Portsmouth Lumber Treating, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1980

248 N.L.R.B. 1170 (N.L.R.B. 1980)

1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Portsmouth Lumber Treating, Inc. and Teamsters
Local Union No. 822, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America Cases
5-CA-10582 and 5-CA-10602
April 16, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On January 28, 1980, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Portsmouth
Lumber Treating, Inc., Portsmouth, Virginia, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We also find totally without merit Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge. Upon our full
consideration of the record and the Administrative Law Judge's Deci-
sion, we perceive no evidence that the Administrative Law Judge pre-
judged the case, made prejudicial rulings, or demonstrated a bias against
Respondent in his analysis or discussion of the evidence.
DECISION
BERNARD RIES, Administrative Law Judge: These
cases, raising issues under Section 8(a)(3), (5), and (1) of
the Act, were heard in Portsmouth, Virginia, on Septem-
ber 17-18, 1979. Briefs have been received from Respon-
dent and General Counsel.
248 NLRB No. 160
After careful consideration of the entire record, the
briefs, and my recollection of the demeanor of the wit-
nesses, I make the following findings of fact, conclusions
of law, and recommendations. 2
Respondent is engaged in the business of treating
lumber, with chemicals or heat, at its facility in Ports-
mouth, Virginia, there employing a small force of gener-
ally unskilled laborers. Until early 1979,3 those employ-
ees had not been represented by a labor organization.
On January 8, when the work force consisted of a
total of 10 employees, including I employee found here-
after to be a statutory supervisor, 8 of them signed au-
thorization cards for the Union, and a ninth employee
followed suit on January 13. On January 22, the Union
filed an election petition with Region 5 of the Board in
Baltimore. A form letter dated January 22, spelling out
election procedures and enclosing a copy of the petition,
was mailed to Respondent. Shortly before noon on
Thursday, January 25, the four most junior employees in
the unit, Wilfred M. Coston, Jr., Freddie W. Sessoms,
Reginald L. Stewart, and George Lee Tanner, were in-
formed that they were being immediately terminated. 4
It is General Counsel's thesis that the termination was
a response to the union activity and, accordingly, viola-
tive of Section 8(a)(3) of the Act. Respondent, cognizant
of the "unfortunate coincidence" between the timing of
the terminations and the filing of the petition, contends
that the decision to terminate was taken when Respon-
dent was completely unaware of the union activity and
that it was solely motivated by legitimate business con-
siderations. I conclude that General Counsel has estab-
lished the claimed violation by at least "the preponder-
ance of the testimony taken," the standard prescribed by
Section 10(c).
It is well at this point to introduce the company offi-
cials. In January, C.B. Keown was president of Respon-
dent. Donald Holland was the executive vice president
and general manager; while sales were a major compo-
nent of Holland's work, he also spent as much as two-
thirds of his time on the plant premises. 5 Thomas W.
Hendrickson was Respondent's manager and had been
for more than 3 years. Although the answer to the com-
plaint denies that Holland and Hendrickson were agents
of Respondent and statutory supervisors, the record
leaves no doubt that the complaint is correct in those re-
spects and, without more discussion, I so find.
Howard Dunn's status as agent of, and supervisor for,
Respondent is also apparently in dispute. 6 Since his posi-
tion is relevant not only to the 8(a)(3) allegation but also
to certain asserted 8(a)(l) violations based on remarks
made by Dunn, I shall survey his role at this point.
i Certain errors in the transcript have been hereby noted and correct-
ed.
2 The answer to the complaint admits certain commerce allegations
which indicate that it is appropriate for the Board to assert jurisdiction
here. At the hearing, Respondent conceded that the Charging Party is a
statutory labor organization.
3 Hereafter, all dates refer to the year 1979, unless otherwise specified.
4 An election was thereafter held on March 5, in which the Union pre-
vailed. On that day, the charge involving the four employees was filed.
5 At the time of the hearing, Holland had retired from Respondent's
employ
I Although Respondent's answer denies the status attributed to Dunn
by the complaint, its brief advances no argument on the point
PORTSMOUTH LUMBER TREATING, INC. 1171
Dunn was called the "yard foreman." When he was
promoted to that position, he received a pay raise. In
January, his rate of pay was $5.50 per hour, as compared
to $4.80 being paid to the plant operator (and presum-
ably less to the lumber stackers). He exercised immediate
control over the general laborers, as they unloaded
lumber, "sticked" it,7 and stamped it with a rubber
stamp, and over the plant operator, who operated the
treating equipment.
There is undisputed testimony that when Hendrickson
was on vacation in July 1978, Dunn hired employee Ses-
soms without seeking approval from any other manage-
ment official. Dunn generally told employees "what to
do," and answered questions about their work. Two em-
ployees testified, without contradiction, that Dunn
would, and did, grant their requests for time off. Dunn
signed the timesheets. While, as he put it, Dunn would
perform physical labor "sort of in spurts," when he was
not needed to work with another employee, he "would
just stay there." Dunn made the announcement to the
four employees on January 25 that they were being ter-
minated.
