The Visador Co.

National Labor Relations Board - Board Decisions

Jan 19, 1967

162 N.L.R.B. 1013 (N.L.R.B. 1967)

THE VISADOR CO. 1013
The Visador Co. and United Brotherhood of Carpenters and Join-
ers of America , AFL-CIO. Case 23-CA-2323. January 19,
1967
DECISION AND ORDER
On September 16, 1966, Trial Examiner Melvin Pollack issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in certain other
unfair labor practices as alleged in the complaint and recommended
dismissal of those allegations. Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has considered the Trial Examiner's Decision, the ex-
ceptions and brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
[The Board dismissed those allegations of the complaint as to
which no violations have been found.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard at Jasper , Texas, on June 22 and 23, 1966 , by Trial Exam-
iner Melvin Pollack, pursuant to a complaint issued by the General Counsel of the
National Labor Relations Board on April 25, 1966, upon a charge filed by the
United Brotherhood of Carpenters and Joiners of America , AFL-CIO , herein called
the Union . The complaint alleges that Respondent assigned James Williams "more
arduous or less agreeable job tasks" and discharged Williams and Joe Louis Brooks,
in violation of Section 8(a)(3) and ( 1) of the National Labor Relations Act, as
amended, herein called the Act, kept employees under constant vigil and surveil-
lance, and subjected them to harassment and unwarranted criticism concerning their
work habits and performance , in violation of Section 8(a)(1) of the Act. After the
close of the hearing, the General Counsel and the Respondent filed briefs which
have been fully considered.
Upon the entire record , including my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Texas corporation , manufactured , sold, and distributed from its
plant at Jasper , Texas, more than $50,000 worth of wood products to points outside
Texas during the 12-month period preceding the issuance of the complaint . During
the same period , goods valued in excess of $50 ,000 were shipped to the Jasper plant
162 NLRB No. 100.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from outside Texas. I find , as Respondent admits, that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Background; the issues
The Union's efforts to organize the production and maintenance employees at the
Jasper plant began in the summer of 1963 and were resisted by Respondent. Pursu-
ant to a formal settlement stipulation executed on May 4, 1964, the Board issued a
Decision and Order on May 15, 1964, which, inter alias required Respondent to rein-
state five employees with backpay. On April 29, 1965, the United States Court of
Appeals for the Fifth Circuit entered a decree enforcing the Board's order. Mean-
while, the Union had resumed its organizing campaign at Respondent's plant. In a
Decision and Order issued on April 8, 1966 (157 NLRB 1552), the Board found
that Respondent resisted the Union's organizing efforts by engaging in a course of
coercive conduct, including the discharge of five employees for their activities in
behalf of the Union. The Board entered an Order which included a requirement that
Respondent reinstate the five employees with backpay.1 Prior to the issuance of the
Board's Order, Respondent rehired and again discharged one of these employees,
James Williams. The present case deals with events that occurred from Williams'
rehiring on February 4, 1966, to his discharge on March 7, 1966. The General
Counsel contends that Respondent harassed Williams after his return to work by dis-
criminatory work assignments, by job surveillance, and by frequent inspections of
his work; and that Respondent discharged Williams and Joe Louis Brooks because
they were union adherents. Respondent denies the commission of any unfair labor
practices.
B. The alleged harassment of Williams before his discharge
1. Discriminatory work assignments
Williams worked for Respondent as a sander, bagger, and inspector of corner arcs
in its Beauti-Mould department from 1961 until his discharge for union activity on
November 4, 1964. Comer arcs are small pieces of wood, approximately 13/4 inches
long by 1/2-inch thick. It was Williams' job to sand and inspect these arcs and,
rejecting culls, to put 102 arcs into a plastic bag.2 Williams was rehired for this
work on February 4, 1966. At this time, Plant Superintendent Delton Parker, who
has seven departments under his overall supervision, was also the acting foreman of
the Beauti-Mould department. Parker, as the night foreman of the department, had
effected Williams' discharge in November 1964.
Respondent moved its shaper department to a new building on the afternoon of
February 6 or 7, 1966.3 In order to move machinery over soft fill dirt, a plank walk
was laid down under the supervision of Engineering Superintendent John Hext.
