American Store Equipment Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1969

176 N.L.R.B. 620 (N.L.R.B. 1969)

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Store Equipment Corporation and
Douglas Sheffer . Case 7-CA-6349
June 13, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On March 11, 1969, Trial Examiner George L.
Powell issued his Decision in the above -entitled
proceeding , finding that the Respondent had not
engaged in certain unfair labor practices and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a brief in support.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, 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 , the brief, and
the entire record in this case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner , with the limited modification set
forth below.'
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, and
orders that the complaint be, and it hereby is,
dismissed in its entirety.
_ ing the finding that Douglas Sheffer was not denied a return to
a job in the bargaining unit for discriminatory reasons, we specifically
disavow the Trial Examiner' s reliance on Sheffer's resort to the grievance
procedure and the National Labor Relations Act as evidence to support
the conclusion that Sheffer qualified as a "troublemaker."
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
GEORGE L . POWELL, Trial Examiner : This case was
tried before me on November 20 and 21, 1968, in the
circuit courtroom and the probate courtroom respectively
of Muskegon , Michigan. The complaint issued September
30, 1968 based upon a charge filed on October 13, 1967,
by Douglas Sheffer . The complaint presented questions of
whether the Respondent violated Sections 8(a)(3) and (1)
of the Act ' when it refused to transfer discharged
Supervisor Sheffer back into the collective - bargaining
unit , and whether Respondent by its agent did in fact tell
employees that its reason for not reemploying Sheffer as a
rank-and-file employee was that when he was formerly a
member of the collective-bargaining unit and active in
union affairs, he was a "troublemaker," and if so, whether
the term "troublemaker" was linked to his union
activities. The case also involves major issues of the effect
of final arbitration under a collective bargaining
agreement under the doctrine enunciated in Spielberg
Manufacturing Co., 112 NLRB 1080, and whether it is
possible for an employer to violate the Act by refusing to
employ an individual who has no right to employment.
The parties appeared at and were represented at and
participated in the trial, and were granted full opportunity
to adduce evidence, examine and cross-examine witnesses,
submit briefs , and present oral argument . Briefs were filed
on December 23 and 24, 1968, by the General Counsel
and Respondent, respectively.
On the entire record of evidence, my observation of the
witnesses as they testified, and on due consideration of the
briefs, I find, for the reasons hereinafter set forth, that the
General Counsel has failed to establish by a
preponderance of the evidence that Respondent violated
Section 8(a)(1) and (3) of the Act as alleged in the
complaint, and I will recommend that the complaint be
dismissed in its entirety.
FINDINGS OF FACT AND CONCLUSIONS
OF LAW
1. JURISDICTION AND THE LABOR ORGANIZATION
I find that the allegations of paragraphs 2, 3, 4, and 5
of the complaint , respecting the nature and volume of
business carried on by the Respondent , American Store
Equipment Corporation, a Michigan corporation
manufacturing wood products , store fronts , commercial
furniture and related products in a plant located at
Muskegon, Michigan , are true and I conclude therefrom
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) of the Act. There is no
controversy concerning the fact that the Respondent is an
employer within the meaning of the Act.
I find and conclude that the Industrial Workers Union,
Local No. 1033 of the United Brotherhood of Carpenters
and Joiners of America , AFL-CIO , herein called the
Union , is and has been at all times material herein a labor
organization within the meaning of Section 2 (5) of the
Act. This fact likewise was not controverted in the
pleadings.
II. THE UNFAIR LABOR PRACTICES
The Charging Party, Douglas Sheffer, was an employee
of Respondent for some 14 years between 1951 and 1965
as a member of the collective - bargaining unit represented
by the Union. On January 1, 1965, Respondent appointed
Sheffer to a supervisory position where he served as a
supervisor for 30 months until his discharge on July 5,
1967. Melvin Arnson was the assistant superintendent at
the time he notified Sheffer of his discharge. He refused
to put Sheffer back in the bargaining unit.