Of the several functions listed as supervisory attributes
in Section 2(11) of the Act, Dunn exercised at least
three: he could "hire," "assign," and "responsibly . . .
direct" employees. The functions enumerated in Section
2(11) are to be read in the disjunctive, and the existence
of any of them, regardless of the frequency of their exer-
cise, is sufficient to confer supervisory status. N.L.R.B.
v. St. Francis Hospital of Lynwood, 601 F.2d 404, 420 (9th
Cir. 1979). Given Dunn's general authority, the fact that
he performed unit work does not affect this conclusion.
N.L.R.B. v. Big Three Industries, 602 F.2d 898, 902 (9th
Cir. 1979). Moreover, it is fair to impute to Respondent,
for purposes of Section 8(a)(1), statements made to em-
ployees by Dunn about their union activities. There can
be little question that Respondent held out Dunn as a
representative of management whose words could rea-
sonably be understood to reflect the position of the Com-
pany. Propak Corporation, 225 NLRB 1058, 1059 (1976);
Mississippi Products, Inc., 103 NLRB 1388, 1393-94
(1953).
The theory on which General Counsel proceeds here
is more demanding than that normally encountered in
these organizational discharge cases. Because there is no
reason to believe that Respondent had any knowledge of
the origins of the union campaign, or of its existence,
until the filing of the petition came to its attention, Gen-
eral Counsel is necessarily asserting that the termination
of the four junior employees was not a surgical removal
of the known union instigators, but rather a blunt slash
of reprisal at the union effort as a whole and, perhaps, a
calculated and undifferentiated attempt to provoke fear
in the remainder of the would-be bargaining unit. While
that theory seems to be a more difficult one to establish,
a number of cases have determined that employers have
so responded to organizing efforts.8 I am inclined to be-
7 I.e., placed separators between rows of lumber
8 E.g. M. S. P Industries, Inc. d/b/a The Larimer Press, 222 NLRBI
220, 240 (1976), enfd. in pertinet part 568 F.2d 166, 176 (10th Cir. 1977)
("a power display in the form of a mass layoff, where made for an unlaw-
ful prupose to discourage union membership") In the present case, as in
lieve that such a case has been made out here, for the
reasons given below.
The timing of the discharges9 is, on its face, an una-
voidably suspicious circumstance. Since April 1978, Re-
spondent had maintained a work force varying in
strength from 8 to 14; for the 10 weeks preceding Janu-
ary 25, the employee complement had stabilized at 10;
suddenly, on January 25, concurrent with the appearance
of the petition, Respondent decided to reduce the unit by
40 percent. Of course, if Respondent was unaware of the
petition at the time the employees were let go, the timing
would, on this record, unquestionably have to be written
off to fate. Respondent chose, as its principal redoubt in
this battle, the defensive position of ignorance of the pe-
tition at the time of the terminations on January 25. Be-
cause I believe that it did have knowledge of the peti-
tion, I am constrained to infer the probability of unlawful
motivation not simply from the possession of such
knowledge but, as well, from the falsity of its proffer on
this subject.
Manager Hendrickson testified that he made the deci-
sion to fire the men at some uncertain time on the morn-
ing of January 25; Dunn, at Hendrickson's instruction,
told the four employees shortly before noon that they
were laid off for lack of work. Hendrickson testified that
he knew nothing about the petition until Respondent's
copy was delivered by a letter carrier in the afternoon of
January 25. While I hesitate to include the words "prob-
able" and "Postal Service" in the same sentence, it might
be argued that it is probable that a letter dispatched from
Baltimore on Monday, January 22, would have been de-
livered by the Postal Service in Portsmouth, Virginia, by
Wednesday, January 24.
More conclusive evidence of knowledge, however, ap-
peared in the form of testimony by Thomas Wood, a
field examiner for the Regional Office to whom the rep-
resentation case had been assigned. Wood testified that
he called Respondent on either January 24 or 25 about
9:50 a.m. and asked to speak to Holland, the employer
representative named in the petition. Holland being un-
available, Wood talked to "Henderson," the company
manager. Wood "explained that the petition had been
filed by the Union and [Henderson] indicated that they
had not received the petition at that time." Wood went
on to say that he was attempting to determine whether a
hearing would be required to air any disputes about the
composition of the unit. "Henderson" replied that Wood
should speak to Holland, and that he would have Hol-
land call Wood.
Wood's testimony, if credited, would establish that Re-
spondent did in fact have knowledge of the union peti-
tion at least on the morning of January 25 and prior to
the discharges. Hendrickson testified that he remembered
Wood calling at some time, but doing nothing more than
leaving a message for Holland to call him. I thought
Wood to be an excellent witness; although Hendrickson
was not unimpressive, his demeanor was not as forcefully
M S. P Industries, the employees had been told there would be no
layoff, see infra.
a The record is clear enough, I think, that the employees were dis
charged, even though they were told that they were being "laid off"
This issue s ill hbe further deseloped below.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persuasive as Wood's, and I have no doubt that Wood
was telling the truth. 0 It is therefore my belief that
Hendrickson knew of the petition at the time of the dis-
charges and attempted to conceal that fact at the hear-
ing; both of these inferences point to unlawful motiva-
tion.
