Prineville Stud Co.Download PDFNational Labor Relations Board - Board DecisionsJan 31, 1977227 N.L.R.B. 1845 (N.L.R.B. 1977) Copy Citation PRINEVILLE STUD CO. Prineville Stud Company and Lumber , Production and Industrial Workers Local 2902 , United Brother- hood of Carpenters & Joiners of America, AFL- CIO. Case 36-CA-2820 January 31, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On September 29, 1976, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Decision of the Administrative Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Prineville Stud Company, Prineville, Oregon, its officers, agents, successors , and assigns, shall take the action set forth in the said recommended Order as so modified: 1. Insert the following as paragraph 1(e): "(e) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. 1 The 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 credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 It appears that the Administrative Law Judge inadvertently omitted from his recommended Order and notice the usual provision requiring Respondent to cease and desist , in any other manner, from interfering with, coercing, or restraining its employees in the exercise of the rights guaranteed them by Section 7 of the Act Since the unfair labor practices found herein are of such a serious nature that they go to the very heart of the Act, we find that a broad cease-and-desist order is necessary and we shall, accordingly, modify the recommended Order and notice by adding such a provision. N L R B v Entwistle Manufacturing Company, 120 F 2d 532 (C.A. 4, 1941) 227 NLRB No. 270 APPENDIX 1845 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question our employees about their or other employees' activities on behalf of Lumber, Production and Industrial Workers Lo- cal 2902, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. WE WILL NOT threaten our employees with closure of the mill if they choose to be represented for collective-bargaining purposes by the above labor organization. WE WILL NOT close our mill and terminate our employees for choosing to be represented by the above labor organization for collective-bargaining purposes. WE WILL NOT continue in our refusal to recognize and bargain with the above labor organization concerning the rates of pay, wages, hours, and working conditions of: All employees employed by us at our stud mill operation at Burns, Oregon, excluding office clerical employees, guards, profession- al employees and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act. WE WILL offer David Armstrong, Dene Ben- nett , Thomas Bowen, Jerry Brewer, Ronald Car- roll, Harold Conklin, Benny Daugherty, Ray Galvin, Max Gee, Michael Greiner, John Jones, John Koyle, Elmer Kruse, Ronald Looney, Har- vey Miller, Larry Minniear, and Edward Tyner immediate and full reinstatement to their former jobs, or substantially equivalent jobs if their former jobs no longer exist, without prejudice to their seniority and other rights and privileges, and WE WILL make them whole by payment to them of the money they would have received but for their unlawful termination from the date they were terminated to the date they were or are reinstated, less net earnings during that period, with 6- percent interest on the sum due. WE WILL recognize and bargain with the above- named labor organization at its request concern- ing the rates of pay, wages, hours, and working conditions of our employees in the unit set out above. PRINEVILLE STUD COMPANY 1846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN , Administrative Law Judge: On May 19 and 20, 1976,1 I conducted a hearing at Burns, Oregon , concerning issues raised by a complaint issued on March 15 pursuant to a charge and amended charge filed by Lumber, Production and Industrial Workers Local 2902, United Brotherhood of Carpenters & Joiners of America, AFL_CIO,2 on January 20 and March 15. The complaint alleged at times pertinent Clayton Dicker- son was a supervisor and agent of Prineville Stud Compa- ny,3 acting on its behalf; that, since January 14 , the Umon has represented a majority of the Company 's employees within an appropriate unit for the purpose of bargaining collectively with the Company concerning their rates of pay, wages , hours , and working conditions and, since January 15 , the Company has refused to comply with the Union 's request for recognition and bargaining over those employees ' rates of pay , hours , and working conditions. The complaint also alleged the Company , shortly after learning of the employees ' selection of the Union as its employees' collective -bargaining representative , interrogat- ed employees concerning their union activities , threatened them with plant closure in the event they chose the Union as their collective-bargaining representative , and, on Janu- ary 16, closed its operations at Burns and terminated its employees because they chose the Union as their collective- bargaining representative. The