'29 U.S . C. Sec . 151, et req
176 NLRB No. 78
AMERICAN STORE EQUIPMENT CORP. 621
General Counsel 's Theory
The theory of the General Counsel , as I see it , is that
Respondent refused to reinstate Sheffer in the bargaining
unit because it did not want him to engage in union
activities as he had in the past and it would be likely that
he would do so if given the opportunity . Part and parcel
of this theory , indeed the only relevant link in the chain of
proof, is the General Counsel ' s evidence that at a meeting
on September 21, 1967, called by the Union ' s bargaining
committee with Respondent ' s officials to determine why
Sheffer was discharged as a supervisor, one of
Respondent ' s officials said Sheffer would not be returned
to the bargaining unit because he was a "trouble maker."
It is noteworthy that the General Counsel does not
contend that antiunion considerations motivated
Respondent to promote Sheffer to a supervisory position,
and the General Counsel does not contend that Sheffer's
discharge was motivated by Sheffer ' s prounion conduct as
an employee although as to the discharge the General
Counsel attempted to create a suspicion that Sheffer was
not fired for cause.
Sheffer as an Employee
As noted earlier, Sheffer had been an employee of
Respondent for some 14 years before he was made a
supervisor. His last job as an employee was that of
miter-sawyer, and, from the evidence adduced at the trial,
I find that he was a satisfactory employee in that job. He
was a member of the Union ' s bargaining committee and
helped negotiate the 1962 contract. For the last 17 months
as an employee before he was appointed supervisor he was
the chief steward for the Union.' Among his duties as
Chief Steward, he processed grievances on behalf of the
employees, and he did so process some 50 to 60
grievances . It was conceded that this was more grievances
than other chief stewards had processed, and it was
conceded by the General Counsel that only about one-half
of the grievances were resolved favorably to the Union,
but no where in the record is there evidence that
Respondent resented the filing of the grievances or
resented Sheffer's activities relating thereto nor is there
evidence that previous chief stewards had a better or
worse record in resolutions favorable to the Union.
The General Counsel contends that Charles Logie, Vice
President, formed a grudge against Sheffer when the latter
as Chief Steward bawled him out for using a production
machine and filed a grievance over the matter. This event
occurred in 1964, some 3 years before the events in this
case, yet the General Counsel introduced it in evidence to
shed light on the meaning of the term "troublemaker"
which Logie may have used in discussing Sheffer in 1967.
What happened in 1964 was of such short duration there
is little wonder that the parties could not agree at the trial
as to what took place. Sheffer testified that Logie was
using a sanding machine so he stopped him and filed a
grievance over it . The collective-bargaining agreement
precluding management from operating production
equipment. The evidence shows that this was a constant
problem with all union stewards vigorously enforcing the
contract. Logie's recollection of the incident was that he
wanted to cut a piece of wood, but as the employees were
on a coffee break and not working, he stepped up to the
band saw and cut the board himself. As this event took
place before Sheffer was promoted to supervisor it
obviously made no lasting impression on this
highly-placed official. I consider this contention of the
General Counsel as frivolous and reject it.
Sheffer's Discharge
According to Sheffer, Arnson, assistant superintendent,
told him on July 5, 1967, that he had 30 days left with
Respondent as he "was being discharged." Sheffer asked
why and Arnson told him he could not tell him the
reasons but he felt that Sheffer knew what the reasons
were and that Arnson "honestly couldn't tell me that I
had done a bad job for the company." Sheffer asked "if
there was a possibility of returning to the bench
[bargaining unit] ." Arnson said he would check with
Wulf, plant manager, and let him know later. Arnson did
tell Sheffer some hours later that Wulf said he was not
authorized to put Sheffer back to work in the plant.
Arnson had Sheffer under his immediate supervision at
this time but only because Hubert Wulf, superintendent
was absent trying to get another plant started. Arnson
testified that " ... it had been decided we were going to
replace him, to let him go, and I told [Sheffer] the reason
was poor performance, and we didn't feel he had been
doing a suitable job." I credit Arnson and not Sheffer
when there is a conflict in evidence.
