Timber Laminators, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1961

130 N.L.R.B. 1301 (N.L.R.B. 1961)

TIMBER LAMINATORS, INC. 1301
complaint as alleges that Respondent Local 1011 violated Section 8 (b)(2) be dis-
missed . Likewise , as no bricklayer ever physically sought to cross a picket line, he
was never prevented by Local 1011 or its pickets from access to the work that the
Company had made available to them . I find and conclude , therefore , that they
were not restrained or coerced by Respondent Local 1011 and I shall recommend
that so much of the complaint as alleges a violation of Section 8(b)(1)(A) be
dismissed.
[Recommendations omitted from publication.]
Timber Laminators , Inc. and James R. Holt . Case No. 36-CA-
1007. 111 arch 14, 1961
DECISION AND ORDER
On October 19, 1960, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8(a) (3) and (1) of the Act
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record as cor-
rected in the case, and hereby adopts the findings of the Trial Exam-
iner insofar as they are consistent with the Decision and Order herein,
but reverses his conclusions and recommendations.
The Trial Examiner found, as alleged in the complaint, that Holt
was an employee whom the Respondent discriminatorily discharged in
violation of Section 8(a) (3) and (1) of the Act. As noted by the
Trial Examiner, except for a brief period of time which followed his
hire in April 1958, Holt acted in the capacity of foreman or leadman
on both day and night shifts. The Trial Examiner, however, found
that at the time he was discharged on March 18, 1960, he was not a
supervisor, basing his finding on the fact that he was then leadman
on the day shift with no more than five employees under him, that he
worked along with experienced men in the framing department, and
there was no evidence that he exercised authority effectively to recom-
mend hiring and discharge. While it is true that Holt directed about
five experienced employees under him on the day shift, this alone does
not dispose of the question whether Holt responsibly directed em-
130 NLRB No. 134.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees under him. As to the nature of the direction, it is undisputed
that it was Holt's duty at the time he was discharged to direct and
train employees in his department, and, if dissatisfied with an em-
ployee, to inform the plant superintendent who would then try to
transfer the employee to another department where he might be more
efficient. Also, Holt admitted that it was his duty to coordinate the
activities of employees in his department, to keep them busy and to see
that "the work was done right . . .," to assign work therein, and to
attempt to arrange production so as to meet shipping requirements.
Finally, there is undisputed testimony that Holt had the authority
to recommend hiring and discharge. Under all the foregoing facts, we
find, contrary to the Trial Examiner, that Holt was a supervisor and
not an employee as alleged in the complaint.
Since the discharge of a supervisor in the' circumstances herein
could not have violated the Act, we shall dismiss the complaint.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was tried before Wallace E. Royster, the duly designated Trial
Examiner, in Ontario , Oregon , on July 26, 1960, upon the complaint of the General
Counsel of the National Labor Relations Board , that Timber Laminators, Inc.,
herein called the Respondent , had discriminatorily discharged James R. Holt and
had interfered with, restrained , and coerced employees in the exercise of rights
guaranteed in Section 7 of the National Labor Relations Act, as amended, 61 Stat.
136, herein . called the Act. It is alleged that the Respondent thereby violated
Section 8 ( a)(3) and (1), respectively, of the Act.
A motion by counsel for the Respondent to correct the transcript in certain par-
ticulars is unopposed and is granted . A brief from Respondent 's counsel has been
received and considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT ; THE LABOR ORGANIZATION INVOLVED
Timber Laminators, Inc., is an Oregon corporation engaged at Ontario , Oregon,
in the manufacture of laminated timber products . During 1959 , the Respondent
sold and shipped products having a value in excess of $200,000 from Ontario to
.points outside Oregon.
United Brotherhood of Carpenters and Joiners of America, Local Union No. 426,
AFL-CIO, herein called the Union , is a labor organization admitting to member-
ship employees of the Respondent . At all times material the Respondent and the
Union were parties to a collective -bargaining agreement.
II. THE UNFAIR LABOR PRACTICES
James R. Holt , the Charging Party , became Respondent's employee in April 1958.
That summer a night shift was added to Respondent's operations and Holt was
appointed as foreman . Until the night shift was discontinued near the close of the
year Holt worked in the capacity of foreman and apparently possessed authority to
hire and discharge for that period . Holt then was brought back to daywork as a
leadman in the framing department . Whatever authority he exercised as a leadman
was over five other workers. Again in the summer of 1959 , a night shift was put on.
