Tomco Studs Co., Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1968

170 N.L.R.B. 428 (N.L.R.B. 1968)

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tomco Studs Co ., Inc. and Local 29, International
Woodworkers of America -, AFL-CIO. Case
18-CA-2406
March 18,1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On December 18, 1967, Trial Examiner Maurice
S. Bush issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take, certain af-
firmative,action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and supporting brief'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers, in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions, and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions,2 and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
The Respondent excepts to the Trial Examiner's
finding that the interrogation of employee Johnson
by supervisor Tomlinson, Jr., violated Section
8(a)(1) of the Act. We find merit in Respondent's
exception.
As more fully set forth in the Trial Examiner's
Decision, the Union filed an election petition on
March 15, 1967. Shortly after that date, the dis-
criminatee herein, Johnson, and another employee,
Curtis, were in the Respondent's office on business.
As they were leaving, Johnson invited Tomlinson,
Jr., to buy them a drink at a local tavern and Tom-
linson "accepted." That Tomlinson was aware that
the Union's petition was pending is evidenced by
the fact that the employees had just seen a copy on
his desk. At the tavern, during the course of general
conversation Tomlinson asked Johnson what he
' The Respondent's request for oral argument is hereby denied as, in our
opinion , the record and brief adequately present the issues and positions of
the parties
' The Respondent has excepted to the credibility findings made by the
Trial Examiner It is the Board's established policy, however, not to over-
knew about the Union. Johnson responded freely,
and Tomlinson then- asked what the Union would
do -for the employees, to- which Johnson answered
that it would seek a raise in pay and a few-fringe
benefits including an insurance program. The sub-
ject was pursued no further by Tomlinson. In view
of the total circumstances of the case, including the
pendency of the recently filed petition, the nature
of. the discussion, the social character and location
of the event, and the fact it was initiated by the em-
ployees, we do not find that the interrogation was
coercive and shall dismiss the complaint insofar as
it alleged that the Respondent thereby violated Sec-
tion 8(a)(1).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National- Labor
Relations Board adopts as its Order the Recom-
mended , Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Tomco Studs Co., Inc., Superior, Wisconsin, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order, as so modified:
1. Delete paragraphs 1(a) and (b) and insert the
following new paragraph 1(a):
Discourage membership in Local 29, Interna-
tional Woodworkers of America,, AFL-CIO, or any
other labor organization, by discriminatorily laying
off any of our employees or by discriminating in
any other manner in respect to their or tenure of
employment, or any other term or condition of em-
ployment.
2. Reletter paragraph 1(c) as 1(b) and make the
following changes therein:
(a) In the first line, delete the words "in any
other manner" and substitute "in any like or re-
lated manner";
(b) Change the period at the end of the para-
graph to a comma and add the following: except to
the extent that such right may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
3. In the "Notice" make the following changes:
(a) Delete the first two indented paragraphs of
the "Notice" and substitute the following:
WE WILL NOT discourage membership in
rule a Trial Examiner's resolutions with respect to credibility unless the
clear preponderance of all the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc , 91 NLRB
544, enfd 188 F 2d 362 (C A 3) We find no such basis for disturbing the
Trial Examiner's credibility findings in this case
170 NLRB No. 48
TOMCO STUDS CO., INC.
Local 29, International Woodworkers of
America, AFL-CIO, or any other labor or-
ganization, by discriminatorily laying off any of
our employees, or by discriminating in any
other manner in respect to their hire or tenure
of employment, or terms or conditions of em-
ployment.
(b) In the second paragraph, first line, delete the
words "in any other manner" and substitute "in any
like or related manner,"'and change the period at
the end of the paragraph to a comma and add "as
modified in the Labor-Management Reporting and
Disclosure Act of 1959."
IT IS HEREBY FURTHER ORDERED that the com-
plaint herein be, and it hereby is, dismissed insofar
as it alleges that-the-Respondent engaged in unfair
labor practices other than those found herein by
the Board.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Trial Examiner: The principal
issues herein are whether Respondent Tomco Studs
Co., Inc., interrogated employee Robert A. Johnson
concerning his union activities in violation of Sec-
tion 8(a)(1) of the National Labor Relations Act,
as amended, and also whether Respondent dis-
criminately selected Johnson for a layoff during a
plant shutdown and thereafter failed and refused to
reinstate him to his former position for a period of
approximately 1 month after the plant had
reopened because of his union activities in violation
of Section 8(a)(3) and (1) of the Act.
Respondent's answer denies any unfair labor
practices as charged by the complaint in connec-
tion with Johnson's interrogation, layoff, and
delayed reinstatement to his former job. The
answer, however, admits the alleged interrogation,
but pleads in defense that it took place in a social
situation and without any accompanying indication
of union animus by Respondent. The answer also
admits Johnson's layoff and delayed reinstatement
after the plant reopened, but pleads in defense that
Respondent- did not need Johnson's services during
the period of the layoff and for a subsequent period
of about a month after it had restarted operations
at the plant.
The complaint herein was issued on June 6,
1967: The .case was heard on July 13, 1967, at Su-
perior, Wisconsin. Counsel for General Counsel has
filed a brief which has been carefully reviewed and
considered. '
Upon the entire record and from his observation
of the witnesses, the Trial Examiner makes the fol-
lowing:
' The complaint which shows a different spelling for Mr. Meierotto's
name was corrected at the hearing by oral amendment to that shown
herein.
