Stoner Lumber, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1971

187 N.L.R.B. 923 (N.L.R.B. 1971)

STONER LUMBER, INC.
Stoner Lumber , Inc., and Teamsters Union Local 413,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Case 9-CA-5534
January 19, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On September 22, 1970, Trial Examiner Sydney S.
Asher issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that Respondent had not engaged in certain other
unfair labor practices and recommended that the
allegatiQns of the complaint pertaining thereto be
dismissed. Thereafter, Respondent filed exceptions to
the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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,2 conclusions, and recommendations of the
Trial Examiner.
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 Trial Examiner as modified below and
hereby orders that Respondent, Stoner Lumber, Inc.,
Columbus, Ohio, its agents, officers, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order as so modified:
1. Delete paragraph 1(c) of the Recommended
Order and substitute the following:
"(c) Conditioning offers to reinstate illegally dis-
charged employees on the remaining employees'
rejection of a labor organization as their collective-
bargaining representative."
2. Delete the third indented paragraph of the
Notice to Employees and substitute the following:
WE WILL NOT condition our offer to reinstate
923
illegally discharged employees on our remaining
employees' rejection of a union as their bargaining
agent.
3. In footnote 38 of the Trial Examiner's Decision,
substitute "20" for "10" days.
I The Respondent' s allegations of prejudice, bias, and hostility on the
part of the Trial Examiner are wholly unwarranted.
2 We find no merit in Respondent's contentions that the Trial Examiner
erred in resolving credibility. It is established Board policy not to overrule
a Trial Examiner's credibility findings unless, as is not the case here, a clear
preponderance of all relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A.
3). Accordingly, we find no basis for disturbing the Trial Examiner's
credibility findings in this case.
TRIAL EXAMINER'S DECISION
SYDNEY S. ASHER, Trial Examiner: On February 16,
1970, Teamsters Union Local 413, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the Union, filed
charges against Stoner Lumber, Inc., Columbus, Ohio,
herein called the Respondent. On April 20, 1970, the
General Counsel of the National Labor Relations Board
issued a complaint alleging that since on or about January
16, 1970, the Respondent, by certain specified conduct, has
interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed them in the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151 et seq.),
herein called the Act. It is further alleged that the
Respondent discharged Walter R. Lucas 1 on or about
January 17, 1970, and thereafter failed and refused to
reinstate him, "because of his sympathy for, membership
in, or activities on behalf of the Union and in order to
discourage membership in the Union." It is alleged that this
conduct violated Section 8(a)(1) and (3) of the Act.
Thereafter the Respondent filed an answer admitting
certain jurisdictional facts, but denying the commission of
any unfair labor practices.
Upon due notice a hearing was held before me on June 23
and 24, 1970, in Columbus, Ohio. All parties were
represented and participated fully in the hearing. At the
beginning of the hearing the General Counsel was
permitted to amend his complaint to allege additional
incidents of interference with, restraint, and coercion of its
employees, which are alleged to have occurred at various
times since on or about January 9, 1970. The Respondent
denied these additional allegations orally upon the record.
After the close of the hearing, the General Counsel and the
Respondent filed briefs and the General Counsel filed an
errata to his brief. These have been duly considered.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
A. Preliminary Findings
The complaint alleges, the answer admits, and it is found,
that the Respondent is, and at all material times has been,
an employer engaged in commerce as defined in the Act,
The record reveals that the individual intended is Walter L. Lucas.
187 NLRB No. 127
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its operations meet the Board's jurisdictional
standards; 2 and that the Union is, and at all material times
has been, a labor organization as defined in the Act.
B. The Setting
At all material times the Respondent has had a
nonsupervisory complement of approximately 23 employ-
ees, including four regular truckdrivers: Walter L. ("Buck")
Lucas, Herschel Powell, Robert Waller, and John Lundy.3
At times here material, Richard J. Stoner was the
Respondent's president and Rodney D. Garnett was the
Respondent' s general manager . Each was admittedly a
supervisor within the meaning of the Act.
In December 1969 some of the Respondent's employees
began to talk about selecting a union to represent them for
collective bargaining. On January 12, 1970, a number of the
Respondent's employees signed cards authorizing the
Union to represent them. On January 194 the Union wrote
to the Respondent claiming to represent a majority of the
Respondent's employees in an appropriate unit and
requesting recognition. This reached the Respondent on
January 20. On January 20 the Union filed with the Board a
representation petition (Case 9-RC-8414). Pursuant there-
to, a Board-conducted election was held on February 20.
Most of the events with which we are here concerned
occurred between January 12-when some union authori-
zation cards were signed-and February 20, when the
election was held.
C. Interference, Restraint, and Coercion
1. Facts
One morning about a week before January 17, Stoner
summoned to his office George W. Rings, then a mechanic
in the Respondent's employ.5 No one else was present.
According to Rings' credited testimony,6 the following took
place:
Q. At this first meeting here, the first discussion
here, will you tell the court what Mr. Stoner said to you
about the Union?
A. He wanted to know if I knew anything about a
Union or any labor trouble in the yard at that time. He
heard it, that there was talk about a Union out there
and he wanted to know. He wanted me to bring what I
could find out in the yard up to him and let him know.
If I let him know he would let the person go or fire
him, to fire him.
Q. Now, Mr. Rings, I have to ask you pointedly
now, did he ask you to find out what you could about
the Union?
A. Yes; and, bring it back to him.
2 The Respondent is, and at all material times has been, an Ohio
corporation with its place of business in Columbus, Ohio It sells and
distributes lumber and other products at wholesale During the 12 months
immediately prior to April 20, 1970, the Respondent shipped products
valued at more than $50,000 from its Columbus, Ohio, place of business
directly to destinations outside the State of Ohio
3 The Respondent also employed a fifth driver, James Dillard At the
times here material , Dillard was "just starting to dove" for the Respondent.
He was not considered a "regular" driver
4 All dates hereafter refer to the year 1970, unless otherwise noted
Q. Did he say what he was going to do once he
found out, sir?
A. He was going to fire them, let them go.
Q. Did he say that to you, sir?
A. Yes, sir, he did.
On Friday, January 16, in the early afternoon, Stoner had
a conversation with Jasper Fletcher, then a forklift operator
in the Respondent's employ. No one else was present.
According to Stoner's undenied testimony- 7
Q. (By Mr. Lowe) Now, Mr. Stoner, you said on
January 16th you were canvassing your prima donna
truck drivers because you had heard somebody was
unhappy; is that correct9
A. I had heard that we had unhappy people with a
situation of our Company.
Q. Well, who did you hear this from, Mr. Stoner?
A. I heard this from an employee named Jasper
Fletcher.
Q. Just what was told you about these unhappy
personnel people that you have had?
A. That all of the drivers were getting together in
the morning and discussing-I backtrack on this.
Q. No, I prefer that you answer my question.
A. All right, I will do that, sir. There had been a
tendency for the drivers to get together in the morning,
sit around and in general talk about the working
conditions at our Company and Jasper would come in
early in the morning and he had overheard their
conversations.
k
Q. [By the Trial Examiner] Can you describe the
conversation for me?
A. I walked out into the warehouse and Jasper
Fletcher was doing some cleaning up on one side of the
warehouse.
