Little Lake Industries

National Labor Relations Board - Board Decisions

Dec 9, 1977

233 N.L.R.B. 1049 (N.L.R.B. 1977)

LITTLE LAKE INDUSTRIES
Little Lake Industries, Inc. and North Coast Counties
District Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO. Cases 20-CA-12098 and 20-CA-12333
December 9, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On August 1, 1977, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the Charging Party, the
General Counsel, and the Respondent filed excep-
tions and supporting briefs, and the Respondent filed
an answering 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge, to
modify his remedy so that interest is to be computed
in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977), 3 and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Little Lake Industries, Inc., Willits, California,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
The Charging Party and the Respondent have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3.
1951). We have carefully examined the record and find no basis for
reversing his findings.
We agree with the Administrative Law Judge's finding that Shumaker
accepted the supervisory position, but disavow his assertion that there is a
presumption that offers of promotion are accepted.
2 The General Counsel and the Charging Party have excepted to the
Administrative Law Judge's failure to dispose of the objections in Case 20-
RC-12333. We find no merit in this contention because, in our view, the
Administrative Law Judge was justified in refusing to consider the
representation proceeding when that proceeding had not been formally
consolidated with the unfair labor practice case before him. We also
consider it inappropriate for us to effectuate a consolidation of these
proceedings for purposes of decision. Accordingly, we conclude that Case
20-RC-12333 is before the Regional Director for appropriate disposition.
3 See, generally, Isis Plumbing A Heating Co., 138 NLRB 716(1962).
DECISION
STATEMIEN r OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Ukiah, California, on June 2 and 3,
1977.1 An initial charge in Case 20-CA-12098 was filed by
North Coast Counties District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Union), on November 2; a first amended
charge in said case was filed by the Union on November
11; a second amended charge was filed in the same case by
the Union on January 28, 1977. An initial charge in Case
20-CA-12333 was filed by the Union on January 5, 1977.
On February 2, 1977, the Regional Director for Region 20
issued an order consolidating the aforesaid two cases, and
issued a consolidated complaint alleging that Little Lake
Industries, Inc. (Respondent), violated Section 8(aXl) and
(3) of the National Labor Relations Act, as amended. On
March 28, 1977, said Regional Director issued an amend-
ment to the consolidated complaint, 2 to add alleged 8(aX)(1)
violations, and the complaint further was amended at
hearing, with leave of the Administrative Law Judge.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs, which have been
carefully considered, were filed on behalf of the General
Counsel, Charging Party, and Respondent.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a California corporation with a place of
business in Willits, California, is engaged in the manufac-
ture of wood products. During the past year, in the course
and conduct of its business, Respondent sold goods and
products valued in excess of $50,000 directly to customers
located outside the State of California.
I find that Respondent is, and at all times material herein
has been, an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
All dates hereinafter are within 1976, unless stated to be otherwise.
2 Herein called the complaint.
233 NLRB No. 164
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II1. THE LABOR ORGANIZATION INVOLVED
North Coast Counties District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent operates a small manufacturing plant with
approximately 350 employees in Willits, California, where
it makes wood products. One process in the manufacture of
Respondent's products involves applying stain to the
manufactured articles. Prior to November 1 the plant
operated only during daylight hours and, at times, with a
swing shift. On November I a graveyard shift was
instituted, and on December I a stain line was established
during the graveyard shift.
During the summer of 1976 personnel changes were
being considered by Respondent. Carl Simonson, then
superintendent of the stain line,3 was being considered for
a change of position, and he talked with Alvin Shumaker,
the Charging Party herein, about Shumaker taking over as
stain line foreman if Simonson changed jobs. Shumaker
then was a "set-up man," involved with maintenance and
adjustment of manufacturing equipment; he was not a
supervisor. The proposed personnel changes were not
made, and nothing more was said about job changes at that
time.
In the early fall of 1976 Respondent began considering
the possibility of opening a graveyard shift, and including a
stain line on that shift. Simonson asked Shumaker if he
would be interested in becoming foreman of the stain line
on the graveyard shift, and Shumaker was interested, but
did not commit himself at that time. Thereafter, the two
talked about the possibility on several occasions, and
Shumaker talked with several rank-and-file employees
about the possibility of working under his supervision on
the graveyard shift. Simonson knew about, and approved,
those talks Shumaker had with other employees. It is
undisputed that the employees Shumaker talked with, and
about whom Simonson had full knowledge, were Paul
Boren, who said he talked with Shumaker about the job on
several occasions during the autumn, or fall, of 1976; Sarah
Long, who said she discussed the matter with Shumaker in
the last part of October; Tanya Reese, who did not testify;
Barbara Maglaya, who said she talked with Shumaker
about the matter in October; Ruth Bickford, who said she
overheard a conversation in late October, during which
Shumaker asked Simonson for her transfer to Shumaker's
new job; and Kim Madrigal, who said Shumaker asked her
3 Simonson presently is factory supervisor.
4 All these named employees hereinafter are referred to by their last
names.
s Shumaker testified that he talked with Lewis on one occasion in
September or October, and that he stated to Lewis, "I would hate to see the
Union come in here. Because it would probably close the place down, and
we're just in the process of buying some stuff." Shumaker said his was a
defensive statement, and that Lewis replied, "I don't believe the place would
during the last week in October, to work under his
supervision on the graveyard shift.4
The graveyard shift commenced November 1, and
shortly thereafter James Powell, who then had worked for
Respondent about 4 months, was assigned to the job of
foreman of the graveyard shift stain line.