FINDINGS OF FACT
429
1. THE BUSINESS OF THE COMPANY
Respondent, Tomco Studs Co., Inc., is a Wiscon-
sin corporation with principal place of business at
Itasca, Wisconsin: It maintains and operates a saw
mill at Superior, Wisconsin, where it processes logs
into 2 by 4's. For the calendar year 1966, Respond-
ent made purchases of more than $50,000 from
outside the State of Wisconsin. In the same year,
Respondent's sales to customers situated outside
the State of Wisconsin exceeded $50,000. By
reason of these facts, Respondent is an employer
engaged in commerce within the meaning of Sec=
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Local 29, International Woodworkers of Amer-
ica, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Tomco sawmill at Superior commenced
operation in the spring of 1964. The Company is
under the control of Kenneth D. Tomlinson, its vice
president, who owns 60 percent of its outstanding
stock. Tomco is 1 of some 10 sawmills and re-
lated operations in a number of States, under Tom-
linson 's ownership or control, including Tomlinson
Lumber & Sales, Inc., of nearby Duluth, Min-
nesota, which among its other operations functions
as the sales representative for Tomco's products.
Tomco's first plant foreman or supervisor was
Hal Andrus. Andrus left Respondent's employment
in November 1965. After a hiatus of several months
in which the, plant does not appear to have had any
formal supervisor, William C. Meierotto' was hired
as plant foreman in the latter part of April 1966, by
Mr. Tomlinson and has served in that capacity at all
times herein material.
Mr. Tomlinson has a son named Kenneth
Thomas Tomlinson, commonly called Tom or Tom-
my, to distinguish -him from his father whose first
name is also Kenneth. For purposes of convenience
the father, will be referred to as Tomlinson, Senior,
or the Senior Tomlinson, and his son as Tom Tom-
linson , Jr., and sometimes as Tom. Tom, 27 years
of age, commenced working in 1962-for his father's
related firm, the aforementioned Tomlinson
Lumber & Sales Company, Inc., of Duluth. On
January 1, 1967, Tom was sent by his father to
work at the Tomco plant where he has been up to
the time of the trial herein in'July 1967, but he has
remained on the payroll of Tomlinson Lumber &
Sales Company, Inc., and draws no compensation
directly from Tomco. Tom was sent to Tomco
because of his father's concern over the fact that
Tomco' was operating at a loss and to see what
could be done to make it a profitable operation. His
430 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
admitted duties at Tomco are to serve as its wood
buyer and to "observe and report production and
productivity of the people at the plant to his
father."
Respondent's original answer to the complaint
admitted that Tom is plant manager of Tomco, but
its amended answer withdraws the admission, and
denies "that Kenneth Tomlinson, Jr., was a person
designated as Plant Manager or had supervisory
capacity concerning the employment or termina-
tion of employment of employees of the Respond-
ent ...." At the hearing, Respondent's counsel in
response to the Examiner's inquiry as to Tom's
status as a statutory supervisor in the light of the
evidence adduced at the trial, stated: ". . . I think
[from] a description of the work he has done we
can't very well deny [that] he [Tomlinson, Junior]
had had supervisory positions over certain elements
of the operation, but as to general management,
such as hiring and firing men, he had no superviso-
ry control over those functions." The undisputed
testimony of employee Robert A. Johnson, the al-
leged discriminatee, shows that Tomlinson, Junior,
gave him instructions as to what to do and similarly
directed others in their work.
Under all the facts of record including those
more particularly delineated below, the Examiner
finds that Tomlinson, Junior, has been a "super-
visor" at all times here pertinent within the mean-
ing of Section 2(11) of the Act.
Johnson, now 23 years of age, was employed by
Tomco in April 1964. Four other employees were
also hired at the same time. At the time of their hir-
ing, the Company had only one employee. Tomco's
full complement of employees during production
periods varies between 10 and 12 men.
Johnson was hired to operate a machine vari-
ously called a clam or crane for the moving of logs
around the plant; this was his main but not exclu-
sive, work during his 3-year tenure with Tomco.
Johnson was extremely versatile in all the types of
work performed at the plant. Next to operating the
clam, his principal work was maintenance or the
repair of machinery and welding. In addition, when
necessary he ran the edger, the planer, graded
lumber, operated the saw, the debarker, the fork-
lift, scaled logs, and even did some office work.
Because he could handle any job in the plant, he
was called upon from time to time to.substitute for
absent workers and to break in new employees. In
1965 and 1966 when the plant was closed for
production for the winter months of January,
February, and March and the employees were laid
off, Johnson was retained because of his mechani-
cal skill for maintenance work and to unload logs
delivered to the plant. His time during the plant
' The record is conflicting as to the rates of pay in effect in November
1966 at the Tomco plant Johnson testified that the highest rate of pay,
prior to Karjala's raise, was $2 an hour Tomlinson, Senior, on the other
hand, testified that about one-half of Tomco's employees were receiving
$2 25 an hour at the time he raised Karjala's hourly rate to $2.25 From the
fact as set forth above that a group of employees headed by Les
shutdowns was about equally divided between these
two jobs. 1
In late 1964 the Carpenters Union, (not the
Union involved herein ), began a campaign to or-
ganize the Tomco plant. Johnson signed a union
card but was not otherwise active in the campaign.