I said, "Could I see you a minute?" And he said,
"Yes," I could. And he said that he wanted to quit. So I
asked him why he wanted to quit. He said, " Because
there are things going on here that I don't like. There
are people unhappy and I don't want to get involved in
it."
And I asked him more about it. He said, "It had to do
with the drivers. I am afraid of being beat up. I don't
want to be involved."
I said, "Don't worry. You won't be beat up." He said,
"I can't tell you any more than that except the drivers
were involved."
On the same day, Stoner called Rings to his office again.
5 Rings had been active on behalf of the Union, obtaining blank
authorization cards from the Union and returning them after they had
been signed
6 Stoner denied that he had any conversation with Rings prior to
January 16 His denial was not convincing and is not credited
r Fletcher, who is no longer in the Respondent 's employ , and whose
whereabouts is unknown . was not called as a witness On January 12 he
had signed a union authorization card and had been active in obtaining
such signatures from other employees
STONER LUMBER, INC
According to Rings' credited testimony, the following took
place:
Q. Now, on this occasion, Mr. Rings, what did Mr.
Stoner say to you about the Union?
A. He was talking cards-our petitioner for the
Union was out in the yard-and he wanted to know
who started all of it and I was Just-it was all talk about
the Union at that time anyway. . . . He asked me who
was the cause of it and kept naming the boys of the
yard, like all the drivers; Lucas or Walter or Herschel or
John Lundy. He dust kept naming them off; who was
the instigator of it . . . he asked me if I was in his shoes
what would I do about the Union. I told him I would
dust go right ahead and get it in there-I mean speaking
as if I was in his shoes . . . He said he couldn't afford to
pay me no $8.00 an hour, and he would hire more help
and work the guys in the yard 40 hours straight and no
overtime if the Union came in.8
On the same afternoon, Stoner summoned Lundy,
Powell, and Lucas to the office, separately, and talked to
them in Garnett's presence. According to Lundy's credited
testimony Stoner began by stating: "There is a rumor going
around of a union." He asked if Lundy had knowledge of
this, Lundy answered that he did not. Stoner stated: "If a
union got in here you wouldn't get as many hours as you
have been getting." Stoner inquired if Lundy were in favor
of the Union; Lundy replied that he was. Stoner remarked:
"Well, I won't have to see you looking at you across that
picket line." Lundy responded: "No, not that I know of."
Stoner expressed his opinion that the Respondent would be
better off without a union and stated that he could not
afford to pay the employees higher wages. Stoner then
questioned Lundy as follows:
He asked me who was pushing this Union. Who
was-if anybody approached me about a Union. And I
told him, "No.". .
And he says, "Buck hadn't had nothing to do about
the Union." I said, "No." He asked me about Herschel
Powell and Bob Waller and George Rings and a couple
other men that was a yardman at the time.
* * * *
Q. What did he say about Buck Lucas?
A. He asked me was Buck the one behind the
Union thing.
Q What did you say?
A. I told him, "No"
8 Stoner testified
I had called George [Rings] in and asked him if he had heard of
people who were unhappy in our Company-
So,
• a • s
I had thought that possibly he [Rings] might know of someone
who was unhappy and if so what was the problem He [Rings]
said that he knew of no problems I had, however, he felt that if we
had a Union we would have less turnover of people, that we would
have less problems, in terms of the Union, that they would run the
Company better than I I told him that was his opinion, that was fine
Stoner denied stating that he could not afford to pay Rings $8 an
hour He further denied asking Rings who was pushing the Union To
the extent that Rings' version differs from that of Stoner, I credit Rings'
version as the more accurate
9 Stoner testified that he asked Lundy "was he aware that we were
having public relations problems We were having people that were
unhappy with the Company if so, who were they, so that I could get
925
The interview lasted about an hour.9
According to Powell 's credited testimony , his conference
with Stone and Garnett went as follows:
Q. . . . On this occasion then what did Mr . Stoner
say to you about the Union , Mr. Powell?
A. He wanted to know who was out there pushing
it. He wanted to know who all was in it and I proceeded
to tell him I didn ' t know and if I did know I wouldn't
tell him anyway.
Q. Did he ask you how you felt about a Union, Mr.
Powell?
A. Yes. I made no reply.
Q. Do you recall dust what he said in that regard,
sir?
A. No, not offhand, no.
Q. Did he ask you to find out who was behind the
Union, sir?
A. Yes, sir.
Q. What did you say to him on that point?
A. I said, "I wouldn't do it."
*
Q [On cross-examination ] Did Mr. Stoner mention
any names to you?
A. Yes.
Q. Who?
A. Waller, Lundy, Rings and Lucas.
* * * *
Q. I thought Lucas was one of the four names?
A. It is. If he was behind it or Lundy or Rings or
Waller.
This conference lasted at least 20 minutes and no more than
45 minutes. 10
The last employee to be interviewed by Stoner and
Garnett on January 16 was Lucas. According to Lucas'
credited testimony, the following occurred:
Q. Now, on this occasion that you talked to Mr.
Stoner in his office will you tell this court what Mr.
Stoner said to you and what you said to him?
A. . . . He asked me if I knew of any labor
disturbances in the yard. I told him what I had heard of
together with them and correct the issues John said that he knew of
no problems that we had " He denied that union activity was mentioned
Garnett generally corroborated Stoner's testimony He admitted that
"possibly the names of the other three drivers were mentioned" but
described this mention as "casual" To the extent that they differ
materially, I credit Lundy's version as more accurate than that of Stoner
and Garnett
1s Both Stoner and Garnett denied that the Union was mentioned
during this interview I do not credit the denials Garnett described Powell
as "uninterested" and "bored " According to Garnett , Stoner inquired
whether Powell knew "of any problems that we had with the drivers or any
of the personnel at Stoner Lumber," and that Powell at first denied
knowledge "of any problem " but later "said that there might be problems
that he [would ] rather not talk about" and that the names of other drivers
may have been mentioned To the extent that they differ, I credit Powell's
version as more accurate than that of Garnett
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it. And, he wanted to know who was pushing it. I told
him I didn't know.
Q. Pushing what?
A. Pushing the labor disturbance. As I said, I told
him I didn't know. He said, "Put yourself in my position
and me in yours. I would tell you."
And, I told him I couldn't tell him because I don't
know. I had an idea but I couldn't put my finger on
anyone . . . He reminded me of different ideas I had
given the Company on money saving; or how to equip
the outfit, and reminded me of the raises that he had
given me over the past 4 years, and still wanted to know
who was pushing the Union, labor disturbance; and, I
told him I couldn't tell him, I didn't know.
Q. Now, while you were in the office talking with
Mr. Stoner, did he ask you about any particular
employee at the lumber yard?
A. Yes.
Q. Whom did he name?
A. Herschel Powell.
Q. And what did he ask you about Mr. Powell?
A. He wanted to know if he was involved in the
pushing of the labor union. I told him I didn't think
so. i i
During this exchange, Lucas stated "that somebody or
something was running [Stoner] or running the Company
and he [Lucas] didn't understand [Stoner], and [Stoner]
didn't understand him [Lucas], and that [Lucas and Stoner]
had nothing in common." He further remarked "that
Stoner Lumber just wasn't the same place it was when he
started in 1966" and that "you got a silly little kid running
your yard" [a reference to Kenneth Desenberg, then the
Respondent's yard superintendent and the immediate
supervisor of the dnvers].12 The conversation lasted at least
30 minutes but no more than 45 minutes.