Jeffrey Conn, Treasurer and Controller, was aware of
Respondent' s decision to discharge Sheffer as it had been
discussed in his presence . He credibly testified that the
reason for Sheffer's discharge was that he was
incompetent as a supervisor. He recalled an occasion when
Sheffer's errors cost Respondent as much as $20,000.
I find that Sheffer was discharged for incompetence.
There is no evidence to indicate that the discharge had
anything to do with Sheffer's union activity. Indeed there
was no evidence of any union activity by anyone, other
than the routine meetings between the Union and
management , during the period of time Sheffer was a
foreman.
The Meeting of September 21, 1967
Seventy-eight (78) days after Sheffer' s discharge the
union bargaining committee requested and had a meeting
with management to find out why Sheffer was discharged.'
Witnesses for the General Counsel as to what took place
at this meeting were Leak , Lange , Sliter , and Brooks.
Dale Leak , recording secretary and union
committeeman from March 1967, referred to the meeting
as a "fact finding meeting ." He testified that Brooks
asked Logie why Sheffer was dismissed and why he was
not put back in the bargaining unit . Logie said it wasn't
necessary to explain their actions but as common courtesy
he would do so . He said Sheffer was incompetent and had
been a problem with management . As for putting Sheffer
back to work in the bargaining unit it was entirely out of
the question and that he was a "sore spot" with the
company when in the unit and was a "troublemaker and
had caused the company much trouble ." Leak testified
that nothing was said of Sheffer' s union activities.
'The Union had been recognized for 20 years by Respondent as the sole
collective bargaining representative of its production and maintenance
employees as a result of a certification of the N.L.R.B ., dated February
18, 1948.
'There is no evidence or allegation that Sheffer and the Union and the
bargaining committee enjoyed other than the best of relationships with
each other.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Albert Lange, union president from August 1964 until
January 1968 and now retired , testified that "Mr. Logie
said Doug [Sheffer] was released because his work wasn't
satisfactory, and it cost the company considerable amount
of money. . . . and he also stated that if Doug would be
returned to the Union [sic], he would cause trouble for the
company."
Lester Sliter, member of the union bargaining
committee , testified that " Mr. Logie said , that Doug
Sheffer was not panning out exactly the way they thought
he would in the area where he was working and that this
was the main reason that he was dismissed , and he had
caused a lot - he, while he was out there he caused a lot
of scrap and rework that amounted to thousands of
dollars." Sliter , on direct examination , testified further
that Logie stated " . . . that any time Doug Sheffer was
isn [sic] the - with the union, as an official in the union,
he was a troublemaker and always had been a sore spot
with management , and this was the reason that he would
not get a job back, they would not bring him back to his
old job." On cross-examination , Sliter was sure Logie said
Sheffer "would be troublesome again, a troublemaker."
He could not recall whether Logie said the contract did
not obligate the Company to put Sheffer back to his old
job, even after reading his previously signed affidavit in
which he had so testified.
Gerald Brooks, chief steward from March 1967 to
January 1, 1968 and thereafter union president , testified
that "Mr. Logie•said [Sheffer] was incompetent and as a
supervisor he cost the company a lot of money, if they put
him back in the union [sic] he would be a troublemaker,
because he was a troublemaker while he was in the union
[sic], and that he was against the company." The
following then took place:
TRIAL EXAMINER: You are saying union or unit?
THE WITNESS : In the union in the bargaining unit.
TRIAL EXAMINER : You are saying unit and not union,
is that correct?
THE WITNESS: Bargaining unit, all right , it is the
same thing.
TRIAL EXAMINER: I want to know what Mr. Logie
said.
THE WITNESS: This is what I am talking about. He
said he didn't want him back in there because he was a
troublemaker while in there before and he would be a
troublemaker if he was back in the bargaining unit.