The Union's organizing campaign at Respondent's plant
commenced about the first of August. Shumaker was aware
of the campaign shortly after it started, and signed a union
authorization card on August 5. Thereafter, Shumaker
attended union meetings, talked with other employees
about the Union, served with nine other employees on the
union campaign committee, generally was active in union
affairs at the plant, and acted as a union observer at the
election on November 24.
Issues
General Counsel contends that Shumaker was not given
the job as foreman of the stain line on the graveyard shift,
after having been promised the job, because of his union
activities. Respondent contends that Shumaker was offered
the job, but rejected the offer.
Other issues involve alleged 8(a)(1) violations by Respon-
dent during the election campaign.
A. Alleged Interrogation by Simonson
Paragraph VI(a) of the complaint originally alleged that,
in August 1976, Roy Lewis, Respondent's manufacturing
manager, threatened plant closure because of union
activities. At the close of hearing, General Counsel moved
to delete said paragraph, on the ground that the proof
shows an illegal interrogation by Simonson in August,
rather than a threat by Lewis. Ruling on said motion was
deferred. 5
Shumaker testified that he talked with Simonson and
Lewis I or 2 days after he signed the authorization card on
August 5, and that Simonson asked him, "Had I been
contacted yet," by the Union. "Had they been to my house
yet." Shumaker said he replied, "No."
Simonson and Lewis denied the conversation related by
Shumaker.
Discussion
Shumaker was not a convincing witness. His demeanor
on the stand presented something of an enigma. He
appeared hesitant, and unsure of his testimony. Clearly he
has strong feelings of animosity toward Respondent that
predate the incidents involved in this controversy. Much of
his testimony was confusing and self-contradictory.
Shumaker's testimony implies that Simonson knew, by
August 5 or 6, about the union campaign. Nothing in the
close down if it did come in here .... However, we couldn't compete with
places like Sierra Pine, and it would be . . . we would have to have a
cutback." Lewis denied this conversation. It may well be, as argued by
Respondent, that Lewis' statement, even if made, would not constitute an
8(aX 1) violation. However, that argument is not reached, since Lewis' denial
is credited. This alleged conversation is given no credence, and is not the
basis for any finding.
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LITTLE LAKE INDUSTRIES
record supports Respondent's knowledge at such an early
date.
Simonson and Lewis appeared to be straightforward and
candid. They are not credited entirely, as discussed infra,
but their denials relative to this allegation are credited.
General Counsel's burden of proof requires that there be
some reasonable basis for alleged violations of the Act. In
this instance, the preponderance of evidence clearly is on
Respondent's side.
This allegation was not proved.
B. Alleged Threat by Jack Holden
Paragraph VI(b) of the complaint alleges that, in August
or September 1976, Holden threatened employees that
Respondent's operations would cease if the employees
chose to be represented by a union.
Holden was a stain line foreman, and a supervisor, at
times relevant herein.
Shumaker testified that he talked with Holden the first,
or middle part, of October, and that no one else was
present. Shumaker testified:
We were standing down in the warehouse by our
machine. We got machines. And we were standing
down by the leg machine and leaning up against a unit
of lumber. And he told me that if the place went union,
there would be no way that they could go on. It would
have to shut down, because redwood furniture is not a
necessity to life. He said if it was a meat packing place,
or something like that, then he could see it maybe going
union. But since it was a redwood patio furniture place,
there wouldn't be no way they could operate if it went
union.
Q. Do you recall if you said anything?
A. I probably agreed with him.
Holden denied the statement attributed to him by
Shumaker, and said he had heard employees make some
such statement on several occasions. Holden said he was
instructed at the beginning of the campaign "to say nothing
one way or the other, unless I was asked a specific
question."
Discussion
There is no support for either side of this testimony.
Shumaker was not a persuasive witness, and clearly is
antagonistic toward Respondent, as discussed supra. He
believes, rightly or wrongly, that Respondent in the past
has refused to give him raises when he deserved them. His
bias is apparent. Holden was an objective, candid witness,
and is credited.
This allegation was not proved.
6 G.C. Exh. 6.
7 B. F Goodrich Footwear Conmpan), 201 NLRB 353 (1973).
a Marathon LeTourneau Companv, Gulf Marine Division of Marathon
Manufacturing Company) 208 NLRB 213 (1974).
C. Alleged Threat by Marsh
Paragraph VI(c) of the complaint alleges that, on or
about November 17, Wendell Marsh, Respondent's execu-
tive vice president and general manager, threatened
employees with plant closure if they chose to be represent-
ed by the Union.
This allegation is based upon a letter6 dated November
17, 1976, signed by Marsh, and sent to all employees. It
also was posted on the plant bulletin board. The letter
includes the following statements, among others:
In 1969, however, Boise Cascade Company took
over the plant and in 1970 the Industrial Carpenters
Local 2341 of the United Brotherhood of Carpenters
and Joiners became the employees' collective bargain-
ing representative. By the spring of 1971, things had
gotten so bad here that Boise had to close up shop and
go out of business! Thefurniture operation remained idle
for more than a year! About that time, the same union
that wants your support now made unreasonable
demands on Cotati Cabinet Company in Santa Rosa.
That firm was forced to close its doors and a large
number of employees had no jobs. The same was more
recently true at Suncraft-a producer of furniture
similar to our product line. Like Boise, Suncraft was
under a union contract and had to close its doors.