Holt again was named as foreman . Sometime in the summer months, coincident
with the signing of a contract with the Union , Holt was informed by the plant
superintendent that he no longer could hire or discharge and that his title thence-
forth would be that of leadman rather than foreman . In December the night shift
TIMBER LAMINATORS, INC. 1303
was discontinued and Holt returned to work on days. For a week in January 1960,
during the absence of Plant Foreman Gibson, Holt acted in his 'stead. With the
return of Gibson, Holt reverted to his status as leadman and continued in that
capacity until his discharge on March 18, 1960.
At the threshold of the controversy giving rise to the complaint it is argued by
the counsel for the Respondent that Holt is a supervisor and, as such, not within
the protective reach of the Act. Holt testified that as leadman on the day shift he
assigned work within the confines of the framing department and tried to arrange
production so as effeciently to meet shipping requirements. Those working during
the early months of the year are in general men with considerable experience and
seniority as employees with the result that they know what to do and when to do it.
Additionally, Holt kept a record for Respondent's use showing the amount of time
spent by each man in the framing department on each job.
Joe Deibele, the plant superintendent, testifying as to Holt's duties and authority
as a leadman, said that the leadman's function is to direct men and to train them;
that the men have to be told what to do and how to do it; and that the work has to
be scheduled in such a manner as to permit economy in shipping. If the leadman
is dissatisfied with an employee, according to Deibele, it is his duty to so inform
the superintendent who will then attempt to transfer the employee to a job where
he could better be utilized. The leadman, still according to Deibele, has authority
to recommend hiring and firing and, within his department, to transfer an employee
from one assignment to another during the course of a day.
Holt's authority as leadman was at no time effective over more than five em-
ployees. Although Deibele testified that leadmen could recommend hiring and
firing, there is no evidence or testimony that such recommendations were effective.
Considering that Holt works along with the men in the framing department, I find
that he is not a supervisor within the meaning of the Act.
Near the close of the day on Friday, March 18, Winston Alftin, the assistant
superintendent, told Holt that there would be no work for him on the following
Monday. A few minutes later, hearing that others were going to work, Holt asked
Alftin if that was so and who the workers would be. Alftin testified that he named
to Holt ' some of those who were going to work. Holt testified that Alftin answered
vaguely "some of the fellows." There is no need to resolve this conflict. In the
context of this case it has no material bearing upon credibility. Hearing this, Holt
remarked, "Well, if that's the way it is, I'm going to start looking." I find that
Holt intended by these words to convey the thought that he would try to find
another job and that Alftin so understood him. Within the space of a very short
time, Holt, he testified, asked Deibele who was going to work on Monday. Receiv-
ing from Deibele the answer "some of the fellows," Holt insisted that he had a right
to know who they were. Deibele turned to Alftin who was standing nearby and
told Alftin to give the names to Holt. Noticing that one Hammond in the framing
department was scheduled for work on Monday, Holt asked Deibele what job was
being given to Hammond. Deibele said that Hammond was going to scarf. The
workday then having ended, Holt left the plant.
That evening, Holt telephoned Deibele at the latter's home. According to Holt,
he asked Deibele if the plant was not being run on a seniority basis any longer.
Deibele answered angrily that Holt's attitude was wrong; that he was fired. Holt in
an apparent attempt to mollify Deibele, explained that he was inquiring only about
-plant seniority. Deibele retorted, as Holt recalled it on the stand, "I restate myself,
you're a leadman, your attitude is wrong, and again you're through, you're fired."
Holt has not since been employed by the Respondent.
Alftin and Deibele, testifying about these conversations, do not wholly agree with
Holt. Alftin testified that when Holt asked him who was to work on Monday, he
gave Holt the names of some of them. Deibele testified that when Holt made
inquiry of him, he merely turned to Alftin and told the latter to show Holt the list.
I find nothing in the variances recited to have importance in resolving credibility.
On the afternoon of March 18, Deibele testified, he noted that Holt had accom-
plished little work that day and commented critically to Holt about it. Near the
close of the day, Holt came to him,, according to Deibele, and in an insolent manner
said, "I want to know who is going to work tomorrow." Deibele told Alftin to
.supply the information to Holt and walked away. Conferring with Alftin a little
later, Deibele testified, he learned that the information demanded by Holt had
already been supplied by Alftin. Irked by Holt's low production that day, irritated
by Holt's insolent demand for information which had already been given to him,
displeased by Halt's expressed' intention to find 'another job, Deibele answered Halt's
telephone call that evening by saying in response to Holt's request that he be per-
mitted to work on Monday, "After your insubordinate attitude today, and what you
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told [Alftin ] . about looking for another job, and the amount of work that you
did today , as far as I'm concerned , you're through." Deibele then broke the
connection.
