Cascade Corp.

National Labor Relations Board - Board Decisions

Jul 29, 1971

192 N.L.R.B. 366 (N.L.R.B. 1971)

366 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Cascade Corporation ,and International Union , United
Automobile, Aerospace and Argicultural Implement
Workers of America , UAW. Case 9-CA-56_081
July 29, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING' AND BROWN ''
On March 3, 1971, Trial Examiner William W.
Kapell issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed in its,entirety, as set,forth in the attached
Trial Examiner's Decision. Thereafter the Charging
Party filed, exceptions to the Trial Examiner's Deci-
sion 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
power in connection with this case to a three-member
panel. 4
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejuducial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in, the case, and hereby adopts the
findings, conclusions, 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 and hereby orders that
the complaint in Case 9-CA-5608 be, and it hereby is,
dismissed in its entirety.
I
We hereby delete Case 9--CA-5683 from the caption of our Decision
herein , as the Trial Examiner severed that case from the instant
proceeding . No exceptions were taken from the Trial Examiner's Decision
in this respect.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W. KAPELL, Trial Examiner: These matters,
proceedings under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act, were
heard in Springfield, Ohio, on December 8 and 9, 1970,1
i All dates hereafter refer to the year 1970 unless otherwise noted.
2 Based upon a charge filed on April 17 by International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America,
UAW, hereafter referred to as UAW, and its Local Union No. 1689. The
with all parties participating pursuant to due notice,upon a
complaint2 in Case 9-CA, 5608 issued by the, General
Counsel, on June 5, and a complaint3 in Case_9-CA-5683
issued on' September 18, which were consolidated, for
hearing by order of the Regional Director dated October
14.
The complaint in Case 9-CA-5608 alleges, in substance,
that about April 7, Cascade Corporation, hereafter referred
to as Respondent or the Company, harassed, interrogated,
and- discriminatorily discharged Paul Pride because of his
union,activities, in violation of Section•8(axl) and (3) of the
Act. In its duly filed answer Respondent denied engaging in
the alleged unfair labor practices.
The complaint, as amended, in Case 9-CA-5683 alleges',
in substance, that following an election the Board on April
28, issued a certification of representation to UAW, that
since about April 30 UAW has, requested reeognition and
bargaining, that since about May 6 Respondent has refused
to comply with UAW's request, and that since about May
18 certain employees of Respondent have engaged in a
strike caused and prolonged by Respondent's refusal to
bargain, in violation of Section 8(a)(1) and (5) of the Act. In
its duly filed answer, Respondent admitted the issuance of
the certification, its refusal to comply with UAW's request
to bargain, and the strike by certain employees, and
affirmatively alleged, (1) that the UAW certification was
invalid, and (2) that beginning about May 18 UAW has
engaged , in coercive, acts against company employees
involving mass picketing; shooting at employees,`and their
homes and cars; threatening to inflict and inflicting
physical injury on such employees; and damaging their cars
and homes, as a result of which Respondent is not obligated
to bargain with the Union.
The record involving Case 9-CA-5683 was conditionally
closed pending Board approval or rejection of a settlement
agreement in Case 9-CB-1830 in which a complaint was
issued based on alleged misconduct by UAW violative of
Section 8(b)(1)(A) of the Act .4 As related above, such
misconduct was also pleaded as anaffirmative defense in
Case 9-CA-5683. Pursuant to arrangements made at the
conditional close of the hearing herein, the record in Case
9-CA-5683 was to remain closed automatically in the event
the Board approved of the proposed settlement agreement.
If rejected by the Board, said record was to be reopened
and the hearing resumed in connection with the Respon-
dent's Motion To Consolidate Case 9-CB-1830 for hearing
with Case 9-CA-5683, on which ruling had been deferred
pending Board action on the proposed settlement. The
Board, however, has not as yet acted on the proposed
settlement. Nor does it appear if or when it will do so. The
hearing in Case 9-CA-5608 has been completed, and its
determination is not dependent on or in any way directly
related to the disposition of Case 9-CA-5683. I conclude
that it will serve no purpose to delay a decision therein.
Accordingly, I hereby sever it from Case 9-CA-5683 and
issue the within decision. When Case 9-CA-5683 has been
complaint, however, omits any reference to the Local.