I can't say we would necessarily be forced to close if
the Carpenters Union got in here again, but it has
happened before, both here and elsewhere, and you
should be aware of it. One sure way to prevent this
from happening here again is to vote "NO" on
November 24. That's the best way to guarantee
yourselves the greatest degree of job security.
Discussion
A prediction during campaigning that unionization may
or will result in plant closure possibly is permissible,
provided it is based upon objective and demonstrable facts
of economic results of unionization.7
However, a statement of possible closure without a
factual basis for the prediction, coupled with reference to
other closings related to unionization, clearly constitutes a
veiled threat.8
Even though the "questions and answers" attachment to
Marsh's letter assured employees they could vote as they
wanted, without discrimination, the letter is a clear threat
that unionization would carry with it a strong possibility of
plant closure. Such a threat violates Section 8(a)(1) of the
Act.9
This allegation was proved.
The cases cited and quoted by Respondent have been
carefully considered. Those cases are not controlling, since
the predictions in those cases were tied to strike results,'0
9 Mueller Brass Co., etc., 204 NLRB 617, 623 (1974); Rockingham
Sleepwear, Inc., 188 NLRB 698 (1971).
iO Field Packing Co., Inc., 220 NLRB 1188(1975).
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or there was no indication that retaliation or a threat was
involved." The language here involved is different. Here,
the threat of closure is tied directly to the Union and its
activities. A prediction of closure, based solely upon what
happened in the past when the Union had a contract with
Respondent's predecessor, plainly is a threat, followed by a
pitch for "no" votes in order to prevent the same thing
from happening again. That language is coercive.
D. Alleged Interrogation by Glen Skiles
Paragraph VI(d) of the complaint alleges that, on or
about October 21, Skiles interrogated an employee about
that employee's union activity.
At the time relevant herein, Skiles was foreman of
Respondent's trim line. The employee involved is Oneida
Shumaker, Shumaker's wife.
Mrs. Shumaker testified that she attended approxi-
mately four union meetings, during the period September
through November. She stated that one of the meetings
was held during the evening of October 20. The following
day she was in the breakroom, with Skiles and another
rank-and-file employee, Leecie Enox. A conversation
ensued:
And Leecie asked me, said, "Is Alvin ready to go back
to another religious-political union meeting tonight?"
My boss said, "Was he there?" She said, "Yeah." And I
said, "We was both there," because I figured I'd had it.
Q. Okay. And did you say anything further after
this?
A. No. He said--
Q. Who's"he"?
A. Glen Skiles.
Q. Okay. What did he say?
S *
A. He said, "If you want to pay two hours of your
wages a month to somebody that's too lazy to work, go
ahead."
Mrs. Shumaker said Skiles spoke loudly, appeared
"mad," and had a red face when he spoke.
Enox testified that she attended the union meeting the
evening of October 20, and that more conversation was
devoted to religion and politics than to union matters. She
said: She was in the breakroom the following morning, and
Mrs. Shumaker and Skiles also were there. Enox asked
Mrs. Shumaker if Shumaker was "ready to go back to
another religious meeting." She did not hear Skiles ask
Mrs. Shumaker if her husband had been to the union
meeting, and Skiles did not ask Mrs. Shumaker if she had
been there. Skiles did not say, "If you want to pay $2 to
someone who's too lazy to work, go ahead." During the
conversation Skiles spoke in a normal tone of voice, and
did not appear angry. Enox never heard Skiles talk with
anyone about the Union. Enox said formerly she was a
union member but presently she is not; she is opposed to
the Union.
"1 American Motor Inns, d/b/a Holiday Inn Downtown, 212 NLRB 704
(1974).
Mary Potvin testified that she was present at the
conversation related by Mrs. Shumaker, but that she does
not remember what anyone said. She stated that all
foremen, including Skiles, frequently go into the break-
room; that, while there, they frequently talk with employ-
ees; that Skiles has never questioned her, or talked with
her, about the Union; and that Skiles was not angry, or
shouting, during the conversation.
Skiles said he was in the coffeeroom on October 20, but
denied asking Mrs. Shumaker if her husband attended a
union meeting, and he also denied saying, "If you want to
pay $2 to someone who's too lazy to work, go right ahead
and do it." He said there was but little conversation that
morning and that, when he said anything, he spoke in a
normal tone of voice and was not angry. Skiles said he
never talked with employees about the Union, because he
had been instructed not to, and that those instructions were
given to him prior to October 21. He said he had been
through an earlier campaign as a supervisor, when
Respondent's plant was owned by Boise Cascade.
Discussion
Mrs. Shumaker's testimony was brief and her state-
ments were ambiguous. She said the conversation was
initiated by Enox; Enox corroborated Mrs. Shumaker
relative to both the question and Enox's answer. Mrs.
Shumaker said Skiles then asked, "Was he there?" but
there is no indication of who "he" was. It can be speculated
that, if the question in fact was asked, "he" referred to
Shumaker, but there is nothing to support that speculation.
According to Mrs. Shumaker, Skiles' question was put to
Enox, rather than to Mrs. Shumaker, because Enox
answered "yeah." Then, according to Mrs. Shumaker, she
volunteered the statement, "We was both there."
Skiles' demeanor on the stand did not appear to be
consistent with Shumaker's description. He speaks softly
and deliberately, and was calm and objective in his
answers. While anyone is capable of anger and shouting,
Skiles' observable demeanor was so far from Mrs. Shumak-
er's description that the difference cannot be ignored.