First to be resolved is the question whether Holt 's inquiry about the identity of
those who were to work on Monday is such an inquiry as finds protection in the
Act. Although Holt became aware that some were to work on that day through
another employee who also was told not to come in, I do not find evidence to
persuade me that Holt in this matter was acting for anyone but himself. His
inquiries were not made in any representative capacity.
The contract then in effect between the Respondent and the Union provided in
section I , article 5:
It being the desire of both parties to promote good relations and keep formal
grievances at a minimum , the employee and/or his Shop Steward and the
immediate supervisor shall try to resolve any misunderstanding before filing a
formal grievance.
Article 13, relating to seniority , reads:
In recognition of faithful service, performed by continued employment with
the Company , employees . with more plant seniority will be given preference
in all matters pertaining to promotions , new jobs, shifts , days off, extra work,
layoffs, curtailments or call back after layoffs or curtailments , provided that
seniority shall not be exerted in such a manner in the judgment of management
as to materially impair the efficiency of the operation.
The contract having been made by Holt 's bargaining agency, and its terms applying
to the unit in which Holt was employed , it follows that Holt was an employee who
had a contractual right to present a grievance . Possessing that right, he was en-
couraged by the contract language to attempt to reach understanding with his em-
ployer concerning a grievance before resorting to a formal procedure . Here Holt
felt that his seniority entitled him to work on Monday and that the selection of
Hammond to work that day was in derogation of his seniority standing. He may
have been mistaken in his appraisal of the situation but I think it clear and I find
that in making the inquiries of Deibele and Alftin and in asking Deibele in the
telephone conversation if the Respondent was no longer following seniority prac-
tices or, as Deibele recalled it , merely requesting that he be permitted to work, he
was doing no more than the contract permitted him to do. Even so, it may be
argued, if any right was violated it was a contract right and remedy must be sought
in a breach of contract action.
The rights of employees statutorily protected are to be found in Section 7 of the
Act. Among the rights listed there is the one to be represented by a bargaining
agent . Holt had such an agent. Whether it was one of his choice is immaterial for
the employees in the bargaining unit in which he worked had by secret ballot
chosen the Union to represent them . In the discharge of its obligation to represent
the employees the Union had entered into a contract with the Respondent in which
the grievance and seniority clauses set forth above appear . May the Respondent
discharge an employee for asserting a right or attempting lawfully to implement a
right spelled out in a contract between it and the Union . I think that the answer
to this question must be "No." To belabor the obvious , a collective -bargaining con-
tract is the fruit of collective and concerted action by the employees comprising the
bargaining unit. They have selected a representative and empowered it to act
for them in matters affecting their relations with their employer. The resulting
agreement usually provides benefits affecting all in the unit and creates obligations
of equal reach . If an employee having gained a contract right in this fashion may
exercise it only at the peril of discharge the Act's protection of the right to bargain
collectively is illusory. In approaching his employer in this matter Holt was not
purporting to speak for any other employee but, in trying to gain information about
his work opportunity he was, mindfully or not, asking his employer to abide by the
terms of an agreement which the employees through their concerted action had
secured. Holt had a grievance , or.thought that . he had, the way to bring the matter
to resolution was outlined in the contract and he followed that path . His em-
ployer in the thrust and parry of collective bargaining had agreed that he might do as
he did . I conclude that he could not lawfully be discharged for seeking to exercise
a right which concerted action of the employees in the unit through their bargaining
agent had gained for him.
Just as a lawful striker may subject himself to discharge by misconduct on the
picket line so may a protected right be asserted in such an insolent and offensive
manner as to provide independent and lawful ground for discharge . Deibele says
TIMBER LAMINATORS, INC. 1305
that Holt was insolent in demanding to learn the names of those scheduled to work
on Monday. A fellow employee, George Strange, testified that he was present on
the occasion described and that he detected no insolence in Holt's manner.
