Universal Veneer Mill Corp.

National Labor Relations Board - Board Decisions

May 6, 1982

261 N.L.R.B. 712 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universal Veneer Mill Corp. and Ohio State Council
of Carpenters, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO. Case
8-CA-14180
May 6, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On December 14, 1981, Administrative Law
Judge Thomas D. Johnston issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Universal
Veneer Mill Corp., Newark, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We also correct the following inadvertent error in the Administrative
Law Judge's Decision: at sec. III,A, par. 5. Bryson earned $4.15 per
hour, not S4.50, on the third shift.
2 In adopting the Administrative Law Judge's finding that Bryson was
not a supervisor under Sec. 2(11) of the Act, we do not rely on his find-
ing that employees who regularly worked on the third shift did not
refute Bryson's testimony that Bryson did not direct them in their taking
breaks, since such employees never testified at the hearing.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge:
This case was heard before me in Newark, Ohio, on July
13, 1981, pursuant to a charge filed on September 8,
1980,' by the Ohio State Council of Carpenters, United
All dates referred to are in 1980, unless otherwise stated.
261 NLRB No. 110
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (herein called the Union), and a complaint
issued on October 16.
The complaint alleges that Universal Veneer Mill
Corp. (herein called Respondent) violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended
(herein called the Act), by discharging and/or terminat-
ing Wayne Bryson, 2 and thereafer refused to reinstate
him because he had, or Respondent believed he had, en-
gaged in union activity and/or protected concerted ac-
tivity;3 and violated Section 8(a)(1) of the Act by, in a
conversation with Bryson, unlawfully conditioning his
reemployment upon his refraining from further activity
on behalf of the Union.
Respondent, in its answer served on October 22,
denies having violated the Act and asserts as additional
defenses that neither Bryson's job nor any activities in
which he engaged in were protected under the Act and
that his employment "would not have been terminated
other than under the circumstances it was terminated
even in the presence of any claimed protected conduct."
The issues involved are whether Bryson is a supervisor
under the Act, and, if not, whether Respondent violated
Section 8(a)(l) and (3) of the Act by discriminatorily dis-
charging and refusing to reinstate Bryson because of his
union activity and made an unlawful statement to him
concerning his reemployment.
Upon the entire record4 and from my observation of
the witnesses and after due consideration of the briefs
filed by the General Counsel and Respondent, I hereby
make the following: 5
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation with its principal
place of business located at Newark, Ohio, is engaged in
the business of the manufacture of veneer. During the
course of its operations, Respodent annually ships goods
valued in excess of $50,000 from its Newark, Ohio, facili-
ty directly to points located outside the State of Ohio.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Ohio State Council of Carpenters, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, is a
labor orgnization within the meaning of Section 2(5) of
the Act.
2 Bryson's correct name is Wayne Bryson, Jr.
3 The General Counsel defined "protected concerted activity" as used
here to mean union activity.
4 The General Counsel filed a motion, without asserting any basis in
support of it, to amend the transcript. This motion, except to the extent it
seeks to correct the spelling of the General Counsel's last name and to
change "collaborative" to "corroborative," was opposed by Respondent
on the grounds such changes would not accurately reflect the testimony
given by the discriminatee Wayne Bryson. Having duly considered the
matter, the General Counsel's motion is hereby denied except to the
extent of the two unopposed changes which are hereby granted.
5 Unless otherwise indicated, the findings are based on the pleading,
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
712
UNIVERSAL VENEER MILL CORP.
III. THE UNFAIR LABOR PRACTICES
A. Background and the Supervisory Status of Bryson
Respondent operates a plant located at Newark, Ohio,
where it is engaged in the manufacture of veneer. Includ-
ed among its official and supervisory personnel were
President Hans Landert, Vice President of Personnel
Administration Heinz Birtler, 6 First Shift Supervisor
Arthur Hurni, and Second Shift Supervisor Daniel Grif-
fith, Jr.7
Respondent operated three shifts in August, employing
approximately 118 employees who were not represented
by any labor organization. Each shift had a shift supervi-
sor and under them on both the first and second shifts
were department supervisors. The third shift did not
have any department supervisors.
Wayne Bryson, Jr., the discriminatee, was employed
by Respondent from about May 15 until his termination
on August 19. He worked as a log handler on the second
shift until about July when he was transferred by Vice
President Birtler to the third shift. According to Bryson,
at the time of his transfer Birtler asked him whether he
wanted to take over the third shift and informed him he
was to see that the machines and boiler operated all
right.
