
WE WILL NOT in any other manner interfere
with restrain or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act
WE WILL offer Billie D Alderman Richard
Wallace Russell W Nuxoll Lenard R Lund and
Timothy W Hays immediate and full reinstatement
to their former jobs or if those jobs no longer
exist to substantially equivalent positions without
prejudice to their seniority or any other rights or
privileges previously enjoyed and WE WILL make
them whole for any loss of earnings and other ben
efits resulting from their discharge less any net in
terim earnings plus interest
WE WILL notify each of them that we have re
moved from our files any reference to their dis
charges and that the discharges will not be used
against them in any way
T & H INVESTMENTS INC
Eduardo Escamilla Esq for the General Counsel
Greg R Tichy Esq of Spokane Washington for the Re
spondent
Fred Bair of Coeur d Alene Idaho for the Charging
Party
DECISION
STATEMENT OF THE CASE
WALTER H MALONEY JR Administrative Law Judge
This case came on for hearing before me on an unfair
labor practice complaint i issued by the Regional Direc
tor for Region 19 and later amended which alleges that
Respondent T & H Investments Inc 2 violated Section
i The principal docket entries in this case are as follows
Charge filed here by International Woodworkers of America Local
Union No 3 10 AFL-CIO ( the Union) against the Responden on April
13 1987 complaint issued by the Regional Director for Region 19
against the Respondent on May 21 1987 Respondents answer was filed
on June 2 1987 amended charge filed by the Union against the Respond
ent on August 5 1987 to complaint issued by the Regional Director
against Respondent on August 11 1987 second amended charge filed by
the Union against the Respondent on August 25 1987 second amended
complaint issued by the Regional Director on September 22 1987 hear
ing held in Coeur d Alene Idaho on October 27 and 28 1987 briefs filed
with me by the General Counsel and the Respondent on or before No
vember 30 1987
2 The Respondent admits and I find that it is a corporation organized
in accordance with the laws of the State of Idaho and is engaged in the
milling and selling of timber products It maintains a place of business at
Dover Idaho During the past year Respondent fas sold and shipped ma
tenals from its Dover Idaho place of business directly to points and
places located outside the State of Idaho or has sold and shipped goods
directly to customers within the State of Idaho who are themselves en
gaged in interstate commerce which goods have a total value in excess
of $50 000 Accordingly the Respondent is an employer engaged in inter
state commerce within the meaning of Sec 2 (2) (6) and (7) of the Act
8(a)(1) and (3) of the Act More particularly the amend
ed complaint alleges that the Respondent coercively in
terrogated employees concerning their union sympathies
and activities threatened to close the plant if employees
selected the Union as their bargaining agent solicited
employee complaints during an organizing drive and the
pendency of a representation case threatened to freeze
wages in reprisal for organizing activity changed its
layoff policy for the purpose of discriminating against
union adherents and discriminatorily discharged Billie
D Alderman Richard Wallace Russell W Nuxoll
Lenard R Lund and Timothy W Hays Respondent
denies the commission of independent violations of Sec
tion 8(a)(1) of the Act and asserts that five employees
who were discharged on March 11 1987 were terminat
ed for lack of work On these contentions the issues are
joined and I make the following
FINDINGS OF FACT
I THE UNFAIR LABOR PRACTICES ALLEGED
The Respondent operates what is referred to in the
record as a lumber remanufacturing plant Roughly cut
lumber is transported to its facility in Dover Idaho
from various other lumber mills and is planned and
trimmed to meet the precise specifications of its custom
ers most of whom are the mills from whom the lumber
is initially obtained Respondent is owned by the five
daughters respectively of Buck and Wayne Merritt the
principals of Merritt Brothers Lumber Company of
Priest River Idaho a town located some 20 miles from
the facility involved in this case 3 Respondent started
business in June 1986 as a partnership and later became
incorporated It currently employs approximately 25-30
production and maintenance employees who are not rep
resented by any labor organization
The five discriminatees named in the second amended
complaint are essentially unskilled employees who were
part of a so called stickering crew at the time of their
discharges on March 11 The parties stipulated the fol
lowing facts concerning their respective employment his
tortes
Name Date of Hire
Hiring in
Rate
Rate on
Mar 11
the Day of
Discharge
Billie D Alderman July 9 1986 4 $6 00/hr
Timothy W Hays Dec 15 1986 $6 00/hr 6 50/hr
Lenard R Lund Feb 24 1986 7 00/hr 7 00/hr
Richard Wallace June 2 1986 7 00/hr 7 00/hr
Russell W Nuxoll Oct 23 1986 5 00/hr 6 00/hr
The Union is a labor organization within the meaning of Sec 2(5) of the
Act
3 The T and H in the Company s name refer to Terry and Holly
Merritt who are daughters of the two Merritt brothers
4 The parties made no stipulation concerning the wage rate of Billie
Alderman From other evidence I find that she was hired in at $4 50 an
hour but was paid $6 when she performed certain jobs at the mill In
order to eliminate urnecessary paperwork relating to different rates for
different jobs Alderman was ultimately given a standard rate of $5 50 an
hour applicable to any work that she performed That figure was later
raised to $6 an hour by the time she was discharged
T & H INVESTMENTS 411
Many of the discrimmatees performed from time to
time other jobs around the mill besides working on the
stickenng crew They did cleanup work pulled staples
from incoming wrapped lumber banded lumber pulled
the chain on the precision trimmer saw (the PT saw)
and one actually operated the PT saw from time to time
Stickering work consisted of breaking up incoming loads