According to Hext, about 10 or 12 men were used to put down the walk-"his
boys" and men sent by Parker, including Williams and several yardmen then work-
ing in the Beauti-Mould department, a shop mechanic, and a forklift operator.4
Hext marked the walk out and helped put a few planks down "until everyone knew
about what to do." He then "nailed and carried boards and [did] just anything that
needed to be done." Hext's own boss, E. G. Davis, head of engineering, also helped
nail a few boards.
Williams testified that Parker came over while he was counting corner arcs and
told him to report to Hext in the Yard. Hext directed Williams to carry and place
planks. Williams worked for about 11/2 hours along with four yardmen carrying
heavy planks and putting them down "over an area of mud." Williams returned to
i As Respondent has not complied with the order, the matter has been referred to the
Board's Litigation Division to seek enforcement of the Board's Order by the Fifth Circuit.
3 Each bag nominally contains 100 arcs Extra arcs are put into the bags as replace-
ments for culls which may have passed inspection.
3 All dates hereafter are in 1966 unless otherwise specified
* Parker testified that he assigned men to help with the moving whose "jobs would be
less important to the orders that we would be shipping."
THE VISADOR CO. 1015
the Beauti-Mould department and resumed his regular work. After he had "counted
some corner arcs," Parker sent him to the new building to "move that old machin-
ery in and clean it up and sweep it out." 5 Williams said that this job, which took
"an hour or two," was not any harder than his regular work but that he got "dirty."
Kenneth Primrose, a grinder, testified that he worked in the new building on the
day the shaper department was moved along with Williams, mechanic Nelson Marsh,
Superintendent Parker, and Mr. Davis of the engineering departments He said he
and Williams helped Davis mark lines which Marsh painted and then got shop rags
"and went back where they were painting the line and wiped the corners dry to
make it square." Williams and Primrose worked' overtime on this work and received
overtime pay.
About a week later, Parker sent Williams out of the building to "clean up around
the conveyor belt." Williams said he got "dirty" doing this cleanup work but that
it was not harder than his regular work.
Although Beauti-Mould employees are rarely assigned work outside the depart-
ment,7 the record does not warrant a finding that Parker assigned disagreeable work
to Williams because he was a union adherent. Williams was but one of several
employees assigned from various departments to help move the shaper department
into a new building. His initial assignment by Hext of carrying and placing heavy
planks on soft and damp fill earth was harder and much dirtier work than his regu-
lar work, but he was detailed that same afternoon to light tasks in the new building
and received overtime pay in connection with this assignment. The other assignment
alleged as job harassment-cleaning a conveyor belt outside the Beauti-Mould
department-was somewhat dirtier but, according to Williams, no harder than his
regular work. I find that a preponderance of the evidence does not support the
allegation in the complaint that Respondent assigned Williams "more arduous or
less agreeable tasks" because he was a union adherent.
2. Surveillance and inspection
Williams testified that Superintendent Parker watched him "several times a day"
from "behind a stack of lumber" and when Williams "looked up," Parker "some-
times would walk off and sometimes he would stand there and look at me." Wil-
liams further testified that Parker watched him more than other employees and
checked his work more frequently-"a couple of times" both in the morning and in
the afternoon-than he did Whitten's work.
Joe Louis Brooks, who worked near Williams, testified that he saw Parker "a lot
of times . . . behind them lumber stacks and he would be standing there watching
Red. And lots of times it looked like he was watching me."
Whitten testified that Parker checked his work "around three or four times" a
day.
Parker testified that he observed and checked the work of Williams and other
employees in the Beauti-Mould department during February and March because
Respondent had received "many complaints back from customers on the poor qual-
ity of our arcs," and that he made seven or eight "spot checks" every day of Wil-
liams' and Whitten's job of "final inspection."
It is uncontroverted that Respondent was having difficulties with its production of
corner arcs and that several shipments had been returned by customers before Wil-
liams was reinstated. As superintendent and as acting foreman of the Beauti-Mould
department, Parker was directly responsible for its work. His testimony that he was
particularly concerned with the "final inspection" performed by Williams and Whit-
ten and checked their work seven or eight times daily accords with Williams' testi-
mony that Parker checked his work twice in the morning and twice in the afternoon
and Whitten's testimony that Parker checked his work three or four times daily.