An employee by the name of Richard Lundeen was
the chief activator for the Carpenters Union'. Some
time in December 1964 that union succeeded in
winning an election to represent the` Tomco em-
ployees. Almost immediately thereafter, Tomco
shut down for the winter and laid off all plant em-
ployees except Johnson and one other. When the
plant was reopened for production -3 ' months later;
none of the employees who were laid off, including
Lundeen who, wanted to return, were recalled. Not-
withstanding the fact that the Union had been cer-
tified as the exclusive representative of Tomco's
plant employees, no bargaining took place after the
election between the Union and Respondent. The
Examiner infers and finds that this failure on the
part of the Carpenters Union to initiate bargaining
with Respondent was brought about by the Com-
pany's 3-month shutdown of its plant shortly after
the election and its failure to recall any of the em-
ployees it had laid off when it restarted production
in the spring of 1965. The long shutdown and the
hiring of a new crew of employees when the plant
was reopened had the effect of nullifying the Union
as an effective representative. '
Johnson started his employment at Tomco in
1964 at a wage scale of $1.75 per hour -and
received a raise to $2 an hour about a year later.
In mid-November 1966, Tomlinson, Senior, gave
another Tomco employee, Ervin Karjala, employed
as an edger , a raise from $2 an hour to $2.25. At
the time of this raise no one else in the plant was
receiving more than $2 an hour.' When the news of
Karjala's raise became known to the employees in
the plant, a group of them headed by Johnson and
Les Kirschbaum met with Tomlinson, Senior, and
demanded wage raises , particularly for Johnson
because of his recognized ability, and certain fringe
benefits, including hospitalization insurance. At the
meeting which took place during working hours on
a Friday, it was agreed at Tomlinson's request that
there be a further meeting on the employees' de-
mands Saturday night. But after the meeting broke
up, the employees concluded among themselves
that nothing would come of their demands if they
returned to work and accordingly they quit for the
day. The next morning Kirschbaum called Tomlin-
son to inform him of their decision not to return to
work until they had their further meeting with him.
Tomlinson sought to put the meeting off- for a
week, but finally agreed to meet with the men the
Kirschbaum and Johnson called on Tomlinson, Senior, for similar raises for
themselves and certain fringe benefits when they heard about Karjala's
raise, and also based on demeanor and factors , the Examiner credits John-
son's testimony that the highest hourly pay at the plant prior to Karjala's
raise was $2 an hour
TOMCO STUDS CO., INC. 431
next day, Sunday. At the Sunday meeting, Tomlin-
son reluctantly granted Johnson his 25-cent-per-
hour raise and the men returned to work the next
day.
Floyd Hicks is an organizer for the Union here
involved. In February 1967 Hicks received word
that the employees at Tomco desired to organize.
On February 13, 1967, Hicks met at a tavern with
Johnson and Kirschbaum and another employee by
the name of Ernest Thompson. At the meeting
plans for organizing the Tomco plant were
discussed and Hicks passed out union cards for dis-
tribution at the plant. The three Tomco employees
met again with Hicks on February 27 when they in-
formed him that they had been unable to get suffi-
cient cards signed as yet but would call him when
they did. On March 11, 1967, Johnson, pursuant to
prior arrangement, went to a restaurant to meet
with Hicks and turn over to him the signed union
cards that he and others had secured from the em-
ployees at the Tomco plant. At the restaurant John-
son saw a Tomco employee whom he knew was
hostile to the Union, and out of caution he did not
await the arrival of Hicks in order not to be seen
with him, but instead left the cards with the tavern
keeper for delivery to Hicks. Johnson later called
Hicks by telephone at the restaurant, explained why
he did not wait for him at the restaurant, and asked
him to pick up the union cards from the tavern's
proprietor. These cards included the cards of John-
son and Kirschbaum. Johnson himself had obtained
the signatures of five employees.
Some 5 days later on March 16, 1967, Hicks filed
a petition for an election with the Board on the
basis of the signed union cards turned over to him
by Johnson. Shortly after the filing of the petition,
Johnson and another employee, Myron Curtis, had
occasion to drop in at the plant's office at the end
of the workday to make use of the telephone. While
in the office, Johnson noticed a copy of the election
petition on the desk of Tom Tomlinson, Jr. When
leaving Johnson jokingly invited Tomlinson, Junior,
to buy them a drink at a nearby tavern. At the
tavern during the course of a general conversation,
Tomlinson asked Johnson what he knew about the
Union. Johnson openly told Tomlinson, or Tom as
he is called by the employees, that Hicks had come
to him for assistance in organizing the plant, that he
had agreed, and that he passed out union cards .to
his fellow employees at the plant. Tom also asked
what the Union would have to offer the employees.
Johnson answered that the Union would seek a
raise in pay and a few fringe benefits, including a
program of insurance. The subject was then
dropped.
The plant was closed without prior notice to the
employees on Monday, April 3, for the installation
of conveyors, the painting of equipment, and other
maintenance work, and was reopened for full-scale
production on April 19.3 A rumor circulated among
the employees about the forthcoming shutdown be-
fore it actually took place. A week before the shut-
down Johnson received a confirmation about the
shutdown from Tom. Upon hearing that, he offered
to paint the equipment at the plant during the shut-
down with a sprayer he owned. Tom agreed. At the
end of the week just before the shutdown, Johnson
again asked Tom if he wanted him to bring his
sprayer to the plant and was instructed to bring it in
sometime in the following week. About this time,
Tom's father, Tomlinson, Senior, who had been in
Florida for his usual winter vacation, returned to
Superior and made his appearance at the Tomco
plant. Tomlinson, Senior, had been out of town
when Tom had interrogated Johnson about what he
"knew" about the Union.