whit,h were often frozen together into separate pieces of
lumber and stacking each board after separating it with
cross pieces that would permit green boards to dry out
as a result of being ventilated from all sides Later a
forklift driver would cart away the separated or stick
ered lumber to a drying kiln where the seasoning proc
ess was accelerated
The mill experienced a layoff early in January that
was prompted by the installation of additional machin
ery At this time the Respondent was operating two
shifts and employed nearly 35 production and mainte
nance employees After this layoff the Respondent re
sumed operations with just a day shift and employed
about 18-20 production employees 8 Not all employees
were laid off during this hiatus in production At the
time of the layoff Plant Manager Dave Hopkins an
pounced that the layoff would last from 2 weeks to 1
month and that laid off employees would be recalled
when maintenance was completed Several were recalled
after an absence of just a few days Four of the discri
nunatees who were still on layoff status in mid Febru
ary-Alderman T Hays Nuxoll and Wallace-were re
called and placed on the stickenng crew Discriminatee
Lund and two others were hired at this time and also as
signed to this crew Alderman was told when she was
recalled on February 23 that the stickering job would
last for 1 month to 6 weeks The bulk of the stickenng
work was being performed for two customers Ceda Pine
Veneer Company of Samuels Idaho and Lontree Inc
of Spokane Washington
Not long after the stickering crew had been assembled
its members began to discuss the possibility of forming a
union The Respondent was aware of this fact On one
occasion Plant Manager Dave Hopkins told Hendrick
son that General Manager Jim Warren was aware that
employees were trying to go union and that he was un
happy about it a He stated that if employees unionized
the Respondent would shut down the plant and Spokane
Lumber its next door neighbor would take it over On
another occasion Hopkins told Hendrickson that Warren
would remove all the machinery from the plant if em
ployees unionized On one occasion Hendrickson Hop
Respondent later reinstituted a night shift for its shipping crew
6 While Hendrickson was not a completely reliable witness his testi
mony to the effect that company supervisors were aware of union agita
tion among stickenng crewmembers is not disputed and I credit it Hop
kins made generalized statements that his first knowledge of unionizing
effort was March 11 and that he never threatened plant closure in the
event of unionization but Hopkins never flatly confronted those portions
of Hendrickson s testimony which are credited above
kins and Dave Mandigo7 were standing in the plant
yard near the stickering crew and were discussing the
fact that crewmembers were not working Hendrickson
commented that they were just standing around talking
about some stupid union One of the supervisors re
plied that they had better be doing their jobs or they
would be out On other occasions Hendrickson was
present and observed Hopkins standing behind stacks of
lumber listening unobserved to members of the stickering
crew discuss unionization I credit Hendrickson s testi
mony that Hopkins told him before the March 11 dis
charges that if the Company terminated four or five
members of the stickering crew the voting will be on
the other people s side because the union effort was
concentrated among the stickering crewmembers
I credit the testimony of employee Louis R Tifft that
after a safety meeting for employees held on March 2
Foreman Herb Janhsen asked Tifft if he had signed a
union card Tifft replied that maybe he had and
maybe he had not but it was none of Janhsen s busi
ness Janhsen then asked why no one had offered him a
card Tifft countered by asking Janhsen if he would have
signed a card if one had been offered Janhsen said no so
Tifft said that this was probably the reason nobody of
fered him one
On Monday March 9 Alderman and Lund spoke by
phone with union official Fred Bair and expressed their
interest in organizing the Respondents employees On
the following evening they went to Bair s office in the
nearby town of Sandpoint and obtained authorization
cards On either March 9 or 10 Hopkins spoke with
Nuxoll outside the bathroom at the plant He asked
Nuxoll if Nuxoll knew anything about the union effort
and inquired further about who was supporting it
Nuxoll said he knew about the union drive but was not
at liberty to disclose the names of the employees who
were involved Shortly thereafter Mandigo asked Nuxoll
the same question and again Nuxoll replied that he
would not disclose the identity of the union supporte s
7 The parties are in dispute about whether Dave Mandigo is a supervi
sor within the meaning of the Act Mandigo was night shift foreman until
about January 13 when the night shift was terminated and he was trans
ferred to the day shift While on the night shift Mandigo was the highest
ranking company employee on the premises and could hire and fire em
ployees During that period there is no question about his supervisory
status After his transfer to the day shift Mandigo worked as a planer op
erator and leadman at the same rate of pay he earned as night shift super
visor In his new position Mandigo has reprimanded employees for failing
to perform their duties and has from time to time given directions to
employees concerning the performance of their duties beyond merely
transmitting orders given to him by Hopkins although on this latter
point Mandigo gave ambivalent testimony He admits that at a crew
meeting Hopkins told employees that he was empowered to assign them
work if he saw work around the plant that needed to be done I credit
corroborated testimony that Hopkins said at this meeting that Mandigo
had the same authority as Herb Janhsen an admitted supervisor and that
Mandigo had the power to hire and fire employees In light of these fac
tors I conclude that at all times material Dave Mandigo was a supervi
sor within the meaning of Sec 2(11) of the Act