6I do not accept Williams' testimony that Respondent's other corner arc bagger, Fred
Whitten, "replaced" him while he was working on the boardwalk and in the new building.
Williams gave no details of such "replacement," Parker testified that Williams and Whit-
ten were bagging arcs of different sizes , and Whitten denied ever taking over Williams'
work.
6 Primrose did not work on the boardwalk
7 Williams testified that he had no outside assignments during his prior employment with
Respondent, and Joe Louis Brooks and Albert Jones similarly testified that they had no
outside assignments while employed in the Beauti-Mould department Fred Whitten and
Charles Adams, who took over Williams' job after his discharge on March 7, testified to
one outside assignment each.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williams' testimony that Parker frequently watched him working is supported by
Brooks. However, Brooks' testimony that "lots of times it looked like [Parker] was
watching me," indicates that Parker was not solely concerned with watching Wil-
liams while standing "behind a stack of lumber" but was in a position to watch and
did watch the work of other employees in the department.8 I find that a preponder-
ance of the evidence does not support the General Counsel's contention that Parker
harassed Williams by surveillance and frequent inspection of his work.
C. The discharge of Brooks
Brooks worked for Respondent from June 18, 1962, to his discharge on March 4,
1966. At the time of his discharge, Brooks was a block-saw operator in the Beauti-
Mould department and was paid the top rate of $1.80 an hour for this work. Brooks'
job was to cut lengths of beech and oak into small blocks for processing by two
bandsaw operators. Brooks estimated that it took him about 1 hour 15 minutes to
fill a box with blocks and that it took the two band operators "about 3 hours to run
through a box." When Brooks got "caught up" on cutting blocks, he helped out with
other work in the department. Brooks worked most frequently with Williams and
would go over to Williams' table "sometimes twice a day" and work "side by side"
with Williams, sanding arcs while Williams "would be counting." When Williams
got caught up on his work, he helped Brooks out by keeping his table loaded with
material to be cut into blocks.
While working together, Williams told Brooks that he and "some more fellows
was going to circulate some more union cards and try to get another election." 9
Brooks said he had voted against the Union but that he was now for the Union and
was "going all the way." The two men thereafter talked "quite often" about organiz-
ing Respondent. Although they were careful not to talk about the Union in Super-
intendent Parker's presence, they sometimes were engaged in such conversations
when they became aware that Parker was standing behind stacks of lumber about 15
feet away. Parker gave no indication that he had heard these conversations.
On Friday morning, March 4, Brooks left his work station and walked through
the miter saw department to get a sharp saw. On his way back, he stopped to talk
to miter-saw operators Carl Adams and Bill Stephenson. About 1 p.m., Foreman
Sowell of the miter-saw department reported to Parker that Brooks had been in his
department "talking to his boys about 10 to 15 minutes." 10
About 1:30 p.m., Brooks and Raymond Bowie were cutting blocks. Bowie, who
was not a regular Beauti-Mould employee, asked Brooks some questions about the
block-cutting operation. As Brooks was giving Bowie this information, Parker came
up and told them "to cut out the talking" and go back to work. Parker said noth-
ing to Brooks at this time about Sowell's report that Brooks had talked to the miter-
saw operators that morning for 10 to 15 minutes.
About 2:45 p.m., after he had chopped blocks for a rush order, Brooks walked
over to a concession stand about 100 yards away from the Beauti-Mould department
and purchased two Alka-Seltzers. Parker came up to the stand and asked Brooks,
"What are you doing here?" Brooks replied that he was getting Alka-Seltzer for
"indigestion." Parker asked Brooks if he had asked anyone for permission "to come
down here" and Brooks said he had not. Parker then questioned Brooks about his
conversation with Stephenson that morning. Brooks said he was in the miter-saw
department "to get me a sharp saw," that Stephenson stopped him and offered to sell
his car, that he asked how much Stephenson wanted for the car, and said no and
walked back to work when Stephenson said a hundred dollars. Whereupon, Parker
said, "o.k., then I am going to let you go." Parker took Brooks into his office and
discharged him.