A number of other elements point in that same direc-
tion. Hendrickson testified that he made the decision
himself to discharge the employees on the morning of
January 25, based on his conclusion that he had "no
backlog" at the time. Asked by his own counsel whether
there was "a discussion with Holland at any time prior
to the discharge of the men as to your intentions to dis-
charge them," Hendrickson answered "No." Holland,
however, clearly recalled a conversation with Hendrick-
son on January 24 in which the backlog was discussed,
in which "Tom said we don't have that much out there
[and] I think it would be wise to let these men go," and
in which Holland "agreed." Indeed, "as near as [he] can
recollect," Holland further believed that, in another con-
versation "in the morning early" on January 25, the pre-
cise number of employees to be discharged was deter-
mined by him and Hendrickson.
Similar inconsistency appeared between the accounts
of Hendrickson and Dunn. Hendrickson testified that he
spoke to Dunn at least once on January 24 about the
"' Wood's testimony was supported by notes of his work on the repre-
sentation case. The reason that he was not sure whether he called on Jan-
pIlry 24 or 25 is that the date shown in the notes is not fully legible; in
fact, it appears that the third numeral in the notation which now pre-
dominantly reads "1/24" may have originally been a "3" and/or "5." The
remaining notes show, however, that the first call (made at "9:50" on
whatever date) to Respondent was followed the next day by five calls on
the case, including calls to and from two of Respondent's attorneys. The
date shown for those calls is "1/26." Counsel made no effort to establish
that his office was not contacted until some date later than January 26.
This list of calls made on January 26 indicates that the unclear date of
the first call, made at 9:50 a.m., had in any event to precede that date,
unless one of two other possibilities occurred. One is that Wood fabricat-
ed the entire page of notes, an alternative which, having seen Wood, I
dismiss out of hand. The other is that he made the notes not at the times
shown, but rather reconstructed the events, perhaps erroneously, at some
later date. Wood was not asked about his system of note-taking, but it
seems clear, especially from the detailed entries made on January 26, that
the notes were made contemporaneously. Moreover, even if they repre-
sented a reconstruction soon after the calls, I do not believe that Wood
could have mistakenly separated out the first call and erroneously placed
it on a day separate from the others, since the 9:50 note on the first day
shows Wood being told that Holland would call "later this afternoon,"
and the next entry, supposedly the next day, is for 11:45 and states,
"Called Holland, he was not in again." Wood surely would not have
called at 9:50 a.m.: have been told that Holland would call in the after-
noon; and then have called again at 11:45, all on the same day.
In any event, Wood testified to a full conversation with Hendrickson
about the petition which the latter denied; it occurred at a time, said
Wood, when Hendrickson told him the petition had not been received;
since Hendrickson testimonially admitted receipt of the petition on the
afternoon of January 25, and since I credit Wood that such a conversa-
tion occurred, I must conclude that Hendrickson lied in denying knowl-
edge of the petition any earlier than the afternoon of January 25.
" Employee George Tanner testified that "[s]ome time in January,"
Hendrickson asked him "did I know anything about a union comimg in
there." Hendrickson denied this by implication, although not expressly
Since there is no reason to believe that Hendrickson would have known
of the union effort any earlier than January 24 or 25, any such question
would likely have been asked on one of those days, and yet Tanner, who
was discharged on January 25, apparently could not relate the question
to the date of his discharge. Tanner made no strong impression on me,
and I am reluctant to rely on his testimony.
lack of work in the yard and about "the possibility of
laying people off." In the course of this conversation,
said Hendrickson, Dunn spoke of discharging Coston be-
cause he was not giving a day's pay for a day's work and
had said he would only work harder if he were better
paid; Hendrickson says he rejected this suggestion be-
cause he "knows every man works at a different pace."
Dunn, appearing as Respondent's witness, 12 gave the fol-
lowing testimony on direct examination:
Q. Do you recall when you first discussed with
anyone the possible discharge or termination of
these employees?
A. As far as I know, it was on the 25th.
Q. Who did you discuss it with at that time?
A. Mr. Hendrickson.
Q. What was the nature of the conversation?
A. I was on the yard and it was just before lunch
time and Tom came out and he told me to tell them
to go home after lunch and not to come back.
Q. Did Mr. Hendrickson give you a reason for
the discharge at the time?
A. Yes sir, he told me it was due to a lack of
work. The work load was down.
This testimony very plainly indicates that the first time
Dunn "discussed with anyone the possible discharge or
termination of these employees" was on January 25, at
which time the "reason" for the discharge was explained
to Dunn. Yet when I later asked Dunn if he recalled
speaking with Hendrickson on January 24 about the pos-
sibility of a layoff, Dunn surprisingly replied, "Yes, he
had mentioned it. He said the work load is getting low.
He said, I think we might have to lay them off but, you
know, he did not give me no definite date." Even more
curiously, when asked if he had suggested to Hendrick-
son the discharge of Coston, he testified that in fact Hen-
drickson was the one who spoke of firing Coston and
that if Hendrickson testified otherwise, he "was
wrong." 1 3
This sort of inconsistency raises suspicion. The se-
quence of events should have been simple and clear.
Granting, as I am more than willing to do, that time
erodes memory, the filing of the charge in this case on
March 514 and the issuance of the complaint on April 17
should reasonably have caused the parties involved to
carefully retain the pertinent facts in their memory in an-
ticipation of the future need to recapture them. Holland
testified that, prior to January, Respondent had not ter-
minated four employees at one stroke since the late
1960's, when Respondent, then also operating a line han-
12 Dunn was employed by another Portsmouth concern at the time of
the hearing.
