A-Z Manufacturing & Sales Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 254 (N.L.R.B. 1969)

254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A-Z Manufacturing & Sales Co., Inc. and General
Drivers Local No. 498, Allied Automotive and
Petroleum , affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
17-CA-3760
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On May 8, 1969 , Trial Examiner Henry L. Jalette
issued his Decision in the above-entitled proceeding,
finding that the Respondent has engaged in and is
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended , and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner ' s Decision.
Thereafter , the Respondent filed exceptions to the
Trial Examiner ' s Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision, the exceptions and brief, and
the entire record in this case , and hereby adopts the
findings , conclusions, and recommendations' of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that Respondent, A-Z
Manufacturing & Sales Co., Inc., Independence,
Missouri , its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner ' s Recommended Order, as herein
modified:
1. In paragraph 1(b) of the "Recommended
Order," delete the words "like or related" and
substitute the word "other."
2. In the third indented paragraph of the notice
marked "Appendix ," delete the words "like or
related," and substitute the word "other."
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
HENRY L . JALETTE , Trial Examiner : The charge herein
was filed by the above-captioned organization (herein
called the Union) on December 23, 1968 ,' against the
above-captioned Employer (herein called the Respondent),
and pursuant thereto on February 26, 1969 , the General
Counsel issued a complaint alleging that Respondent had
violated Section 8(a)(1) and (3) of the Act by discharging
employees Jimmy Ray Brown and Bobbie Burchett
because its employees joined or assisted the Union. The
trial of the issues was conducted on April 10, 1969.
Upon the entire record , including my observation of the
witnesses, and after due consideration of the brief filed by
Respondent , I make the following:'
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT; AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a Missouri corporation engaged in the
manufacture of machine parts at a facility located in
Independence , Missouri . Respondent annually ships
products valued in excess of $50 ,000 directly from its
Missouri plant to points outside the State of Missouri.
Respondent admits , and I find , that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act . The Union is a labor organization
within the meaning of Section 2 (5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
On December 20, the Union sent a telegram to
Respondent in which it claimed to represent a majority of
Respondent' s employees and in which it requested
bargaining . This telegram was delivered at 11:50 a.m. of
that day . Upon receipt of the telegram, George E.
DeTray, vice president of Respondent , immediately sent
for his foremen and had a meeting with them. DeTray
read the telegram to them and they discussed among
themselves who they thought might possibly be involved.
They were unable to come up with any concrete answers
about who might be involved and DeTray told the
foreman that any information they might find he would
like to know.
This demand had come as a surprise to DeTray who
was shook up by it because he thought Respondent had
treated its employees fairly and justly . DeTray admitted
that he instructed the foremen that he was still running
the place . DeTray reinstructed the foremen about their
jobs and the handling of personnel , including the
admonition to go out "and watch these men." On
cross-examination , Foreman Edwin Middaugh was asked
the following question:
Q. In other words, he [DeTray ] more or less ordered
a crack down , didn't he?
MR. UHLIG : May the record show the long pause
here.
A. Yes, he restated the fact we were supposed to
watch the employees.
'Inasmuch as the Respondent' s unfair labor practice stoke at the very
heart of employees ' rights safeguarded by the Act, we shall issue a broad
Order herein N.L R.B v. Entwistle Manufacturing Co, 120 F 2d 532, 536
(C A. 4)
'Unless otherwise indicated, all dates herein refer to 1968.
'For the reasons hereinafter set forth , Respondent' s Motion to Dismiss
made at the close of the trial is denied.
177 NLRB No. 98
A-Z MANUFACTURING & SALES CO., INC.
In the afternoon of December 20, employee Jimmy Ray
Brown was working on a press which had to be set up to
perform a flattening operation . Brown inserted the
flattening die in the press and was told by Foreman
Middaugh that he would have to install a 2 by 4 for a
base. According to Brown, he got the 2 by 4 and he
started setting it up when Foreman Middaugh left. Brown
continued to set the machine and, believing it to be
properly set , he operated it once to flatten out a piece of
metal . Foreman Middaugh came back to the press and
told Brown it sounded like it was a little low , that it was
hitting pretty hard . Brown told him that he was taking the
flattened part over to be gauged and Middaugh told him
to go ahead and he would check the press. When Brown
returned, Foreman Middaugh told him that he had broken
the die because the press was set too low. Middaugh told
Brown to remove the die and when Brown asked him what
to do then Middaugh told him he was afraid this was his
check. According to Brown, Middaugh said "Well, we got
our orders that if anybody messed up anything, or goofs
up anything or anything like that , we punch them out and
send them to the office to get their check."