When Johnson reported to work the following
Monday, April 3, he found a notice posted on the
employee bulletin board listing the names of five
men scheduled to work that week. The notice states
that "Anyone not on this list is layed off until
further notice." Johnson's name was not on the list.
Five men, including Johnson, were laid off. The
notice bore the initials of Tomlinson, Junior.
On Thursday, April 6, when Johnson called at
the plant to pick up his paycheck, he asked Tom
when he would be recalled. He was told that he
would be called in about a week or two. Thereafter
Johnson spoke to Tom about his recall every week
and always received the answer that he (Tom)
"didn't know." When the plant was reopened for
operation on April 19 and Johnson was still not re-
called, Johnson told Tom that he "considered"
himself fired. Tom agreed, but referred him to his
father.'
Prior to the shutdown of the plant on April 3, the
Union as heretofore noted had filed a petition for
an election on March 16.5 On April 20 the Union
' The finding that full-scale production was restarted at the plant on
April 19 is based on testimony showing that this was the date when Re-
spondent'began to move logs from the millyard to the skidway as this is
the initial operation which starts the manufacturing process of converting
the raw logs into 2 by 4's Without this operation there can be no produc-
tion. The operation was performed by Myron Curtis As will be shown in
more detail below, Curtis was hired to perform this function shortly be-
fore the shutdown of April 3 His testimony shows that when he was re-
hired on April 19, he was put to the same work The record as a whole
further supports the conclusion that with Curtis' return to his job on
April 19, full-scale operation of plant started
' The above finding on the discharge of Johnson is based on the joint
testimony of Tom Tomlinson, Jr, and Johnson When young Tomlinson
was asked on cross-examination , " Who made the decision that he [John-
son] was fired"" Tom replied, "My father did." The fact that Johnson's
discharge had been decided by the elder Tomlinson, although Johnson
never received any direct word about this from the senior Tomlinson, is
also circumstantially deductible from Respondent's failure to recall him
for more than a month after the plant reopened Under these circum-
stances, the denial by the senior Tomlinson in his testimony that he had
not determined on Johnson's discharge during his long layoff is not cred-
ited . The record as a whole compels the inference thatJohnson's recall as
of May 22 was induced by the filing of the Union's unfair labor charges
against Respondent for failure to recall Johnson Young Tomlinson's
testimony shows that the decision to recall Johnson was his father's
' Official notice is taken of the representation proceeding in Case
18-RC-7095 pursuant to motion of counsel for General Counsel
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed charges with the Board that -Johnson had been
discriminately laid off because of his, union activi-
ties. Johnson was recalled on May 22 but voluntari-
ly relinquished , his job with Tomco 2 days later to
take employment elsewhere . In the election held on
June 1 pursuant to the Union 's petition , the Union
lost the election by reason of an even vote of four
to four . At the time of'the election , Johnson was no
longer in Tomco 's employment and one employee
did not vote.
In the last part of March just prior to the April
shutdown , the Company hired the aforementioned
Myron Curtis , commonly known as Mike, to move
logs from the millyard to the skidway in the plant.
This was the same work that Johnson had been
doing since the beginning of his employment with
Tomco in addition to welding and maintenance, as
well as pinch hitting on all other jobs in the plant as
required . Mike used his own truck and a special
loader for the log moving within the plant whereas
Johnson had used the Company's clam or crane as
a loader . Respondent discovered that Mike by the
use of his truck and loader could unload logs in
about a - third of the time required by the clam
because the -latter , unlike the mobile loader on Cur-
tis' truck , was a stationary piece of equipment.
During the last week of work prior to the April 3,
1967, shutdown Johnson , who had been originally
hired to do the work Curtis was now doing, was
given the job of operating the head sawing
machine . When the plant shut down , both Johnson
and Curtis were laid off. When the plant was
reopened for production on April 19 , Curtis was
called back to,again do Johnson 's old job for which
he used his truck and loader as he had before the
-layoff. Curtis ' regular employment for many years
has been with the- McCabe logging Company's In
his regular employment , Curtis hauls logs from un-
disclosed points to the Tomco plant with his own
equipment, with payment on a cord basis. This em-
ployment is interrupted during the spring season
when heavy hauling over the roads is prohibited. It
was during such a road restriction period in the
spring of 1967 that Curtis went to work temporarily
for Tomco.
Curtis went back to his regular employment with
McCabe Logging Company on May 22 when the
spring highway restrictions on heavy loads were
lifted . Tomco recalled Johnson on the same day to
his original principal job of moving logs from the
millyard to the skidway , but he was now given a
truck .and loader similar to Curtis ' to do the job.
The testimony of Plant Manager Meierotto
establishes that he hired three new employees when
production was restarted at the plant on April 19.
Two, of these employees had never worked for
Respondent before and the third had worked for
Tomco some time in the past and had quit. These
' Tom McCabe is president of McCabe Logging Company and is also an
officer and 40 percent owner of Tomco Tomlinson, Senior, has no finan-
cial interest in McCabe Logging Company
men were hired in addition to the recall of all of the
employees who had been laid off and were still
available, except that Johnson was not recalled as
heretofore noted, until May 22, although he was
capable, of doing and handling any type of work
called for at the sawmill.