Birtler, who described Bryson's transfer as a promo-
tion, stated he informed Bryson that his primary duty
was to insure that all the veneer left over from the other
two shifts was dried and to insure the proper operation
of the boiler. He also said he instructed Byrson to take
charge of the overall operation of the plant during that
shift. He was responsible for and had the authority for
managing the personnel to see that they complied with
company rules and completed their assigned work.
Bryson, who earned $4.50 an hour upon being trans-
ferred to the third shift, received shift differential pay
like the other employees but no wage increases or addi-
tional benefits.
Respondent's supervisors, except for certain supervi-
sors from Switzerland who were salaried, were hourly
paid. Respondent's payroll records, as observed by
Bryson, reflected three of the supervisors earned from $5
to $7 per hour. They, as well as Bryson, punched time-
clocks as did all the employees.
The third shift hours was from 11:30 p.m. to 6:30 a.m.
Unlike the other two shifts, only four employees besides
Bryson worked on that shift, which was not a full pro-
duction shift. The production work performed on the
third shift consisted of completing the drying on the
veneer left over from the other two shifts. Only one of
the three dryers was operated at a time.
Bryson stated that the duties8 of the four employees
working on his shift were to position the veneer to go
through the dryers and afterwards stack it on carts. Two
employees worked in front of the dryers while the other
two employees worked behind them. They were trained
on other shifts and would begin with the fullest dryer
and then move automatically to the next dryer. If the
Birtnler, a supervisor under the Act, was involuntarily terminated
about February 6, 1981.
7 Griffith is presently maintenance supervisor.
s Birtnler, in part, corroborated Bryson's testimony about their duties.
dryers jammed up, they would unjam them if Bryson
was not there at the time. Whenever their work on the
dryers was completed they would, without being told,
sweep the floors.
Bryson stated that his own duties were to make sure
the dryers were operating properly; to change blown
fuses on them, to clear them out if they jammed up, and
to keep a constant check on the boiler and make sure it
was operating. He estimated that he spent approximately
90 percent of his time tending to the boiler, which was
located in the basement approximately 800 to 900 feet
from where the dryers were located on the top floor.
This was necessary because the boiler, which heats the
dryers and vats where logs are originally soaked so the
bark can be removed, was constantly jamming up where
the wood chips enter the boiler.
Additionally, he was responsible for answering the
telephone, filling out reports on the amounts of veneer
dried on the shift, and checking, as did other employees,
the moisture content of the veneer with a gauge after it
came out of the dryers. He did not attend supervisory
meetings held by Respondent.
Insofar as the other employees were concerned, he
was responsible for making sure they were there and that
the work to be performed was done. He took attendance
of the employees, which he gave to Birtler. If an em-
ployee reported to work late, he would sign the employ-
ee's timecard9 to show he knew what time the employee
arrived. When an employee had to go home early be-
cause of illness, the employee would inform Bryson.
Bryson would then call in a replacement employee by
going down a list of names of employees furnished to
him by Respondent and taking the first employee who
answered the telephone and wanted to work. Bryson
would sign the replacement employee's timecard show-
ing the arrival time. However, Bryson denied being re-
sponsible for determining the reasons why employees
were late or absent. For those employees who were
going to be absent and called in prior to the start of the
shift, usually the second-shift supervisor would find a re-
placement for them. I
Should a serious production problem arise, Bryson had
been provided a list of names of those persons in authori-
ty to call.
Bryson denied being involved in making up work
schedules; the initial assignments of employees; transfer-
ring employees to different jobs or shifts; hiring or firing
employees or recommending such actions; performing
job evaluations; redressing grievances; or authorizing va-
cations.
While Birtler claimed Bryson had the authority to rec-
ommend the discharge of employees as did other super-
visors by bringing their recommendations to him, where-
upon, he would then make the final determination him-
self, it was not shown they could effectively recommend
such action. I credit Bryson's denial he had such authori-
ty.
9 Byrson's name appeared on a list of supervisory personnel listing the
initials of those persons who signed employee timecards.
'o Second-Shift Supervisor C-nffith corroborated Bryson's testimony
about arranging for replacements.
713
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bryson also denied having the authority to take disci-
plinary action on his own; stating Birtler had instructed
him that if a situation arose, like an employee not per-
forming his job, for him to hold the employee over until
Birtler could arrive and take such action himself. Birtler
acknowledge giving such instructions to Bryson.