complaint alleged that by the above actions the Company violated Section 8 (a)(1), (3), and (5) of the National Labor Relations Act, Series 8, as amended (hereafter referred to as the Act). The Company denies Dickerson at any time was a supervisor and agent acting on its behalf; denies the Union at any time represented a majority of its employees within the unit ; denies it committed any unlawful interrogations or threats ; denies it closed its Burns operations and terminat- ed its employees because they selected the Union as their collective-bargaining representative ; and denies it commit- ted any violation of the Act. The issues before me are: (1) whether , at times pertinent, Dickerson was a supervisor and agent of the Company acting on its behalf, (2) whether the Union has represented a majority of the Company 's employees within an appropri- ate unit since January 14 , (3) whether the Company interrogated employees concerning their union activities and threatened them with plant closure in the event they chose the Union as their collective -bargaining representa- tive, (4) whether the Company closed the plant and terminated the employees to avoid recognizing and bar- gaining with the Union , (5) whether the Company refused to bargain with the Union, and (6 ) whether a bargaining order is warranted in this case. Read 1976 after all future date references omitting the year z Hereafter called the Union Hereafter called the Company I find at all times pertinent Rhoden and Jones were supervisors and agents of the Company acting on its behalf S The complaint alleged , the answer admitted, and I find that at times pertinent Simmons was superintendent of the Bums mill and a supervisor and agent of the Company acting on its behalf The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, examine and cross-examine witnesses , argue, and file briefs. Briefs have been received from the General Counsel and the Company. Based upon my review of the entire record, observation of the witnesses and perusal of the briefs, I enter the following: FINDINGS OF FACT I. JURISDICTION The complaint alleged, the answer admitted, and I find that at times pertinent the Company was an Oregon corporation with offices and places of business at Prineville and Bums, Oregon; that it was a manufacturer of lumber products; that in the past year it manufactured, sold, and shipped to points outside Oregon products valued in excess of $50,000; and that the Company was an employer engaged in commerce in a business affecting commerce as those terms are defined in Section 2(2), (6), and (7) of the Act. IL LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find that at all times pertinent, the Union was a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company's operations commenced in 1967 with the opening of a mill at Prineville. In 1973 the Company opened a second mill at Bums (about 170 miles east of Prineville). The Company stock is held in equal shares by two persons, Jack Rhoden and John Crawford of Prineville. Rhoden at times pertinent actively managed the Company, assisted by Robert Jones.4 The headquarters of the Compa- ny was located at Prineville. Rhoden and Robert Jones visited the Burns mull sporadically but kept in close touch with management at Burns by telephone. At all times pertinent, the day-to-day operations of the Burns mill were managed by Ted Simmons.5 Both company mills were somewhat unique in that they were designed to produce 8-foot studs rather than 16-foot studs produced at most mills from trees classified as "older dead" rather than "green."6 The Company's two mills produce studs from those portions of the trees which are useable for stud production and produces wood chips for paper manufacture from the balance. The sawdust and wood shavings, produced in the manufacturin&process, are also marketed. The operations at both plants consist of a sawmill operation and a planing mill operation. 6 The Forest Service requires timber harvesters to clear dead trees as well as green trees from publicly owned areas in which they operate. Such harvesters (as well as the Forest Service ) follow the practice of selling the dead trees to companies such as this Company at salvage prices The Company employs "gyppos" to harvest dead trees purchased directly from the Forest Service PRINEVILLE STUD CO. 1847 B. The Supervisor, Unit, and Majority Representative Status Issues In early January, besides Simmons and Dickerson, the Company employed the following persons at its Bums mill: David Armstrong, Dene Bennett, Thomas Bowen, Jerry Brewer , Ronald Carroll, Harold Conklin, Benny Daugher- ty, Ray Galvin, Max Gee, Michael Greiner, John Jones, John Koyle, Elmer Kruse, Ronald Looney, Harvey Miller, Larry Mmniear, and Edward Tyner. In early January Carroll contacted the Union and arranged a January 13 meeting between Union Representative Gene Tedrick and he, Tyner, and Bennett . At that meeting Carroll, Tyner, and Bennett signed cards