On the next day, Saturday, January 17, Lucas was not
scheduled to work, and accordingly did not report. At
about 9 or 9:15 a.m., Stoner telephoned Lucas at Lucas'
home. According to Lucas' credited testimony, the
telephone conversation went as follows:
Q. . . . would you tell the court nowjust what was
said to you and what you said to Mr. Stoner in this
conversation.
A. Mr. Stoner told me that after our talk of last
night, which was on Friday, January 16th, he said, "You
had better find anotherjob."
I told him he had to be kidding. He said he wasn't;
that he had made up his mind .... he reminded me
how he and I had worked together during 4 years of
building the company to what it is today; the many
suggestions that I had put in to the company, and he
thought that I should point my finger at someone that
was causing the labor disturbance in the yard.
And, again, I told him I didn't know. And, then, he
told me, "Well, forget about our conversation. Come on
back to work Monday." 13
At about 9:30 a.m. that day,14 Stoner and Garnett went
to the home of Waller.15 According to Waller's credited
testimony, the following occurred:
Q. What did Mr. Stoner say to you on this occasion,
Mr. Waller?
A. He asked me if I had heard of anybody trying to
organize a Union. At this time I told him. "No."
Q. Did he ask you any other questions, sir?
A. Well, he asked me-he had just laid 13 men off
December 13th-he stated to me that 70 percent of
these men was for the Union.
I said, "I know nothing about it."
*
Q. How did this conversation end?
A. Well, he told me that if I was to be fired, "it
won't be the end of the world for you."
The conversation lasted from 30 to 45 minutes.i6
About II or 11:15 a.m. Stoner again telephoned Lucas'
home. Lucas was out; Mrs. Lucas answered and told Stoner
her husband was not there. After identifying himself,
Stoner asked Mrs. Lucas to tell Lucas that he (Stoner) had
changed his mind and was letting Lucas go, and that Lucas
should come in on Monday morning to get his final
paycheck. Mrs. Lucas agreed to do so.17 When Lucas
returned a little later that day, his wife told him of Stoner's
telephone call.
Between 11 :30 a.m. and 1 p.m. (by then Stoner was back
at the Respondent's plant), James Wehrle, then an order
puller in the Respondent's employ, complained to Stoner:
"John Lundy was causing problems in our yard. He was
going around telling people that Stoner Lumber was a bad
place to work. We didn't know what we were doing in
running the Company." Wehrle also advised Stoner "that
we had problems." 18 In Garnett's presence, but not in the
11 Both Stoner and Garnett denied that the Union was mentioned.
Their denials were not convincing and are not credited
12 The finding regarding these remarks by Lucas are based upon a
synthesis of the testimony of Stoner and Garnett, not denied by Lucas
13 In agreement with Lucas, Stoner testified that at the beginning of the
conversation he (Stoner) told Lucas that he was discharged , but before the
conversation ended , "he [Lucas] convinced me that I should not let him
go " However, Stoner denied that during this conversation he asked Lucas
"who was behind the Union " His denial was not convincing and is not
credited
14 Lucas testified that a few minutes after the end of the telephone
conversation described above , Stoner again telephoned Lucas at his home
and urged Lucas "not to say anything to anyone about our conversation."
Stoner denied this I deem it unnecessary to resolve this conflict
1s Waller , the only one of the Respondent 's regular drivers who had not
been interviewed the previous afternoon, was not scheduled to work on
January 17 He had no telephone On cross-examination he testified that he
was the Union 's most active proponent
16 Both Stoner and Garnett denied that the Union was mentioned
Their denials are not credited Stoner testified that "we had told Mr
Waller that we had personnel unhappy in the Company and [asked
did he know anything about it And he said he knew of no labor
problems at Stoner Lumber." Garnett, in substance, corroborated Stoner's
testimony To the extent that Waller's version differs from that of Stoner
and Garnett, I credit Waller's version as the more accurate
17 This finding is based on a synthesis of the testimony of Mrs Lucas
and Stoner Stoner testified that, at the time, he thought he was speaking to
Lucas' daughter
1s This finding is based on Stoner's undenied testimony Wehrle, who
had signed a union authorization card on January 12, left the Respondent's
STONER LUMBER, INC.
presence of Wehrle, Stoner confronted Lundy. According
to Lundy's credited testimony, the following took place:
Q. Now, on this occasion, Mr. Lundy, would you
tell the court dust what Mr. Stoner said to you about the
Union?
A. Well, at this point he told me, he said, "John,
come in Monday morning. Pick up your check. You are
fired."
Q. Did he tell you why?
A. Yes. He told me that he had been told that I had
lied and he didn't like liars.
Q. What were you supposed to have lied about, Mr.
Lundy?
A. He said that someone had told him that I
approached them with a Union card and asked them to
sign it.
Q. Did he tell you who had told him this?
A No, he didn't.
Q. What if anything did you say to Mr. Stoner
about this accusation, sir?
A. I told him at this time, "That fellow, bung the
person in to my face and let them tell me I approached
them with a Union card. I will call them a liar to their
face and you can determine from there who would be
telling the truth at this point."
Q Did Mr Stoner make any reply to that
statement, Mr. Lundy?
A. Well, he-well-I just don't recall what he did
say after that but we went on to have a few more words
and he told me at this time to come on in Monday
morning as usual.. . .
Q. [On cross-examination] What did he [Stoner]
accuse you of doing?
A. Just accused me of what I said. He accused me
of telling lies to him.
Q You told a lie to him about what?
A. That I didn't know nothing about the Union.
Q Is that the only thing he said to you?
A. That is the only statement that he made to me;
why he was letting me go.
Lundy did return to the Respondent's plant on Monday,
January 19, and worked thereafter for approximately a
week.19
On Sunday, January 18, Stoner and Garnett went to
Fletcher's home, at Fletcher's invitation. At that time,
Fletcher advised Stoner "that there had been cards filled
out by employees at Stoner Lumber." 20 From this time on,
employ before the hearing He did not testify
19 The findings regarding the Lundy-Stoner conversation of January 17
are based on Lundy's testimony Stoner denied that the Union was
mentioned, his denial is not credited Stoner testified
A I told him I fired him because he lied to me
Q Lied to you about what''
A That he knew nothing of the problems we were having if there
were problems
Stoner further corroborated Lundy's testimony that Lundy demanded
confrontation with his accusers, and that Stoner thereupon told Lundy to
report to work Monday as usual, thus rescinding Lundy's discharge
Although Garnett testified, he did not mention this incident To the extent
that Lundy's version differs from that of Stoner, I credit Lundy's as the
927
Stoner was admittedly aware that the Union was attempt-
ing to organize the Respondent's employees.