With respect to assigning work, Bryson denied he was
authorized to or had ever had the occasion to assign
work to employees, stating their work was preassigned
to them. Although he acknowledged having stated in an
affidavit given to a Board agent that as a group leader
on the third shift he assigned work, his explanation for
such statement was the assumed he would have such au-
thority since Birtler had told him he would be head of
the shift.
Sheryl Farley, who worked on another shift but filled
in on the third shift when needed, testified that each eve-
ning when working on the third shift Bryson assigned
her to her job. However, she acknowledged she always
ran the dryers except for sweeping the floors when the
veneer work was completed and on a few occasions she
flipped logs. 1
Bryson denied being able to recall who Farley was or
whether she worked on his shift. None of those employ-
ees regularly employed on the third shift testified con-
cerning their being assigned work by Bryson.
While employee Liza Porter testified that before the
third shift started she observed Bryson getting his work
instructions from Second-Shift Supervisors Griffith and
Bill Bradley, she did not specifically testify concerning
what, if anything, she overheard said on those occasions
to support her testimony. This was denied by Bryson,
whom I credit.
Bryson denied ever authorizing or assigning employees
to work overtime. 2 According to him, overtime was au-
thorized by the other shift supervisors who would ask
him whether his employees wanted to work overtime,
and he would relay their requests to the employees.
Although Birtler claimed Bryson was responsible for
determining whether third-shift employees worked over-
time, he could only recall one occasion in which he said
it occurred but could not establish a date. His testimony
of that incident was based on his seeing the employees
there and his recollection that Bryson's initials were on
the employees' timecards' 3 authorizing the overtime.
Absent, as here, denials by others shift supervisors that
they authorized the overtime, I credit Bryson's denials
he did so.
Employees were authorized two 10-minute break peri-
ods and a 30-minute lunch period but at no set times.
Birtler testified that Bryson was responsible for deter-
mining when the break periods would start and end.
Sheryl Farley stated that, on occasions when she worked
on the third shift, Bryson would tell them when to take
their breaks and when to return.
l Flipping logs consists of turning over the dried veneer on the carts
in preparation for the cutters.
12 Bryson acknowledged having stated in an affidavit given to a Board
agent he had "standing to authorize overtime." However he explained
this applied only to those occasions he signed the timecards of employees
he would call to come in and replace employees who left work early be-
cause of illness.
"1 These timecards were not proffered as evidence.
Pamela Nethers, who was Bryson's niece, also stated
under cross-examination that she worked on this third
shift about three times and Bryson would tell them when
their lunch period was up.
Bryson, who sometimes took his lunch periods and
breaks with the employees, denied instructing them when
to go or return and stated that they normally took them
together on their own without being told.
While I find Bryson did instruct Sheryl Farley and
Pamela Nethers about their breaks as they testified, they
were not regularly employed on the third shift and those
employees regularly employed on the shift did not refute
Bryson's testimony, which I credit, about their taking
break periods on their own.
Both Lisa Porter, who worked on the second shift,
and Sheryl Farley testified that Bryson threatened them
with discharge if they did not sign union cards.' 4 Al-
though both refused to sign cards they were not dis-
charged, Bryson also denied making such threats.
Section 2(11) of the Act defines a supervisor as:
. . .any individual having authority, in the interest
of the employer, to hire, transfer, suspend, layoff,
recall, promote, discharge, assign, reward, or disci-
pline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the
foregoing, the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
An individual need only have one of the indicia enumer-
ated to be a supervisor. Research Designing Service, Inc.,
141 NLRB 211, 213, fn. 4 (1963).
Based on the foregoing finding pertaining to the au-
thority and duties of Bryson, I find he neither possessed
nor exercised any of the necessary authority enumerated
in Section 2(11) of the Act to be a supervisor under that
Section and I hereby reject Respondent's defense that
Bryson was a supervisor within the meaning of Section
2(11) of the Act.
B. Bryson's Discharge
Wayne Bryson, Jr., was active in the Union's organiz-
ing campaign. His activities, which began about August
11, consisted of contacting Union Business Agent Jacobs
about organizing Respondent's employees, attending
union meetings, passing out union authorization cards
and giving them to other employees to pass out, and so-
liciting employees to join the Union. He distributed these
cards to employees at the plant on August 14 and 15
during their break periods; by the lunch room as the
first-shift employees arrived for work and by the time-
clocks as the second shift ended. According to Bryson,
he was observed passing out union cards by two supervi-
sors, namely, Second-Shift Supervisor Griffith and Andy
Breitenmoser, and they asked him what he was doing.