13 Even if there was such a discussion on January 24, Hendrickson
conceded at the hearing that he did not "indicate to Dunn that [he]
thought the layoff of these four men was imminent." Dunn also made the
purported conversation sound quite indefinite. Moreover, if Dunn is cor-
rect in saying that Hendrickson stated on January 24 that he thought he
was "going to have to fire Wilfred Coston," that is rather hard to recon-
cile with a state of mind on the brink of discharging four employees in-
cluding Coston.
"4 The election was held on the same day.
PORTSMOUTH LUMBER TREATING, INC. 1173
dling business, would hire for a day or two at a time.
Hendrickson testified that he had not terminated any em-
ployee for lack of work since Dunn was hired in Febru-
ary 1976. The uniqueness of the occasion, its soon appar-
ent legal ramifications, and the professed simplicity of
the events should, it would seem, have produced more
cohesive and consistent testimony than Respondent pre-
sented.
Hendrickson made several admissions against Respon-
dent's interest which, I recognize, arguably tend to
vouch for his credibility.15 One such concession was
that on one occasion, probably in or around November
1978,1' he told five or six of the employees that there
would be no layoffs if they ran out of work, and that Re-
spondent would put them to make-work tasks to tide
them over. Hendrickson testified that he gave this assur-
ance in order to keep the employees working efficiently,
and employee Driver testified that the premise was
stated as a promise: "[the crew] was not getting that
much work done and what was said was that if we
would go ahead and do the work, there wouldn't be no
layoffs."
When Hendrickson conceded the utterance of this
commitment at the hearing, he added an interesting com-
ment: "Yes, I did [say it] and within the capacity I had
as manager I do not have the final say with that compa-
ny." When the questioning subsequently returned to this
subject, Hendrickson reiterated the sense of this defen-
sive interjection:
As far as I knew at that particular time, they were
secure. They were secure. The previous year, there
had been no work and all of the people employed at
that time had been kept through the winter months
and, as I say, the final decision is not up to me. I
imagine finances dictate what the-dictate how Mr.
Keown makes a decision, the financial situation the
company is in.
Obviously, Hendrickson was attempting to defend the
breach of his November promise to keep the men work-
ing by abnegating personal responsibility for the January
terminations. But Hendrickson also told us that he con-
sulted neither Holland nor Keown in making the January
discharges, saying instead that he based that decision on
his own assessment of the workload. These inconsisten-
cies indicate to me that Hendrickson was in fact instruct-
ed by higher authority that, despite his assurances to em-
ployees in November, and despite the magnanimity
shown in the previous winter, something had happened
on January 25 to warrant retraction of those assurances
and revision of that beneficent attitude.
Stipulations in evidence reflect, inter alia, the number
of employees and hours worked on a weekly basis from
January 1977 to March 1979; and they further show
board feet received, board feet treated, and backlog in
board feet on a monthly (and month-end) basis from De-
cember 1, 1976, to August 31, 1979.
'5 I recognize equally that candor in part is not necessarily a guarantee
of candor throughout.
'6 According to the testimony of employees Driver and Sessoms
The records were offered, among other things, to
demonstrate that, in the past, Respondent had not termi-
nated employees when workload situations similar to that
of January 25 had arisen. As General Counsel recog-
nizes, the figures are not wholly satisfying or subject to
neat analysis. One reason is the manner of operation of
Respondent's business. Much of the lumber is brought
into the plant by customers without prior notice. Holland
at first testified that "the majority of the business, they
just bring it in," and that only "maybe half a dozen" cus-
tomers send in notification that they are going to deliver
lumber for future treatment. Almost immediately, how-
ever, Holland then changed his estimate of the business
which comes in without prior notice: "I would make a
guess, thirty percent." Notification of the other prospec-
tive work arrives, Holland said, anywhere from 10 days
to 3 months ahead of delivery.
We do not know the exact amount of anticipated busi-
ness as of January 25. At the hearing, testifying from
some source not revealed in the exhibits, Hendrickson
said that the board footage in the yard on January 24
was 56,238 feet. There is no record evidence as to the
amount of footage for which orders for treatment had
been received as of that date. Comparing the known raw
figure against the stipulation and the testimony, however,
and assuming some parity in existing contracts, 8 prior
occasions appear on which the backlog was less than
56,238 feet and no layoff occurred: November 30, 1976-
49,397 feet (number of employes unknown); December
31, 1976-29,306 feet (6 employees); August 31, 1977-
38,129 feet (7 employees); November 30, 1977-55,773
feet (6 employees); December 31, 1977-12,554 feet (7
employees); January 31, 1978-30,063 feet (7 employees);
February 28, 1978-6,950 feet (7 employees); October 31,
1978-46,726 feet (10 employees).
Given Hendrickson's testimony that two men can to-
gether stack an average of 15,000 board feet per day, it
might be said that, on the busiest of these noted occa-
sions, Respondent had on hand, at best, a total of 4 days
work for two men. No layoffs were made. It is under-
standable, of course, that Respondent might, regardless
of workload, wish to maintain a basic minimum crew
due to the unpredictable nature of its business,. 7 and
might be more inclined to let employees go when the
work force had reached an abnormally high number.