Respondent has a history of discharging union adherents and I find below that it
discriminatorily discharged Williams a second time on March 7. At the time of his
discharge, Brooks had worked almost 4 years for Respondent and had a satisfactory
work record. Respondent's discharge of Brooks for minor infractions of its working
8 Albert Jones worked between Brooks and Williams.
U The Union failed to win an election and a rerun election conducted by the Board in
September 1963. The Vssedor Co., 157 NLRB 1552. The Union also lost a Board election
conducted in July 1965
"Foreman Sowell testified that he was helping with the loading of a truck and made
five trips from one end of the building to the other-about 125 steps-during Brooks'
conversation with Bill Stephenson. John Stephenson testified that he filed four saws during
this conversation between Brooks and his brother.
THE VISADOR CO. 1017
rules is therefore quite suspect.ll Nevertheless, the recoid does not warrant a finding
that Superintendent Parker considered Brooks a union adherent. Brooks and Wil-
liams credibly testified that they sometimes continued to talk about the Union before
noticing that Parker was standing behind stacks of lumber some 15 to 20 feet away.
However, even though the two men worked side by side, according to Williams they
could not talk in a normal tone of voice but "had to talk above the noise of . .. the
saws." Moreover, Williams and Brooks believed that Williams was under surveil-
lance by Parker and were anxious not to let Parker know they were talking Union.
In these circumstances, no inference is warranted that Brooks and Williams talked
about the Union loud enough to be heard over the noise of machinery by Parker
standing 15 feet away.12
I conclude that the General Counsel has failed to prove by a preponderance of
the evidence that Parker considered Brooks a union adherent and discharged him
for this reason.
D. The discharge of Williams
About 12:30 p.m. on Monday, March 7, Superintendent Parker checked a bag
of comer arcs on Williams' table and found 115 arcs in the bag. He had Williams
and then another employee, Jones, count the arcs. They both counted 115 arcs.
Parker discharged Williams saying that there were too many culls in the bag and
that the Company could not make a profit sending so many arcs to a customer.
Parker testified that he found 4 or 5 culls among the 115 arcs, that he had
repeatedly reprimanded Williams for letting culls get by, and had threatened to dis-
charge him for this reason that morning. He further testified that there were sev-
eral bags of arcs on Williams' table when he counted the bag of 115 arcs. Williams
testified that there was a single bag of 102 arcs on his table when he left for lunch,
that the bag checked by Parker was the only bag on the table, and that he found 15
culls when he counted the arcs at Parker's order. He further testified that Parker
had not previously reprimanded him for the quality of his work.
I assume for purposes of the following analysis that Parker was justified in believ-
ing that Williams filled the bag with 115 rather than 102 arcs and that at least 4 or
5 of these arcs were culls.13
During the period of Williams' reemployment by Respondent, Parker closely
observed and checked the work of the Beauti-Mould department because several
shipments of defective arcs had been returned by customers prior to Williams' return
to work. Parker gave the work of Williams and Whitten special attention because
they performed "final inspection" before shipment. Williams' work was checked by
Parker 4 times daily or about 100 times before his discharge, but he did not receive
a single written reprimand for poor work.14 Although Respondent's difficulties with
the quality of corner arcs started a few months before Williams' return to work,
"Respondent 's rules and regulations provide that an employee shall be given an oral
warning and two written reprimands for his first three "minor " offenses and discharged for
a fourth such offense. "Neglect of job" such as "visiting or loafing during work time" is
classified as a "minor" offense I find no misconduct in Brooks ' going to the concession
stand for Alka - Seltzer without first obtaining permission . Brooks ' testimony that permis-
sion was not necessary for such a purchase was corroborated by employees Herbert Van
Spikes and Albert Jones As Parker did not know that Brooks stopped work to explain
the block -saw operation to Bowie, it cannot be said that he was unjustified in reprimand-
ing them for stopping work to talk Brooks clearly breached a working rule in the morning
by talking for some time to the miter -saw operators before returning to work.