David Worsley was one of the five employees
who was not laid off during the plant shutdown of
April 3 to 19. Prior to the shutdown, Worsley's job
was "piling lumber." During the shutdown, he was
trained to operate the head saw machine and was
engaged in doing this when the plant reopened on
April 19. This was the work that Johnson had been
doing during the week before the plant shutdown
while his former principal job of moving logs within
the plant to the skidway had been given to Mike
Curtis.
At the hearing both the older and younger Tom-
linson denied that Johnson's known union activities
in seeking to organize the plant had anything to do
with his layoff in 1967, Johnson's first layoff since
he started working for-Tomco in 1964. They also
denied that the Company's failure to recall Johnson
for a month after the plant reopened on April 19
had any connection with Johnson's union activities.
Various reasons were assigned by witnesses in be-
half of Respondent for Johnson's layoff and the fact
that he-was not recalled for a month after the plant
had reopened. Plant Foreman Meierotto gave no
specific reason as to why Johnson .was selected for
layoff, except for his general statement that he kept
on the five employees he considered most reliable.
His testimony shows that Johnson was the most ver-
satile employee in the plant, that he "was a guy that
could do most any kind of work," and that he used
Johnson to break in new employees on whatever
jobs they were hired for at the plant., His only criti-
cism of Johnson was the rather mild one that John-
son was somewhat careless about putting tools
away when he was through with a job. Meierotto
gave no reason for not recalling Johnson until after
a month had elapsed after the plant's reopening,
although his own testimony shows that he hired
three new employees when the plant was reopened.
Meierotto disclaimed any knowledge of union ac-
tivity at the plant until after the plant's shutdown
when he said he heard about it for the first time
from young Tomlinson. Meierotto's testimony
shows a notoriously bad memory for dates, as he
could not remember whether the plant, which ac-
tually shut down on April 3, closed up in, April or
May, although he was testifying in this proceeding
only some 3 months from the actual closing of the
plant in April. Because of this factor and from the
record as a whole it is found that Meierotto had
knowledge of the Union's petition for an election
and Johnson's union activities in organizing the
plant well prior to Johnson's layoff on April 3. It is
further found that Meierotto gave no substantially
credible reason for the layoff of Johnson, his most
knowledgeable and versatile plantwide worker, on
TOMCO STUDS CO., INC. 433
April 3, and no reason at all for his failure to recall
him until more than a month had elapsed after the
plant had reopened on April 19.
Young Tomlinson, who was his father's represent-
ative in the management of the plant, did not in his
testimony offer any directly explicit reason for the
selection of Johnson for layoff in April 1967,
although Johnson had been retained in all previous
layoffs, or why Johnson was kept waiting for a little
over a month after the plant reopened before he
was recalled, particularly in view of the fact that
the Company had hired three new employees when
the factory reopened after the April 3 shutdown.
Young Tomlinson's chief criticism of Johnson,
presumably in explanation for his layoff, was John-
son's alleged attitude of not giving a "damn" about
his work or his employer's interest. Tomlinson's
chief testimony in support of this criticism was his
claim that Johnson had a record of being excessive-
ly tardy in reporting to work in the mornings. But
Tomlinson's father creditably and unequivocably
contradicted his son on this charge by his testimony
in which he stated, "In my opinion he [Johnson]
was more reliable than the average of being there,
he had less days of absence than others did. His
tardiness in the morning, I didn't notice that to any
great issue ...." The fact that Johnson's "tardi-
ness" record really had nothing to do with his layoff
is further established by the fact that another em-
ployee, Richard Feitner (misspelled in Respond-
ent's Exhibit 1 as Fichtner), was not laid off dur-
ing the April plant shutdown, despite the fact that
he had a serious tardiness record. Young Tomlin-
son also criticized Johnson for his "shoddings."
When asked under cross-examination for what he
meant by this term, he replied, "Well I am talking
in general terms," such as, "he [Johnson] would
trip over something before he would pick it up, that
kind of shoddings." When pressed for specific ex-
amples of things Johnson should have done and did
not, Tomlinson could recall only two such in-
cidents. One was that Johnson and another fellow
worker had taken too long to do a certain mechani-
cal repair job, but Tomlinson admitted that the job
was difficult and that Johnson and his helper were
not professional mechanics. The other complaint
was that Johnson on one occasion failed to carry
out one of his work instructions, but Tomlinson's
own testimony suggests that this was because Plant
Foreman Meierotto had instructed Johnson to do
some other work that day.