He informed them he was handing out union cards and
he gave one to Breitenmoser. Although Griffith denied
14 This evidence was proffered by Respondent solely in support of its
position to show Bryson was a supervisor.
714
UNIVERSAL VENEER MILL CORP.
seeing Bryson passing out union cards and Brietenmoser
did not testify, it was not specifically established that
either of these two individuals were supervisors under
the Act.
On August 15, Bryson did not report to work. He tes-
tified the reason was because he had the flu and although
he attempted to call the plant for about an hour that eve-
ning to notify them he would not be there no one ans-
wererd the telephone. Ann Bryson, who is Bryson's
mother and lives upstairs from her son in the same
house, corroborated his undisputed testimony which I
credit.
On Monday morning, August 18, Vice President
Birtler called Bryson at home and inquired why he had
been absent the previous Friday. While Bryson stated he
explained he had been ill and had unsuccessfully attempt-
ed to contact the plant, Birtler's recollection was Bryson
just said he could not make it and he did not believe
Bryson mentioned being sick. Birtler also asked Bryson
whether he would be at work that day whereupon
Bryson informed him he did not know at the time. Ac-
cording to Bryson, he further informed Birtler it depend-
ed on how he felt. Although Bryson stated Birtler told
him if he had not heard from him by 4 p.m. he would
assume he was still sick and would find a replacement
for him, Birtler's version was he gave Bryson a certain
time, which he could not now recall, to let him know so
he would have sufficient time to make other arrange-
ments if Bryson could not be there.
Ann Bryson, who stated she listened in on the tele-
phone conversation on her extension telephone, corrobo-
rated Bryson's testimony. She further testified, that about
12 or 12:30 p.m. that day, Birtler called again and when
she answered the telephone he requested her to give her
son a message that they were having a meeting and if his
health permitted for him to be there. However, she re-
plied she doubted it. Bryson, who stated he heard the
telephone ring on that occasion and picked it up and lis-
tened in on the conversation, corroborated his mother's
testimony.
Birtler testified he did not remember having a conver-
sation with Ann Bryson and only recalled the one con-
versation with Bryson that day during which he said he
also told Bryson they were having a meeting at 2 p.m.
that day and asked him to be present because it was a
very important meeting and pertained to all the employ-
ees.
I credit the testimony of Bryson,' 5 which was cor-
roborated by Ann Bryson, rather than the testimony of
Vice President Birtler whom I discredit. Apart from by
observations of the witnesses in discrediting Birtler, his
testimony during the hearing was both inconsistent and
contradictory.
Vice President Birtler held a meeting for all the em-
ployeest 6 that day and informed them he had been ad-
vised of the possibility of efforts being made about get-
ting employees to join a union. According to Birtler,
what prompted the meeting was he had been on vacation
is Those portions of Bryson's affidavit offered for purposes of im-
peaching his testimony have been considered in evaluating his credibility.
however I do not find them persuasive.
"' Bryson did not attend.
the previous week and upon his return he had been in-
formed by an employee and a number of other persons
of discussions about the possibility of bringing in a union
and starting a card campaign.
That afternoon at the request of Union Business Agent
Jacobs, Bryson met with Jacobs and a couple of Re-
spondent's employees for about an hour. However,
Bryson stated he was still sick and left the meeting and
went home and went to bed.
Bryson did not report to work on the evening of
August 18.
Vice President Birtler testified after Bryson failed to
call in by the time set and did not report for work on
August 18, that the following day he called Bryson at
home and asked him why he had not come to work.
When Bryson replied he was not able to make it, Birtler
asked Bryson whether he intended to work that night;
whereupon Bryson informed him he would. Birtler said
he told Bryson he had to be able to rely upon him be-
cause if he did not show up he would have to make
other arrangements.
Bryson denied having any conversation with Birtler on
August 19, and I credit his denial rather than the testi-
mony of Birtler, whom I previously discredited.