3 Based upon a charge filed on June 9 by UAW and its Local No. 1689.
4 Said agreement was offered in evidence by Respondent and adnutted
without objection.
192 NLRB No. 69
CASCADE CORP. 367
completed, a Supplemental Decision will be issued in that
case.
All parties were represented and were afforded an
opportunity to adduce evidence, to examine and cross-
examine witnesses, and to file briefs. Comprehensive and
able briefs have been received from the General Counsel,
Respondent, and the Charging Parties and have been
carefully considered. Upon the entire record in the cases,
and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. COMMERCE
Respondent, an Oregon corporation engaged in the
manufacture of hydraulic cylinders at its plant in
Springfield, Ohio, during the past calendar year had a
direct outflow in interstate commerce of its products,
valued in excess of $50,000, which itsold and caused to be
shipped directly from its plant in Springfield, Ohio, to
customers outside the State of Ohio. Respondent admits,
and I find, that at all times material herein it has been
engaged as an employer within the meaning of Section 2(6)
and (7) of the Act. "
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all times material
herein UAW and its Local 1689 have been labor
organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Alleged Harassment, Interrogation, and
Discriminatory Discharge of Pride
Pride began working for the Company on October 10,
1964.5 He became active in the Employees' Independent
Union and was elected president in March 1968. Thereaft-
er, the UAW started'an organizational campaign among
the employees, and Pride signed one of 'its authorization
cards and became active in soliciting members. Following a
Board-conducted' representation election on December 31,
1969, which was won by UAW, Pride was elected president
of its Local 1689. Prior to that election and on December
29, 1969, Plant Superintendent Frank Warren called a
meeting of employees on company time at which Plant
Manager` Jack Hagen attempted to explain to 'the
employees the Company's' position concerning'bargaining
proposals' which he believed had been misrepresented by
the Independent Union. Pride got up, said "he didn't have
to listen, to this b--- s---," and left. According to Pride,
Hagen began criticizing the UAW's campaign and when
Pride requested equal time to talk to the employees he was
told that this -was his (Hagen's) meeting and that if Pride
didn't like it he could leave. Pride thereupon left, stating he
s The quality and quantity of his production were considered above
average and are not in issue herein.
6 Allegedly referring to a union flyer which had been posted, and
distributed by Pride and another employee on April 6 calling for a UAW
meeting on April 12 to vote on a strike call.
7 Pride explained that the girl in personnel had given his wife a hard
time when she called in to report his absence, and that she thereupon
refused "to listen to this b-- s---." About January 5, Pride
was summoned by Plant Manager Hagen and warned that
if he walked out of another meeting for which he was being
paid he would be fired.
On April 7, Plant Superintendent Warren approached
Pride at his machine where he engaged him in conversation.
Their versions, of the- conversation conflict on several
points. According to Pride, he asked Warren how things
were going, and in reply Warren stated"Lousy," and then
continued to castigate him, stating, "Here you are calling a
damn strike," 6 and accusing him of selling out-the men and
of being nothing but a troublemaker since he came to work
there. In reply, Pride said he would rather punch out and go
home than continue to work under such conditions. When
Warren persisted in talking and asked where he had been
the preceding day, Pride told him he had been sick, to
which Warren replied "That wasn't what your wife said
when she called in." 7 Warren also told him that his
machine was an expensive piece of equipment and they had
to keep it clean, and "when you leave the plant, take your
damn toolbox with you." Pride then removed his things
from his locker, took his toolbox, punched out, and left the
plant. Before leaving, he advised employee Clarence Settles
he had been fired .8
According to Warren's version of the conversation, he
asked why Pride was absent the preceding day. When Pride
replied that he was sick, Warren told him that his wife had
called in and reported -he was on personal business. He
continued to press the matter, of his absence but,-Pride
refused to discuss it further, stating he would punch out and
go home. He thereupon told him that if he did so then to
take his tools with him. He later saw Pride washing up, and
he was ignored when he attempted to talk to him. Warren
then left the plant without waiting to ascertain whether
Pride had actually carried out his threat-to punch out.
Pride visited the plant that night and saw Foreman Dan
Reynolds. According to Pride, he asked why he had been
fired by Warren, and Reynolds shrugged his shoulders.
While there, Reynolds 'received a telephone call from
Warren and upon completing it he told Pride he was right
about being fired, but Reynolds didn't know why.