The senior Tomlinson testified that before leav-
ing town on February 24, 1967, for his annual
Florida vacation, 'he' gave Plant Manager Meierotto
blanket authority to make whatever layoffs were
necessary in connection with the forthcoming shut-
down of the plant without specifically naming any
employees, but suggested to him that he choose for
layoffs the "non-producers." He stated, however,
that',Meierotto was aware of his opinion that John-
son was "not a reliable producer." But Tomlinson's
own testimony, both under direct and cross-ex-
amination, shows on the contrary that he regarded
Johnson as his most valuable employee. His only
criticism of Johnson was that he was somewhat
negligent in taking care of tools and that his at-
titude at times was not satisfactory in that "he
didn't appear to be happy with his job and he didn't
appear to be interested in production." But in his
forthright asset appraisal of Johnson, Tomlinson
also said that, "He had many assets.... He learned
to operate machines better than the average, he
had very good coordination.... He in my opinion
was more reliable than the average ... in getting to
work on time . . . . " Asked on cross-examination
how Johnson fitted into the general operation of
the plant, Tomlinson said, "That was his [John-
son's] main job, he was the only one that operated
the plant. There wasn't any fill-in for him. He was
trained on it and was there and he was the only one
to operate the plant. He was capable of- operating
the head rig, he was capable, of operating the de-
barker. He [Johnson] testified that he was a planer
man, but he isn't ... but of these other jobs in the
sawmill he did very well at." Forgetting his earlier
testimony under direct examination that Johnson
was not a reliable producer, Tomlinson, under
cross-examination admitted that Johnson "was
more reliable than ... [his] average employee." On
February 7, 1966, Tomlinson wrote to the local
Selective Service Board asking for Johnson's defer-
ment on the ground that he "has been trained as
top mechanical man and is very essential to the
operation." He sent a similar letter to the draft
board on August 1, 1966.
Tomlinson denied that the selection of Johnson
for a layoff on April 3, 1967, and the failure of
Respondent to recall him until long after the plant
had reopened was due to his union activities at the
mill. As proof of this, Tomlinson testified that in
mid-November 1966 when his employees walked
out because of his refusal to give Johnson a 25-
cent-per-hour raise, he had suggested to the men
that they organize and appoint a shop steward and
that one of the Tomco employees, the aforemen-
tioned Kirschbaum, was designated by the em-
ployees to look into an insurance program for the
employees as a fringe benefit. Notwithstanding this
seemingly friendly gesture towards the organization
of his employees, Tomlinson's testimony under
cross-examination as set forth below without any
doubts shows that he was and is adamantly opposed
to having Tomco or any of his other 10 or more
operations in various locations unionized:
0. Did you ever make a statement at that
time or any other time in the presence of em-
ployees that you could "buy unions for the
price of an ice cream cone?"
A. I probably have....
To complete that statement I said, "You
have your wife picking your pockets, you have
the government skinning you, you have the
350-999 0 - 71 - 29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
boss skinning you, can you afford another one
[the Union]?" That's what I told them....
Q. What was the occasion for that?
A. Well, this was my version. I am not say-
ing I was against unions and that is definitely
wrong, I was against union application in our
particular plant, in our particular arrangement.
Q. When did you say this?
TRIAL EXAMINER: You are talking about
Tomco now?
THE WITNESS: Yes, not just this one place
but everyplace. Going further, any of the
stockholders we have in any of our firms are
employees.?
Tomlinson, Senior, returned to the Tomco plant
from his Florida vacation on March 28, 1967. This
was approximately 12 days after the Union had
filed its petition of March 16, 1967, for an election
and some 10 days after the younger Tomlinson had
interrogated Johnson about the Union and learned
of Johnson's active role in organizing the sawmill.
The senior Tomlinson's return to Tomco on March
28 preceded the plant's shutdown and layoffs of
April 3, including Johnson's,' by at least a week.
The record as a whole also shows that the senior
Tomlinson was at all times in contact with the
Tomco sawmill from the date of his return to Su-
perior on March 28 through May 22 when Johnson
was finally recalled.
Discussion and Conclusions
As heretofore noted, the two issues in the case
are whether Respondent engaged in unlawful inter-
rogation of employee Robert A. Johnson concern-
ing his union activities' and whether Johnson was
discriminately selected for layoff during a plant
shutdown and discriminately refused reinstatement
for a period of a month after the plant reopened
because of his union activities.
Little need be said about the first issue as
Respondent in its answer to the complaint admits
the interrogation of Johnson by Tomlinson, Junior,
the son of Respondent's vice president. Tomlinson,
Junior, in his testimony also freely admitted the in-
terrogation. Respondent's defense to the charge of
the unlawful interrogation, as stated -in its answer,8
is that the conversation in which the interrogation
occurred was "strictly" during the course of "a so-
cial conversation" at a tavern and "any information
concerning Unions divulged by Robert A. Johnson
was done so in a completely free and voluntary
manner"; and that Tomlinson, Junior, "made no
statements, assertions or inquiries which would in
any way constitute an unfair labor practice as
claimed." The defense is without merit as the
younger Tomlinson was sent "to Respondent's plant
by his father, the major stockholder, ` as his
representative to observe the operation of the plant
and to report back what could be done to change
the losing operation of the sawmill to a profitable
one.9 There can be no doubt under these circum-
stances that the interrogation which brought forth
information of a virtually certain eventual increase
in labor costs through the unionization-of the plant,
was reported by the son to his father, and that the
interrogation constituted an unfair labor practice
designed to make available to the `Employer vital
information for use in interfering with, rest-raining,
or coercing employees in the exercise of the rigis
also immaterial that the information elicited by the
younger Tomlinson from Johnson about the
Union's objectives in the sawmill took place in a so-
cial conversation off the business premises after
working hours, because otherwise the guarantees of
Section 7 could be thwarted by an Employer, con-
trary to the clear intent of the Act, by the simple
expedient of resorting to such interrogations after
working hours at places removed from the work
scene. It is similarly immaterial that young Tomlin-
son made no comments to Johnson on the informa-
tion he secured from him about the Union's objec-
tives and Johnson's participation therein, as the in-
terrogation by itself would have a tendency "to in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7."