Enox and Potvin were credible witnesses.
Mrs. Shumaker did not appear to be a witness without
credit, but a violation must be proved. Her testimony was
incomplete and uncertain, and Skiles' demeanor and
testimony were impressive; further, Skiles was corrobo-
rated by Enox and Potvin. Under such circumstances, it
cannot be found that the General Counsel's burden of
proof was met. The allegation was not proved.
E. Alleged Threat by Oren Tann
Paragraph VI(e) of the complaint alleges that, on or
about November 24, Tann threatened to terminate employ-
ees because of their union activities.
This allegation involves Shumaker and Tann, who then
was a foreman (supervisor) on the stain line. Shumaker
testified relative to an incident he said occurred on the day
of the election:
1052
LITTLE LAKE INDUSTRIES
Q. Describe the signs.
A. Oh. It was no - "Vote no union" signs. And
they had them posted all over. And on that day, David
Garcia, he had one on his back, pinned on his back.
And he come down through the stain line talking to all
the people and telling them to - they'd better vote no,
and this stuff. And so I asked Oren Tann, I said, "Oren,
I don't think it's fair. What would happen if I printed a
'Vote yes' sign and put it on my back and started
carrying it around?"
He said, "You'd probably lose your job."
Q. Okay. And what did you say to that?
A. I said, "I probably would."
Tann testified:
Q. Did Mr. Shumaker tell you that he might make
a "vote yes" sign and wear it?
A. Not to my recollection.
Q. Did you tell Mr. Shumaker that if he did
something like that, he'd be fired?
A. Absolutely not.
Q. How can you be so positive about that state-
ment?
A. Just simply because I wouldn't.
Q. Did you ever discuss the Union with your
employees?
A. No.
Q. Did you ever ask any of your employees
whether they were union supporters?
A. No. That's their business.
Discussion
By November 24 Respondent was well aware of
Shumaker's union activities, as discussed infra, and it is
clear from the record that those activities were common
knowledge in the plant. Shumaker's "yes" vote was an
accepted fact long before the election, and any wearing of a
"yes" sign would be of no more concern to Respondent
than what Shumaker had been doing since August. If
Respondent would fire Shumaker for wearing such a sign,
it would have fired him long before November 24. Thus,
this alleged statement is too illogical for belief. Further, as
discussed above, Shumaker admittedly is antagonistic
toward Respondent and his bias is apparent.
Tann was a credible witness.
The record does not support this allegation.
F. Alleged Threat by Willis Fales
Paragraph VI(f) of the complaint alleges that, on or
about November 24, Fales threatened an employee that
Respondent's operations would cease if employees selected
a union as a bargaining representative.
At the time relevant herein, Fales was Respondent's
factory foreman (supervisor).
Mary Truax, the employee involved in this allegation,
testified that she talked briefly on November 24 with Fales,
when the latter handed her the paycheck then due. She
testified:
And he came over and handed out - was handing out
paychecks. So he gave me my paycheck. And I said,
"Thank you." And he started away and I very
kiddingly said, "Did we get our raise on this paycheck,"
which I've done before.
And he turned around and gave me a real dirty look,
and he said - he said, "If you vote the way I think
you're going to vote, two weeks from now, you won't
have a paycheck or a job, either."
Truax further testified that, during the lunch hour on
November 24, she related the conversation with Fales to
four fellow employees.
Marilyn Robertson, who Truax said was present when
Fales made the alleged remark, testified that she never
heard Fales discuss the Union with any employee, and that
"I never heard him mention anything like that," referring
to the remark Truax attributed to Fales.
Doris Lawrence, one of the four fellow employees
referred to by Truax, testified that Truax told the four:
And she said that when she asked him about the raise,
why he looked at her and said, "If the Union gets in,
you're going to be lucky to get one."
Lawrence said Truax did not tell the four that Fales had
threatened Truax with the loss of her job, nor that Fales
said that, 2 weeks from the day of the election, Truax
would not have a job.
Mary Vincent, one of Respondent's employees, credibly
testified that she heard Truax on several occasions say that
she was going "to get even" with Fales, and referred to
Fales with profanity. Vincent also said she heard Truax say
that she wanted to "get even" with Respondent.
Fales denied the remark attributed to him by Truax and
testified that he had been instructed in early November not
to talk about the Union with employees.
Discussion
Truax's testimony is not reliable, for several reasons: (a)
Her demeanor on the stand did not instill confidence. Her
testimony was self-contradictory and vague. (b) She has
been involved in disagreements, and arguments, with Fales
on many occasions, partially because of work assignments.
She testified that frequently she was angry with Fales.
Credited testimony shows her antagonism toward Fales
and Respondent. Presently she is engaged in a lawsuit
against Respondent. (c) She testified that her remark to
Fales about a raise was in the nature of a joke, but the
conversation she said she related to the four fellow
employees was not of that nature. (d) Her statement about
what she said to the four employees, and Lawrence's
statement, are different in form and in substance. (e) Truax
was not eligible for any raise at the time of the alleged
conversation.
Fales was an impressive witness and he is credited. His
testimony is supported by that of Lawrence and Robert-
son, who also are credited.
Based upon demeanor of the witnesses, the uncertainty
of what, if anything, was said by Fales, and the doubts
concerning Truax's testimony, the record cannot be found
1053
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to support this allegation. General Counsel's burden of
proof was not met.
G. Alleged Interrogation by Jack Holden
Paragraph VI(g) of the complaint alleges that, on or
about an unknown date in November, Holden interrogated
an employee about that employee's union activity.