On Monday, January 19, or Tuesday, January 20, in
Waller's presence, Powell asked Stoner to put Lucas back
to work. Stoner replied: "Only if the Union doesn't come
in." Then, while Powell was still present, Waller asked
Stoner: "Would you put Mr. Lucas back to work?" Stoner
replied that "if the Union comes in" he would not rehire
Lucas, but if the Union did not come in he would put Lucas
back to work.2i
On several mornings after January 20, Stoner, accompa-
nied by Garnett, approached Rings in the garage.
According to Rings' undenied testimony, Stoner "wanted
to find out who was in back of the Union; instigators,
organizers." During this same week, on three consecutive
mornings, Stoner addressed the three remaining drivers
(who had apparently gathered informally in the office) and
told them, according to Lundy's credited testimony, "how
better the conditions are going to be." Specifically, he
stated that "our loads would be better; would be to take out
and our loading would be pulled correctly" and there
would be "better order pulling."
About 2 weeks after Lucas' discharge, in response to
Stoner's request that Lucas bring in his uniform, Lucas
went to Stoner's office. According to Lucas' undenied and
credited testimony, the following took place:
Q. . . . What did he say to you and what did you
say to him?
A. He wanted to know if I was willing to tell him
who was pushing the labor organization. I told him I
wasn't. I told him I knew at that time that I wasn't
working for him and I wasn't going to tell him anything.
2. Conclusions
a. Interrogation of the mechanic and the drivers
It has been found above that, about a week before
January 17, Stoner asked Rings "if he knew anything about
a Union or any labor trouble in the yard." He added a
request that Rings furnish him information on this subject,
stating that if Rings did so, Stoner "would let the person
go." Such interrogation, coupled as it was with a threat of
reprisal, was coercive. It was violative of Section 8(a)(1) of
the Act.
After discussing with Fletcher in the early afternoon of
January 16 the fact that the Respondent "had unhappy
people," Stoner (mostly with Garnett present) immediately
embarked upon a systematic questioning of employees,
including all of the Respondent's regular drivers. This
more accurate
20 This finding is based on Stoner's admission in response to a question
from the Trial Examiner Fletcher did not testify Garnett testified that
Fletcher said "he knew that we were having problems with the drivers but
he wouldn't tell us anything because he was afraid of getting his head beat
in he said the people were unhappy " Garnett denied that the Union
was mentioned His denial is not credited
2i These findings are based on the mutually corroborative testimony of
Powell and Waller Stoner admitted that both men asked him to "bring
Buck Lucas back" He testified that he answered Powell "Herschel, I can't
do anything about it now" and that his response to Waller was "i will have
to see Ken [Denenberg ]" He denied that anything was said about the
Union I do not credit his denial, nor do I credit his version of his
responses to Powell and Waller
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
began with the second interrogation of Rings and
continued through the unusual visit to Waller's home on
January 17 (Stoner had never previously visited Waller's
home), the additional questioning of Rings on several
mornings after January 20, and the second interrogation of
Lucas 2 weeks after his discharge. Stoner seems to have
been intent upon discovering, through such questioning, the
identity of the individual or individuals responsible for the
union activities. These systematic interrogations, in the
context of other simultaneous unfair labor practices, were
coercive and violative of Section 8(a)(1) of the Act.
b. Conduct toward Burgess
James M. Burgess, then a boxcar unloader employed by
the Respondent at wages of $1.90 per hour, testified that, on
February 4 or 5, during a break while "everyone" was in the
office, Stoner said to him: "Jimmy, look, you will be a good
man for Order Puller because you know everything about
lumber"; and that he (Burgess) replied: "I would be glad
to." Burgess also testified that this was the only conversa-
tion he had about the order puller job. He became an order
puller, at an hourly rate of $2.10, on February 5.
Subsequently, Burgess testified that on or about February 3
or 4 Stoner summoned Burgess to his office in the presence
of Kenneth Desenberg, then the Respondent's yard
superintendent. According to Burgess, Stoner asked
Burgess if he were going to vote "no" in the forthcoming
Board election, and Burgess replied: "I don't know. It is
according to how everything turned out." Stoner stated that
a Mr. Russell had started as a truckdriver and had worked
himself into a better job. Stoner asked if Burgess would
want to be an order puller at hourly wages of $2.10, and
Burgess answered that he would. On cross-examination
Burgess testified:
Q. Did Mr. Stoner give you any reasons why he
wanted to give you thejob as Order Puller?
A. No, not that I can remember.
Q. Didn't he find out, or didn't you tell him you
had some lumber experience down in West Virginia?
A. Yes; Illinois.
Q. And you loved it?
A. Yes.
Q. And you have to know lumber to be an Order
Puller.
A. That's right.
# 3 f i i
Q What did Mr. Stoner tell you his reasons were
for promoting you as an Order Puller9
A. That I remembered lumber more than some
other guys.
Q. Then, was that before or after he talked to you
about the Union?
A. That is before.
With regard to these incidents, Stoner testified:
Q. . . what was said in your conversations with
Mr. Burgess.
A. . . . Jimmy [Burgess] brought to my attention
22 Burgess had been rehired on January 29 On February 3 the parties
entered into a stipulation wherein January 28 was set as the eligibility
that he had worked at a retail lumber yard in Illinois-I
do not know the city that it was-and, that he was
familiar with lumber.
We are always looking for good lumber people. I told
Jim this and he did in fact become an Order Puller. And
then he could make himself more money. He said he
could do the job and he would like to have the job. So, I
believe the following day, he and Ken Desenberg came
to my office and I told Jim at that time that we would
pay him 20 cents an hour more to become an Order
Puller, which made him $2.10 an hour.
At this time, I explained to Jim that our industry
needed good people; that I would like to help him learn
the business, that he was general and he didn't have an
education and, therefore, he should attempt to learn
some trade of a sort; and, I would be happy if he would
learn it here in our Company. That we would try to help
him, I mean, that we had had other people such as Jim;
we had a man named Russell Burnett who came as a 16
year old boy working for us and has worked himself up
to a betterjob.
Q. Was anything said about the Union?
A No, as Jim knew that we had a vote coming up.
And I told Jim, "That has nothing to do with your job.
You are allowed to vote any way you wish. I am only
paying this because you are doing a betterjob."
Q. Now, this job as Order Puller, does it pay quite a
bit more than what he was making as a carloader?
A. At the beginning, no. But as I was pretty
impressed with his knowledge in becoming a better
Order Puller and being able to take on more
responsibility it would pay a higher wage than a boxcar
loader would; yes, sir.
Q. [on redirect examination] Did you ask him
[Burgess ] how he was going to vote?
A. No.
Q. And what else did you say to him other than it is
important, you ought to think it over?
A. That he should see his father, talk to his father
about it.
The General Counsel takes the position that Burgess was
awarded this promotion "for the purpose of influencing
[Burgess'] vote" in the election scheduled for February 20.
It will be assumed, without deciding, that all of Burgess'
testimony should be credited and that such testimony
establishes a prima facie case of illegal motivation based on
the Respondent's animus against the Union and the timing
of the promotion. Nevertheless, there are strong defenses
raised to this relatively weak prima facie case . Stoner had
reason to question Burgess' eligibility to vote,22 there is
doubt whether either the Union or the election was
mentioned in the same conversation in which the
promotion was discussed, even under Burgess' version,
cutoff date, thus eliminating Burgess, Burgess in fact voted under challenge
and this challenge was ultimately sustained by the Board
STONER LUMBER, INC. 929
and-strongest of all-Stoner had sound business reasons
for selecting Burgess for the promotion.23 Although the
matter is not entirely free from doubt, I conclude that the
General Counsel has failed to establish by a preponderance
of the evidence that either Burgess' promotion or Stoner's
promise to promote Burgess was discriminatorily motivat-
ed.