According' to Warren, he telephoned Reynolds that night to
asceraain whether Pride had, in fact, left the plant as he had
threatened to do. Reynolds replied that Pride was sitting
next to him and wanted to know whether he still had ajob.
He (Warren) then asked what Pride had said about Iris job
and when Reynolds stated that Pride didn't know, Warren
upon learning that Pride had left the plant during his shift,
replied that he did not have a job. According to Reynolds,
Pride came to his office to find out :;whether he 'still had a
job, and he (Reynolds) replied that he had been told by
Warren that he had not fired him. He then received a
telephone call from Warren who asked whether Pride had
in fact left the plant during his shift. When he was advised
that he had,, and that he was sitting in the office inquiring
stated "personal business" because she had to give a reason. ,
S It was stipulated that if employee Ralph Richards were called to
testify he would state that, while walking towards his locker , Pride passed
the area where he was working and told him he had just been fired. It was
further stipulated that if employee Ron Stacy were called to testify he
would also state that Pride told him he had just been fired.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether he still had ajob, Warren replied "I'm afraid'not "
Upon hearing, that, he no longer had a job, Pride-left but
returned shortly with his tools. They then went upstairs-and
continued talking over a cup of coffee during which Pride
stated, "I need a vacation anyway. 1, am going- to file
charges and be back.9 It's a dam, shame that he let his
feelings get tohim over a,man's union activities." Reynolds
then asked, "Paul,,were you talking about union activities,"
and Pride replied."No, we weren't but you know that is why
I was fired." lo
After-.Warren informed Hagen about the incident with
Pride, both Warren and, Pride were, summoned to Hagen's
office onthe following day where each was asked to relate
what had happened. According to Hagen, Warren stated
that when he tried to discuss, Pride's absence, Pride became
irate and refused to listen and said he was going to punch
out, and he (Warren) told him that if he did so,, to take his
toolbox with him; and Pride stated that Warren had
berated an accused him of trying to cause labor unrest, and
had fired him. After hearing their versions of the incident,
Hagen informed them that he would investigate the matter
further' before deciding what to do, and closed the, meeting.
He later contacted Reynolds and was toldthat-when Pride
had visited him the night of April 7, he stated he did not
know whether he had been fired.' Hagen then decided to
accept Warren's version of, the incident-andsent a letter to
Pride-dated April 9, confirming his termination, stating, in
part: "In view of the, other recent incident involving
insubordination,on your part and the fact that you walked
off the job I have no alternative but, -to confirm your
termination."
B. Pride's Alleged Misconduct. on the Picket Line
Even assuming arguendo that Pride had been discrimina-
torily discharged, Respondent contends he would not be
entitledp,to reinstatement because he engaged in facts of
violence and intimidation on the picket line. The following
evidence was introduced with respect to such conduct. ,
Cecil Clary, a company^employee, testified that on May
19 or 20 he drove a company pickup +truck to work and
when he started to,turn in at the centerdgate of the plant he
found about.10 or 15 pickets,' including Pride, standing in
the entrance. The pickets refused to get out-of-the way and
about 1,0 of them grabbed hold of the truck, shaking and
bouncing it. Pride, who did not touch the truck, asked him
why he wanted to come in and, scab to which he replied that
he, w,going,to work for what he believed in and to do so in
anF o erly manner, Pride then told him, "Clary, you better
get 'home before you get hurt and hurt•bad." Thereupon,
Clary, , backed out, drove away, and. entered the , plant
through another, entrance. Pride testified in connection with
this incident that he had asked Clary not to cross the picket
line to which Clary replied that he had, to go inbecause he
needed the money„ and that then Clary pulled away with
his truck.
Ronald Massie, a company employee, testified that on
9 He subsequently filed a grievance.
to It was stipulated " 'that if Pride were, called upon 'rebuttal he would
deny Reynolds' -assertion that-he (Pride) stated that in his conversation
with Warren he had not talked'about the Union
12 Evidence adduced as to his alleged excessive absenteeism was
May 20 he drove to work in his, car and pulled up behind ,a
few cars waiting to enter the plant. When the driver in front
of him, a foreman, was permitted to enter, he began ;driving
in. Robert Goodfellow, a picket, yelled "stop him,,", and a
group of men, rushed to his car and someone yelled "Let's
turn it over." The pickets, including Pride, started lifting
and rocking the carand the left rear tire blew,-out.,, The
pickets then dropped the car and scattered. Pride testified
that he was present at this incident on-the picket line and
admitted having his ha#ds on the car but denied rocking it.