Birtler stated during the day on Tuesday, August 19,
he made the decision to discharge Byrson and dictated
his termination letter. He stated his reason for Bryson's
discharge was his unexcused absences and claimed Bry-
son's union activity did not have anything to do with his
decision. This termination letter dated August 19, stated
Bryson was terminated effectively August 19 for the fol-
lowing reasons:
The Company's decision to terminate your em-
ployment is based on your unreported absence and
failure to report for work on 8/1/80, your unreport-
ed absence and failure to report for work or call in
on 8/15/80 and on 8/18/80. This action is consisted
with the established-Company policy.
The letter also stated that Bryson's termination was
based on the folloiwng company rules, which were set
out as follows:
No. 16. Absence not excused by the Company or
failure to notify the Company immediately of ab-
sence and the reason.
No. 17. Repeated absenteeism or tardiness.
The letter further gave Bryson until August 22 to con-
tact Birtler if there were any circumstances which
should be brought to his attention regarding his absences
and failure to call in as required by their policy.
Birtler testified on August 19 that he left instructions
with Second-Shift Supervisor Griffith that if Bryson
showed up and wanted to go to work to notify him so
he could return to the plant and discuss it with Bryson.
According to Birtler, he wanted to personally present
the termination letter he had dictated to Bryson and dis-
cuss it with him as it was his policy to terminate employ-
ees in that manner. However, he stated the next morning
he mailed the letter to Bryson because Bryson had failed
715
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to show up for work on August 19, which he learned by
checking with Griffith' 7 who had not called him.
Contrary to Birtler's testimony, Bryson testified that
he did report for work on the evening of August 19.
However, Second-Shift Supervisor Griffith met him at
the door when he arrived and informed him without
giving him any reason that he had been replaced. He
then contacted his mother, who had driven him to work
that evening, to come and get him which she did. Ann
Bryson corroborated her son's testimony.
Second-Shift Supervisor Griffith stated he did not re-
member making any statement to Bryson about his being
replaced. He claimed the last time he had seen Bryson
was on, which he believed but was not positive, August
15 at which time he said Bryson came to the plant about
7 or 7:30 p.m. and appeared to be drinking, whereupon
he questioned Bryson about it but Bryson denied it.
Bryson denied the incident.
I credit Bryson's testimony, which was corroborated
in part by his mother, rather than Griffith. Besides my
observation of the witnesses in discrediting Griffith, his
testimony was vague and implausible.
On August 20, Bryson contacted Vice President
Birtler and pursuant to his inquiry, Birtler informed him
he had been terminated and sent a letter explaining the
reasons. 1 8
Birtler further testified that during this conversation he
told Bryson he would like for him to come in so they
could discuss it face to face because it was a very serious
matter which he felt should not be discussed over the
telephone, whereupon Bryson said he would and in-
quired about getting his final paycheck.
According to Birtler, Bryson came in that same day
and got his paycheck from him at which time he again
told Bryson he was terminated but if there was any miti-
gating circumstances, Bryson could document them and
he would be happy to look at them. Birtler further stated
upon asking Bryson the reasons for his absences, Bryson
mentioned in one instance he just could not make it and
had been sick whereupon he said he told Bryson to pro-
duce a doctor's excuse and he would reconsider. 19
Bryson, however, testified he did not go to the plant
to get his check until about a week after his termination
and denied Birtler said anything to him at the time.
I credit Bryson's testimony rather than Birtler for rea-
sons previously given.
After Bryson received his termination letter on August
21, he stated that the following day he called Birtler and
told him the reasons for his termination were a bunch of
garbage and the reason he was being fired was because
of his union activities. Birtler laughed and informed him
the reasons were those stated in the letter. However,
Birtler then said if he could possibly give up some of the
activities he was involved in he could probably have his
17 Griffith did not testify concerning such arrangements or about
having such conversations with Birtler.
8 Bryson stated the reasons he contacted Birtler was because his
niece, Pamela Nethers, had informed him the previous afternoon there
was a rumor in the plant he had been terminated. Bryson acknowledged
having stated in an affidavit given to a Board agent that Nethers had
called him in the morning.
19 Birtier claimed a doctor's excuse was required where there was
more than a I-day absence.
job back, whereupon he informed Birtler he was not
giving up any activities and was going to take it to the
National Labor Relations Board.
Ann Bryson, who testified she listented in on the con-
versation at her son's request, corroborated Bryson's tes-
timony.
Bryson further testified that about a week later Birtler
called and asked him whether he had time to think about
it and told him if he gave up his activities he could have
his job. His response was he had not planned on giving
up his activities at that time.