authorizing the Union to represent them for the purpose of bargaining collectively with the Company concerning their rates of pay, wages, hours, and working conditions. The meeting attendees agreed to schedule a second meeting the following day and invite the other employees. At or before the second meeting Bowen, Brewer , Conklin, Daugherty, Gee, Greiner, Koyle, Looney, and Minniear signed cards authorizing the Umon to represent them for the purpose of bargaining collectively with the Company. All cards were turned over to Tedrick. Armstrong, Galvin, John Jones, and Miller did not sign cards. On January 15 Tedrick addressed a letter to the Compa- ny at its Prineville headquarters advising the Company the Union represented a majority of its employees at the Bums mill in a unit consisting of "all employees employed at the Company's stud mill operation at Bums, Oregon, but excluding office-clerical employees, guards, professional and managerial employees, and supervisors as defined in the Act." The Union asked the Company to recognize the Umon as the collective-bargaining representative of its employees within the aforementioned unit and to meet with the Union to negotiate a contract covering their rates of pay, wages, hours, and working conditions. It is undisputed all the employees at the Bums mill except Simmons and Dickerson were within the unit specified in the Union's January 15 request. It is undisputed Simmons was excluded from such unit. The parties dispute Dickerson's status, with the Umon alleging he was a foreman and supervisor of the planing operations and the Company contending he was a working leadman. Dickerson testified he assigned work to the men em- ployed in the planer operations, gave them orders, pro- cessed their requests for time off, and assigned them overtime, all without checking with Simmons. Dickerson further conceded on one occasion he recommended an employee in the planer operation with a drinking problem be dismissed and Simmons subsequently dismissed the employee in question. It is undisputed Dickerson kept time records on the men employed in the planer operation and turned in such time records, on a weekly basis, to Simmons. Dickerson also carried out the function of ordering rail cars when a sufficient amount of studs accumulated for ship- ment. Robert Jones testified when he introduced Simmons 7 Jones denied Dickerson was a supervisor with power to hire and fire, in his pretrial statement, however, he stated Dickerson did have such power. 8 Bowen , Koyle, and Minmear 9 The fact Dickerson spent most of his time grading lumber does not as the new superintendent at the Bums plant in July 1975, he informed the men Dickerson would stay on as planing mill foreman; Jones further testified Dickerson "supervises the chipping and planing." 7 Several witnesses employed in the planer operation testified they looked to Dickerson for orders and assignments and unquestioningly accepted his direction and supervision.8 Section 2(11) defines "supervisor" as any individual with authority in the interest of his employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, provided the exercise of his authority is not merely routine but requires independent judgment. The description of the functions which qualify a person as a supervisor is stated in the disjunctive, that is, any one or more of the functions performed by the individual in an independent manner makes him a "supervisor." The evidence establishes Dickerson effectively recom- mended the discharge of an employee, directed the work of the planer employees, gave them orders, assigned overtime to them, kept their time records, and otherwise acted as independent overseer of the planing operations; on the basis of these factors, I fmd and conclude at times pertinent Dickerson was a supervisor and agent of the Company acting on its behalf.9 The complaint alleged, the answer admitted, and I find that the following unit at all times material was an appropriate unit for collective-bargaining purposes within the meaning of Section 9(b) of the Act: all employees employed by the Employer at its stud mill operations at Bums, Oregon, excluding office clerical employees, guards, professional employees and supervisors as defined in the Act. In the course of his testimony, Robert Jones conceded Armstrong, Bennett, Bowen, Brewer, Carroll, Conklin, Daugherty, Galvin, Gee, Greiner, John Jones, Koyle, Kruse, Looney, Miller, Minniear, and Tyner were em- ployed by the Company at its Bums, Oregon, mill within that unit. I therefore fmd and conclude that on or about January 14 there were 17 employees in the unit. The record establishes that by January 14, 11 of those 17 men signed cards authorizing the Union to represent them for the purpose of bargaining collectively with the Compa- ny concerning their rates of pay, wages, hours, and working conditions. On the basis of those signed authorization cards, I find and conclude that since January 14 the Union