However, the exhibits show that while the payroll fluc-
tuated between six and seven employees from January
1977 through March 1978, Respondent at that time
began and persisted thereafter in a significant augmenta-
tion of the work force, presumably reflecting an increase
in business and an anticipation of continuation of such an
increase (see Attachment, p. 1178).
It should be noted that the work force stood at 12 in
the week beginning November 13, 1978, dropped to 10
the following week,' 8 and remained at that level for 9
additional weeks until the January 25 discharges. Despite
the fact that the backlog figure for October 31, 1978, is
I7 Hendrickson testified to "the basic seven" twhich would include the
yard foreman) There had, however, been 28 eeks n 1977 Then the
total complement was only six
18 Holland testified, as previously indicated, Ihat none of the termna
tions since February 1976 had been laofls fr lack of work
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shown as 46,726 feet (as compared to 56,328 on January
24, 1979), not I of the 10 employees was terminated in
October.
It thus appears that, for a substantial period of time,
Respondent had chosen to expand its work force, disre-
garding the occasional vicissitudes in workload. Further-
more, considering the volatile nature of the business,
there appears to be merit in General Counsel's argument
on brief that "Respondent could not have known in ad-
vance that business would appreciably decline." Holland
testified that the business is "not exactly seasonal as we
have had big months in the wintertime," and further
agreed that he "cannot predict in advance what [his]
needs are going to be in the future based upon season or
the nature of [his] business." His only caveat was a refer-
ence to "the number of firm orders" that Respondent
might have, but Respondent produced no documentary
evidence of any decline in January in the customary flow
of orders. So far as the record shows, in fact, work was
picking up, a fact which might well have been apparent
by as late in the month as January 25: in January, there
was an intake of 488,788 feet as compared to December,
in which a total of 467,007 feet had been received.
It seems, therefore, that Respondent had, since April
1978, made a business decision to increase its comple-
ment from the "basic seven," and held to that decision
even on October 31, when the backlog stood as low as
46,726 feet. That an upward curve was apparent is indi-
cated by a comparison of December 1977 (281,098 feet
received) with December 1978 (467,007 feet received)
and January 1978 (281,793 feet received) with January
1979 (488,788 feet received).' 9 It may be inferred that
something apart from business considerations caused Re-
spondent to reduce the work force to six (which figure
included Dunn) on January 25, when the backlog con-
sisted of more than 56,000 board feet.
I have carefully considered the fact that the board
footage received in February 1979 dropped to 396,344,
as compared to 488,788 in January. Some of the differ-
ence may be attributable to the fact that February had
only 20 workdays, compared to January's 23 workdays.
The validity of that speculation is, however, irrelevant,
because Respondent has made only an unspecific, and
partly incorrect, explanation of why it thought the work
had declined so precipitately as to warrant a 40-percent
reduction in force on January 25. This was the best Hen-
drickson had to offer:
A lot of information flows in to me from customers.
I have a lot of government contracts that come in
to me. At that particular time, I had no backlog. I
had very little lumber in the yard to physically
stack that these men would be stacking.
As shown, he in fact had more backlog than he had on
October 31, when all 10 men were retained; Respondent
failed to produce its file of orders to show that, as of
January 25, the contracted work was insignificant; and,
as discussed above, Respondent's prior cast of mind had
19 December 1976 had reflected only 324,565 feet, and January 1977
only 303,724 feet
been expansive as far as the size of the unit was con-
cerned.
After February, the volume of work increased apace.
For the sake of comparison, and repeating in part an ear-
lier table, the table below shows board feet received on a
monthly basis from April 1978, when the work force
(until January 25) reflected a steady 8-12 employees,
through August 1979:
4/78
5/78
6/78
7/78
8/78
9/78
10/78
11/78
12/78
1/79
2/79
3/79
4/79
5/79
6/79
7/79
8/79
819,206
599,318
811,636
578,430
663,631
526,171
522,002
581,442
467,007
488,788
396,344
613,389
711,115
656,069
644,736
806,319
580,308
The record contains no exact figures on employment
beyond March, although Hendrickson did testify that,
between January 25 and the hearing, Respondent hired a
total of perhaps 50 employees for various periods. The
evidence does show that late in February and early in
March, Respondent hired five new employees and re-
leased them about 2 weeks later. Hendrickson testified
that these extra personnel were needed for special pack-
ing on an export order, and that the first shipment for
the order was received on February 6. He further testi-
fied that Respondent had a practice of never recalling
terminated employees, and there is no evidence to refute
this testimony. It is interesting to note, however, that for
the 10 high employment months of April 1978-January
1979, average monthly board intake was actually less
(about 606,000) than for the 7 months following January
(about 632,000). There is no reason to believe that Re-
spondent would have, in January, expected a serious
business decline, and these figures lend further support to
my belief that Respondent anticipated a long-term
volume commensurate with that which had, for 10
months, justified, in its view, a 10-man complement. 20
General Counsel posits an additional argument on the
record evidence that Respondent's employees put in a
large amount of overtime for several weeks subsequent
to January 25; it is contended that this development indi-
cates a continuing need for more employees. At the hear-
ing, Respondent gave various explanations for the over-
time: 1 week, an employee was sick; another week, an
2 The four men released on January 25 were something more than
pickup temporary labor. Coston had begun work in March 1978; Ses-
soms, described by Holland as an "excellent" employee, in August;
ranner in September; and Steward in November. That Respondent had
in mind a permanent expansion of its crew is supported by Tanner's testi-
mony, confirmed by tlenderickson, that he was hired to train as a plant
,perator.