Middaugh told Brown to punch out , but before doing
so Brown went to the restroom and was there washing his
hands when Middaugh came in with Brown ' s timecard
already punched out. He gave it to Brown and said, "Jim
I don't want you to be mad at me and I don't want Bob
to be mad at me, I just work here like you guys do, they
gave me my orders in there this morning , I work here like
you do and I have to take my orders the same as you
do."
Brown told Middaugh that he was not mad at him, but
that he had not set up the union deal, that it had already
been set up before he began working for Respondent.
(Brown had begun working for Respondent on December
16.) Middaugh replied, "Yes, but you signed ." Brown had
signed a union card on December 18.
Middaugh ' s version of the foregoing is substantially the
same as Brown ' s, with two exceptions . According to
Middaugh , he had to leave the press for some other
pressing matter and as he was leaving he told Brown the
press was not set right and that he was not to turn it on
till Middaugh returned . Brown denied that such an
instruction was given , and I am not persuaded that he was
being untruthful; rather, I believe he did not hear the
instruction . Employee Curtis Dawson, who corroborated
Middaugh , described the giving of the instruction as
follows : "He [Middaugh ] started away and turned back
and said, ` I will be back in a minute, don't start it up till I
get back '." He did not indicate whether or not Brown
heard Middaugh . No reason appears in the record why
Brown would have ignored the instruction , and he had no
reason to lie because Middaugh never even referred to the
order in telling Brown he was discharged.
The other point of difference between Middaugh and
Brown is Brown's testimony that in reply to his remark
about the Union Middaugh replied , "Yes, but you
signed ." Middaugh denied making such a statement and
Respondent contends that "Brown ' s bald , self-serving
assertion is not in context or in character with the other
portions of the restroom conversation ," and that Brown
should not be credited. I am not persuaded by the
argument . First of all , Middaugh was not asked by
Respondent to describe the conversation ; rather he was
asked to affirm or deny the statement and he denied it. As
I read Middaugh ' s testimony , nowhere did he deny that
Brown adverted to the union activity as a reason for his
discharge ; all he denied was the remark attributed to him.
255
If Brown's uncontradicted testimony that he adverted to
the union activity is credited, the alleged reply of
Middaugh "Yes, but you signed" is not out of context.
There is no direct evidence that Middaugh knew Brown
had signed a card, but he admitted that in a meeting with
DeTray they had discussed the whole employee roster.
Bob Meier, Brown's brother-in-law and a friend of
Middaugh's, had attended a union meeting the evening
before, and there is undenied testimony that Middaugh
knew that Meier had attended a meeting, albeit whether
he knew it was a union meeting is left to inference.
Moreover, it appears that Middaugh was suspecting
everyone, as indicated below by his remark to Burchett to
return some defective parts to ". . . them God damn union
men ...... Finally, Middaugh appeared to me to be very
nervous on the witness stand and I found him evasive on
cross-examination , in particular when he was questioned
about the instructions he had received that day.'
Although, in the final analysis, whether or not Middaugh
made the remark is not dispositive of the issue of Brown's
discharge . I credit Brown.
Bobbie Burchett had been employed by Respondent for
approximately 9 months and was classified as welder. On
December 20, some parts had been brought back to
Burchett which he had welded a few days earlier, some of
which had a defective weld. Burchett asked Foreman
Middaugh what he was to do with them and they checked
the parts, found some in which the weld would break and
others in which it would not. Foreman Middaugh told
Burchett "Box them back up, send them back down to
them God damn union men, let them run them."
That same afternoon, between 2 and 3 p.m., DeTray
was in the paint shop and he observed an employee
sorting parts out which were defective. DeTray asked him
how come he had all those bad parts, and the employee
replied that bad parts were being sent to him and he was
supposed to sort them out and that he could not get any
painting done because he was always getting bad parts.
DeTray picked up some of the bad parts and took them
back to Burchett. He asked Burchett if he had welded
these parts and Burchett stated he had. DeTray said, "It's
sloppy work, you are fired."
Burchett, who had signed a union card, testified he told
DeTray if it had not been for the Union he would not
have fired him. DeTray made no comment. This is
undenied.
III. ANALYSIS AND CONCLUSIONS
The complaint alleges that Burchett and Brown were
discharged by Respondent because its employees joined or
assisted the Union . Respondent contends that company
knowledge is an essential element of an 8(a )(3) violation
and that as there is no evidence of company knowledge of
any union activities on the part of either Brown or
Burchett there can be no finding of a violation. Of course,
in Brown ' s case, this argument is based on the premise
that I would not credit Brown' s testimony; as I have
credited it, the argument must fail.