At the time relevant herein, Holden was Respondent's
stain line foreman. This allegation involves Bill Warren,
then a forklift operator.
Warren testified that, as he was finishing his workday on
an occasion in November, Holden came to where he was
and said, "I hear you're a union lover." Warren said he
"got mad and walked off." He further stated that he was
mad at everything in general at the time, because he had a
"rough week." On cross-examination Warren said he had
known Holden since he first started to work for Respon-
dent, and that they are friends.
Warren later was called by Respondent as a witness, and
testified that he thought Holden said he was a union lover,
but that "I'm not really sure if that's what he said or not."
Warren further testified that, at the time of the incident, he
was just completing divorce procedures and Holden, as
well as others, often kidded him. He said he was with two
other employees about a week before the incident and,
when another person walked up, employee Billy Cunning-
ham said, "You might be talking to some union lovers
here." Warren testified:
Q. Did he say something like "union lover," or did
he actually say "union lover"?
A. I don't remember the incident that well to say
any more, because it's been over a - almost a year.
And I just can't - I've racked my brain ever since I
started to think about that.
Q. But your best recollection is that some comment
was made regarding -
A. Some comment was made.
Q. - regarding the Union?
A. It could have been or it could not. I don't know
for sure.
Later, Warren testified:
Q. I'm still a little hazy on this, Mr. Warren. When
the remark was made to you, did you resent it?
A. Yes.
Q. Did you resent it because of what the remark
contained substantively, or did you just resent it
because a remark had been made to you?
A. Probably just because any remarks had been
made to me, because I had just got chewed out, if I
remember right. And I was - I was doing the best I
could with the forklift I had. I think that was when we
had the old ones. And they had a low gear, and that
was it.
Q. Well, were you under the impression at the time
that Mr. Holden was degrading the Union or saying
something bad about the Union?
12 Holden later, after the election, succeeded in getting Warren rehired
over the objection of Tann. Clearly Holden and Warren were on close
terms.
A. I never heard him say anything bad about it.
Finally, Warren said he thought it was the "lover"
comment that made him mad, and that he may have
mistaken what Holden said for "union lover."
Holden said he remembered the incident. Holden
testified:
WITNESS: And so anyway, I walked by and I said,
"How's Mr. Warren, the great lover, today?" And I
walked on. I noticed he looked at me real hard, but I
didn't know why.
BY MR. HAYDEN: And what prompted you to make a
comment like that to Mr. Warren?
A. Well, like I say, he was having problems with his
ex-wife and another girl there in town.
Q. How were you aware of that?
A. Well, he'd come to me and tell me about it.
Discussion
Warren's testimony on this subject is such a mixture of
doubt, self-contradiction, and uncertainty that its use to
find a violation would be an injustice. He said the incident
occurred more than a year ago, he did not remember just
what was said, he was very mad at the time about other
matters, and he could have been mistaken in his recollec-
tion of the conversation. That is not the proof required to
support the allegation, nor is it adequate upon which to
base an inference.
Even assuming, arguendo, that the alleged remark was
made, it could not be found actionable under the
circumstances. Clearly whatever remark was made was a
simple and isolated one made in passing, between
friends.12 There is nothing upon which to base a conclusion
that the remark would have been intended to be more than
a jest, or received as more than an off-the-cuff comment.
Finally, Holden was a credible witness and his version of
the conversation is accepted.
H. Alleged Refusal To Promote Shumaker
Paragraph VII of the complaint alleges that, in or about
December 1976, Respondent denied Shumaker a promo-
tion and wage increase because of Shumaker's protected
activities.
Union Animus
Respondent's union animus is shown by General
Counsel's Exhibit 6, as well as elsewhere in the record, and
is not controverted by Respondent.
Knowledge of Union Activity at the Plant
So far as knowledge of union activity at the plant is
concerned, Lewis testified that he learned from Enox that
union meetings with employees were being held in the
"fall" of 1976. Enox testified that she talked with Lewis
about the union meeting of October 20, and that that
meeting was the second or third union meeting. On another
1054
LITTLE LAKE INDUSTRIES
occasion Lewis testified that he knew about all of the union
meetings, and that he learned of some of them, from Enox.
Simonson said Shumaker 3 told him in the summer, prior
to September, that he had been visited by union represen-
tatives. Shumaker testified that he discussed the Union
with Simonson on two or three occasions prior to the
election, but he does not remember the dates. Shumaker
said he told Simonson he had signed a union card, but he
does not remember the date he told him. Simonson said he
learned from Shumaker in September that the latter was a
union supporter. Skiles testified that he was given instruc-
tions relative to the union campaign a month or 6 weeks
prior to the election, which would have been in October.
Based upon the foregoing, and upon the record as a whole,
it is apparent, and found, that Respondent knew from
approximately August or September that the Union was
attempting to organize the plant employees.
Knowledge of Shumaker's Union Activity
So far as Respondent's knowledge of Shumaker's union
activity is concerned, Shumaker testified that the first time
he talked with Simonson about the Union was in the latter
part of October. He said he told Simonson that he had
"signed with the Union," and that the Union had asked
him the preceding night to be an election observer. 4
Simonson said he would be on the other side. Shumaker
said he does not remember whether he told Simonson prior
to the date Simonson offered him the job as foreman of the
stain line, about Shumaker's union activity, but that the
two or three discussions he and Simonson had about the
Union were prior to the election. Simonson testified that
Shumaker told him early in September, "I don't really care
who you tell, if you tell anybody, but I'm pushing for this
union." Lewis testified that he did not know that Shumaker
was a leading union advocate; nor did he know who the
other advocates were.