Birtler denied having any further conversations with
Bryson during this period after August 20 and denied he
talked to Bryson on the telephone that Friday.
I credit Bryson, whose testimony was corroborated in
part by Ann Bryson, concerning those conversations
rather than Birtler's denials. Having credited Bryson and
absent as here any showing Bryson was engaged in any
type activities other than his union activities, I find Vice
President Birtler indicated to Bryson he could have his
job back if he gave up his union activities.
The Respondent has a point system for unexcused ab-
sences applicable to all of its employees including super-
visors. Under this system an employee who has an unex-
cused absence without calling in within the first sched-
uled hour is assessed 3.5 points and if the employee calls
in within the first scheduled hour the employee is as-
sessed 2 points. The accumulation of 3 points in any of
the 30-consecutive scheduled workdays requires a verbal
warning. If that employee then receives more than I ad-
ditional point within the 30 consecutive scheduled work-
days following the verbal warning, the employee is
issued a written warning. For receiving more than I ad-
ditional point within 30-consecutive scheduled workdays
following the written warning or for the accumulation of
10 or more points in any 6-month period the employee is
discharged.
Prior to his discharge Bryson did not receive any
verbal or written warnings. Insofar as the August 1 un-
excused absence date given for his discharge is con-
cerned, Bryson said he could not recall whether he
worked that day or not.
Vice President Birtler listed the names of seven other
employees who had been discharged for unexcused ab-
sences. However, Respondent's absentee records reflect
for April several employees including L. Abbott, T.
Wigle, and P. Kasson who had three or more unexcused
absences without being discharged and another employee
K. Carter who had five unexcused absences before being
terminated. Respondent's record also reflect Gary Van
Winkle, who was included in those seven employees
listed by Birtler, was sent a letter dated August 22, ter-
minating him after he had accumulated five unexcused
absences between August 1 and 21.20
C. Analysis and Conclusions
The General Counsel contends Respondent violated
Section 8(a)(l) and (3) of the Act by discriminatorily dis-
20 According to Vice President Birtler employees are not terminated
for unexcused absences where there are mitigating circumstances.
716
UNIVERSAL VENEER MILL CORP.
charging and refusing to reinstate Bryson because of his
union activity and made an unlawful statement to him
concerning his reemployment, which Respondent denies.
Section 8(aX)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(3) of the Act provides, in pertinent
part: "It should be an unfair labor practice for an em-
ployer . . . by discrimination in regard to hire or tenure
of employment or any term or condition of employment
to encourage or discourage membership in any labor or-
ganization. ... "
The law is well established that to discharge an em-
ployee for engaging in union activities violates Section
8(a)(3) and (1) of the Act. Direct evidence of discrimina-
tory motivation is not necessary to support a finding of
discrimination and such intent may be inferred from the
record as a whole. Health International, Inc., 196 NLRB
318 (1972).
The findings supra, establish that Vice President
Birtler indicated to Bryson he could have his job back if
he gave up his union activities. Inasmuch as the right of
employees to engage in union activities is protected
under Section 7 of the Act, I find that Respondent, by
Birtler making such statement, has interfered with, re-
strained, and coerced Bryson in his exercise of his rights
and thereby violated Section 8(a)(1) of the Act.
The remaining issue to be resolved is whether Bry-
son's discharge and denial of reinstatement was discri-
minatorily motivated.
The evidence supra shows Brysons was an active
union adherent who was responsible for initiating the
Union's campaign to organize Respondent's employees.
Not only was he discharged by Vice President Birtler ef-
fective August 19, which was the day after Birtler
learned of the Union's organizing campaign upon his
return from vacation and held a meeting of all the em-
ployees to discuss it, but Birtler, as herein found, unlaw-
fully indicated to Bryson after he was discharged that he
could have his job back if he gave up his union activities.
Such unlawful statement clearly indicates Birtler was
aware of Bryson's union activities prior to his discharge
and discharged him for that reason, otherwise there
would have been no basis for conditioning his rehire on
giving his union activities.