'Respondent argues that General Counsel was putting words in
Middaugh's mouth when he asked him the question about a crack down as
I have described above, and that Middaugh ' s answer should be given no
probative weight . To the contrary, it was obvious to me that General
Counsel had to try to put words in Middaugh 's mouth, because his answers
were either nonresponsive or evasive . In my opinion , Middaugh's own
admissions , apart from the question and answer of a crack down, fully
justify the conclusion that DeTray did order a crack down
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, I do not predicate my finding of a violation
on that evidence of company knowledge , because it is not
essential that company knowledge of the union activities
of the discriminatees be shown in all cases ; rather, it is
sufficient to show company knowledge of union activity
among employees and that such activity was the
motivating cause for the discharges.
In N.L.R.B. v. Piezo Mfg. Corp., 290 F.2d 455 (C.A.
2), the employer had laid off employees almost
immediately after its vice president had been informed
that a majority of its employees had selected the Union to
represent them . The Court stated that a finding that the
employer' s vice president knew whether or not the
employees whom he laid off had signed union
authorization cards was not essential to the Board's
decision and that the Board could infer from the timing of
the layoffs and the statements of the vice president made
almost contemporaneously with them that they were
intended to discourage Respondent's employees from
adhering to the Union at a period critical to its future. In
my opinion, an identical situation is presented by the
conduct of Respondent herein.
On DeTray' s own admission , at the time he fired
Burchett he was "hot under the collar." It is abundantly
clear that this was because of the receipt earlier that day
of the union 's demand for recognition and not because of
Burchett's defective work . It is undisputed that Burchett's
foreman had seen the defective work earlier that day and
had not even considered the matter serious enough to
warrant a reprimand . Even more , he had directed that
other employees cope with the problem. Yet, DeTray,
without checking with anyone or seeking an explanation
from Burchett, who was admittedly an excellent workman,
precipitately discharged Burchett . When charged by
Burchett with firing him because of the Union, DeTray
had no comment . In these circumstances , including the
fact that DeTray had instructed his foremen to crack
down on employees upon receipt of the Union' s telegram,
the conclusion is inescapable that Burchett was discharged
because of the union activities of Respondent ' s employees
and in order to discourage activity on behalf of or
assistance to and membership in the Union. I do not
credit DeTray's denial that he was motivated by those
considerations in firing Burchett.
The case of Brown is hardly different. He started the
press despite instructions from Middaugh not to do so,
and, as a result, he broke a die. Thus, he gave cause for
discharge . This, of course, does not end our inquiry,
because it is well established that the fact that there exists
cause for discharge is no defense where it appears that the
real reason for the discharge is union activity . N.L.R.B. v.
Solo Cup Co., 237 F.2d 521 (C.A. 8); N.L.R.B. v. C & J
Camp, Inc., 216 F.2d 113 (C.A. 5). "The circumstances of
each case must be weighed to determine what motivations
truly dominated the employer in laying off or discharging
the employee ." N.L.R.B. v. Jones Sausage Co., 257 F.2d
878, 882 (C.A. 4).
That Brown ' s discharge was motivated by the union
activities of Respondent' s employees is evidenced by the
instructions of DeTray to his foremen upon receipt of the
telegram to discharge employees who made mistakes, and
Foreman Middaugh 's self-exculpatory remarks to Brown
in the restroom . Had Middaugh not been executing the
order received earlier that day, there would have been no
need to give Brown the explanation which he gave him.
According to Middaugh's own testimony, his reply to
Brown ' s reference to the Union in the restroom was that
he had his orders . In these circumstances , as in the case of
Burchett , the conclusion is inescapable that Brown was
discharged because of the union activities of Respondent's
employees and in order to discourage activity on behalf of
or assistance to and membership in the Union . I do not
credit Middaugh 's testimony that he was not motivated by
these considerations in firing Brown.