PORTSMOUTH LUMBER TREATING, INC. 1175
employee was on vacation; a good deal of the overtime
resulted from the need to keep the plant from freezing;
much of the overtime was worked by Dunn and the
plant operator rather than the lumber stackers. General-
ly, I found Respondent's explanations to be persuasive,
and, at any rate, the overtime in none of the 4 weeks im-
mediately following January 25 came near equalling the
regular worktime of the four departed employees.
Other evidentiary items, at first look of seemingly
minor import, assume some significance on further con-
sideration. The discharges appeared to be tinged with
vengeance; the four employees were not even allowed to
work out the day, and, according to Dunn, Hendrickson
told him to tell the men "to go home after lunch and not
to come back."
In addition, these four employees seem to have been
regarded as special cases. The five employees hired for 2
weeks in March are shown on Respondent's records as
"laid off for lack of work;" the end of the careers of the
four employees removed in January is described with a
brusque "terminated."
The complaint alleges that various utterances by Re-
spondent's agents between January 25 and the March
election constituted violations of Section 8(a)(1) of the
Act. Some of these statements also, as General Counsel
argues, to a greater or lesser extent tend to reflect Re-
spondent's purpose in discharging the four employees
and its serious concern about the advent of the Union.
The statements most damning to Respondent, as far as
they touch on the motivation behind the discharges,
were attributed by the employees to Dunn. Dunn was
not specifically asked to rebut any of the charges.2 ' Em-
ployee John Columbus, who has worked for Respondent
for 5 years, testified that, about 2 days after the termina-
tions, he asked Dunn why the men had been released,
and Dunn said "it was because they got a letter from the
Union." In the same conversation, Dunn said that he did
not think the employees would be rehired "because of
the Union." Employee George Revell, a 4-year employ-
ee, testified that around February 7, Dunn told him, as
he did on several occasions, that "if the Union was voted
in that the plant would close down." Dunn further said
in that conversation that "he did believe the reason why
those men was laid off was because of union activities."
These witnesses seemed honest, and, particularly in the
absence of contradiction by Dunn, there is no reason not
to give credence to their testimony.22 While the com-
ments by Dunn linking the discharge of the four employ-
ees to union activities clearly had a reasonable tendency
to restrain the employee in the exercise of their Section 7
rights, and thus violated Section 8(a)(l) of the Act,2 it
is not so clear that these remarks may properly be con-
" The only question asked Dunn by counsel for Respondent relating
to conversations with employees "about the union" was not only blanket
in nature but also clearly referred to possible conversations prior to the
discharges.
sA In the circumstances-witnesses of considerable tenure testifying ad-
versely to their employer in a situation in which the Union has already
been certified and there is no showing of avid union partisanship on the
part of the witnesses-their testimony is especially convincing.
2s Similarly. Dunn's prophecy that the plant would close down if the
Union was voted in emanated from a source which would have tended to
place the employees in fear of their livelihood.
sidered admissions by Respondent. Whether Dunn was
truly in a position to be privy to Respondent's motive for
discharging the employees is uncertain. Revell's testimo-
ny that Dunn said "he did believe" that union activity
led to the terminations suggests speculation of Dunn's
part. While it may well be that Dunn did know for a fact
that the union activity was responsible, I am not suffi-
ciently confident of this fact so as to rest my 8(a)(3) con-
clusions, in part, on such a finding.
Other statements were attributed to Dunn which, I
find, violated the Act. Thus, Columbus said that, on an-
other occasion prior to the election, Dunn said that
President Keown had stated that "he was going to close
the place down" if the Union was voted in, and that
anyone who had anything to do with the Union "would
be an automatic fire, you know, laid off, something like
that." Around March 12, as discussed below, Respondent
unilaterally changed the working hours of the employ-
ees. Columbus testified that he asked Dunn the reason,
and Dunn said "they was pissed because of the Union."
Other unlawful conduct was laid at the doorstep of
Hendrickson. He conceded at hearing that he asked at
least "some" of the employees how they were going to
vote in the election. Such a direct inquiry into employee
sentiments, unaccompanied by any showing of legitimate
purpose or assurances that no reprisal would result from
an indication of union sympathy, is traditionally held to
be a violation of the Act.24 In the conversation with em-
ployee Driver in which such a question was asked, Hen-
drickson also, according to Driver, said that "he could
hire twenty men to come in there and knock the work
out that was in the yard and lay everybody off." Hen-
drickson was not asked about, and therefore did not
deny, making this clear threat, which I find to be viola-
tive of Section 8(a)(1) of the Act.2 5
Finally, as to Hendrickson, he agreed that, on the day
of the election, he said to Revell, "Your buddy from the
Union says hello." In so doing, Hendrickson says, he was
referring to Union Business Agent Marshall Hart. Hen-
drickson explained that Revell is "a friend of mine and I
did not think at that time that it had any meaning what-
soever by saying what I did." Curiously, he went on to
say that he had no idea at the time that Revell was the
one who had made the initial union contact, which, logi-
cally, leaves the remark totally inexplicable. I agree with
General Counsel that the remark gave the impression
that Respondent had engaged in surveillance of the
union activity, or at least suggested that Henderickson
had access to some potentially hazardous source of infor-
mation unknown to Revell; surely Revell must have in-
ferred this from the reference to a connection between
Revell and Hart which Revell could reasonably feel sure
that Hart had not himself revealed to Henderickson.