Sometime between February 5 and 15, after Burgess'
promotion but before the election, while Burgess and
Stoner were alone in the warehouse, Stoner asked Burgess if
Burgess were going to vote "No" in the election. Burgess
replied: "It is according to how everything works out"
Stoner asked Burgess the same question "a couple more
times." Finally, on February 15, Burgess advised Stoner
that he (Burgess) "was going to vote `No'." Stoner replied:
"You are a good boy," or "something like that." 24 Based on
these incidents, I find that Stoner continued his course of
illegal interrogation by asking Burgess, in February, how
Burgess intended to vote in the forthcoming Board election.
I base no finding of unfair labor practice on Stoner's
remark. "You are a good boy," or words to that effect
c. Conversations regarding Lucas' rehire
It has already been found that on January 19 or 20 both
Powell and Waller asked Stoner to put Lucas back to work.
Stoner's replies made it pellucid that Lucas' fate was
inexorably tied to the outcome of the forthcoming election.
However, as found below, Lucas' original discharge was
violative of the Act, and the Respondent was therefore
legally obligated to reinstate Lucas forthwith. In short,
Stoner tried to condition fulfillment of the Respondent's
legal obligation on the employees' rejection of the Union
and thereby sought to influence the results of the election.
Such an attempted "deal" clearly violated Section 8(a)(1) of
the Act 25
d. The conduct of Kenneth Desenberg
Rings testified that in December 1969 and January 1970
he worked overtime , putting in 9 hours on weekdays and a
halfday on Saturdays . He further testified that , beginning
the week of January 19, his hours were cut back to 8 hours
per weekday , with no change in Saturday hours. He further
testified on cross-examinatior that Desenberg explained to
him that this was done because "the lumber sales or
something was cut down. It wasn ' t moving that good."
Rings also testified that he "finally talked him
[unidentified ] into getting a part -time guy" to help Rings.
It will be assumed , without deciding , that these events
transpired substantially as Rings related ,26 and that a prima
facie case has been presented (based on the timing and the
Respondent 's union animus) that Rings' hours were
reduced in order to influence his vote in the forthcoming
election or in reprisal against him because he had voiced
approval of a union . Nevertheless , I am not convinced that
23 The General Counsel argues in his brief "there is no testimony that
Respondent had need for another order puller " But neither is there proof
that the Respondent did not need another order puller, and the burden of
proof is on the General Counsel
24 These findings are based on Burgess ' credited testimony
25 Compare Revere Metal Art Co, Inc, 127 NLRB 1028, 1037, enfd 287
F 2d 632 (C A 2) The result could well be the same if Lucas' original
this was the case, for in my opinion Desenberg's
explanation for the reduction, coupled with the provision of
a part-time helper at Rings' request, adequately explains the
Respondent's action in terms of the reasonable exercise of
business discretion and overcomes the weak prima facie
case. While the matter is not entirely free from doubt, I
conclude that the General Counsel has failed to support by
a preponderance of the evidence his contention that the
reduction of Rings' hours was discriminatorily motivated.
e. Requesting employees to engage in surveillance
It has previously been found that, during the week
preceding January 17, Stoner requested Rings "to bring
what [Rings] could find out in the yard up to him [Stoner]
and let him know." It has further been found that, on
January 16, Stoner requested Powell "to find out who was
behind the Union." In these two instances, by Stoner's
solicitation of employees to engage in surveillance of the
union activities of their fellow employees, the Respondent
further violated Section 8(a)(1) of the Act.27
f. Threats of reprisal
It has already been found that, in his first discussion with
Rings during the week prior to January 17, Stoner stated
that if Rings would find out and tell Stoner the identity of
the individual responsible for the union activity Stoner
would discharge the person. During his second discussion
with Rings on January 16 Stoner stated to Rings (who had
worked overtime in December 1969 and January 1970) that
the Respondent "would hire more help and work the guys
in the yard 40 hours straight and no overtime if the Union
came in." On the same day, Stoner informed Lundy: "If a
union got in here you wouldn't get as many hours as you
have been getting." By twice explicitly threatening to
shorten the working hours if the employees selected the
Union to represent them and by explicitly threatening to
discharge the employee responsible for bunging in the
Union Stoner violated Section 8(a)(1) of the Act.
But this is not all. It has been found above that on the
morning of January 17, in a telephone conversation, Stoner
told Lucas he was discharged, then added that he thought
that Lucas "should point [his] finger at someone that was
causing the labor disturbance in the yard." Although
Stoner, before the end of that conversation, revoked Lucas'
discharge, later that morning in a telephone call to Lucas'
wife, Stoner rescinded the revocation and reinstated the
discharge. On the same day, during Stoner's visit to
Waller's home, Stoner illegally interrogated Waller as to
whether Waller "had heard of anybody trying to organize a
union"; Waller replied in the negative. At the end of this
rather unusual and somewhat lengthy visit, Stoner stated
that if Waller were to be fired "it won't be the end of the
world for you." Later that day Stoner admittedly told
Lundy that he was discharged because Lundy had "lied" to
discharge had not been discriminatory, but I do not reach that issue
26 Rings' testimony in this regard stands uncontradicted. Desenberg,
who is still in the Respondent 's employ, did not testify and the Respondent
did not explain its failure to produce him
27 Freeport Marble & Tile Co, inc, 153 NLRB 810, 816-817, enfd in
pertinent part 367 F 2d 371 (CA 1); and The Bedford-Nugent Corp, 137
NLRB 1030, 1033-34, enfd in pertinent part 317 F 2d 861 (C A 7)
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stoner when he told Stoner the previous day "that he knew
nothing of the problems we were having." Stoner later
withdrew Lundy's discharge and retained him in the
Respondent's employ. Thus, three times within a few hours,
Stoner threatened to discharge three different drivers
because he believed that they had failed to give him truthful
information which he sought by illegal interrogation.
Employees' right to remain silent , or to evade, or to
mislead-in short to protect the secrecy of their concerted
activities-is protected by Section 7 of the Act. Stoner's
threats to discharge Lucas, Waller, and Lundy on January
17 constituted attempts to break down that secrecy. As
such, they were violative of Section 8(a)(1) of the Act.
g. Promises of benefits
The record shows, as detailed above, that on three
mornings during the week following January 20 Stoner told
the drivers (Lundy, Powell, and Wailer) that their working
conditions would be improved, and tied down that
generalization with a more specific promise that the loading
of their trucks would be safer and more accurate. As the
truckloading had been an important source of friction
between the drivers and management, the impact of such a
promise must be considered as more than de minimis. The
Board has said: "What is unlawful under the Act is the
employer's granting or announcing such benefits (although
previously determined upon bona fide) for the purpose of
causing the employees to accept or reject a representative
for collective bargaining" (emphasis in original). 28 It is
therefore necessary to analyze Stoner's motivation in
making such an announcement. Factors which must be
considered are the Respondent's hostility to the Union,
other simultaneous unfair labor practices found above, the
timing of this announcement shortly after the Respondent
had received the Union's letter of demand, and the
admitted statement by Stoner to the drivers in these same
discussions that he knew that the Union's petition for
certification had been filed. These all point to Stoner's
illegal motivation, namely that he promised these benefits
for the purpose of causing the drivers to reject the Union as
their bargaining agent. Such conduct was violative of
Section 8(a)(1).