Q. (By Mr. Hill) [General Counsel] Did Mr. Logie
say unit or union?
A. I would say unit, I guess . It is the same thing. He
did say he was against the appointment in the first
place, in the very first place . It was against his better
judgment . He didn't feel Sheffer was qualified for the
job.
Q. Was there any mention of the union in this
conversation?
A. Just that he was a troublemaker while he was in
the union.
TRIAL EXAMINER: You said he did mention .the word
union?
THE WITNESS: Bargaining unit is the same to me as
the word union.
TRIAL EXAMINER: I know, but we are talking about
what another man said.
THE WITNESS: He said while he was in the unit, the
union.
TRIAL EXAMINER: Unit?
THE WITNESS: In the unit, in the Brotherhood of
Carpenters and Joiners , the union itself, and if they put
him back into the bargaining unit job he would be a
troublemaker again . I don't really see the connection
why the difference between the unit and the union. To
me we are speaking about the same thing.
On the other hand for Respondent, Charles Logie, vice
president , testified he responded to the question raised as
to why Sheffer was not being returned to the bargaining
unit . He told the committee he felt Sheffer was an
incompetent supervisor and that he Sheffer had been told
in being offered the job that if he did not perform
satisfactorily that he would not have a job with the
company any more . Logie told the committee that "we
felt [Sheffer's] attitude in the job he had just come out of
indicated he could not take orders properly , would not
respond to people in authority and therefore it would be
silly to try to put him back into [the] plant in some other
capacity because the situation would likely be repeated."
He said, in reply to a question if he used the word
"troublemaker or troublesome " in his conversations, "I
very likely could have." Logie also spoke of Sheffer's
erratic behavior at the time when he had occasion, as a
person in authority , to give him direction or comment
about the production or products, and how Sheffer would
ignore his comments and directions . Logie testified that
no reference was made at the meeting to Sheffer ' s union
activities . Logie was familiar with Sheffer's poor
performance as a supervisor , but he had nothing to do
with Respondent' s decision not to reinstate him in the
bargaining unit or the decision to discharge him. Logie
had no authority in these areas.
Jeffrey Conn, treasurer and controller , also attended
the September 21, 1967, meeting. He testified that he had
met earlier on September 18, 1967, with Sheffer, Kern
and Lineberry at which time he told Sheffer (after being
questioned) he had been fired because he was incompetent.
Sheffer asked why he could not have his job back in the
unit and Conn told him because Respondent had a policy
not to return people that were discharged . Also Conn told
Sheffer that [Sheffer] obviously did not believe he was
incompetent and would always feel that he was fired for
some other reason and would likely take it out on
somebody as a plant member . Conn explained that the
Company policy was based on the theory that it was
natural for someone to refuse to believe he was
incompetent.
My conclusions as to the meeting on September 21,
1967, are that if Logie made any reference to Sheffer as
being a "troublemaker" it had to do with his attitude of
refusing to believe that he was incompetent as a
supervisor , or for his attitude about being corrected. There
is no credible evidence linking union activities to
"troublemaker ." Sheffer 's friends appeared to strain their
testimony as far as they could to help him and I am
convinced that Sliter ' s testimony is beyond credence and is
not credible . Chief Steward Brooks could see no difference
between "unit" and "union" and accordingly his
testimony has no probative value as to what Logie said.
An employer has no authority to put an employee in a
union or to return one to a union . But an employer may
return an employee to a unit . Accordingly, I do not credit
Lange when he testified that Logis stated that if Sheffer
would be returned to the Union he would cause trouble. I
credit Logie that union was not mentioned. The proper
term for Lange to have used was unit.