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On March 11 Alderman told some employees at the
beginning of the 6 a in shift that cards would be avail
able at the lunchshack at the 11 a m lunchbreak One of
the employees she spoke to was Gary Tyler who drove
the carrier lift or straddle buggy Because Tyler s
duties required him to circulate throughout the plant she
asked him if he would tell others about the availability of
cards during the lunchbreak
During the morning Hopkins came over to speak with
Tyler and said to him I didn t know you were a union
man Tyler replied that he had not been a union man in
the past but the way things were going employees had
to do something and getting a union was the only way to
do it Their conversation then grew into a heated ex
change Hopkins warned Tyler that you d better take a
darn good look and see what the heck a union can do
for you He also accused Tyler of being the leader of
the union effort Tyler denied the accusation saying that
he was just getting the word around Hopkins then
said You re doing the dirty work for them They must
be chicken for having you do their dirty work Hopkins
told Tyler that he had no right to talk to employees
except on breaktimes or at lunch Tyler complained that
the Company had no standardized breaktime for all em
ployees so if he followed Hopkins instructions he
would be unable to speak with anyone between then and
lunchtime
He also told Tyler that Idaho was a right to work
State and that we can bring in people around you as
long as we negotiate in good faith I also credit Tyler s
testimony that Hopkins went on to say that the Compa
ny could close the place down if it went union When
Tyler asked him if he was sure of this statement Hop
kins replied that he was not a part of company manage
ment so the prerogative to close the place was not his
At the lunchbreak several employees obtained union
cards from Alderman at the lunchshack and signed them
there This number included four of the five discrimina
tees Discriminatee Wallace signed his card after work in
the parking lot About an hour before quitting time
Hopkins approached the stickering crew and said that he
wanted to see them in his office at the end of the shift
When they arrived he spoke with each of them separate
ly and said approximately the same things to them all
He told them that the stickering work for which they
had been hired was completed so he was terminating the
stickering crew except for Don Hays and Tony Bitton a
nephew of Mandigo 8 Each of them asked Hopkins why
they were being terminated instead of being laid off His
standard reply was that he did not foresee any work
down the road adding that each of them could apply for
work in the next 30 days if things picked up That
evening Alderman turned the signed authorization cards
over to Bair
Within the next 3 weeks the Respondent hired four
new employees-Richard Zech on March 16 Richard
Clark on April 7 Michael Dale on April 7 and Jill Clin
ton on April 7 In addition to these individuals the Re
spondent hired Mark Wheeler on June 8 John Arnold
on June 8 Jess Elvester on June 9 and Mark Johnson on
July 11 Some of the tasks assigned to them was work
that the discharged employees had performed from time
to time Sometime during the first week in April Alder
man and Lund visited the plant and spoke with Foreman
Herb Janhsen They asked Janhsen for their jobs Janh
sen sympathized with them saying that he did not think
it was fair for the Company to discharge them as it had
but he told them that he could not rehire them because
he would be down the road himself if he did He ex
pressed puzzlement about why the Company chose to
terminate employees if they were being eliminated
merely because of lack of work
On March 17 the Respondent sent a 2 1/2 page letter
to all of its employees concerning the organizing drive
This letter was composed by Hopkins with the assist
ance of legal counsel and bore his signature The letter
noted that the Company was new and was experiencing
growing pains However he was pleased to note that the
lumber market had been fairly stable and hope that it
would continue to show strength as the new Company
became firmly established Hopkins admitted that there
might have been some difficulty in communications be
tween employees and management but noted
We want to make it very clear that if you have
questions about the Company its policies or prac
tices or have any problems that are of concern to
you as a T & H employee we want to be made
aware of such so we can work with you to answer
resolve them
As a new Company we have many concerns and
needs which may take precedent over good com
munications It is probably true that some individ
uals feel we have not always acted in their best in
terest I want to assure you that your concerns and
needs are also my concern I can t promise that ev
eryone will always be happy here but I can prom
ise you an answer or response to the questions or
issues you bring to my attention which may have
bearing on your work
It is unfortunate that a few individuals are trying
to take advantage of our current situation of really
focusing on laying a good foundation on which this
Company can grow They hope to create conflict
and adversity in order to achieve some other selfish
objectives regardless of the cost to this Company
and all that we have accomplished together thus
far
8 Hopkins testified that he had sought legal counsel before discharging
these individuals This was the first and only time he had ever consulted
with a lawyer before firing an employee He testified that he had done so
on this occasion because he knew there was union activity at the plant
In fact he had attended a seminar 2 weeks before this event concerning
the dos and don is of employer behavior in the face of an organiz
ing drive He testified that he discharged the five discnminatees rather
than laying them off on the advice of his attorney
The letter went on to inveigh against union outsiders
who want to come in through the back door in a secre
tive and dishonest fashion He denounced them as op