D. The Discharge of Walter L. Lucas
1. Facts
Walter L. Lucas began working for the Respondent in
February 1966 as a driver at an hourly rate of $1.90. He
received two wage increases in 1967, three in 1968, three in
1969, and a final raise on January 7, 1970. At the time of his
discharge on January 17, Lucas was the Respondent's
18 Hudson Hosiery Company, 72 NLRB 1434, 1437 See also Tonkawa
Refining Co, 175 NLRB No 102
29 The Respondent in its brief urges that "Lucas never signed a union
card or did he put his signature on any document He admitted he punted
his name on a card but he did not sign it" The purported difference
between signing a card and printing one's name thereon seems to me to be
hypertechnical and without substantial importance It is enough that Lucas
testified credibly that he signed a card , that he identified as his a card
dated January 12 bearing his name which was received in evidence, and
that this card was apparently turned over to the Union after being signed
(it bears the Board 's stamp as having been received by the Board on
highest paid driver, receiving wages of $3.05 per hour. He
was also the Respondent's driver with the most seniority.
Lucas was one of the employees who signed authorization
cards for the Union on January 12.29 Otherwise, he does
not appear to have taken a particularly active part in the
Union's organizational drive.
As related above, on January 16, Lucas, in Garnett's
presence, was illegally interrogated by Stoner regarding the
identity of the instigator of the union movement. On
January 17, in a telephone call to Lucas at his home, Stoner
illegally threatened Lucas with discharge because Lucas
refused to reveal information regarding the extent of union
activity and the identity of the Union's organizer. Lucas
was temporarily successful in persuading Stoner not to
discharge him. However, in a telephone call to Lucas' wife
later that morning, Stoner carried out his earlier threat and
informed Mrs. Lucas that her husband was discharged.
Two weeks later , when Lucas returned to the plant at
Stoner's request, Stoner renewed his previous illegal
interrogation. This was apparently the last communication
between Lucas and the Respondent.30
2. Contentions of the parties
The complaint alleges, and the corresponding portion of
the answer denies, that the Respondent discharged Lucas
on January 17, and thereafter failed and refused to reinstate
him, "because of his sympathy for, membership in, or
activities on behalf of the Union and in order to discourage
membership in the Union." At the hearing the Respondent
did not contest the facts that Lucas had been in its employ,
that the Respondent had discharged him on January 17,
and that since then he has not been offered reinstatement.
The only remaining issue is the Respondent's motive for the
discharge.
The General Counsel, in his brief, maintains that the
"Respondent discharged Lucas because of its knowledge or
suspicions that Lucas was a union adherent, and in order to
discourage Respondent's other employees from engaging in
union activity." Conversely, the Respondent, in its brief,
makes the following alternative contentions: Lucas did not,
in fact, engage in any union activities prior to his discharge;
even if he did, the Respondent "had no knowledge of any
union activity being conducted by Walter L. Lucas, at the
time of his discharge, or did said Respondent have any way
of knowing that the said Walter L. Lucas was a member of
said union"; and finally, in any event, "Lucas was
discharged for gross insubordination." By way of rebuttal,
the General Counsel states in his brief that the
"Respondent's alleged reasons for discharging Lucas are
purely afterthoughts, and are wholly unsupported by the
record testimony."
January 20- the same day that the Union filed its representation petition
in Case 9-RC-8414)
10 Lucas filed with the Ohio Bureau of Employment Services a claim for
unemployment benefits This was denied on April 27 on the ground that
Lucas had been discharged by the Respondent "with just cause in
connection with work " Lucas appealed. On June 15, a few days before the
hearing in the instant unfair labor practice proceeding, a referee of the
Bureau affirmed the April 27 determination and notified Lucas that he
could appeal within 10 days This 10-day period had not yet expired when
the instant hearing closed on June 24
STONER LUMBER , INC 931
3. The General Counsel's case
Let us first examine the time and extent of the
Respondent's knowledge of its employees' union activities.
Early in his testimony, Stoner claimed that he first became
aware that the employees were "unhappy" from Fletcher
on January 16 but did not learn of their union activities
until he received the Union's letter on January 20. Later in
his testimony, he admitted that he first learned that the
employees had signed union authorization cards from
Fletcher on January 18. The entire record convinces me,
however, that Stoner was aware that the employees were
engaged in concerted activities before he discharged Lucas
on January 17. This finding is based on the small size of the
plant; Stoner's discussion of labor unrest on January 16
with Fletcher (an employee who himself had signed a union
card); the speed with which Stoner reacted to this news and
the seriousness with which he regarded the situation (Stoner
testified: "I felt that was an important matter."); Stoner's
first illegal interrogation of Rings before January 16, during
which the Union was mentioned; and Stoner's illegal
interrogation of Rings and the four drivers on January 16
and 17, during which, again, the Union was mentioned.31 It
does not necessarily follow, however, that before he
discharged Lucas, at approximately 11 a.m. on January 17,
Stoner knew or suspected that Lucas personally had signed
a union card or had otherwise supported the Union's
campaign. In my opinion the record does not support such
a finding
What is overwhelmingly shown by all of Stoner's conduct
is that, promptly after he became aware or suspicious of
concerted activities by the employees, he embarked on a
concentrated effort to obtain information about the
movement. In particular he was exceedingly anxious to
discover the identity of the Union's principal supported. In
this effort he seems to have been singularly unsuccessful-
and the failure of Lucas, Lundy, and Waller to reveal the
information he sought greatly piqued him. This is
underscored by Stoner's threat to Rings that if Rings would
reveal the name of the person responsible for the Union
coming in, Stoner would discharge such person; Stoner's
telephone conversation with Lucas on the morning of
January 17 in which he told Lucas that Lucas should "point
[his] finger at someone that he thought was causing [a]
labor disturbance"; the unusual amount of time Stoner
spent interviewing the drivers and his unprecedented visit
to Waller's home, accompanied by Garnett; Stoner's
discharge of Lundy on January 17 (promptly retracted)
because Lundy had "lied" when he denied knowledge of
the Union; and finally his repeated insistence, 2 weeks after
Lucas was discharged, that Lucas give him information on
the subject.
It was this same pique which, I am convinced, caused
Stoner to tell Mrs. Lucas, in a telephone conversation on
January 17, that he had changed his mind and did not want
Lucas to report for work on Monday. That this discharge
was closely related to the union movement is clearly
attested to by Stoner's statements to Waller and Powell on
January 19 or 20 that Lucas would be returned to work only
if the employees' attempts to be represented by the Union
should fail.