Moreover, the record on the second issue herein
supports the inference here found that the informa-
tion received by young Tomlinson from Johnson
about the latter's union activities did in fact have a
direct bearing on Johnson's selection for a pro-
longed layoff.
With respect to the second charge of the com-
plaint that Johnson was discriminately selected for
layoff, Respondent's defense, as stated in its
answer,' is that its sawmill "was shut down for
repairs and did not return to production until April
24, 1967; that when production recommenced,
Robert A. Johnson was not returned immediately
because there was no need for a clam, operator
which is the position he held with Respondent com-
pany and that as soon as there was a need, he was
then returned to work." This in effect is a -plea that
Johnson's selection for layoff during the plant
closedown and his prolonged layoff even,after the
plant was reopened was not discriminatorily
motivated but was motivated solely by business
reasons.
' The above testimony supports the inference, here found, that Tomlin-
son has utilized the device of making his employees at his various plants
stockholders or part owners in order to prevent incentive for the unioniza-
tion of any of his factories
The Trial Examiner is necessarily confined to Respondent's answer and
amended answer to the complaint for the statement of Respondent's theo-
ries of defense, as the Company has not filed a brief, in all probability
because its counsel was not authorized to do so
' The record shows, as heretofore found, that Tomlinson, Junior, in addi-
tion to ,his admitted authority to observe and report the operations of the
sawmill to his father, also had the authority to assign work, and that in fact
he functioned, as admitted in Respondent's original answer before the
retracting amendment, as the sawmill's plant manager Under the record
Tomlinson's status as a statutory "supervisor" under the definition thereof
in Section 2(1 1) of the Act cannot be seriously questioned
TOMCO STUDS CO.,
The evidence does not support this defense, but
on the contrary gives rise to strong inferences that
Johnson was selected for layoff during the plant
shutdown and not recalled for a month after the
plant reopened for full production because of his
active part in organizing the sawmill. There can be
no question of the Company's knowledge of John-
son's union activities, as the younger Tomlinson
learned about this from Johnson, himself prior to
the plant shutdown of April 3, 1967. Johnson, how-
ever, had become suspect long before this in
November 1966 when he caused a spontaneous em-
ployee walkout over the elder Tomlinson's refusal
to.grant Johnson a 25-cent hourly wage increase to
match a recent wage increase given to another em-
ployee. The workers walked out because of their
sympathetic recognition that Johnson was the man
most entitled to a wage increase by reason of his in-
dustry and all-around ability in all phases of the
sawmill's operations.
The action taken by Respondent in selecting
Johnson for a layoff during the April 1967 plant
shutdown can only be explained by Respondent's
knowledge of Johnson's significant,role in organiz-
ing the shop and its desire to rid itself of a union
catalyst whose absence from the sawmill could and
eventually did lead to the Union's loss of the Board-
sponsored election.10 No credible business reason
has been shown for Johnson's selection for layoff.
Because of his recognized ability to handle any
operation at the plant, he was the only one of two
employees -retained in the two preceding annual
layoffs during plant shutdowns. In the 1967 shut-
down, five employees were retained during the
shutdown, but Johnson was left out despite his
acknowledged all-around ability and former deten-
tions from prior layoffs for that reason. Prior to the
shutdown, Johnson had gotten assurances from
young Tomlinson that he would be retained during
the shutdown to paint company equipment with a
sprayer outfit he owned, but when the shutdown
occurred these assurances were not kept and he
was laid off. A week or two prior to the April 1967
shutdown, Respondent hired a new man, the
heretofore mentioned Mike Curtis, to do the work
Johnson had been doing primarily during the
preceding years. This was the job 'of moving logs
from the millyard to the plant's skidway. No ex-
press testimony, was offered at the hearing as to
why this, work was reassigned to Curtis. During the
week preceding the ' plant -shutdown, Johnson was
given the job of operating the main saw in view of
the fact that Curtis had taken over his principal job.
During the, shutdown, one of the five employees,
Worsley, who had not been laid off was trained to
operate the main saw and when the plant reopened
on April 19, he was given this assignment despite
the fact that Johnson was calling the-plant once or
I" This fortuitous result came about by Johnson's own self-termination of
his employment at Tomco's a week or so prior to the election which
INC. 435
twice a week to see when he could get back to
work. When the plant reopened on April 19, the
Company hired three new employees, but still did
not recall the versatile Johnson. Two of Johnson's
special skills were that of mechanic and welder to
which in his 3 years of employment with Respond-
ent he devoted almost as much time as to his clam
operation. The record shows that these skills are
relatively difficult to recruit in the Superior area
where the Tomco plant is located, but Johnson was
nevertheless selected for layoff and was unable to
secure a recall for any type of employment, despite
his high seniority with the Company, until after
more than 30 days had elapsed after the plant's
reopening on April 19, 1967.
There is no merit in Respondent's contention
that Johnson was selected for layoff because he was
not a "reliable producer." The testimony -of the
senior Tomlinson, Tomco's principal stockholder,
belies this charge as he himself testified that John-
son "was more reliable than ... [his] average em-
ployee." The senior Tomlinson had twice written to
the draft board to urge Johnson's deferment on the
ground that Johnson ."has been trained as top
mechanical man and is very-essential to the opera-
tion." Under these facts we must look for a-motive
other than deficiencies in Johnson as a worker for
his selection for layoff and the fact that Respondent
did not recall him for more than a month after it
had reopened operations at the sawmill on April
19, 1967.