a" Revell, who instigated the union effort, answered by saying he was
"undecided." Driver, who had signed a union card, told Hendrickson
that he "did not know." Such evasive responses, in one-on-one conversa-
tions, probably show that the questions had an intimidating effect on the
employees.
a' I take cognizance of the fact that Driver had been convicted of
second degree murder. I take further note that Respondent, despite
knowledge of that conviction, considered Driver worthy of employment.
Finally, I note that Driver seemed a credible witness and Hendrickson
did not contradict him.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About February 5, Respondent's officials met with the
employees. Employees Revell and Columbus testified
that Holland told the employees, in the context of a dis-
cussion about the disadvantages of a union, that Respon-
dent was "working on a retirement plan." No Respon-
dent witness gave testimony on this matter, and I con-
clude that this implicit promise of a new benefit in order
to dissuade employees from voting for the Union consti-
tuted a violation, under well-settled principles. More seri-
ous was another conversation with Holland recounted by
Revell, also undenied, in which Holland, in Hendrick-
son's presence, said, "You know, if you all vote the
Union in, Mr. Keown said that he would close down and
we will all be out of jobs."
Taking into account all the evidence analyzed above,
with particular stress on the timing of the discharges, the
fact that Henderickson was aware of the representation
petition prior to the terminations and the further fact that
he dissembled with regard to that knowledge at the hear-
ing, the inconsistencies between Respondent's witnesses,
the November commitment that there would be no lay-
offs, the improbable character of the claim, in view of
the past course of conduct of the business, that January
25 suddenly seemed an appropriate time to pare the
work force by 40 percent, and the inference to be drawn
from the gravity with which Respondent rather plainly
viewed the union campaign, I conclude that General
Counsel has shown by a preponderance of the evidence
that the discharge of the four employees was discrimina-
torily motivated, in violation of Section 8(a)(3) of the
Act.
There remains for decision a single allegation laid
under Section 8(a)(5) of the Act. On March 12, a week
after the Union won the election and the day before its
victory was certified, Respondent changed the working
hours of the employees, from 8 a.m.-5 p.m., with lunch
from 12-1 p.m., to 7 a.m. to 3:30 p.m., with a 30-minute
lunch period beginning at 11 a.m. Respondent did not
consult with the Union before making these changes.
The "particular hours of the day" which employees
are required to work is a subject about which employers
are obligated to bargain, Local Union No. 189, Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO v. Jewel Tea Company, Inc., 381 U.S.
676, 691, as is, a fortiori, the length of a lunch period.
The duty to bargain attaches when a union has won an
election if, as here, the election results in a certification.
Mike O'Connor Chevrolet-Buick-GMC Co., Inc., 209
NLRB 701, 703 (1974). By failing to fulfill its obligation
to bargain about these changes, Respondent violated Sec-
tion 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Portsmouth Lumber Treating,
Inc., is an employer engaged in commerce within the
meaning of Section 2(2) and (6) of the Act.
2. Teamsters Local Union No. 822, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By indicating that employees were discharged and
would not be rehired, and were otherwise adversely af-
fected, because of union activity, by uttering threats of
discharge and plant closure, by coercively interrogating
employees, by giving employees an impression of surveil-
lance, and by promising benefits to employees, Respon-
dent violated Section 8(a)(1) of the Act.
4. By discharging Wilfred M. Coston, Jr., Freddie W.
Sessoms, Reginald L. Stewart, and George Lee Tanner
on January 25, 1979, Respondent violated Section 8(a)(3)
and (1) of the Act.
5. The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production employees at the Respondent's
Portsmouth, Virginia, location, excluding office
clerical employees, guards, and supervisors as de-
fined in the Act.
6. By refusing, on or about March 12, 1979, to bargain
collectively with the above-named labor organization as
the exclusive bargaining representative of the employees
of Respondent in the appropriate unit, by unilaterally
changing the working hours and the length of the lunch
period, Respondent violated Section 8(a)(5) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
8. Respondent has committed no unfair labor practices
alleged in the complaint except as set out above.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Coston, Sessoms, Stewart, and Tanner on January 25,
1979, I shall recommend that Respondent be required to
offer them immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority and other rights and privileges, and make them
whole for any loss of earnings they may have suffered
by reason of the discrimination against them, by payment
to them of a sum of money equal to that which they nor-
mally would have earned from the aforesaid date of their
termination to the date of Respondent's offer of reinstate-
ment, less earnings during such period. The backpay pro-
vided herein shall be computed on a basis of calendar
quarters in accordance with F. W. Woolworth Company,
90 NLRB 289 (1950), with interest as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and
Florida Steel Corporation, 231 NLRB 651 (1977). The
record states that Sessoms has returned to work; if the
reinstatement was full, no further offer of reinstatement,
of course, need be made to Sessoms.