I conclude that the General Counsel has established a
prima facie case that Lucas' discharge was illegally
motivated.32
4. The Respondent's defense
In defense of his decision to discharge Lucas, Stoner
testified that Lucas:
began to look into the lives of other employees.. .. He
criticized every driver at one time or another. .. .
Nothing seemed to satisfy him, and that accusation was
continually growing throughout our whole Company
over the last three or four years.
On cross-examination, Stoner elaborated:
From the beginning, supervisors that we had, I had
complaints from every supervisor about Mr. Lucas and
his attitude. I had complaints from the General
Managers. I had 2 General Managers and they both
complained about Mr. Lucas' attitude; and, over the
years I have interceded for him with General Managers
on various occasions.
In a similar vein, Garnett testified that "Mr. Lucas did not
comply with my orders 100 per cent" and that Lucas for a
long time had exhibited a poor attitude. When asked to
explain, Garnett testified that Lucas "is cantankerous, hard
to talk to, has all the answers." Joseph R. Harper, then a
rank-and-file employee of the Respondent, testified that in
1968 and 1969 Lucas "didn't get along with the yard
superintendents; any that I can think of." The specific
events elicited by the Respondent to illustrate Lucas'
behavior as an employee will now be examined.
1. On a Saturday morning in 1966, shortly after Lucas
came to work for the Respondent, Stoner was called to the
yard. According to Stoner:
I went down and Walter Lucas and Newell Glenn were
about to come to blows over what had occurred; and,
Walter Lucas said that nobody gives him orders but me;
that he didn't take orders from anybody but Dick
Stoner . . . I got Mr. Lucas and Newell Glenn together
and smoothed the matter over.
From this time on every supervisor that we ever had
would complain about Mr. Lucas' attitude.
It does not appear that either Lucas or Glenn was
reprimanded on this occasion.
2. Charles W. ("Chuck") Smith, Jr., testified that in
1967, when he was yard superintendent,33 "90 per cent of
the time the way I wanted something done wasn't the way
that Lucas done it. It was done Buck's way, period; or, he
didn't do it." Smith further testified that he complained to
Stoner about this. Garnett also testified that Smith had
complained to him. Apparently neither Stoner nor Garnett
took any action.
3. In April 1969 Lucas ordered repairs made on some of
31 Even had the word "union" itself not been used (although I find that
it was) the parties to these conversations must necessarily have understood
that the subject under discussion was some form of concerted employee
activity
32 This conclusion would be the same even had Lucas not signed an
authorization card for the Union
33 Lucas denied that Smith was ever his supervisor Stoner testified that
Smith was Lucas' immediate supervisor "for a brief time " It will be
assumed , without deciding , that Smith in 1967 held the supervisory position
about which he testified
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent 's equipment . When Garnett learned of this,
he told Lucas not to have work of this nature performed
without Garnett 's prior approval . Lucas agreed . In August
or September 1969 Lucas again ordered work performed on
the Respondent 's equipment , at a cost of $30 . Once more,
Garnett informed Lucas "not to have work done without
my authorization ." Lucas replied that " it was something we
needed and he had gone ahead on his own and taken care
of it ." The Respondent paid for the repairs that Lucas had
authorized . At an undisclosed date Stoner had distributed
to the employees a written directive which , among other
things, contained the following:
MECHANICAL EQUIPMENT
1. Buck Lucas is in charge of all tractors and trailers.
He is responsible for their upkeep . Buck will give a
monthly report to the main office on the condition and
state of repairs of this equipment.
In view of this directive from Stoner , Garnett 's insistence
that Lucas consult Garnett in advance could well have
seemed questionable and confusing to Lucas.
4. In the summer of 1969 Lucas put on his truck a sign
reading "Top Dog." It remained there for the duration of
his employment. No member of management objected. In
my opinion , this is trivial.
5. In the fall of 1969 Lucas complained to Smith, then a
nonsupervisory employee , about the manner in which a
load had been routed . Smith replied that that was the way it
had to be done . Lucas then stated : "Piss on these guys up
front . They don't know what they are doing." Smith
reported this remark to Garnett . Garnett responded : "Well,
that's Buck." According to Smith , "wejust kind of shrugged
it off because it had been made many times before."
6. Late in 1969 Desenberg , then Lucas ' immediate
superior , reported to Garnett that Desenberg had asked
Lucas why he was gassing up a truck but Lucas "would not
give him a civil answer ." Desenberg complained "that he
had no control over Mr . Lucas. He couldn't direct him." It
is not clear from the record whether Garnett took any steps
with regard to this complaint.
7. In December 1969 Lucas ' truck was erroneously
loaded with merchandise in excess of the quantity which a
customer had ordered. (Garnett testified that he later
investigated and found the fault was that of the loading
crew .) Lucas persuaded the customer to purchase the
overage Upon his return to the yard , Lucas wrote across
the shipping ticket: "This is why I don't get a Christmas
bonus." The matter came to Garnett 's attention . He orally
reprimanded Lucas about it and then spoke to Stoner.34
Stoner also orally reprimanded Lucas 35
5. Conclusions
Despite the Respondent's attempts to build up the
importance of these past events, there are clear indications
34 According to Garnett's version, Garnett recommended that Lucas be
discharged, but Stoner "interceded for him" because Lucas "had been a
good and faithful employee " Stoner, however, denied that Garnett had
suggested such a step I do not deem it necessary to resolve this conflict
as According to Stoner, prior to the reprimand, Lucas telephoned Stoner
at Stoner's home and Stoner "could tell he had been drinking from his
that Stoner considered Lucas a satisfactory employee.
These include Lucas' length of service; the directive
referred to above placing Lucas in charge of the
maintenance of equipment; the absence of any prior
warning by management that continuation of his past
conduct and attitude might result in his discharge; Stoner's
testimony: "I felt that he was a good employee, and I
overlooked a lot of things with him"; and the numerous
wage increases granted Lucas from time to time. I consider
it particularly significant that the last raise Lucas received
was on January 7, just 10 days before his discharge.
Accordingly, I conclude that, at least as of January 7,
Stoner was not only willing to tolerate whatever shortcom-
ings Lucas possessed, but even rewarded his services by
constant wage increases. It follows that, in seeking the real
motivating reason for Lucas' discharge, we must confine
our search to the last 10 days of his employment.
On January 16, as previously described, Lucas told
Stoner that somebody or something was running Stoner or
the Respondent; that Lucas did not understand Stoner and
vice versa; that they had nothing in common; and that "a
silly little kid" was in charge of the yard. However, this
conduct, characterized by the Respondent as
"insubordination," was not alluded to by Stoner when he
spoke to Lucas on the telephone on January 17, when he
spoke to him 2 weeks later, or when he discussed Lucas'
reinstatement with Powell and Waller on January 19 or 20.
On the other hand, in all four of these discussions, Stoner
spoke of the Union. Lucas may well have been far from a
model employee, but, despite this fact, the Respondent's
asserted reasons for his discharge do not ring true. From
the entire record herein, including Lucas' long period of
service with the Respondent and my doubts regarding
Stoner's credibility, I conclude that Lucas' remarks to
Stoner and Garnett on January 16 either were not
considered at all by Stoner when he decided to discharge
Lucas, or, if considered, constituted only a relatively minor
motivating reason. In short, I find that the reasons put forth
by Stoner are pretexts to cover up his real motive.