portunists who could not deliver on their promises and
mentioned that there are hundreds of people in our own
area that will certainly tell you that unions do not pro
vide job security He warned employees about signing
T & H INVESTMENTS 413
authorization cards stating emphatically that they
should not sign a card unless [they] are willing to
accept all the consequences and obligations of union
membership He closed by reminding employees that
my door is open if there are problems questions or con
cerns that need to be discussed I would appreciate
your thoughts and ideas on how we can become the best
producer in the industry whenever you are willing to
share them with me On March 20 the Union filed a
representation petition in Case 19-RC-11565 Although
the parties agreed to a stip election on April 8 an
election has not been held because the petition has been
blocked by the pendency of the charges in this case the
first one of which was filed on April 13
At or about this same point in time Mandigo had a
conversation with Donald Hays who had been called
back in February to work on the stickering crew and
had survived the March 11 discharges After the sticker
ing work was finished he was transferred to working
on the chain During the course of a discussion con
cerning a work related problem Mandigo asked D Hays
what he thought about unionization D Hays replied that
in a way unions had benefits and in a way they did not
ultimately coming down on the side of unionization as he
explained his feelings to Mandigo Mandigo then told D
Hays that if the plant went union Buck Merritt would
close it down In a later conversation Mandigo told D
Hays that he had worked in union shops and had seen
unions ruin a lot of good outfits noting again that he felt
sure that the Company would close down the Dover
plant if it went union D Hays only response was well
we 11 just have to see what comes out of it then 9
Sometime in late March Hopkins had a conversation
with Tyler concerning employee dissatisfaction Tyler
told Hopkins that if the Company would pay equal pay
for equal jobs and would install a seniority system the
employees would not be half so eager for a union as they
currently were 10 Hopkins replied that if this was what
was worrying employees they could all talk it over at
the next safety meeting He suggested to Tyler that em
ployees make up a list of topics they wanted to bung up
at the meeting and promised that they would be allowed
to talk about them at that time No formal list of griev
ances was ever prepared but a lively discussion of em
ployee complaints took place at the next safety meeting
which was held on April 2
One of the topics that was raised at the conclusion of
the April 2 meeting was the discharge of Billie Alder
man Employee Dale Roberts asked Hopkins why she
and the others had been fired Hopkins admitted saying
that Alderman was fired because she spread stones and
was a loud mouth and a troublemaker He said that he
could not get along with and could not communicate
with Dick Wallace who was also fired at the same time
adding that Wallace did not do his job Tyler challenged
9In the course of his testimony Mandigo did not deny these state
ments nor was he asked to deny them
10 By equal pay for equal jobs I infer that Tyler meant a standard
rate applicable to everyone who performed the same job As Warren ex
plained at a later crew meeting at that time compensation was highly
subjective and was based on managements personal evaluation of each
employee s performance
this statement He also complained about the fact that
the Company had no seniority system and that it did not
provide equal pay for equal work To this complaint
Hopkins replied that the Company probably would not
install standard job rates or a seniority system because
Warren would be the one who would have to set them
up Hopkins asserted that Warren did not believe in se
niority and preferred to pay people for what they did
He claimed that he had no authority to institute changes
along these lines without approval from Warren Roberts
then threatened angrily that if the Company did not start
to see a few things the employees way they would bring
a union in and go on strike Hopkins replied that if em
ployees brought in a union the Company would shut the
plant down Roberts challenged that statement accusing
Hopkins of resorting to intimidation Hopkins then
backed down a little stating that he was merely express
ing his own opinion because the Company runs this
place I don t The meeting ended with a request by em
ployees for another meeting attended by Warren
Shortly after the representation election agreement
was signed on April 8 Hopkins held a brief meeting with
employees to inform them about the agreement and the
election which was set for May 21 He took this occa
sion to announce that there would be no pay raises or
new incentive plans until after the union vote
Another meeting was held about April 15 or 16 with
Warren in attendance Although Warren holds the title
of general manager of T & H Investments Inc he is on
the payroll of the Merritt Lumber Company and main
tains his office at the Merritt lumber mill some 20 miles
away in Priest River At this meeting Warren encour
aged the employees in attendance to speak up about
what was on their minds and they did so
Roberts asked Warren if-Hopkins was within his rights
in saying that the mill would shut down if it went union
Warren replied that Hopkins was entitled to his opinion
but it would be up to the investors to determine whether
the mill continued to operate He noted that the Compa
ny had been making some fairly heavy investments in the
plant Roberts also asked Warren about incentive pay for
all the employees at the mill similar to the incentive plan
that was already in effect for the shipping crew Warren
said that any such plan could not be put into effect until
after the forthcoming representation election When a
complaint was raised about the failure of the Company
to institute standard job rates ( equal pay for equal
work ) Warren replied that at the company where he