The reason lies in the senior Tomlinson's deep-
rooted hostility to the unionization of the Tomco
sawmill, or for that matter, of any of the 10 or so
other operations he controls, in other locations.
Despite testimony showing that Tomlinson
seemingly invited organization among his Tomco
employees at the time the employees walked out of
the shop in protest over Tomlinson's refusal to give
Johnson a 25-cent raise, the record clearly shows
Tomlinson's unalterable-opposition'to any organiza-
tion of the employees in his Tomco operations.` His
own testimony shows that he frequently told the
Tomco employees that he could "buy unions `for
the price of an ice cream cone." He explained this
remark at the hearing as meaning that he "was
against union application in'our particular plant
[Tomco]." He extended this statement to include
opposition, to "union application," not only' to
Tom'co, but to all of his multifarious lumber opera-
tions..
In summary it is found and concluded that
Respondent discriminatorily selected Johnson for
layoff during its plant closedown of April 3 to 19,
1967, and- discriminatorily delayed his recall for
more than a month after the plant reopened-for full
production on April 1'9, 1967, in violation of Sec-
tion 8(a) (3) and (1) of the Act.
resulted in a tie vote of four to four, without Johnson's vote which must be
inferred from the record would have been for the Union
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in sec-
tion III, above, occurring in connection with the
operations of the Employer as 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
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
It having been found that the Respondent has
committed certain unfair labor practices, it will be
recommended that Respondent be ordered to cease
and desist from such conduct, and to take certain
affirmative action designed to dissipate its/effects.
As it has been found above that Respondent dis-
criminatorily selected employee Robert A. Johnson
for a,layoff during its plant shutdown of April 3 to
19, 1967, and discriminatorily continued his layoff
until May 22, 1967, it will be ordered that Respond-
ent make Johnson whole for any loss of pay
sustained by him between April 3 and May 22,
1967, with backpay 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.
Upon the basis of the foregoing findings and
upon the entire record in this case, the Trial Ex-
aminer makes the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the mean-
ing of the Act.
2. Local 29, International Woodworkers of
America, AFL-CIO, is a labor organization within
the meaning of the Act.
3. By interrogating employee Robert A. Johnson
as to what he knew about the Union and what the
employees expected to gain through the Union,
Respondent violated Section 8(a)(1) of the Act.
4. By discriminatorily selecting the said Robert
A. Johnson for a layoff because of his union activi-
ties during Respondent's plant shutdown of April 3
to 19, 1967, and by discriminatorily continuing his
layoff for the same reason after the plant reopened
on April 19, 1967, and until May 22, 1967, the
Respondent violated Section 8(a)(3) and (1) of the
Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7).
" 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 Ap-
RECOMMENDED ORDER
Upon the basis of the conclusions of law and
upon the findings of fact and upon the entire record
in the case, it is recommended that Respondent
Tomco Studs Co., Inc., its officerrs, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees as to what they
know -about the above-named Union or any other
labor organization engaged in organizational efforts
at Respondent's plant and as to the advantages they
expect to gain through such union organizations in
a manner constituting interference, restraint, or
coercion in violation of Section 8(a)(1) of the Act.
(b) Discriminatorily laying off any employees
while retaining other employees on its payroll dur-
ing a temporary plant shutdown and continuing
such discriminatory layoffs beyond the time the
plant has reopened in violation of Section 8(a)(3)
and (1) of the Act.
(c) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid of
protection, or to refrain from any or all such activi-
ties.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Make Robert A. Johnson whole for any loss
of pay sustained by him between April 3 and May
22, 1967, in the manner set forth in the section en-
titled "The Remedy."
(b) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary or useful in comput-
ing the amount of backpay due as herein provided.
(c) Post at its place of business in Superior,
Wisconsin, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms pro-
vided by the Regional Director for Region 18, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 18,
in writing , within 20 days from the date of this
Order, what steps have been taken to comply
herewith.1L
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
TOMCO STUDS CO., INC. 437
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board,
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in
Local 29, International Woodworkers of
America, AFL-CIO, or any other labor or-
ganization, by discriminatorily laying off any of
our employees during a temporary plant shut-
down while other employees are retained on
the payroll of the Company and by discrimina-
torily continuing such a layoff after the plant
has reopened for production, or discriminating
in any other manner in respect to their hire or
tenure of employment, or any term or condi-
tion of employment.
WE WILL NOT unlawfully interrogate em-
ployees concerning union activities at our saw-
mill and the benefits they expect to receive
through membership in a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations, to join or assist Local
29, International Woodworkers of America,
AFL-CIO, or any other labor organization, and
to engage in other concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection , or to refrain from any or
all such activities , except to the extent that
such right may be affected by an agreement
requiring membership in a labor organization
as a condition of employment , as authorized in
Section 8 (a)(3) of the Act.
WE WILL make Robert A. Johnson whole for
any loss of pay suffered between April 3 and
May 22, 1967, as a result of his discriminatory
layoff.
All of our employees are free to become or
remain , or refrain from becoming or remaining,
members of Local 29, International Woodworkers
of America , AFL-CIO, or any other labor organiza-
tion, except to the extent that such right may be af-
fected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
TOMco STUDS CO., INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive 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, 316 Federal Building , 110 South Fourth
Street, Minneapolis, Minnesota 55401, Telephone
334-2611.