Then what was Stoner's primary motivation? It has
already been found, above, that in the telephone conversa-
tion of January 17, Stoner threatened to discharge Lucas
because Lucas refused to supply information with respect
to the employees' concerted activities. This threat proved
ineffectual. Having failed to obtain the information he
demanded, Stoner within a few hours followed up this
threat with the discharge itself. The conclusion is inescapa-
ble that the principal motivating force behind the discharge
was Stoner's pique caused by his conviction that Lucas was
deliberately withholding the information which Stoner
sought or Stoner's effort to scare other employees into
disclosures. I conclude that the discharge on January 17
and failure thereafter to reinstate Lucas interfered with the
employees' protected right to secrecy in regard to concerted
activities and thus violated Section 8(a)(1) of the Act.
Furthermore, the Respondent's refusal to reinstate Lucas
voice", the next day, referring to the ticket incident, Stoner warned Lucas
"that if this ever happens again , I will fire him, that I was tired of his
attitude " Lucas, however, denied that, prior to January 17, any member of
management had ever threatened him with discharge Lucas' denial in this
respect is credited
STONER LUMBER, INC. 933
on January 19 or 20 at the request of two of his fellow
employees was clearly designed to discourage union
activities among the remaining drivers. As such, it
constituted a separate violation of Section 8(a)(1) and (3) of
the Act.
Upon the basis of the above findings of fact and upon the
entire record in this case I make the following.
CONCLUSIONS OF LAW
1. Stoner Lumber, Inc., is, and at all material times has
been, an employer within the meaning of Section 2(2) of the
Act, engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Union Local 413, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is, and at all material times
has been, a labor organization within the meaning of
Section 2(5) of the Act.
3. By refusing to reinstate Walter L. Lucas on January
19 or 20, 1970, and continuing this refusal thereafter,
thereby discouraging membership in the above-named
labor organization, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By the above-described conduct, by discharging
Walter L. Lucas on January 17, 1970, because he refused to
reveal information about the concerted activities of the
employees, and by other conduct interfering with, restrain-
ing, and coercing its employees in the exercise of rights
guaranteed them in Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing commerce
and the free flow of commerce and constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
As the unfair labor practices found to have been
committed by the Respondent are persuasively related to
other unfair labor practices proscribed by the Act, the
danger of their commission in the future may reasonably be
anticipated from the Respondent's past conduct. It will
therefore be recommended that the Respondent cease and
desist, not only from the unfair labor practices found, but
also from in any other manner infringing upon the rights of
its employees guaranteed in Section 7 of the Act.
It has been found that the Respondent unlawfully
discharged Walter L. Lucas on January 17, 1970, and
thereafter failed and refused to reinstate him. Accordingly,
it will be recommended that the Respondent offer to Lucas
immediate and full reinstatement to his former position, or
if that position no longer exists, to a substantially
equivalent position, without prejudice to the rights and
privileges he previously enjoyed, and make him whole for
any loss of pay he may have suffered by reason of his
36 In the event no exceptions are filed as provided by Section 10246 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
discharge by paying to him the amount he would normally
have earned from the date of his discharge to the date of the
offer of reinstatement, less his net earnings during this
period. The backpay provided for herein should be
computed on a quarterly basis in the manner established in
F W. Woolworth Company, 90 NLRB 289, including 6
percent interest per annum as set forth in Isis Plumbing &
Heating Co, 138 NLRB 716.
It will also be recommended that the Respondent
preserve and make available for the Board, upon request,
all records necessary to compute the amount of backpay
due hereunder and post appropriate notices.
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case, I
make the following:
RECOMMENDED ORDER36
It is recommended that Stoner Lumber, Inc., Columbus,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or threatening to discharge, employees
because they refuse to reveal to the Respondent informa-
tion concerning the employees' concerted activities.
(b) Discouraging membership in Teamsters Union Local
413, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization, by refusing to reinstate
illegally discharged employees or otherwise discriminating
against its employees with regard to their hire or tenure of
employment or any term or condition of their employment.
(c) Offering to reinstate illegally discharged employees on
condition that the remaining employees reject a labor
organization as their bargaining representative.
(d) Coercively interrogating employees concerning their
union membership, activities, or sympathies, or those of
their fellow employees, or how they intend to vote in an
election for bargaining representative.
(e) Soliciting employees to report to management
concerning the union activities of their fellow employees.
(f) Threatening reprisals against employees should they
select a labor organization as their bargaining representa-
tive.
(g) Promising benefits to employees should they reject a
labor organization as their bargaining representative.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights protected by
Section 7 of the Act, except to the extent that such rights
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, as amended.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Offer Walter L. Lucas immediate and full reinstate-
ment to his former position, or if that position no longer
exists, to a substantially equivalent position, without
prejudice to seniority and other rights and privileges
previously enjoyed, and make him whole for any loss of pay
shall, as provided in Section 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.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he may have suffered by reason of his discharge, with
interest thereon at the rate of 6 percent per year.
(b) Notify Walter L. Lucas, if presently serving in the
Armed Forces of the United States, of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve until compliance with any order for backpay
made by the Board 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 to compute the amount of backpay due under the
terms of this Recommended Order.
(d) Post at its place of business in Columbus, Ohio, copies
of the attached notice marked "Appendix."37 Copies of
said notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.38
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges any unfair labor practices not
found herein.
37 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations board "
38 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 EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, or threaten to discharge, our
employees because they refuse to tell management
about the employees' concerted activities.
WE WILL NOT discourage membership in Teamsters
Union Local 413, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other union, by refusing to
reinstate illegally discharged employees, or otherwise
discriminating against our employees with regard to
theirjob tenure or working conditions.
WE WILL NOT offer to reinstate illegally discharged
employees on condition that our remaining employees
reject a union as their bargaining agent.
WE WILL NOT question our employees in a coercive
manner about their union membership, activities, or
sympathies, or those of their fellow employees, or how
they intend to vote in an election for bargaining agent.
WE WILL NOT ask our employees to report to
management about the union activities of their fellow
employees.
WE WILL NOT threaten reprisals against our employ-
ees if they select a union as their bargaining agent.
WE WILL NOT promise benefits to our employees if
they reject a union as their bargaining agent.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to join or assist any union, to
bargain collectively through representatives of their
own choosing, to engage in mutual aid or protection, or
to refrain from such activities, except to the extent that
such rights may be affected by an agreement requiring
union membership as a condition of employment as
authorized in Section 8(a)(3) of the National Labor
Relations Act, as amended.
WE WILL offer Walter L. Lucas immediate reinstate-
ment to his old job, or if that job no longer exists, to a
similar job, without loss of seniority or other privileges,
and pay him the wages he lost because of his discharge,
with 6 percent interest per annum.
WE WILL notify Walter L. Lucas, if presently serving
in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
Our employees are free to become or remain, or to refrain
from becoming or remaining, members of any union,
except to the extent that such right may be affected by an
agreement requiring union membership as a condition of
employment as authorized in Section 8(a)(3) of the above-
named Act, as amended.
Dated By
STONER LUMBER, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Room
2407 Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.