started work no one knew what anyone was getting and
he thought it was a lot of fun to operate in that
manner He insisted that this was how he was going to
run the T & H mill He also told employees that if they
were so unhappy they should quit and get other jobs
Tyler replied that this was not possible so they were
trying to get things straightened out at T & H Warren
reiterated that he could not discuss any changes in wages
or benefits until after the representation election was
over
In August September and October after Hopkins left
the employ of the Respondent the Respondent hired
about 15 new employees most of whom started to work
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at the Respondents standard hiring in rate of $6 an hour
Most of them were assigned to unskilled jobs i 1 Howev
er the Company has not recalled or rehired any of the
five individuals who were fired on March 11 and has
made no effort to contact them
II ANALYSIS AND CONCLUSIONS
A Independent 8(a)(1) Violations
(a) When Hopkins told Hendrickson that General
Manager Warren was aware that employees were trying
to go union and that Warren was unhappy about it he
created the impression that the union activities of em
ployees were the subject of company surveillance Such
a statement violates Section 8(a)(1) of the Act
(b) When Hopkins told Hendrickson that the plant
would close and Spokane Lumber would take it over if
it went union and when he told Hendrickson on another
occasion that Warren would remove all the machinery
from the plant if employees unionized the Respondent
was guilty of threats that violated Section 8(a)(1) of the
Act
(c) When on several occasions Hopkins positioned
himself in the millyard so as to overhear employee con
versations relating to unionization he engaged in surveil
lance of union activities in violation of Section 8(a)(1) of
the Act
(d) When Janhsen asked Tifft if he had signed a union
card and pursued the inquiry to ask why no one had ten
dered him a card the Respondent was guilty of coercive
interrogation that violated Section 8(a)(1) of the Act
(e) When Hopkins confronted Tyler in the millyard on
March 11 with the statement I didn t know you were a
union man he was in effect asking Tyler about his
union sympathies and activities and was engaging in co
ercive interrogation in violation of Section 8(a)(1) of the
Act
(f) While an employer may lawfully insist that employ
ees who are working refrain from engaging in talk or
other activities that are unrelated to work except at
lunch or breaktimes it may not single out union activi
ties for such proscriptions nor may it time the imposition
of such restrictions so that they are designed to interfere
with union activities The Respondent in this case has no
general rules against the distribution of literature or so
licitation for nonwork related causes during worktime
When Hopkins told Tyler on the morning of March 11
that he should not inform employees that cards would be
available for signature at lunchtime or otherwise discus.
union matters with them when he moved around the
plant Hopkins was not attempting to preserve worktime
for work but was attempting to interfere with the union
ization of his employees Admittedly Tyler was free to
discuss with any other employee in the course of his
I1 The new hires (and their dates of hire) were Bill Bitton (August 3
1987) Dennis Stevens (August 5 1987) Jim Brown (August 17 1987)
James Daily (August 17 1987) Frank Engblom (August 24 1987)
Vernon Fairchild (August 19 1987) Gene Groseclose (August 19 1987)
Brian Krebs (August 21 1987 ) Rocky Dempenolf (August 31 1987)
Dan Delcomte (September 14 1987) Lonnie Stutheit (September 22
1987) Fred Williams (September 28 1987) and Paul Kingslee (October
26 1987) Stevens and Brown have since quit
travels any subject other than unionization notwithstand
ing the fact that both he and they might be on the
clock and assigned to the actual performance of compa
ny duties Accordingly by the statements made to Tyler
by Hopkins on this occasion the Respondent interfered
with the exercise of rights secured to its employees by
Section 7 of the Act and thus violated Section 8(a)(1)
(g) When Hopkins told Tyler that in a right to work
State like Idaho the Company could bung in people
around you as long as it bargained in good faith and
when in the course of the same heated conversation he
threatened to close the plant if it became unionized the
Respondent engaged in illegal threats that violated Sec
tion 8(a)(1) of the Act
(h) When Hopkins asked Nuxoll if he knew anything
about the union organizing effort and pursued his inquiry
by asking if Nuxoll knew which employees had signed
union cards the Respondent was engaging in coercive
interrogation that violated Section 8(a)(1) of the Act
(I) When Mandigo asked Nuxoll the same questions
that Hopkins had put to him the Respondent again en
gaged in coercive interrogation that violated Section
8(a)(1) of the Act
(1) When Mandigo asked D Hays what he thought
about unionization the Respondent was engaging in co
ercive interrogation that violated Section 8(a)(1) of the
Act When he followed up his question by stating that
Buck Merritt would close the plant if it went union
the Respondent uttered an illegal threat that violated
Section 8(a)(1) of the Act
(k) Excerpts from Hopkins letter to employees dated
March 17 as well as the fact that the letter was sent im
mediately after the inception of an organizing drive mdi
cate that the Respondent was taking this means of solicit
ing employee grievances with a view toward adjusting
them so that employees would be dissuaded from seek
ing outside help in pressing their claims Hopkins told
employees in this letter that his door was always open
that they should feel free to express their concerns di
rectly to him and that we want to be made aware of
such so we can work with you to answer or resolve
them His purpose in wanting to resolve grievances pri
vately and directly was to defeat those who hope to
create conflict and adversity in order to achieve some