has represented a majority of the Company's employees within the unit. C. The Alleged Unlawful Threats and Interrogations 1. Simmons Bennett, one of the three employees who made the initial contact with Umon Organizer Tedrick on the evening of Tuesday, January 13, testified he was approached by Simmons at the mill between 8 and 8:30 a.m. on the next affect the foregoing, Simmons also spends most of his time performing production and maintenance work In a small work force, this is neither uncommon nor determinative of supervisory status 1848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day; that Simmons asked him whether a report Simmons received that Bennett and others attended a union meeting the previous evening was true; that he confirmed the truth of the report; that Simmons then asked how things looked; that he replied most of the employees were interested in union representation; that Simmons suggested the employ- ees would be wise to hold off securing union representation until they saw what the employees received at Prineville; io that Simmons went on to state the Company undoubtedly would give the Bums employees whatever wage improve- ments , etc., it gave the Prineville employees, and the employees at Bums then might decide they did not need a union; and that he replied the union move was already underway and he doubted it could be stopped. Bennett testified he had a second conversation with Simmons later the same day at which time he asked Simmons if Simmons thought the Company would shut down the mill if the employees did go union and Simmons replied he could not say yes or no, but it was a good possibility since Mims 11 told him Robert Jones said if any union activities started at the Bums mill , the Company would shut it down. Tyner, another of the three employees who made the initial contact with the Union, testified Simmons ap- proached him about 9 a.m. on Wednesday, January 14, and asked him if there had been a union meeting the previous evening; that he replied there was; that Simmons told him he already knew Tyner, Bennett, and Carroll attended that meeting and asked Tyner what took place; and that he refused to tell Simmons what transpired at the meeting other than to tell Simmons another meeting was scheduled for that evening. Tyner further testified Simmons asked him if he planned to attend, he replied he did, Simmons asked him why, he replied he wanted to hear what the Union had to say, and Simmons closed the conversation with a statement the men had better watch out what they were doing. Tyner also testified Simmons approached him later the same day and asked him if he had any cards; that he asked Simmons if he meant the cards the Union gave him the previous evening and, on receiving an affirmative response, stated that he had five such cards in his car; that Simmons then asked him who else was giving out cards and he replied he would rather not say, but his were still unsigned. He testified Simmons then asked him who signed cards and he replied his were unsigned and he did not know if others had been signed; that Simmons then said he still would like to know what happened at the meeting the previous evening and he replied there was going to be another meeting that night; that Simmons then commented that, while he was not supposed to say this, if the men went union the mill would be shut down the next day and, when Tyner asked if he meant "tomorrow," Simmons replied maybe not tomor- row, but it certainly would be shut down. 10 On September 19, 1975, Western States Regional Council 3, Interna- tional Woodworkers of America, AFL-CIO (hereafter called IWA), was certified as the duly selected collective-bargaining representative of "all employees employed by the Employer at its facility located at Lamonta Road, Prineville , Oregon, but excluding all office clerical employees, guards and supervisors as defined in this Act " The Company and IWA have been engaged in negotiations since that date but, at the time of the hearing in this case, had not yet reached any agreement. Brewer testified he was approached by Simmons about 8:30 a.m. on Wednesday, January 14, at his work station; that Simmons asked him if he knew anything about a union meeting, that he replied there was a union representative in town; that Simmons asked him if he was going to the meeting and he replied that he was; that Simmons asked him why he was going and he stated he was going to hear what the union representative had to say. Gee testified Simmons contacted him prior to the start of the shift (7:30 a.m.) on January 14 and asked him if he knew who was passing out union authorization cards among the employees and he replied he did not know. Simmons conceded he had several conversations with Bennett but testified Bennett volunteered information he was going to campaign for union representation of the Burns employees, that he met with a union representative and that he on second thought believed the men had best wait