Breidner Bros. Garage

National Labor Relations Board - Board Decisions

Jan 18, 1974

208 N.L.R.B. 500 (N.L.R.B. 1974)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lebud Garage , Inc., d/b/a Breidner Bros. Garage and
King Harper . Case 2-CA-13007
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
January 18, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On September 18, 1973, Administrative Law Judge
Benjamin B. Lipton 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Lebud Garage, Inc.,
d/b/a Breidner Bros. Garage, New York, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
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 Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951 ) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE'
BENJAMIN B. LIPTON, Administrative Law Judge: A
hearing in this case was held on August 21, 1973,2 in New
York, New York, upon a complaint by the General
Counsel3 alleging violations of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended. The parties
argued orally on the record and waived the filing of briefs.
Upon the entire record, and from my observation of the
demeanor of the witnesses, I make the following:
I Rejan appeared as an officer of the corporation He testified that he is
"the owner" of Respondent A law firm which had represented Respondent
withdrew by mutual consent prior to this hearing An answer to the instant
complaint filed by the law firm was adopted by Rejan at the hearing
Respondent operates a garage in the Borough of Bronx,
New York City, where it is engaged in vehicle storage,
parking , and related services, such as vehicle cleaning and
incidental sale of gasoline to the general public. At all
times material , Respondent has been a member of the
Bronx County Garage Owners Association , herein called
the Association , which has members consisting of employ-
ers in New York City who are engaged in the same
business as Respondent . On behalf of its employer-mem-
bers, the Association negotiates and executes collective-
bargaining agreements with labor organizations , including
Local 272, Garage Employees Union International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , herein called Local 272 or the Union.
During the year preceding issuance of the complaint, the
employer-members of the Association derived gross in-
comes from their respective operations valued in excess of
$500,000, and purchased products in excess of $10,000
directly in interstate commerce or directly from firms in
New York State which receive such products directly in
interstate commerce . Respondent admits, and I find , that it
is engaged in commerce , and that Local 272 is a labor
organization , within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Issues
As alleged and litigated, the essential question is whether
Respondent discharged King Harper because he engaged
in the concerted activity of seeking to enforce the
collective-bargaining contract in the protection of his
rights, or more specifically, because he complained to the
Union that Respondent sought to terminate him while
retaining in its employ certain nonunion employees.
Respondent contends that Harper was discharged for
certain misconduct in the performance of his job, and that
the Union sanctioned such discharge.
B. The Contract
Respondent is bound by an existing collective-bargain-
ing agreement between the Association and Local 272. The
agreement contains, inter aka, a typical 30-day union-shop
provision requiring union membership by the covered
employees (art. V); a hiring hall operated exclusively by
the Union (art. VII); and seniority standards with
preference accorded to senior employees in the event of
layoffs or reductions in force (art. VIII). In addition, under
"Discharges and Suspension" (art. XXIII), no employee
may be laid off or discharged except forjust cause , listing
certain categories of cause. And it further provides that-
3. (A) In all cases involving the discharge of an
Employee, the Employer must immediately notify the
2 All dates are in 1973, except as specifically noted
3 The charge by King Harper was filed on June 12 and served on June
13, the complaint issued on July 31
208 NLRB No. 77
BREMNER BROS . GARAGE
Union, in writing of his discharge and the reason
therefor, and mail notice thereof to the Union.
(B) With respect to discharge for cause . . . the
Employer or ts Association shall give the Union at
least one (1) warning notice of the specific complaint
against the Employee. A notice or warning shall not be
deemed compliance with this section, and no Employee
shall be deemed discharged, unless such notice has
been given to the Union.
(C) The discharged Employee must notify the Union
in writing within two (2) working days after such
discharge, of his desire to appeal. Notice of appeal
from discharge must be made to the Employer and the
Union in writing within five (5) days of the date of
notice of discharge.
If the Union and the Employer are unable to agree to the
settlement of any disputed discharge or layoff, the question
may be referred to specified procedures for final and
binding arbitration.
C. The Pertinent Evidence
From January 1 until his discharge on June 9, Harper
worked for Respcndent as a garage attendant on night
duty. He was a member of Local 272. On May 1, Gilbert
Rejan for Respondent sent a letter to Howard Blatmck,
business agent of the Union. The letter stated, in
substance, that "due to severe loss of business I am forced
to terminate the services of Mr. King Harper as of May
11." On May 11 or 14, Rejan informed Harper he was
going to be laid off, with a week's notice. On May 17,
Rejan told Harper that Friday, May 18, would be his last
day of work. During the morning of May 18, Harper
visited the Union's office. He told Blatnick he was being
laid off while Respondent retained nonunion men, whom
he specified as Pete Fulgoni and one Francisco (surname
not supplied). Blatnick assured Harper that he would stay
on the job if Respondent employed nonuinon men.
