North Valley Lumber Sales, 1209 (1977)

NORTH VALLEY LUMBER SALES

North Valley Lumber Sales, Inc. and Ralph Allen.

Case 20-CA-11480

June 3, 1977 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

PENELLO AND WALTHER

On January 21, 1977, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a letter brief in support of the Decision.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision' in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order except as modified herein.

The Administrative Law Judge ordered that Ralph Allen, discharged in violation of Section 8(a)(3) of the Act, be reinstated to his former job because 'there does not appear to be any possibility of the existence of a substantially equivalent job.' We view the determination of whether a substantially equivalent job exists as one that may be appropriately left to the compliance stage of the proceeding. We therefore order, in accordance with standard procedure, that Allen be reinstated to his former job or, if that job no longer exists, to a substantially equivalent one.3 ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, North Valley Lumber Sales, Inc., Redding,

California, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as herein modified:

  1. Substitute the following for paragraph 2(a):

    '(a) Offer Ralph Allen immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by him by reason of his unlawful construc229 NLRB No. 178 tive discharge on May 7, 1976, in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, 291-293(1950), together with 6-percent interest thereon in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962).' 2. Substitute the attached notice for that of the Administrative Law Judge.

    I In that portion of sec. Ill of the Administrative Law Judge's Decision entitled 'Resolution of the Issues,' immediately following the second quotation from Stephens' testimony, the Administrative Law Judge identified Moss as asking Moss a question. Based on the record it is obvious that the Administrative Law Judge intended to indicate that Moss testified he had not asked Stephens a question, not that he denied questioning himself.

    2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. StandardDry 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.

    3 Chairman Fanning would adopt the Administrative Law Judge's recommended Order in full inasmuch as fn. 12 of his Decision construes Allen's reinstatement as not prohibiting Employer at some future date from requiring Allen to operate his truck out of Redding rather than Sacramento if required for purely economic reasons.

    APPENDIX

    NOTICE To EMPLOYEES POSTED BY ORDER OF THE

    NATIONAL LABOR RELATIONS BOARD

    An Agency of the United States Government WE WILL NOT unlawfully interrogate employees about their intentions relating to General Teamsters Local Union No. 137, or any other labor organization.

    WE WILL NOT unlawfully create the impression of surveillance ofactivities by or on behalf of said Union, or any other labor organizations.

    WE WILL NOT discriminatorily change the terms and conditions of employment of employees to more onerous ones because of their exercise of rights to which they are entitled under a collective-bargaining agreement we have with said Union, or any other labor organization.

    WE WILL NOT constructively discharge employees by changing the terms and conditions of employment of employees to more onerous ones because of their exercise of rights to which they are entitled under a collective-bargaining agreement we have with said Union (or any other labor organization) and/or under our customary employment practices.

    WE WILL NOT in any other manner coerce, restrain, or interfere with employees in the exercise of their rights under Section 7 of the National Labor Relations Act.

    WE WILL offer Ralph Allen immediate and full reinstatement to his former job or, if that job no 1209

    DECISIONS OF NATIONAL LABOR RELATIONS BOARD longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges.

    WE WILL make Ralph Allen whole for any loss of pay suffered by him by reason of his unlawful constructive discharge on May 7, 1976.

    NORTH VALLEY LUMBER

    SALES, INC.

    DECISION

    STATEMENT OF THE CASE

    STANLEY GILBERT, Administrative Law Judge: Based on a charge filed on May 18, 1976, by Ralph Alien, an individual, the complaint herein was issued on June 29, 1976. The complaint alleges that North Valley Lumber Sales, Inc., hereinafter referred to as the Respondent or the Company, violated Section 8(a)(1) and (3) of the Act.

    Respondent, by its answer, denies that it engaged in conduct violative of the Act as alleged.

    Pursuant to notice, a hearing was held in Redding,

    California, on October 19 and 20, 1976, before me.

    Appearances were entered on behalf of the General Counsel and Respondent, and briefs were timely filed by said parties on November 26, 1976.

    Based on the entire record in this proceeding and my observation of the witnesses as they testified, I make the following:

    FINDINGS OF FACT

  2. BUSINESS OF RESPONDENT Respondent, a California corporation with an office and place of business in Redding, California, is, and has been at all times material herein, engaged in the nonretail sale of lumber. During the past calendar year Respondent, in the course and conduct of its business operations, sold and shipped goods, materials, and supplies valued in excess of $50,000 directly to customers located outside the State of California, and purchased and received goods, materials, and supplies valued in excess of $50,000 directly from suppliers located outside the State of California.

    As is admitted by Respondent, it 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.

    1. THE LABOR ORGANIZATIONS INVOLVED As is admitted by Respondent, General Teamsters Local Union No. 137,' hereinafter called the Union, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act.

      As is admitted by Respondent, International Woodworkers of America, AFL-CIO, Local 3-433, hereinafter called the Woodworkers, is, and at all times material herein has I Although it appears from the transcript of the testimony of Frank Wood, its business agent, that the number is 136, the complaint and both briefs of the parties refer to the Local as No. 137. and so do the Union's contracts with Respondent.

      been, a labor organization within the meaning of Section 2(5) of the Act.

    2. THE UNFAIR LABOR PRACTICES The Issues The issues raised by the complaint and answer are:

  3. Whether or not Respondent violated Section 8(a)(1) of the Act by the following alleged conduct (as set forth in par. VI of the complaint): (a) unlawful promises of benefits on or about April 3; (b) unlawful interrogation on or about April 6; (c) unlawful promise of benefits on or about April 6; (d) creating the impression of unlawful surveillance on or about April 10; (e) and (f) unlawful interrogation on two occasions on or about April 28.

  4. Whether or not Respondent violated Section 8(a)(3) and (I) of the Act by discriminatorily assigning Ralph Allen more onerous working conditions on or about April 28, and by constructively discharging Allen on or about May 7.

    Background Information and Undisputed Facts Respondent is a lumber broker which has been engaged in the purchase, sale, and transportation of lumber and lumber products in California and several other western States since 1964. Its office is in Redding, but it also maintained offices in Fresno and Sacramento until they were closed in 1972 or 1973. There are apparently six owners of the corporation including Darrell Moss, an admitted supervisor who, during the time material herein, served as vice president and dispatcher and was on the board of directors. During the time material herein,

    Respondent had a fleet of eight trucks, and while Respondent in its brief claims it had seven drivers, General Counsel states in his brief that it had six. It appears from the dispatch documents that one driver, Mervin Barker, worked in April 1976, but had no dispatches in May 1976 (which, it is assumed, would account for the above disparity in the figures). All of the drivers except Allen operated out of Redding. Allen, admittedly Respondent's most senior driver, was originally employed in 1970 and was permitted from the start of his employment to operate his truck out of the Sacramento area where he lived. It is noted that Sacramento is 162 miles from Redding.2

    Each driver was assigned a particular truck and trailer, but the trucks and trailers varied in type. It appears...

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