other selfish objectives In the balance of the letter he
left no doubt about who those selfish persons might
be The text of this letter presents a classic solicitation of
grievances for purpose of adjustment It is a violation of
Section 8(a)(1) of the Act As an expression of company
policy and attitude it also brings into proper focus simi
lar efforts undertaken by the Respondent a few weeks
later to avoid unionization by entertaining employee
complaints directly
(1) The portion of the April 2 crew meeting which
was devoted to the voicing of employee complaints was
prompted by Tyler s statement to Hopkins made just a
few days earlier that employees would not be half so
eager to join a union if the Company would install a se
nionty system and do something about establishing
standard job rates At this meeting they were given the
opportunity to sound off and they did so vigorously
T & H INVESTMENTS 415
Roberts asked Hopkins about the firing of Billie Alder
man and others who were discharged on March 11
Tyler repeated his standing grievances about seniority
and equal pay for equal work Although Hopkins said
he could do nothing about Tyler s complaints without
approval from Warren it is clear that the purpose of the
meeting was to solicit grievances with a view toward ad
justment just as it was in Hopkins letter of March 17
This conduct on the part of the Respondent violated
Section 8(a)(1) of the Act even though no grievances
were in fact adjusted at the meeting The promise of a
further meeting with Warren in attendance carried with
it the suggestion of favorable company attention to em
ployee complaints This promise taken together with
promises contained in the March 17 letter is sufficient to
warrant a conclusion that the Respondent was impliedly
promising adjustment and hence was interfering with
protected rights when it provided a forum to employees
to air complaints during the pendency of a representation
election L M Berry & Co 266 NLRB 47 (1983) Fiber
Glass Systems 278 NLRB 1255 (1986) Montgomery Ward
& Co 253 NLRB 196 (1980) Berger Transfer & Storage
Co 253 NLRB 5 (1980) enfd 678 F 2d 679 (7th Cir
1982)
(m) During a brief meeting with employees held in
early April Hopkins informed them that a representation
election would be taking place and that no pay raises or
enlarged incentive pay plans would be put in place until
after the voting At his meeting with employees on April
15 or 16 Warren said in effect the same thing when
asked about improvements in wages and conditions At
no time did the Respondent have any plans to grant any
of these increases or make any improvements in job
tenure or working conditions Hopkins and Warren were
merely taking advantage of the pendency of a represen
tation petition to lay the blame for a denial of requested
improvements on the Union Such conduct violates Sec
tion 8(a)(1) of the Act Otis Hospital 222 NLRB 402
(1976) World Wide Press 242 NLRB 346 (1979) Trover
Clinic 280 NLRB 6 (1986)
(n) The meeting held by Warren with employees on
April 15 or 16 was essentially the same kind of meeting
that Hopkins held earlier in the month It was held for
the same purpose-to solicit employee grievances during
the pendency of a representation petition for the implied
purpose of adjusting them and defeating union organiza
tional attempts As such it violated Section 8(a)(1) of the
Act
B Violations of Section 8(a)(1) and (3)
The Respondent has not been in business for a very
long time and as of March 11 1986 had no written
company policies respecting seniority layoffs dis
charges or recalls In June 1986 it adopted an employee
handbook for the purpose of spelling out its personnel
policies but this handbook is rather sketchy and contains
nothing meaningful on these subjects It merely imposes
an obligation on laid off employees to keep the Company
notified of their current address and phone numbers so
the Company can reach them in the event it wishes to
recall them
Respondents practice on the one occasion when it en
gaged in a substantial reduction in force was to put a
significant number of employees in layoff status and to
promise them recalls when the reason for the layoff-the
installation of machinery-had passed Many employees
laid off at this time were recalled within days of being
laid off This same policy was applied to four of the five
individuals who were permanently discharged on March
11 They were laid off in mid January but were recalled
in late February when additional work became available
On March 11 these four who had once been laid off
and recalled were permanently separated Then as in
the earlier instance the reason prompting the action was
economic in character-assertedly there were no jobs for
them to perform When Hopkins was asked by dis
charged employees on March 11 why they were being
fired instead of laid off he said that he did not have any
work for them to do in the foreseeable future This was
equally true in January at least as to four individuals
here in question as evidenced by the fact that a total of
5 weeks had elapsed between layoff and recall Howev
er despite such a lengthy hiatus in employment they
had not been discharged and when jobs did apse later
on the Company made the effort to contact them and
bring them back It had not placed on them the burden
of making repeated and futile contacts on the off chance
that work might have picked up
In March the Respondent was faced with an organiz
mg drive and it admits that it was aware of this effort
When questioned at the hearing about the difference in
its personnel practices on these two occasions Hopkins
simply replied that in March he felt more comfortable
in terminating employees rather than in simply laying
them off He did not say why he felt more comfortable
He also admitted that he took this action in response to
advice of counsel without ever disclosing what the basis
for that advice might be
From the record two things are clear The Respond
ent like many employers had a practice of laying off
employees in the face of economic necessity and of call
ing them back when the occasion presented itself instead