and see what benefits the Prineville employees received before seeking union representation. He denied questioning Bennett about the employees' union activities or telling him Jones told Mims the Company would shut the mill if any union activities occurred. Simmons also conceded he spoke with Tyner on January 14, but stated Tyner volunteered information there was going to be another union meeting and denied questioning Tyner concerning the union meeting the previous evening and whether and why he planned to attend another union meeting. He also denied questioning Tyner regarding the distribution of union authorization cards or telling Tyner the men had better watch out what they were doing or telling Tyner the Company would shut down the mill if the employees went union. Simmons denied asking Gee who was passing out union authorization cards but conceded Brewer "fessed up" he was going to a union meeting. Simmons testified to each of the remarks allegedly volun- teered by Bennett and Tyner concerning the union cam- paign, he replied he could not talk about any union activities at the plant.12 Bennett 's, Tyner's, Brewer's, and Gee's testimony was far more plausible and convincing than Simmons' version of their various conversations. Simmons corroborated some of their testimony and his explanation of what transpired was lame, hesitant, and somewhat incredible, given the interest of the Burns employees in following the Prineville employ- ees' lead and the obvious constant verbal interchanges between Simmons and the employees at this small mill. I therefore credit the testimony of the four employees and discredit that of Simmons where they conflict. Based upon the foregoing, I find and conclude that on January 14 the Company, by Simmons, interrogated Bennett, Tyner, Brewer, and Gee concerning their and other employees' union activities and threatened Bennett and Tyner with plant closure in the event the employees 11 Roy Mums, a former company foreman and friend of Robert Jones, frequently visited the Burns mill and was in close touch with management i2 Robert Jones and Simmons testified Robert Jones gave Simmons a list of "do's and don'ts" with regard to union organizational campaigns following union organization of the Prineville employees and one of the "don'ts" was to refrain from discussing union activities at the plant with any employees PRINEVILLE STUD CO. 1849 persisted in seeking and securing union representation, thereby violating Section 8(a)(l) of the Act. 2. Dickerson Bowen testified that in December 1975, in the course of a discussion with Dickerson concerning the pros and cons of union representation,13 Dickerson said the Company would shut down the Burns mill if the Burns employees tried to secure union representation. Bowen testified Dickerson repeated that observation in a second discussion later in December 1975. Minniear testified that in late December 1975 he entered the grinding room and heard Dickerson and Miller talking about the possibility of union representation of the Bums employees; that he joined in the conversation; and that Dickerson, in the course of the conversation, stated if the Bums employees did anything to secure union representa- tion the Company would shut the Burns plant. Looney testified he had a conversation with Dickerson in the mill around the first of January; that Dickerson asked him what his feelings were concerning the Burns employees securing union representation; that he avoided an answer; and that Dickerson stated the Company would not stand for union representation among its Bums employees and would close the plant before dealing with a union. Bowen testified to another conversation with Dickerson concerning union representation of the Bums employees in early January, wherein he asked Dickerson what Dickerson thought about the Union's status at Prineville and what the chances were for a union at Burns ; that Dickerson replied the Union was not really in at Prineville14 and the Bums mill would be shut down if the employees tried to get a union in there. Koyle and Looney testified that on either January 12 or 13 they and Miller were discussing pros and cons of union representation in the grinding room at the mill; that Dickerson entered the grinding room while they were talking and, in the course of the continued conversation, again stated the Company would terminate its operations at Bums rather than deal with a union. Bennett and Carroll testified that on January 14, during the lunchtime break, several employees were discussing pros and cons of union representation in the lunchroom at the mill ; that Dickerson came in , listened for awhile, and stated the employees had better stop talking about any move to secure union representation; if they kept it up, the Company would shut the plant down; the Company would not go for any union in the Burns plant. Dickerson conceded he entered the grinding room on either January 12 or 13 and heard Carroll, Looney, and Miller discussing organization of a union but denies saying the Company would shut down the plant if the employees sought union representation but rather stated that if production did not increase, they could not afford any union.15 Dickerson also corroborated Bennett's and Car- 13 All the Burns employees were aware the IWA had been certified in September 1975 as the exclusive bargaining representative of the Company's Prineville employees and that the Company and TWA were in negotiations for a contract. 