Strange's testimony is susceptible of interpretation that Holt was firm and forceful in
making his request. Significantly, I think, Assistant Superintendent Alftin, who was
standing nearby, made no mention of Holt's manner in his testimony. I find that
Holt was not insolent on this occasion although it is probable that he spoke as if he
had a right to the information that he was seeking and certainly he was persistent
about it.
That Holt's discharge came about because of his persistence in making his inquiries
and not because of insolence or poor work production is established I find by a
letted written to the Union on March 25 by H. W. Phillips, the Respondent's presi-
dent. Phillips wrote:
About a week ago our Mr. J. M. Deibele and Mr. Winston Alftin saw fit to dis-
charge Mr. Holt after he became extremely demanding for information that
was none of his business and after Mr. Holt made the statement "It figures, I
guess I will start looking."
I cannot see any course but to go along with Mr. Deibele and Mr. Alftin since
our top pay employee and lead man indicates by his statements that he intends
to look for employment elsewhere. We cannot have a man with that attitude
towards the company and/or management on our payroll and particularly in
charge of a group of men.
Whether the Respondent could lawfully have discharged Holt because he said he
would look for other work need not be decided. The threat, if it is proper so to
characterize it, arose out of the same transaction as the protected request for informa-
tion and only after the information had either been denied him or only partially
supplied. In any event it is clear from the letter set forth above that an operative
cause for discharge was Holt's persistence in trying to get information which in the
opinion of Phillips "was none of his business."
I find that Holt was exercising a contract right in making his inquiries about the
identity of those scheduled to work on Monday, that this right was one gained by
collective bargaining with the Respondent, that the denial of a right secured by
collective bargaining is a derogation of the status and effectiveness of union repre-
sentation and tends to discourage membership in a labor organization by demon-
strating the worthlessness of a collective-bargaining contract. It follows and I find
that the discharge of Holt for exercising a contract right discouraged membership in
the Union. By the discharge of Holt the Respondent violated Section 8(a)(3) and
(1) of the Act.
On Saturday, March 19, Holt met with Alftin at the home of the latter in an
attempt to save his job. During the course of a somewhat lengthy conversation,
according to Holt, Alftin said that if the Respondent did not reach agreement with
the Union, with which it was then negotiating for a new contract, he thought that
the Respondent could "break" the Union. Holt asked what the scheme might be
and Alftin answered that in the event of a strike the strikers would be told that
if they did not return to work they would be replaced. Alf-tin denied that he made
these remarks. I find it unnecessary to resolve this conflict. In the event .of an
economic strike, Respondent would of course have a right to replace the strikers
and such a development might operate to "break" the Union. I find no violation
of the Act to be presented by Holt's testimony in this particular.
M. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IT, above, occurring in con-
nection with its operations described in section 1, 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.
IV. THE REMEDY
Having found that the Respondent has engaged in an unfair labor practice, it will
be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the tenure of
employment of James Holt, it will be recommended that it offer to Holt immediate
and full reinstatement to his former position, without preilidice to seniority and
other rights and privileges previously enjoyed, and make him whole for any loss
of earnings sustained by reason of the discharge on March 18, 1960, by payment to
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him of a sum of money equal to the amount he would have earned in Respondent's
employ from that date to the date of offer of reinstatement less his nett earnings
during that period. Backpay shall be computed in accordance with ' the Board's
Woolworth formula.'
The circumstances of the discharge are not such as to indicate a fixed determination
on the part of the Respondent to deprive employees of rights secured by the. Act. It
is at least possible that the discharge of Holt was made in the belief that no
statutory right was involved. In these circumstances I consider that a narrow cease-
and-desist order is adequate.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America, Local Union No.
426, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the
Act.
2. By discriminating in regard to the tenure of employment of James Holt, the
Respondent has engaged in an unfair labor practice within the meaning of Section
8(a) (3) of the Act.
3. By the discharge of Holt the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act
and has thereby engaged in an unfair labor practice within the meaning of Section
8(a)(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.
[Recommendations omitted from publication.]
1P. W. Woolworth Company, 90 NLRB 289.
Aluminum Tubular Corporation 1 and American Flagpole Equip-
ment Co., Inc.2 and Suffolk County District Council of United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO.' Case No. 2-CA-6698. March 14, 1961
DECISION AND ORDER
On May 13, 1960, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Leedom,
Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
1 Hereinafter referred to as Aluminum.
s Hereinafter referred to as Flagpole.
s Hereinafter referred to as the Carpenters.
130 NLRB No. 137.