of discharging experienced employees with satisfactory
work records and then searching about in the job
market for inexperienced help when work picked up
again It is also clear that the Respondent departed from
that practice on March 11 in the case of the five discri
minatees in issue here
The reason for its departure from past practice is in
dispute The Respondent gave repeated and ample evi
dence of its strong animus toward the unionization of its
employees This animus spilled over into the commission
of repeated unfair labor practices that have been found
above Moreover the timing of its change in practice is
more than routinely suspicious This change occurred
within hours of the beginning of a formal organizing
effort and within days of employer awareness that active
employee interest in unionization had arisen The reasons
asserted for this change in practice-that Hopkins felt
more comfortable in discharging employees rather than
laying them off and that he acted on advice of counsel-
amount to no substantive reasons at all In light of all
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
these factors I conclude that by altering its practice of
laying off employees to one of discharging employees in
the face of asserted economic necessity in order to elimi
nate union sympathizers the Respondent violated Section
8(a)(1) and (3) of the Act
The second contention of the General Counsel relating
to the March 11 discharges looks very much like the first
and is really a specification of the first The five discn
minatees in question were all union adherents and the
Respondent was well aware of this fact 12 The stickering
crew was a known hotbed of union sentiment and all
five discharged employees were members of that crew
Within a few days of removing the five discriminatees
from its payroll the Respondent started adding to its
work crew It made no effort to recall any of the five
employees as work picked up and in fact refused appli
cations by Alderman and Lund when they asked Janhsen
for their jobs back in early April In the course of the
April 2 crew meeting Hopkins told employees that he
discharged Alderman because she was a loud mouth
and a troublemaker The label troublemaker has
long been held to be synonymous with union activist 13
Janhsen s response to these applications is further evi
dence of the Respondents discriminatory intent Janhsen
was candid enough to tell Alderman and Lund that if he
rehired either of them his own job would be in jeop
ardy All he could offer them was sympathy
All the discnminatees could and on occasion did per
form various other jobs besides stickenng While one or
two new hires may have possessed certain skills which
the five discnminatees did not have this was not true of
most new employees It was certainly not true of the em
ployees hired in June and of others hired between
August 3 and October 26 Regarding this latter group
Respondent made no effort at all to justify or explain
why on these occasions it had hired a large number of
inexperienced unskilled individuals in preference to of
feting jobs to the experienced people it had laid off in
mid March In light of this ongoing conduct it is clear
that lack of work was merely the setting for the five dis
charges that occurred in mid March Those discharges
were personal to the individuals who were terminated
and were in no way necessitated by objective circum
stances above and beyond the Respondents control 14
These employees were seen as the advance guard of
an effort that the Respondent was determined to defeat
at all cost even if it meant closing the plant Firing five
people was a small token of what it was prepared to do
to keep its plant free from opportunists who hope to
2 The fact that Wallace did not sign his card until after the shift was
over rather than at the 11 a in lunchbreak does not alter this conclusion
Wallace was part of the suckering crew and the union proclivities of this
crew were well known to the Respondent His removal was part of the
housecleaning that the Respondent undertook on March l l in order to
chill the organizing effort in a formal sense until after he was discharged
is of no moment
13 Mademoiselle Shoppe 199 NLRB 983 (1972) Illinois Concrete Pipe
Co 203 NLRB 223 (1973) W & W Tool & Die Mfg Co 225 NLRB
1000 (1976) A & R Transport 237 NLRB 1084 (1978)
14 In making this assessment I place no reliance on Hendrickson s dis
puted testimony that he overheard Hopkins call customers to request that
they discontinue shipments so he could get nd of employees who were
working on certain orders I discredit much of his testimony that recites
these allegations
profit financially and politically from the problems cur
rently facing [the lumber] industry The reasons ad
vaned for its actions were wholly and transparently pre
textual Accordingly I conclude that the Respondent
discharged Billie D Alderman Russell W Nuxoll Rich
and Wallace Lenard R Lund and Timothy W Hays be
cause of their membership in and activities on behalf of
the Charging Party and in so doing violated Section
8(a)(1) and (3) of the Act
On the foregoing findings of fact and on the entire
record here considered as a whole I make the following
CONCLUSIONS OF LAW
1 Respondent T & H Investments Inc is an employer
engaged in commerce within the meaning of Section 2(2)
of the Act
2 International Woodworkers of Amenca Local
Union No 3 10 AFL-CIO is a labor organization within
the meaning of the Act
3 By altering its personnel practice from one of laying
off employees for asserted economic reasons to discharg
ing employees in the face of asserted loss of jobs and by
discharging Billie D Alderman Timothy W Hays
Lenard R Lund Richard Wallace and Russell W
Nuxoll because of their sympathies with and activities
on behalf of International Woodworkers of Amenca
Local Union 3 10 AFL-CIO the Respondent violated
Section 8(a)(3) of the Act
4 By the acts and conduct set forth above in Conclu
sion of Law 3 by coercively interrogating employees
concerning their union sympathies and activities and the