Blatnick then telephoned Rejan in Harper's presence.
Rejan denied that Fulgoni was still employed. As to
Francisco, Rejan said it will be taken care of and
attempted to explain that this man worked part time as a
relief for Harper. Blatmck told Rejan that he could not lay
off Harper. After the phone call, he asked Harper to do "a
little spying for him" to see if there were any nonunion
men on the job. Harper later reported that a nonunion man
named Trotter was employed. On May 18, when Harper
returned to work, Rejan approached and told him, "you
ratted on me . . . . You went down to the hall and told
him I had non-union men . . . . I could get you in
trouble."
On request of George Scheps, president of the Associa-
tion, a "hardship" meeting with the Union's executive
board was held on Monday, May 21. relating to Respon-
dent's May I letter, supra, as a basis for laying off Harper.
Nothing was raised by Respondent concerning Harper's
alleged misconduct. As a result of this meeting, Harper's
schedule was changed from 5 days to 4 days a week,
4 Blatnick indicated that, under the hinng hall, the Union does not refer
part-time employees, except in special hardship cases.
5 From Rejan's testimony. Bruce's statement related to his observing the
501
presumably with a commensurate reduction in pay. On the
same day, May 21, Blatnick called in Rejan and told him
that the shop had to be kept clean of nonunion men
regardless of economic reasons, that union men came first,
and that he could hire nonunion men, but they have to be
in the Union in 30 days.
Shortly after Blatnick assumed his position with the
Union in January, he and two other business agents made
personal surveys of the shops covered by the union
contract, among other things, to "pick up" nonunion men.
He learned that Fulgoni, formerly a regular employee, was
working for Respondent (2 days a week) as a "retired
pensioner." Although Rejan claimed that a previous
business agent of the Union had authorized the employ-
ment of such a pensioner, Blatnick first obtained a "ruling"
from the Union 4 and then advised Rejan that the
pensioner, and all nonunion men, "had to be off the job."
Blatnick testified that Rejan assured him the shop would
be "cleaned up" within a period of time, by February or
March, and he assumed this to be the fact. In May, he
received information from Harper that Fulgoni, Francisco,
and Trotter were employed as nonunion men. Respondent
did not carry or report the nonunion employees on its
payroll records. Rejan testified that Trotter was a customer
and not an employee; that Fulgoni and Francisco were
removed about the time of the "hardship" meeting on May
21, but he was not sure.
About May 22, bearing this date, Blatnick received a
registered letter from Rejan stating:
Dear Sir:
This is to inform you that I must discharge an
employee, King Harper, for the following reasons:
1. Attitude towards customers with surly and rude
behavior and discourteous treatment.
2. Dishonesty-failure on his part to charge cus-
tomers for washing. He has repeatedly washed cars
without writing up sales tickets, making his own deals
with customers. This has led to strained relations.
Many customers have complained to me and have
stopped buying gasoline and threatened to leave the
garage unless this man is removed ... .
Early in June, Rejan handed Harper a copy of the above
letter. He had not spoken to Harper concerning his work,
at least since May 21. Harper's discharge was effected on
or about June 9, following two meetings conducted by the
Union regarding Rejan's letter. These meetings were
attended by Blatnick, the executive board, Scheps of the
Association, and Rejan. It does not appear that Harper
was present. Rejan presented his charges, but had no direct
knowledge of the alleged misconduct. At the second
meeting, Marion Bruce, a garage employee, was brought in
by Rejan to give a statement.5
At the instant hearing, in Respondent's defense, Rejan
testified himself, was permitted to recall Blatnick and
Harper, but offered no other witnesses. Harper firmly
denied the assertions of misconduct contained and implied
in Rejan's questions. Rejan testified that he received
cars of customers which were dirty when parked and, at a subsequent time.
appeared to have been washed
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
numerous complaints concerning Harper from customers
in April and May and continuing to the time of the
discharge. He saw customers' cars which were clean in the
morning and which had been dirty when parked the night
before, with no charge tickets made out by Harper. Several
of the customers told him Harper had washed their cars. In
Rejan's affidavit given to a Board agent on July 2, he
averred that "The customers had denied having Harper
wash the cars." Regan could give no satisfactory explana-
tion for this direct conflict. In other respects, Rejan
distinctly impressed me as untrustworthy and is generally
not credited.
D. Conclusions
As of May 1, Respondent notified the Union of its intent
to terminate Harper for economic reasons and, on May 17,
it informed Harper of his discharge effective May 18.