AMERICAN STORE EQUIPMENT CORP. 623
Leak had no problem with his testimony , telling that
nothing was said of Sheffer 's union activities but only that
he was a sore spot and a troublemaker in the unit. As
there are many ways for an employee to be a
"troublemaker" other than because of his union activities,
and as we have a word picture of Sheffer being hard to
supervise and unresponsive to guidance , the General
Counsel has not established that Logie called Sheffer a
troublemaker because of his union activities . From my
observations of Sheffer , I believe Respondent ' s witnesses
are correct in evaluating him and I agree he would be
difficult to supervise even without a background of being
discharged . It is also obvious that he does not believe he
was fired because he was incompetent , yet there is no
other evidence nor claim . He certainly qualifies for the
term of "troublemaker". The record shows he has caused
plenty of trouble for Respondent . He has caused at least
two meetings with company officials, caused his union to
take his grievance to final arbitration , and, losing that,
has caused Respondent to spend time and money
defending this case and finally the U.S. Government has
been caused the expenditure of time and money in
bringing this case on for trial . In causing this trouble he
was not engaged in union activity.
All of this trouble has been caused by Sheffer even
though he knew at the time he was promoted to
supervisor that he would not be employed by Respondent
in any job if he did not succeed as supervisor. Sheffer
denied being told this but he is not credited . Richard
Kaufman , president , credibly testified that he and Wulf,
the then plant manager , had gone over this promotion
over a period of time and Kaufman finally agreed to
Wulf's recommendation to promote Sheffer but then only
after Kaufman himself and Sheffer had discussed the
company ' s position that if he failed as a supervisor he
would not be hired for any job.
been brought to the Board under the doctrine of Spielberg
Manufacturing Co., 112 NLRB 1080. Because of my
decision under the merits of the case , it is unnecessary to
rule on this point . Suffice it to say however that it would
appear that a respectable case could be made on the
proposition that an employer would be unable as a matter
of law to violate the Act in situations where a job
applicant had no right to a job and there was no evidence
of disparate treatment . However I do rely on the decision
of the arbitrator that the contract does not give Sheffer
any right to return to the bargaining unit after he had
been discharged as a supervisor.
The General Counsel attempted to show disparate
treatment of Sheffer in that other persons had been
returned to the bargaining unit from areas outside the
unit. However I find he did not prove that any discharged
supervisor had ever been returned to the unit since the
1962 collective bargaining agreement when the company
policy came into being.
In view of the above findings it cannot be said that
Respondent violated Section 8 (a)(3) and ( 1) of the Act by
refusing to reinstate Sheffer to a job in the bargaining unit
because of Sheffer ' s union activities as alleged in the
complaint . I have previously found that General Counsel
has not established that Respondent called Sheffer a
troublemaker because of his union activities . It follows
therefore that Respondent could not have advised
employees , as alleged in the complaints , that the reason
Sheffer was not reemployed in the bargaining unit was
that when he was formerly in the unit and active in union
affairs he was a troublemaker . The term "troublemaker"
has not been linked to union activities . Accordingly, I find
the General Counsel has failed to establish by a
preponderance of evidence the allegation , set out in
paragraph 11 of the complaint , that Respondent violated
Section 8 (a)(1) of the Act.
The Arbitration
On September 25, 1967 , Sheffer filed a grievance
against Respondent for failure to return him to the
bargaining unit . He contended that he had the right to
return under the collective - bargaining agreement. This
grievance went to final arbitration and was heard by Leo
W. Walsh , arbitrator duly appointed by the Federal
Mediation and Conciliation Service . The parties called
and examined witnesses on April 19, 1968. Arbitrator
Walsh found no merit in the grievance in his decision of
May 16 , 1968, a copy of which was introduced into
evidence as Respondent's Exhibit 2. In essence , the ground
for dismissal was that Sheffer had no right under the
collective -bargaining agreement to return to a job in the
bargaining unit after he had been discharged as a
supervisor.
Respondent urges the Trial Examiner to dismiss the
complaint on several grounds including , inter alia, that the
matter was resolved by arbitration and should never have
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Industrial Workers Union, Local 1033, of the
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. The General Counsel has not established by a
preponderance of the evidence that Respondent violated
Section 8 (a)(1) and (3) of the Act as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case,
I recommend that the complaint be dismissed in its
entirety.