Donaldson Sales, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1963

141 N.L.R.B. 1303 (N.L.R.B. 1963)

DONALDSON SALES, INC. 1303
nevertheless gave him a favorable recommendation for employment elsewhere, just
as he had done in Fried's case 37
After careful consideration of all factors pro and con bearing on the issue, I am
convinced that those supporting the conclusion of a discharge for cause, when con-
sidered in their proper perspective, counterbalance and override those relied on by
General Counsel to show a discriminatory discharge, and that Respondent has sus-
tained the burden of going forward with probative evidence adequate to rebut the
case developed by General Counsel. Considering all aspects of the case, I must
conclude that the most that can be said for the case of General Counsel is that, after
Francis achieved marked success in settling grievances and in the process caused
Respondent to change some longstanding practices in the plant, Respondent became
irritated at his aggressive enforcement of the letter of the contract, and it may well
have welcomed any opportunity to get rid of an overzealous and troublesome shop
steward, but it did nothing about it until after Francis began to overstep his authority
and invade the province of management by giving unilateral orders to employees,
changing methods of operation, and persisted in this despite repeated warnings and
attempts by Respondent, directly and through the Union, to persuade him to confine
himself to contract procedures. Francis' duties and position as shop steward under
the contract gave him no privilege or authority to go beyond the terms of the con-
tract or take over any management responsibilities. I am convinced, and find, that
his unwarranted and continued assumption of such privileges and authority in de-
fiance of management was the real and immediate cause of his discharge. I conclude
that General Counsel has not sustained the ultimate burden of proving on the record
considered as a whole that he was discharged and refused reinstatement because of
any legitimate activities as shop steward in administration of the contract. I shall
therefore grant Respondent's motion to dismiss the complaint, and recommend that
the Board issue an order accordingly 38
Upon the basis of the foregoing findings of fact and conclusions of law, I make the
following •
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(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. In its discharge of, and refusal to, reinstate Alphonso Francis , Respondent has
not engaged in unfair labor practices as alleged in the complaint within the meaning
of Section 8 ( a) (3) and (1) of the Act.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law, and on the
entire record in the case, I recommend that the complaint be dismissed in its entirety.
'7 In light of a Kanis' overall reasonable approach to the problem of handling Francis'
conduct, I cannot agree with General Counsel that his remarks to Troell on Monday evi-
dence a desire or attempt to build a pretext for discharge of Francis, but merely show a
reasonable attempt to get firsthand evidence about another instance of Francis' giving of
orders, before taking action.
-18 See Crucible Steel Castings Company, supra; Pinellas Paving Company, Inc , supra;
and Softexture Yarns, Inc, 128 NLRB 764, 766.
Donaldson Sales, Inc. and Heritage Employees Association,
Petitioner. Case No. 92-RC-12002. April 12. 196.3
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before I. L. Broadwin, hearing
officer. The hearing officer's rulings at the hearing are free from
prejudicial error and are hereby affirmed.
141 NLRB No. 116.
708-000-64-vol . 141-84
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent the em-
ployees of the Employer.'
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
The Petitioner seeks a unit of all employees at the Employer's two
establishments located in Smithtown and Port Jefferson, New York,
excepting statutory exclusions. The Intervenor z moves to dismiss
the petition on the ground that only a multiemployer unit is appro-
priate. The Employer contends that it effectively withdrew from
the established multiemployer bargaining unit.
Automotive Parts Distributors Association, Inc., is an association
of employers engaged in the distribution of automotive parts and
accessories. The Employer has been a member of the Association
since 1957, and has through it participated in multiemployer bar-
gaining with Local 239, the bargaining agent of its employees.
The Association has been bargaining collectively with Local 239
for a number of years, and in 1958 negotiated an agreement terminat-
ing on March 31, 1962. In January 1962, Local 239 notified the
Association that it did not desire renewal of that contract. Ne-
gotiations for a new associationwide agreement began in mid-Febru-
ary, and on February 26 the Employer, in accordance with established
practice, formally designated the Association as its bargaining agent.
Negotiations were temporarily suspended on March 29, when the
parties reached an impasse. On March 30, representatives of Local
239 approached the Employer and other members of the Association
offering separate labor contracts. The Employer summarily rejected
this offer, after which Local 239 did not further solicit a separate
contract. On the morning of April 2, Local 239 struck some 57
members of the Association, whereupon the latter directed its non-
struck members to lock out "all Local 239 bargaining unit employees."
The Employer, not one of those struck, complied with the Associa-
1 The Intervenor, Local 239 , affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpeis of America, contends that Petitioner is not a
labor organization As the record shows that Petitioner admits employees to membership
and exists for the purpose of dealing with an employer concerning wages, hours, and
terms and conditions of employment , we find it to be a labor organization as defined in
the Act Mound City Yellow Cab Company, 132 NLRB 484, 485
2 Local 239 was permitted to intervene at the hearing on the basis of its current con-
tract with the Automotive Parts Distributors Association, Inc
DONALDSON SALES, INC. 1305
tion's direction and, on the afternoon of April 2, locked out its
employees.
The Association and Local 239 resumed bargaining on April 4,
and reached final agreement on the terms of a new contract on April
6, at 4 a.m. Later, on April 6, the Employer, having been informed
by an attorney representing some of its employees that a majority
of the employees wished to withdraw from Local 239, notified the
Association that it was withdrawing from membership , and revoked
the Association 's authority to bargain on its behalf . Notice of such
action was not served upon Local 239 until April 19. On April 9,
meanwhile , the new associationwide agreement was ratified by em-
ployer-members and was formally executed on April 30. The instant
petition was filed on April 20.
In these circumstances , it is clear that there has been a substantial
period of multiemployer bargaining which would ordinarily be deter-
minative of the scope of the appropriate unit. However, the Board
has long held that, despite a multiemployer bargaining history, a unit
limited to employees of a single employer becomes appropriate if the
employer unequivocally manifests its intention to pursue an individual
course of action after proper notice and at an appropriate time .3
The record in this case establishes that the Association was clothed
with authority to participate in behalf of the Employer in the multi-
employer bargaining . Moreover , by its rejection of the individual
contract offered by Local 239 and its subsequent participation in the
lockout sponsored by the Association , the Employer gave specific as-
surances that it, too , would go along with the results of association-
wide bargaining . The Employer thereby clearly evinced its intention
to remain with the existing multiemployer bargaining unit for the pur-
pose of negotiating a new contract . As no attempt was made to with-
draw until after the new agreement was reached , we regard the
attempted withdrawal at that stage as having been made at an inap-
propriate time and as ineffective .' Therefore , in view of the foregoing
and on the record as a whole, we find that the multiemployer bargain-
ing unit is the only appropriate bargaining unit at this time. Accord-
ingly, we shall dismiss the petition as seeking an inappropriate unit.
[The Board dismissed the petition.]
3 See DfcAnat y it TVclter, Inc, 115 NLRB 1029, 1031.
4 McAnary it Welter, Inc., supra . We find no merit in Petitioner 's contention that
Local 239 is estopped from contesting the appropriateness of the single employer unit
Unlike Neville Foundry Company, Inc , 122 NLRB 1187 , and Scougal Rubber Mfg. Co,
Inc ; Brace J. Stewart, d/b/a Stewart Machine and Tool Co., etc., 120 NLRB 470, cases
relied upon by Petitioner , the facts here do not show that the Employer 's withdrawal was
induced by any action taken by Local 239.