General Counsel has requested no express remedy
with respect to the change of hours and lunch period. It
may be that the employees prefer the new hours. How-
ever, the customary remedy would be an order to re-
scind the change and, if the employer desires to reinsti-
tute the change, to require it to bargain about its reinsti-
PORTSMOUTH LUMBER TREATING, INC. 1177
tution if the Union so desires. I shall order recission; if
the Respondent wishes to reinstate the schedule, and if
the Union prefers the schedule as altered, it may refrain
from requesting bargaining.
I shall also recommend posting of the traditional no-
tices.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 2 6
The Respondent, Portsmouth Lumber Treating, Inc.,
Portsmouth, Virginia, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in regard to their hire, tenure of employment,
or other terms and conditions of employment in order to
discourage membership in Teamsters Local Union No.
822, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization.
(b) Indicating that employees were discharged and
would not be rehired, and were otherwise adversely af-
fected, because of their activity on behalf of the Union,
or any other labor organization.
(c) Threatening to discharge employees or to close Re-
spondent's plant in order to discourage membership in or
other activity on behalf of the Union, or any other labor
organization.
(d) Promising benefits to employees in order to dis-
courage membership in or other activity on behalf of the
Union, or any other labor organization.
(e) Coercively interrogating employees in order to re-
strain them from engaging in activity on behalf of the
Union, or any other labor organization.
(f) Creating the impression that it is keeping under sur-
veillance the union activities of its employees.
(g) Refusing to bargain collectively concerning rates
of pay, hours of employment, and other terms and condi-
tions of employment with the Union as the exclusive bar-
gaining representative of the employees in the appropri-
ate bargaining unit set out below:
All production employees at Respondent's Ports-
mouth, Virginia, location, excluding office clerical
employees, guards, and supervisors as defined in the
Act.
(h) In any other manner interfering with, restraining,
or coercing its employees in the exercise of rights guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
26 In the event no exceptions are filed as provided by Sec. 102 4 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.
(a) Offer Wilfred M. Coston, Jr., Freddie W. Sessoms,
Reginald L. Stewart, and George Lee Tanner, if Respon-
dent has not already done so, immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges,
and make each of them whole for any loss of earnings
they may have suffered by reason of Respondent's un-
lawful discrimination against them, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Rescind the change in hours and lunch period insti-
tuted on March 12, 1979, and, upon request, bargain col-
lectively with the Union as the exclusive representative
of all employees in the aforesaid appropriate unit with
respect to reinstatement of the aforesaid schedule, if de-
sired.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Portsmouth, Virginia, facility copies of
the attached notice marked "Appendix." 27 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive 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 cov-
ered by any other material.
(e) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORD)IERED that the allegations in the
complaint be dismissed except insofar as specific findings
of violations based on those allegations have been made
above.
27 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the rords in the notice reading "Posted by
Order orf the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has ordered
us to post this notice.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee in regard to their hire,
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenure of employment, or any term or condition of
their employment in order to discourage member-
ship in Teamsters Local Union No. 822, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization.
WE WILL NOT indicate that employees were dis-
charged and would not be rehired, or were other-
wise adversely affected, because of their union ac-
tivity; WE WILL NOT threaten employees; WE WILL
NOT promise benefits to employees; WE WILL NOT
coercively interrogate employees; and WE WILL
NOT give employees the impression that we have
been keeping their union activities under surveil-
lance, in order to discourage membership in or
other activity on behalf of the above-named Union,
or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their rights under Section 7 of the National
Labor Relations Act.
WE WILL rescind the work schedule instituted on
March 12, 1979, and, if we desire to reinstitute that
schedule, WE WILL, upon request, bargain with the
above-named labor organization as the exclusive
Attachment
representative of all employees in the appropriate
bargaining unit named above with respect to such
change and other changes in the terms and condi-
tions of employment of the employees included
within the appropriate bargaining unit. The appro-
priate bargaining unit at our Portsmouth, Virginia,
plant is:
All production employees, excluding office cleri-
cal employees, guards and supervisors as defined
in the Act.
WE WILL offer to Wilfred M. Coston, Jr., Fred-
die W. Sessoms, Reginald L. Stewart, and George
Lee Tanner, if we have not already done so, full
and immediate reinstatement to their former jobs or,
if such jobs no longer exist, to substantially equiv-
alent jobs, without prejudice to their seniority and
other rights and privileges, and WE WILL make each
of them whole for any loss of earnings they may
have suffered by reason of our unlawful discrimina-
tion against them.
PORTSMOUTH LUMBER TREATING, INC.
Board Feet
Recd.
During Month
540,668
819,206
599,318
811,636
578,430
663,631
526,171
522,002
581,442
467,007
488,788
Month
3/78
4/78
5/78
6/78
7/78
8/78
9/78
10/78
11/78
12/78
1/79
No. of
7
12
10
10
8
8
9
9
10
10
6