14 Despite negotiations between the IWA and the Company over a period extending from September 1975 to the date of the hearing (May 19-20, 1976), no agreement was reached between the parties. roll's testimony that he joined an employee discussion of union representation on January 14 at the lunch break, but testified he did not recall saying if the men kept talking about union representation the Company would shut down the plant and recalled only that he said if production did not improve the Company would have to shut down the mill. Dickerson denied the December 1975 and January comments attributed to him by Bowen, Minniear, and Looney. I credit the testimony of Bowen, Minniear, Looney, Koyle, Bennett, and Carroll. In a small work force such as that at the Bums mill, it is natural the Prineville negotia- tions would cause speculation among the Burns employees concerning whether they would benefit by securing union representation and that Dickerson would participate there- in. As to Dickerson's denials of any interrogation or threats, in my judgment the forthright testimony of the six employ- ees deserves credit rather than such denials. I therefore find and conclude that the Company, by Dickerson, interrogated Looney concerning his views on union representation and threatened Bowen, Minniear, Looney, Koyle, Bennett, and Carroll with plant closure in the event the Burns employees chose union representation on various dates in December 1975 and January 1976 thereby violating Section 8(a)(1) of the Act. D. The Plant Closure Issue It is undisputed the Company announced it was closing the Bums plant the morning after a majority of its employees at Bums signed cards authorizing the Union to represent them for the purpose of bargaining collectively with the Company concerning their wages, hours, and working conditions, just as Simmons and Dickerson pre- dicted. There is no question Simmons knew a majority of the employees signed cards authorizing union representa- tion prior to his announcement.16 The Company contends Rhoden and Robert Jones were completely unaware there was any union activity at the Bums mill at the time Jones instructed Simmons to close the plant 17 and contends it closed the mill due to adverse weather conditions, a weak market for its products, and a projected change in Forest Service definition of "older dead" trees. In essence the Company contends its closure of the Burns mill, in accordance with the Simmons-Dickerson prophe- cies , the day following the employees' selection of the Union as their collective-bargaining representative, was pure coincidence. The Company's position is weakened by the fact Sim- mons cited economic conditions (weakness in the stud and chip market) as the reason for the shutdown when he announced it at the beginning of the January 15 work shift, neither citing weather conditions nor possible changes in the Forest Service definition as grounds for the closure. The testimony of Rhoden and Robert Jones that they were is Apparently meaning wages and benefits could not be increased if the operation was not profitable. 16 Simmons testified Tyner so advised him the previous evening 17 The evening of January 14. 1850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unaware of the union campaign among the Company's Bums employees prior to Simmons' advice on the evening of January 14 18 appears incredible; Simmons was instruct- ed by Jones in "do's and don'ts" prior to the Union's organizational campaign; Simmons testified Jones com- mented during their January 14 conversation he was not surprised a majority of the employees "went union" earlier that evening; it strains one's credulity to believe Rhoden and Robert Jones received no feedback from Simmons and Dickerson concerning the employees' interest in union representation following organization of the Prineville employees; and Simmons' interrogation of employees concerning the progress of the union campaign clearly evidences the Company's interest therein. The Company's allegation it decided to close the Burns plant because of a possible change in the definition of "older dead" trees (which would increase the price it would have to pay) is weakened by the fact the definition was not changed, the fact the Company's Prineville mill, which relied on the same supplies, continued to operate through the period the Bums mill was closed and the fact the Company continued to purchase and store trees at Bums during the period