Harper made his appeal to the Union complaining that
nonunion men were retained by Respondent. Pursuant to
the contract, Harper apparently had retention rights with
respect to a layoff as against nonunion employees, whether
on the basis of seniority or the Union's previous and
renewed requests under the union-security clause that
Respondent remove such nonunion employees. In any
case, Harper was engaging in a protected concerted
activity and pursuing his rights under the contract .6
The Act is violated if an employee is discharged for
misconduct arising out of a protected activity when it is
shown, as it has been here, that the misconduct never
occurred.? Indeed, the evidence reflects no reasonable
basis for an honest belief by Respondent that Harper
engaged in any conduct warranting discharge.
On May 21, Harper's appeal was upheld by the Union.
The very next day, Respondent persisted in its attempt to
discharge Harper by asserting grounds of misconduct
which it forwarded to the Union. Also on May 22,
Respondent impliedly threatened that it would get Harper
into trouble because he had "ratted" to the Union
concerning the nonunion employees. I find that Harper's
"ratting" or complaining to the Union on May 18
constituted a substantial motivating factor in Respondent's
decision to discharge him on or about June 9, and that the
alleged misconduct was dredged up as a pretext. It is no
defense that the Union made no objection to such
discharge. Thus, it is found that Harper was discriminatori-
ly terminated because he engaged in a protected concerted
activity.
Accordingly, for the foregoing reasons, I conclude that
Respondent violated Section 8(a)(1) and (3) of the Act, as
alleged.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
6 E.g, Bunney Bros Construction Co, 139 NLRB 1516
7 N L.R B v Burnup and Sims, Inc, 379 U S. 21 (1964)
8 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
It has been found that Respondent discharged King
Harper in violation of Section 8(a)(1) and (3) of the Act. It
will therefore- be recommended that Respondent offer
Harper immediate and full reinstatement to his former job
or, if such job no longer exists, to a substantially equivalent
job, without prejudice to his seniority and other rights and
privileges, and make him whole for any loss of earnings
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, absent the discrimination,
less net earnings during such period, with backpay
computed on a quarterly basis in the manner established in
F. W. Woolworth Company, 90 NLRB 289. Backpay shall
carry interest at the rate of 6 percent per annum, as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716. It
will be further recommended that Respondent preserve
and, upon request, make available to the Board, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
and useful to determine the amounts of backpay due and
the rights of reinstatement under the terms of these
recommendations.
Upon the foregoing findings of fact, and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging King Harper for engaging in protect-
ed concerted activities within the meaning of Section 7 of
the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. By threatening reprisal against Harper for engaging
in protected concerted activities, Respondent has re-
strained and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
Respondent, Lebud Garage, Inc., d/b/a Breidner Bros.
Garage, New York, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisal for complaining
to the Union or otherwise seeking to enforce their rights
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
BREMNER BROS . GARAGE
under the existing collective-bargaining agreement, or
engaging in other protected concerted activities.
(b) Discharging employees for engaging in protected
concerted activities, as described in the foregoing para-
graph, or in any other manner discriminating in regard to
hire or tenure of employment, or any term or condition of
employment.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement in
conformity with Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Offer King Harper immediate and full reinstatement
to his former job or, if such 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 earnings, in the manner set forth in
"The Remedy" section of the Administrative Law Judge's
Decision.
(b) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set
forth in "The Remedy" section of this Decision.
(c) Post at its garage and office in New York, New York,
copies of the attached notice marked "Appendix." 9 Copies
of said notice, on forms provided by the Regional Director
for Region 2, shall, after being duly signed by Respondent,
be posted immediately upon receipt thereof, in conspicu-
ous places, and be maintained for 60 consecutive days.
Reasonable steps shall be taken to ensure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director of Region 2, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
503
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice; and we intend to carry out the Order of
the Board, and abide by the following:
WE WILL NOT threaten you with reprisal or punish-
ment of any kind because you have complained to the
Union or have otherwise acted to protect your rights
under the contract with the Union.
WE WILL NOT discharge or lay off employees because
they have complained to the Union to defend their
rights under our contract with the Union, and will not
discriminate against them in any manner regarding
their tenure, or terms or conditions of employment,
because they engage in activities which are protected
under the National Labor Relations Act.
WE WILL NOT in any similar manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed employees in the National Labor Relations
Act, except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
WE WILL offer King Harper immediate and full
reinstatement to his former job or, if such job no longer
exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and privileges,
and we will pay King Harper for the earnings he lost
because of the discrimination against him , with 6-
percent interest.
Dated By
LEBUD GARAGE, INC.,
D/B/A BREMNER BROS.
GARAGE
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 36th Floor, Federal
Building, 26 Federal Plaza, New York, New York 10007,
Telephone 212-264-0306.