is The record does not indicate that the employees who worked near Williams and Brooks
knew they " talked Union "
13 Williams and the Union 's organizer , A. C Shirley , credibly testified that they were
driving to see Brooks about his discharge on Sunday afternoon , March 6, that they stopped
at an intersection and saw Billy Don Foster , Respondent ' s head of manufacturing, in his
car on the opposite side of the intersection , and that Poster turned to look at them as
the cars passed each other . Citing this incident, Respondent asserts in its brief that Wil-
liams' overfilling of a bag the next day was an act of "sabotage " which if continued could
have had "serious economic effects" on Respondent . Implicit in Williams' testimony that
he left a single bag of 102 arcs on his table before lunch is the suggestion that he was
"framed. " Parker ' s finding of one overfilled bag warrants no inference of "sabotage" and
Williams ' belief that he had not overfilled a bag similarly warrants no inference that he
was "framed "
"As previously noted, Respondent ' s working rules call for an oral warning and two
written reprimands before discharge for a fourth "minor" offense.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these difficulties did not result in the discharge of any other employee. In these cir-
cumstances, I find that Williams performed work of satisfactory quality and that
Parker would not have summarily discharged him for the overpacking of a single
bag of arcs but for his record as a union adherent. I therefore conclude that Re-
spondent discharged Williams because he was a union adherent, thereby violating
Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described 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 Respondent has committed an unfair labor practice, I will rec-
commend that it be ordered to cease and desist from such conduct and to take cer-
tain affirmative action designed to dissipate its effect. Having discriminatorily dis-
charged James Williams, Respondent will be ordered to reinstate Williams to his
former or substantially equivalent position of employment, without prejudice to his
seniority and other rights and privileges, and make him whole for any loss of earn-
ings suffered as a result of Respondent's unlawful action. Backpay shall be computed
in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest
added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By discharging James Williams because he is an adherent of the Union.
Respondent violated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the findings of fact and conclusions of law, and upon the entire
record in the case, it is recommended that The Visador Co., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, by discriminatorily discharging or in any other manner dis-
criminating against any employee in regard to his hire or tenure of employment.
(b) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action, which is designed to effectuate the poli-
cies of the Act:
(a) Offer to James Williams immediate, full, and unconditional reinstatement to
his former or substantially equivalent position, without prejudice to his seniority or
other rights, privileges, or working conditions, and make him whole for any loss of
earnings he may have suffered, in the manner set forth in the section hereof entitled
"The Remedy."
(b) Notify James Williams if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application after discharge
from the Armed Forces in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful in
computing the amount of backpay due, as herein provided.
THE VISADOR CO. 1019
(d) Post at its plant in Jasper, Texas, the attached notice marked "Appendix." 15
Copies of the notice , to be furnished to the Regional Director of Region 23 of the
Board, Houston , Texas, after being duly signed by Respondent 's authorized repre-
sentative , shall be posted immediately 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 its employees are customarily posted . Reasonable steps shall
be taken to insure that said notices are not altered , defaced , or covered by any other
material.
(e) Notify the aforesaid Regional Director , in writing , within 20 days from the
date of receipt of this Decision , what steps it has taken to comply herewith.16
IT IS RECOMMENDED that the complaint be dismissed insofar as it alleges viola-
tions of the Act other than found in this Decision.
is In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be susbtituted for the words "a Decision
and Order"
1e In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read • "Notify the aforesaid Regional Director, in writing , within
10 days from the date of this Order , what steps it has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in the United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, or any other union , by discharging
or refusing to reinstate any of our employees , or otherwise discriminating in
regard to their hire or tenure of employment.
WE WILL NOT in any manner interfere with , restrain , or coerce employees
in the exercise of their right to self-organization ; to form, join, or assist any
union ; to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any and all such
activities.
WE WILL offer to James Williams immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
and other rights and privileges . If he should currently be serving in the Armed
Forces of the United States, WE WILL notify him of his right to full reinstate-
ment upon application after discharge from the Armed Forces in accordance
with the Selective Service Act and the Universal Military Training and Service
Act, as amended.
WE WILL make whole the above-named James Williams for any loss of pay
he may have suffered because of the discrimination against him.
All our employees are free to become and remain , or to refrain from becoming
or remaining , members of the above-named or any other union.
THE VISADOR CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue , Houston , Texas 77002 , Telephone
CA 8-0611, Extension 4721.