union sympathies and activities of other employees by
engaging in surveillance of the union activities of em
ployees and by creating among employees the impression
that their union activities are the subject of company sur
veillance by threatening to close the plant if employees
unionized by directing employees not to discuss union
matters during work time while leaving them free to
engage in nonwork related conversation and activities
by soliciting employee grievances during an organizing
drive and the pendency of a representation petition with
a view toward adjusting the grievances by laying the
blame on the Union for the Respondents inability to
grant wage and benefit increases during the pendency of
a representation petition that the Respondent had never
planned to grant the Respondent violated Section 8(a)(1)
of the Act
5 The aforesaid unfair labor practices have a close in
timate and substantial effect on the free flow of com
merce within the meaning of Section 2(6) and (7) of the
Act
REMEDY
Having found that the Respondent has committed van
ous unfair labor practices I will recommend that it be
required to cease and desist therefrom and to take other
affirmative actions designed to effectuate the policies of
the Act Since the violations of the Act found in this
case evidence an attitude on the part of this Respondent
to behave in total disregard of the rights of its employees
and the requirements of the Act I will recommend to
T & H INVESTMENTS 417
the Board a so called broad 8(a)(1) remedy designed to
suppress any and all violations of that section of the Act
Hickmott Foods 242 NLRB 1357 (1979) I will recom
mend that the Respondent be required to offer full and
immediate reinstatement to the five discriminatees named
in the second amended complaint to their former or sub
stantially equivalent positions and that they be made
whole for any loss of pay or benefits that they may have
suffered by reason of the discriminations found here in
accordance with the formula set forth in the Woolworth
case 15 with interest thereon computed similar to the
computation of interest due on the underpayment of
taxes as set out in the 1986 amendments to the Internal
Revenue Code 26 U S C § 6621 and in accordance
with Florida Steel Corp 231 NLRB 651 (1977) See New
Horizons for the Retarded 283 NLRB 1173 (1987) The
General Counsel has requested a visitatorial clause per
mitting discovery under the Federal Rules of Civil Pro
cedure in the event that the Board s Order in this case
must be enforced by a contempt proceeding in a court of
appeals I will recommend such an order I will also rec
ommend that the Respondent be required to post the
usual notice advising its employees of their rights and of
the results in this case
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed1e
ORDER
The Respondent T & H Investments Inc Dover
Idaho its officers agents successors and assigns shall
1 Cease and desist from
(a) Coercively interrogating employees concerning
their union activities and sympathies and the union ac
tivities and sympathies of other employees
(b) Engaging in the surveillance of union activities of
its employees
(c) Creating in the minds of employees the impression
that their union activities are the subject of company sur
veillance
(d) Threatening to close the plant if employees become
unionized
(e) Soliciting employee grievances with a view toward
adjusting them
(f) Directing employees to refrain from discussing
unionization during the performance of their job duties
(g) Laying the blame on the Union for the Respond
ent s refusal to grant improvements in wages and benefits
during the pendency of a representation petition
(h) Discouraging membership in and activities on
behalf of International Woodworkers of America Local
Union No 3 10 AFL-CIO or any other labor organiza
tion by discharging employees by revising its layoff and
discharge practices or by otherwise discriminating
against employees in their hire or tenure
(i) By any other means or in any other manner inter
fenng with restraining or coercing employees in the ex
ercise of rights guaranteed to them by Section 7 of the
Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Billie D Alderman Richard Wallace Russell
W Nuxoll Lenard R Lund and Timothy W Hayes im
mediate and full reinstatement to their former jobs or if
these jobs no longer exist to a substantially equivalent
position without prejudice to their seniority or any other
rights or privileges previously enjoyed and make them
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the
manner set forth in the remedy section of the decision
(b) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(c) Post at its Dover Idaho facility copies of the at
tached notice marked Appendix 17 Copies of the
notice on forms provided by the Regional Director for
Region 19 after being signed by the Respondents au
thorized representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply For the purpose of deter
mining or securing compliance with this Order the
Board or any of its duly authorized representatives may
obtain discovery from the Respondent its officers
agents successors or assigns or any other person having
knowledge concerning any compliance matter in the
manner provided by the Federal Rules of Civil Proce
dure Such discovery shall be conducted under the su
pervision of the United States court of appeals enforcing
this Order and may be had on any matter reasonably re
lated to compliance with this Order as enforced by the
court
is F W Woolworth Co 90 NLRB 289 (1950)
16 If no exceptions are filed as provided by Sec 102 46 of the Boards 17 If this Order is enforced by a judgment of a United States court of
Rules and Regulations the findings conclusions and recommended appeals the words in the notice reading Posted by Order of the Nation
Order shall as provided in Sec 102 48 of the Rules be adopted by the al Labor Relations Board shall read Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur the United States Court of Appeals Enforcing an Order of the National
poses Labor Relations Board