Further Birtler's claim, asserted as Respondent's de-
fense, that Bryson was discharged for unexcused ab-
sences in violation of company rules was refuted by the
evidence and contrary to rule themselves. Bryson did
inform Birtler on August 18 about not coming to work
that day unless he felt better and about his absence the
previous Friday because of illness and he also reported
to work the next day but was prevented from working
by Second-Shift Supervisor Griffith. Notwithstanding
the rules on unexcused absences required both oral and
written warnings prior to discharge, Bryson never re-
ceived any such warnings nor did Birtler even mention
this subject to Bryson prior to his termination. More-
over, other employees with more unexcused absences
than Bryson, who had valid reasons for being absent of
which Britler was aware, were retained rather than dis-
charged which also reflects disparate treatment towards
Bryson in applying such rules.
Based on the foregoing findings, including Bryson's
union activities of which Respondent had knowledge; the
unlawful statement made to Bryson indicating he could
have his job back if he gave up his union activities; the
timing of his discharge in relation to Britler learning of
his union activities; and having rejected Respondent's de-
fense for discharging him which I find is but a pretext to
conceal its real discriminatory motive, I am persuaded
and find that Respondent discriminatorily discharged
Bryson effective August 19 and thereafter refused to re-
instate him because of his union activities in violation of
Section 8(a)(3) and (I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occur-
ring in connection with the operations of Respondent de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow thereof.
CONCLUSIONS OF LAW
1. Universal Veneer Mill Corp. is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Ohio State Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. By indicating to Wayne Bryson, Jr., he could have
his job back if he give up his union activities, Respond-
ent had interfered with, restrained, and coerced its em-
ployee in the exercise of his rights guaranteed in Section
7 of the Act and has engaged in unfair labor practices in
violation of Section 8(a)(l) of the Act.
4. By discriminatorily discharging Wayne Bryson, Jr.,
effective August 19, 1980, and thereafer refusing to rein-
state him because of his union activities, Respondent has
engaged in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(aX)(1) and
(3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action to effectu-
ate the policies of the Act.
Accordingly, Respondent shall be ordered to offer im-
mediate and full reinstatement to Wayne Bryson, Jr., to
his former job or, if that job no longer exists, to a sub-
stantially equivalent job, without prejudice to his senior-
ity and other rights and privileges, and to make him
whole for any loss of earnings and other compensation
he may have suffered as a result of the discrimination
717
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against him in his employment herein found by discri-
minatorily discharging him effective August 19, 1980,
and thereafter refusing to reinstate him. Backpay shall be
computed in the manner prescribed by the Board in F.
W. Woolworth Company, 90 NLRB 289 (1950), with in-
terest as prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).21
Upon the foregoing findings of fact, conclusions of
law and the entire record and pursuant to Section 10(c)
of the Act, I hereby issued the following recommended:
ORDER2 2
The Respondent, Universal Veneer Mill Corp.
Newark, Ohio, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Indicating to employees they can have their jobs
back if they give up their union activities.
(b) Discouraging activities in the Ohio State Council
of Carpenters, United Brotherhood and Joiners of Amer-
ica, AFL-CIO, or any other labor organization by dis-
charging, refusing to reinstate, or in any other manner
discriminating against employees in regard to their hire
or tenure of employment or any other term or condition
of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees n the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policy of the Act:
(a) Offer Wayne Bryson, Jr., immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to his seniority and other rights and privileges, and make
him whole for any loss of earnings and other compensa-
tion he may have suffered by reason of our discrimina-
tion against him herein found by discriminatorily dis-
charging him effective August 19, 1980, and thereafter
refusing to reinstate him, in the manner set forth in that
section of this Decision entitled "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, time-
cards, personnel records and reports, and all other
records necessary to analyze and determine the amount
of backpay due under the terms of this Order.
21 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
22 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(c) Post at its Newark, Ohio, facility copies of the at-
tached notice marked "Appendix." 2 3 Copies of the said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent's au-
thorized representative, shall be posted immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and
hereby is, dismissed insofar as it alleges unfair labor prac-
tices not specifically found herein.
23 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT indicate to employees they can
have their jobs back if they give up their union ac-
tivities.
WE WILL NOT discourage activities in the Ohio
State Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, or
any other labor organization, by discharging, refus-
ing to reinstate, or in any other manner discriminat-
ing against employees in regard to their hire or
tenure of employment or any other term or condi-
tion of employment.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights guranteed in Section 7 of
the Act.
WE WILL offer Wayne Bryson, Jr., immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
job, without prejudice to his seniority and other
rights and privileges, and WE WILL make him whole
for any loss of earnings and other compensation he
may have suffered by reason of our discrimination
against him, with interest.
UNIVERSAL VENEER MILL CORP.
718