the Bums mill was closed (it was closed on January 16 and reopened on February 23). As to economic conditions defense, Rhoden testified stud prices were rising at the time the mill was closed and the price of wood chips did not change over the 4 months prior to the shutdown. As to the allegation of poor weather conditions, Brewer and Tyner testified without refutation Simmons announced in December the Bums mill would not be shut down that year during the winter (their testimony is credited); the mill did not close in 1974, when similar weather conditions prevailed; prior to the 1975 limited closure, the Company reduced the employee workweek to 4 days and then gave the employees several weeks notice prior to shutdown.19 I therefore find the Company's defenses without merit and find, on the basis of the timing of the shutdown and its prediction, the Company shut the Bums plant because the employees sought union representation and, through the Union, improved rates of pay, wages, hours, and working conditions thereby violating Section 8(axl) and (3) of the Act. E. The Refusal To Bargain and Bargaining Order Issues Findings have been entered heretofore since January 14 the Union has represented a majority of the Company's Bums employees within an appropriate unit for collective- bargaining purposes and that on January 15 the Union addressed a letter to the Company notifying it of the Union's majority representative status within the unit 20 and requesting recognition and bargaining. The Company admitted in its answer to the complaint it has failed and refused to comply with the Union's request at all times subsequent to January 15. 18 Jones and Simmons testified Simmons advised Jones a majority of the employees selected the Union as their collective-bargaining representative after Jones instructed Simmons to shut down the plant 19 By way of contrast, the employees received no notice of the instant shutdown and were told by Simmons and Robert Jones they did not know when or if the plant would reopen The Company contends it should not be required to bargain with the Union on the ground its unfair labor practices are not sufficiently serious to warrant the issuance of such an order based on a card showing of majority representative status. I reject this contention; the Compa- ny's unfair labor practices were basic and far-reaching interferences with its employees' right to representation of their choosing; it questioned its employees about their union activities, threatened them with loss of employment if they persisted in seeking representation and promptly discharged them when they defied those threats. It would be difficult to devise a more effective means for dissipating the Union's majority representative status! It is the teaching of the Gissel decision 21 that a bargaining order based upon a majority card showing is appropriate in such circumstances. I therefore find and conclude the Company violated Section 8(a)(1) and (5) of the Act by its admitted failure and refusal to recognize and bargain with the Union as the duly selected representative of a majority of its employees within an appropriate unit at its request, and that an order directing the Company to recognize and bargain with the Union at its request concerning the rates of pay, wages, hours, and working conditions of its employees within that unit is warranted in this case. CONCLUSIONS OF LAW 1. At all times pertinent the Company was an employer engaged in commerce in a business affecting commerce and the Union was a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act. 2. At all times pertinent Rhoden, Robert Jones, Sim- mons, and Dickerson were supervisors and agents of the Company acting on its behalf. 3. Since January 14 the Union has been the duly selected representative of a majority of the Company's employees within an appropriate unit (all employees employed by the Company at its stud mill operation at Bums, Oregon, but excluding office clerical employees, guards, professional and managerial employees and super- visors as defined in the Act) for the purpose of bargaining collectively with the Company concerning those employees' rates of pay, wages, hours, and working conditions. 4. Since January 15 the Company has failed and refused to recognize and bargain with the Union pursuant to its request concerning the rates of pay, wages, hours, and working conditions of its employees within the above unit and thereby violated Section 8(a)(1) and (5) of the Act. 5. Between December 1, 1975, and January 14 the Company by Simmons and Dickerson interrogated its employees concerning their union activities and threatened them with plant closure in the event they persisted therein thereby violating Section 8(a)(l) of the Act. 6. On January 16 the Company closed its Burns operation and terminated its employees within the unit specified above because a majority of those employees 20 Which the Company already knew, Robert Jones having been so informed