It is clear from the foregoing that Simonson learned,
prior to the election, that Shumaker had signed a union
authorization card and was in favor of the Union.
Shumaker was an active proponent of the Union, and a
member of the organizing committee, from inception of the
union campaign in August. Shumaker said he tried to keep
secret the fact that he had signed a union authorization
card, but Lewis said he knew about all union meetings with
Respondent's employees, and it was common knowledge
among employees that Shumaker was a strong union
supporter. Shumaker said he was a friend of Simonson and,
when asked if he was a good friend, Shumaker replied,
"You bet." Further, Shumaker said he and Simonson
talked about the Union on several occasions. Based upon
these factors, and upon Simonson's testimony, it is found
that Simonson knew about Shumaker's union activities
from and after early September.
13 Both Shumaker and Simonson testified to their friendship.
14 This statement is contrary to the testimony of the Union's business
agent, Joe Keefer, who testified that the Union's observers were not selected
until November 24.
Date of Foreman Job Offer
A question is presented as to whether Respondent knew
prior to offering the foreman job to Shumaker that the
latter supported the Union. The testimony relative to this
question is uncertain and conflicting. Shumaker testified:
Simonson first talked with him about the possibility of
becoming foreman, in June, "before July 4," when
personnel changes were being considered. Nothing came of
that offer because of reasons not related to this controver-
sy. Thereafter, Shumaker heard rumors about a graveyard
shift being considered by Respondent, and he asked Lewis,
about 2 or 3 weeks after Simonson asked Shumaker about
the foreman job, if Lewis had anyone in mind for foreman
of the stain line on the proposed graveyard shift. Lewis said
he did not have anyone in mind. About a week later (or
approximately early August), Simonson told Shumaker
that Lewis had given him permission to hire a foreman.
Simonson asked Shumaker if he wanted the job, and
Shumaker said he would have to talk with his wife about it.
The following morning, after the suggestion by his wife and
by Joe Keefer that he take the job, Shumaker told
Simonson, "I want the job, Carl." Simonson then told
Shumaker, "Okay. You start picking your key people."
Shumaker then started selecting his key employees, as
discussed supra At another point in his testimony,
Shumaker stated:
Now, moving to the late summer or early fall of 1976,
when was the first time that you had conversations with
Carl Simonson about the possibility of your becoming
stain line graveyard foreman?
A. Right after they started the graveyard shift in
the factory. 5
At still another point in his testimony, Shumaker stated
that he accepted the job, after Simonson's offer, the first
part of October, approximately 3 weeks before Simonson
went on vacation.16 Shumaker testified that, when he
accepted the job, several employees were present, including
Margaret Ford, Kim Madrigal, Barbara Maglaya, Rosalie
Holland, and Ruth Bickford.
Ford and Holland did not testify. Maglaya testified that
Shumaker talked with her sometime in October about
working under his supervision. Madrigal testified that
Shumaker asked her the last week of October to work
under his supervision on the graveyard shift. Bickford
testified that she heard Simonson offer the foreman job to
Shumaker during the last 2 weeks in October.
Simonson testified that he offered the foreman job to
Shumaker in early October. Lewis testified, "I know the
time that I told Carl [Simonson] to offer the job to him
[Shumaker] was in-it was probably in early October, a
definite deal on that."
It is found that Simonson offered the foreman job to
Shumaker approximately during the first week of October.
Based upon the foregoing, Simonson knew at the time he
made the foreman job offer to Shumaker that the latter was
's The record shows that the graveyard shift was started November I.
16 Simonson credibly testified that he went on vacation the first week of
November.
1055
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union advocate. However, it is possible that Lewis did
not know that fact. Respondent's union animus is clear, as
discussed supra, and it is unlikely that Lewis would have
authorized Simonson to promote a known union advocate.
That reluctance probably would not override the friendship
between Simonson and Shumaker.
Shumaker's Reaction to the Foreman Job Offer
Shumaker was not made foreman on the graveyard shift
stain line. The job was given to Powell.
Shumaker testified: After Simonson offered the foreman
job to him, he talked with his wife and Keefer, both of
whom urged him to take the job, and he accepted during a
conversation with Simonson the following morning. Imme-
diately after the acceptance, he talked with potential
employees to work under his supervision. He heard no
more about the foreman job until he learned in November
that it had been given to Powell. About Christmastime
Powell told Shumaker that he, Powell, no longer had to do
setup work and that, if Shumaker had "[gone] the other
way," he would have the foreman job and Powell would
have been the setup man.
Bickford testified that she overheard Simonson offer the
foreman job to Shumaker and, the following day, heard
Shumaker accept the job.' 7
Keefer testified that he talked with Shumaker in
September, and again in October, about the foreman job
and on both occasions encouraged Shumaker to accept the
job. Keefer said Shumaker advised him in late October or
early November that he had accepted the job.
Powell denied the statement attributed to him by
Shumaker, relative to Shumaker going "the other way."
Simonson said he selected Shumaker for the foreman
job, subject to Lewis' approval, because Shumaker was the
best employee for the job. He said he then was aware of
Shumaker's union advocacy. Simonson stated that, the day
after he offered the job to Shumaker in early October,
Shumaker told him "that he had talked to his union
advisors, and they had advised him not to take the
foreman's job, because he would lose the protection that
they could offer him." Simonson said he advised Lewis of
Shumaker's refusal of the offer and that thereafter, Lewis
handled the matter. Simonson went on vacation in early
November and, when he returned to work, he went to
another job rather than returning to the stain line.