In Burchett' s case , Respondent did not attempt to
establish that his defective work had any serious economic
consequences . To the contrary, Respondent reconsidered
its action and offered him reinstatement on December 24,
a fact which does not militate against the finding that the
discharge was unlawful . In Brown ' s case, however,
DeTray testified at length of the adverse consequences,
economic and safety , of mistakes such as Brown ' s. In my
opinion, he grossly exaggerated . The die which Brown
broke cost $25 to replace . The press was neither broken,
nor rendered inoperative . Despite his testimony about how
serious a matter it was to have a press "bottom out,"
when DeTray heard the noise made by the press when the
die broke, he did not bother to check because he saw his
foreman was going to check . Had the incident involved
the possible dire consequences described by DeTray, he
would not have entrusted the matter to a foreman. As to
Middaugh, it is noteworthy that his only comment to
Brown was that he had broken the die . He was not
admonished that his carelessness could have broken the
press; no reference was made to his failure to abide by
instructions not to start the press . In fact, a study of
Middaugh ' s conduct and statements reveals that his only
concern was that he comply with the instructions of the
day to crack down on employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3 ) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent discriminatorily
discharged Jimmy Ray Brown , I shall recommend that
Respondent be ordered to offer him immediate and full
reinstatement to his former or a substantially equivalent
position, without prejudice to his seniority or other rights
and privileges and to make him whole for any loss of
earnings he may have suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he normally would have earned
as wages from the date of his discharge to the date of the
offer of reinstatement, less net earnings , to which shall be
added interest at the rate of 6 percent per annum in
accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716. In like manner I shall
recommend that Respondent make Bobbie Burchett whole
for any loss of earnings he may have suffered by reason of
the discrimination against him from the date of his
discharge to the date of his reinstatement . However,
A-Z MANUFACTURING & SALES CO., INC.
inasmuch as Burchett has been reinstated no order of
reinstatement is herein required.
Upon the foregoing findings of fact, and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. A-Z Manufacturing and Sales Co., Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. General Drivers Local No. 498, Allied Automotive
and Petroleum, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Bobbie Burchett and Jimmy Ray
Brown because of the union activities of its employees,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Sections 8(a)(1) and (3)
and 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this case, I
hereby issue the following:
RECOMMENDED ORDER
Respondent, A-Z Manufacturing and Sales Co., Inc.,
its officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf
of General Drivers Local No. 498, Allied Automotive and
Petroleum, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, and Warehousemen and
Helpers of America, or any other labor organization, by
discriminating in regard to the hire or tenure of
employment or any terms or conditions of employment of
its employees.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed by Section 7 of the Act, or to refrain from any
or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Jimmy Ray Brown immediate and full
reinstatement to his former or a substantially equivalent
position without prejudice to his seniority or other rights
and privileges.
(b) Make Jimmy Ray Brown and Bobbie Burchett
whole in the manner set forth in the section of the above
Decision entitled "The Remedy."
(c) Notify the above-mentioned employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service and Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(d) Preserve and, upon request, make available to the
Board and its agents for examination and copying all
payroll records, social security payment records,
timecards, personnel records and reports and all other
records relevant and necessary to a determination of the
amounts of backpay due under the terms of this
Recommended Order.
257
(e) Post at its Independence, Missouri, place of business
copies of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by the
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and 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.
(f) Notify the said Regional Director, in writing, within
20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice If the Board's
Order is enforced by a decree of a United States Court of Appeals, the
notice will be further amended by the substitution of the words "a decree
of the United States Court of Appeals enforcing an Order" for the words
"a Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director for
Region 17 , in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer to Jimmy Ray Brown immediate
reinstatement to his former or a substantially equivalent
position without prejudice to his seniority or other
rights or privileges, and WE WILL make him and Bobbie
Burchett, who has been reinstated, whole for any loss of
pay they may have suffered by reason of the
discrimination against them.
WE WILL NOT discourage membership in General
Drivers Local No. 498, Allied Automotive and
Petroleum, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor
organization , by discriminatorily discharging any of our
employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to self-organization, to form labor
organizations, to join or assist the Union named above,
or any other labor organization, to bargain through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
All our employees are free to become and remain
members of Local No. 498, Allied Automotive and
Petroleum, affiliated with the International Brotherhood
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Teamsters , Chauffeurs, Warehousemen and Helpers of with the Selective Service Act and the Universal Military
America , or any other labor organization . Training and Service Act, as amended, after discharge
Dated By
from the Armed Forces.
A-Z MANUFACTURING & This notice must remain posted for 60 consecutive days
SALES CO., INC. from the date of posting and must not be altered , defaced,
(Employer ) or covered by any other material.
(Representative) (Title) If employees have any question concerning this notice
or compliance with its provisions, they may communicate
Notify the above-mentioned employees if presently directly with the Board ' s Regional Office , 610 Federal
serving in the Armed Forces of the United States of their Building , 601 East 12th Street , Kansas City, Missouri
right to full reinstatement upon application in accordance 64106 , Telephone 816-374-5181.