by Simmons on January 14 2i N LR B v Gissel Packing Co, Inc, 395 U.S. 575 (1969) PRINEVILLE STUD CO. signed cards authorizing the Union to represent them for the purpose of bargaining collectively with the Company concerning their rates of pay, wages, hours, and working conditions thereby violating Section 8(a)(1) and (3) of the Act. 7. An order directing the Company to recognize and bargain with the Union at its request concerning the rates of pay, wages, hours, and working conditions of the employees within the aforementioned unit is warranted in this case. 8. The aforesaid unfair labor practices affect interstate commerce. THE REMEDY Having found the Company engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend the Company be directed to cease and desist therefrom and take affirmative action designed to effectuate the purposes of the Act. It shall be recommended the Company be ordered to -cease and desist from interrogating its employees concern ing their and other employees' union activities, threatening its employees with plant closure in the event they chose union representation, closing its plant and terminating its employees because they chose union representation and continuing in its failure and refusal to comply with the Union's request for recognition and bargaining concerning the rates of pay, wages, hours, and working conditions of its employees within the unit heretofore specified. Having found the Company's employees within the aforesaid unit were terminated on January 16 because of their union activities, it shall be recommended the Compa- ny be directed to offer those employees immediate and full reinstatement to their former jobs or, in the event those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and to make them whole for any wage losses they may have suffered by payment to them of the sum of money they would have earned from the date they were terminated to the date they are reinstated, 22 less any net earnings they have received in the interim. Their lost wages shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at 6 percent per annum, computed in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It shall finally be recommended the Company be ordered to recognize and bargain with the Union at its request concerning the rates of pay, wages, hours, and working conditions of the unit employees. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I recommend the issuance of the following: 22 The record indicates all unit employees were offered reinstatement on or about February 23; in the absence of evidence how many were actually reinstated , the dates of such reinstatement, etc., I shall leave the backpay computation question to the compliance state. 23 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 ORDER 23 1851 Respondent Prineville Stud Company, Prineville, Ore- gon, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their and other employees ' union activities. (b) Threatening its employees with plant closure in the event they choose union representation. (c) Closing its plant and terminating its employees because they chose union representation. (d) Continuing in its failure and refusal to comply with the Union's request for recognition and bargaining con- cerning the unit employees ' rates of pay, wages , hours, and working conditions. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer David Armstrong, Dene Bennett, Thomas Bowen, Jerry Brewer, Ronald Carroll, Harold Conklin, Benny Daugherty, Ray Galvin, Max Gee, Michael Greiner, John Jones, John Koyle, Elmer Kruse, Ronald Looney, Harvey Miller, Larry Minniear, and Edward Tyner imme- diate and full reinstatement to their former jobs, or substantially equivalent jobs if their former jobs no longer exist, without prejudice to their seniority and other rights and privileges, and make them whole in the manner set out in the "Remedy" section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records necessary for the determination of the amount of backpay and other payments and obligations due under this Order. (c) Recognize and, at its request, bargain with the Union concerning the rates of pay, wages, hours, and working conditions of the unit employees. (d) Post at its premises at Burns, Oregon, copies of the attached notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for Region 19, after being signed by an authorized representa- tive of the Company, shall be posted immediately upon receipt thereof and maintained by it for at least 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. 24 In the event that the Board's 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posted. Reasonable steps shall be taken to insure that said (e) Notify the Regional Director for Region 19, in notices are not altered , defaced, or covered by any other writing, within 20 days from the date of this Order, what material. steps the Respondent has taken to comply herewith. Copy with citationCopy as parenthetical citation