Simonson testified that he did not learn, until the day of
the election, that Shumaker was a union observer.
Lewis testified that Simonson told him, in early October,
that Shumaker had declined the offer, and that Lewis then
decided to give the job to Powell. He said he offered the job
to Powell during the middle or latter part of November.
Lewis stated that he first learned, on the day of the
election, that Shumaker was a union observer.
Powell testified that Lewis first told him that he would be
made foreman on the stain line, during the first half of
November.
Maglaya testified that, a couple of days after she talked
with Shumaker in October about the possibility of working
17 Bickford was a most unconvincing witness. Her testimony appeared
contrived; she was nervous and uncertain while testifying. She was self-
contradictory and much of her testimony clearly was contrary to facts well
established in the record. Her testimony is discredited in its entirety
for Shumaker on the graveyard shift, she had a conversa-
tion with Shumaker:
A. He told me that he didn't think that he'd be able
to take it, the foreman job, because he said that the
Union wouldn't back him up, or something.?'
A. Okay. When I told him that he'd be passing up a
good foreman job if the Union didn't get in, then he
said that he was going around talking to people about
the Union. So - I want to make sure I've got this right
- that he was going around talking about the Union,
that he was more or less for it, so that he couldn't more
or less back out now.
A. He said that the Union said that they wouldn't
back him up if he was the foreman.
Boren testified that, for a period of time after Shumaker
talked with him about working on the graveyard shift, they
often talked about the expected change. Boren said their
conversations were held less often with the passage of time:
A. Well, he said - our - first of all, our
conversations sort of decreased there for a while. And
then I asked him one day if we were still - if we were
going - still going to go graveyard, because, like I say,
the conversations had, you know, decreased. And he
said that he didn't think he was going to get it. And I
asked him why, and he said, "Well, they won't let me
have it."
Tann testified that, sometime in October, he recommend-
ed to Lewis that Shumaker not be selected for the foreman
job, because of"legal problems" Shumaker then had. 19
Discussion
Shumaker contends that he wanted the foreman job, and
that his wife and Keefer convinced him to accept the job.
Mrs. Shumaker did not testify on this subject, but Keefer
corroborated Shumaker. Boren's testimony includes some
support for Shumaker's contention. Maglaya's testimony
does not support Shumaker, but it relates to incidents in
October and does not contradict Shumaker. Shumaker's
testimony relative to his acceptance of the job was
convincing, and it is credited.
Respondent contends that Shumaker declined its offer of
a foreman job, and principally relies upon Simonson's
testimony for support. That testimony appeared contrived,
and the record generally supports Shumaker rather than
Simonson. (a) A promotion offer is not readily refused by
an employee. Proof of refusal would have to be made in
order to overcome the presumption that any employee
would accept a promotion offer, and no proof was offered
other than Simonson's testimony. (b) Shumaker was an
experienced employee and his work was respected by
's Shumaker denied making this statement.
"I The charges against Shumaker were dismissed.
1056
LITTLE LAKE INDUSTRIES
Simonson. Powell was a relatively new employee who had
to be trained. Clearly Shumaker was the first choice for the
job. (c) When he was offered the job in October, Shumaker
immediately set about to recruit his key employees,
admittedly with Simonson's knowledge and consent. Such
action would not be taken if Shumaker had declined the
foreman job or was doubtful about taking it. (d) Respon-
dent admittedly has union animus, and had knowledge of
Shumaker's union advocacy prior to the time Powell was
given the job. The fact that Simonson knew when he
offered Shumaker the job, that Shumaker was a union
advocate, is not controlling, since Shumaker and Simonson
are good friends and there is no evidence that Simonson
told Lewis at that time about Shumaker's union activities.
Further, Lewis was the one who made the decision to put
Powell in the foreman job.
The only logical conclusion from the foregoing is that
Simonson offered the job to Shumaker, who accepted it,
and that thereafter Lewis learned of Shumaker's union
advocacy and gave the job to Powell for that reason.
This allegation is supported by the evidence.
Shumaker's Alleged Disloyalty
Respondent argues, partially upon the basis of Shumak-
er's own testimony, that Shumaker was disloyal. There is
no question but that Shumaker is antagonistic to Respon-
dent, but the word "disloyal" is not the proper one in the
context of events herein discussed. "Disloyal" is a term
associated with the duties of a supervisor, and in that sense
the cases cited by Respondent are instructive. However,
Shumaker was a potential supervisor rather than a
supervisor. Until he was a supervisor, he could continue his
actions as a rank-and-file employee. He could not be held
to the code of a supervisor prior to becoming one. It may
well be, as Shumaker readily admitted, that he was
doubledealing by giving the Union his full support
simultaneously while preparing to become a supervisor, but
the fact remains that he was not yet a supervisor, and he
was deprived of the foreman job solely because of his
union activities.
There is no way to ascertain, prior to his being a
supervisor, whether or not Shumaker would be loyal to
Respondent after he became a supervisor. Hence, Respon-
dent's argument based upon Shumaker's statements that he
planned to be an election observer, and that he may even
take a job with the Union, is anticipatory and speculative.