Pride also testified at he followed-a truck as it left the
plant to go to the premises of Commercial Trucking
Company where he and five,other individuals set up a
picket line in front of the truck, carrying a placard for a
period of about 3 hours.
0. Conclusions
During the hearing, Respondent asserted that Pride's
discharge was based exclusively upon his insubordination
in leaving the plant on April 7 , during his shift11 The
testimony of Warren and Pride of their conversation
preceding Pride's alle ed discharge differs on two _pivotal
points: (1) Did Warren upbraid Pride for engaging in union
activities, and (2) did Warren discharge him at that time.
According to Pride, W irren castigated him about his union
activities, then badgeted him about his absence on the
preceding day, and he (Pride) stated he would punch out
and • go home rather than work under such 'conditions.
Warren denied even mentioning Pride's union activities
and asserted that Pride not only declined to discuss his
inconsistent reason' for his absence but threatened to punch
out and go home if he ((Warren) persisted in discussing the
matter further, and, in reply to his threat to leave the plant,
he told Pride that if he did, then to take his toolbox with
him.12 I find it significant that although Pride claims he was
fired before he left,,th premises and had so advised two
fellow employees on his way out, his testimony does not
state that Warren act4lly told him at the time that he was
fired. All his testimony shows, ,on that point is that Warren
told him that he ' was operating an expensive piece of
equipment, that they h d to keep it clean, and that "When
you leave the plant, t e-,your damn tool box with you,"
which Pride proceeded to do.
Pride's testimony, also conflicts with that of Dan
Reynolds as to ,why he returned to the plant that night.,He
claims he returned to find out why; he was fired,13 whereas
according to Reynolds, Pride wanted to know if he still had
his job. They are in, agreement that, , while they were
conversing„ Reynolds received a telephone call from
Warren.; I find Reynol s' testimony more . convincing and
persuasive that, Pride r turned to find out whether he still
had, his job, that W en thereupon asked whether Pride
had, in fact, left the p ant during his shift, and that upon
learning he had, Warr stated he was discharged. Shortly
after Pride heard that li^ had been discharged, he attributed
his 'difficulties with Warren to his union activities.
admitted not to be a factor in
a
discharge.
12 It was stipulated that rren told Mr. Ross (a`leadman) that if Pride
left the plant for him to check his toolbox.
13 have difficulty in Crediting this testimony m'view of what he asserts
Warren told him when he was) allegedly fired.
CASCADE CORP.
However, when Reynolds asked whether they had been
talking about union activities, Pride replied "No, we
weren't but you know that is why I was fired." Based on the
demeanor of the, witnesses and the plausible sequence of
events, I credit Warren's version of his conversation with
Pride and his warning to Pride that if he did leave the plant
to take his toolbox with him. His version is also
corroborated on several points by the testimony of
Reynolds.14
In view of his extensive union activities, of which
Respondent was aware, Pride may have believed that he
was discharged because of those activities, and he indicated
as much to Reynolds. However, the credited evidence
sustains the conclusion that he attempted to browbeat
Warren, by threatening to punch out and go home unless
Warren stopped discussing his absence. Warren,-however,
accepted the challenge and made it clear to him that he
would be discharged if he carried out his threat. His
subsequent discharge was caused solely by his insubordina-
tion in carrying out his threat despite Warren's warning,
and I so find. I, accordingly, conclude that the General
Counsel failed to sustain his burden of proving that
14 The record also reveals that Pride had favorably alluded to Reynolds'
veracity in their dealings before Reynolds testified.
15 In view of this finding, it becomes unnecessary to determine whether
369
Respondent's discharge of Pride was motivated by
discriminatory reasons rather than for just cause,15 or that
Respondent unlawfully harrassed or interrogated Pride.
CONCLUSIONS OF LAW
1. Respondent is an employer whose operations affect
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. UAW and its Local No. 689 are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in conduct constituting
unfair labor practices within the meaning of Section 8(a)(1)
or (3) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint in Case 9-CA-5608 is dismissed in its
entirety.'
or- not Pride's alleged misconduct on the picket ]me would preclude his
reinstatement.