It cannot be said, ahead of time, that Shumaker would be a
disloyal supervisor.20
Objections to the Election
The Regional Director's order consolidating cases, and
the consolidated complaint, as well as the amended
consolidated complaint, cover only Cases 20-CA-12098
and 20-CA-12333. No mention is made of objections to
the election of November 24.
20 The timing of Respondent's offer to Shumaker does not create a
possible 8(aXI) violation. It is apparent that Respondent had considered
Shumaker as a possible foreman, and talked with him about it, since at least
June. There is no indication that starting a graveyard shift. or offering a
foreman job to Shumaker, was intended to interfere with union activities or
the election.
The Regional Director's supplemental decision in Case
20-RC-13720, issued March 31, concludes as follows:
Objection Nos. 2, 6, 7, 11, 12, 17, 18, and 22, and the
matters alleged in the aforesaid Consolidated Com-
plaint, as amended, constitute a single overall contro-
versy. Upon due consideration of the matter, it has
been concluded that the purposes of the Act will be
effectuated, and unnecessary cost or delay will be
avoided by considering jointly the unfair labor practic-
es alleged in the Complaint, as amended, in Case Nos.
20-CA-12098 and 20-CA-12333, and Objection Nos.
2, 6, 7, 11, 12, 17, 18, and 22. Accordingly, upon final
disposition of the Objections 20 and 21, Case Nos. 20-
CA-12098, 20-CA-12333, and 20-RC-13720 will be
consolidated for purposes of a hearing before a duly
designated Administrative Law Judge.
No consolidation was effected, so far as the record
shows, nor was the RC case referred to an Administrative
Law Judge. Hence, I am without jurisdiction so far as the
representation case is concerned.
General Counsel's brief and its case caption are limited
to the C cases. Further, some objections listed in the
Regional Director's supplemental decision were not litigat-
ed or mentioned in the pleadings or at the hearing.
In view of the foregoing, only one finding is made herein
relating to objections to the election. That finding is made
because much time was devoted at the hearing to the issue.
The Union objected to the election because Betty Smith
served as Respondent's election observer, while she was a
supervisor or an employee closely related to management.
The evidence shows that Smith has no authority to hire,
fire, discipline, reward, instruct, direct, control, or in any
manner whatever, act as a supervisor of other employees.
Further, the evidence shows that Smith is not a manager,
corporate director, controller, or policy director of Respon-
dent, or in any manner whatever acts in a managerial
capacity. Finally, the evidence shows that Smith is a
clerical employee whose duties are quite limited and who
has no authority to act for, or bind, Respondent. There is
no basis for excluding Smith as an election observer.2'
The cases cited in Charging Party's brief have been
carefully considered. Those cases clearly are distinguish-
able on their facts, and are not applicable herein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
21 St. Joseph Riverside Hospital, 224 NLRB 721 (1976); Delmar Gardens,
Inc., 198 NLRB 309 (1972): Westinghouse Electric Corporation, 118 NLRB
1625 (1957); Northrop Aircraft, Inc., 106 NLRB 23 (1953).
1057
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
v. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(aX 1) and (3)
of the Act, I shall recommend that Respondent be ordered
to cease and desist therefrom, and from any like or related
manner infringing upon its employees' Section 7 rights, and
to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent unlawfully having denied a promotion and a
wage increase to Alvin Shumaker on December 1, 1976, I
shall recommend that Shumaker be promoted to foreman,
effective December 1, 1976, replacing if necessary any
employee who may occupy the position to which Shumaker
should have been promoted, and be made whole for any
loss he may have suffered by reason of Respondent's
failure to promote him on said date. Backpay shall be
computed on a quarterly basis from December 1, 1976, to
date of actual promotion, plus interest at 6 percent per
annum.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Little Lake Industries, Inc., Respondent herein, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. North Coast Counties District Council of Carpen-
ters, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening its employees with plant closure if
they chose to be represented by a union, Respondent
interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed to them by Section 7 of
the Act, in violation of Section 8(a)(1) of the Act.
4. By denying on December 1, 1976, to Alvin Shumaker
a promotion and wage increase because of his membership
in, and activities on behalf of, the Union, Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
5. Respondent did not, through alleged conduct,
otherwise violate Section 8(a)(l) of the Act as alleged in the
complaint.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER22
The Respondent, Little Lake Industries, Inc., Willits,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening its employees with plant closure if they
choose to be represented by a union.
(b) Refusing to promote and give a pay raise to
employees because of their union or other protected
activities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Promote to foreman, effective December 1, 1976, and
make whole Alvin Shumaker for any loss of pay he may
have suffered by reason of its discrimination against him,
as provided in the remedy.
(b) Post at its Willits, California, facility copies of the
attached notice marked "Appendix." 23 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including 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.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed to the extent that it alleges violations of Section
8(a)(1) of the Act other than violations of Section 8(a)(1)
found herein.
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
23 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in, or activities
on behalf of, North Coast Counties District Council of
Carpenters, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or any other labor
organization, by threatening our employees with plant
closure if they choose to be represented by a union.
WE WILL NOT refuse to promote and give a pay raise
to our employees because of their union or other
protected activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights to self-organization, to form, join, or assist labor
organizations, to bargain collectively through represen-
tatives of their own choosing, to engage in concerted
1058
LITTLE LAKE INDUSTRIES
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities.
WE WILL promote to foreman effective December 1,
1976, and make whole Alvin Shumaker for any loss he
may have suffered by reason of our discrimination
against him.
LITTLE LAKE INDUSTRIES,
INC.
1059