Far-Best, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1970

181 N.L.R.B. 211 (N.L.R.B. 1970)

FAR-BEST , INC. 211
Far-Best , Inc. and Jessie Eagins . Case 13-CA-8701
February 18, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
activity protected by the Act.
All parties were afforded full opportunity to be heard,
to introduce relevant evidence, to present oral argument,
and to file briefs. General Counsel and Respondent filed
comprehensive briefs which have been duly considered On
the entire record in the case, and from my observation of
the witnesses, I make the following.
FINDINGS OF FACT
On March 7, 1969, Trial Examiner William W.
Kapell issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practice conduct alleged
in the complaint 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 Decision
and a supporting brief, and the Respondent filed a
brief in support of the Trial Examiner's 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
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 no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
It is ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W. KAPELL, Trial Examiner: This matter, a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act, was
heard at Chicago, Illinois, on January 13, 1969, with all
parties participating pursuant to due notice upon the
complaint' issued by the General Counsel on December 4,
1968,' alleging violations of Section 8(a)(1) and (3) of the
Act by Far-Best, Inc., hereafter referred to as Respondent
or Company
The complaint, in substance, alleges that Respondent
discharged Jessie Eagins on about October 4 because he
had engaged in union or other concerted activity for the
purpose of collective bargaining or other mutual aid and
protection relating to the terms or conditions of
employment. Respondent in its duly filed answer admits
certain jurisdictional and other factual allegations, denies
the commission of any unfair labor practices, and pleads
that Eagins was discharged for acts of misconduct on his
part, wholly unrelated to any union or other concerted
'Based upon a charge filed on October 7 by Jessie Eagins
'All dates hereafter refer to the year 1968 unless otherwise noted.
1. COMMERCE
At all times material herein, Respondent has
maintained its principal office and place of business at Elk
Grove Village, Illinois, where it has been engaged in the
manufacture, sale, and distribution of industrial soaps,
cleaning agents, and other related products. During the
calendar or fiscal year 1967, the Respondent
manufactured, sold, and distributed products valued in
excess of $750,000, of which products valued in excess of
$100,000 were shipped from its plant directly to locations
in States other than the State of Illinois. Respondent
admits, and I find, that at all times material herein it has
been engaged as an employer in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, at all times material
herein, that Miscellaneous Warehousemen, Local 781,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Union) has been a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Eagins began working for Summit Corporation,
Respondent's predecessor, in 1957, and continued in the
employ of Respondent after it purchased Summit in May
1967 He joined the Union about 5 years ago at which
time he became the union steward. He acted as steward
until August 1967, when he was replaced by Ed Miller
following an election in the three-employee unit upon his
refusal to sign a proposed renewal union contract with
Respondent because he was dissatisfied with the wage
terms which were being negotiated at that time.3
Shortly prior to October 3, when his job was to mix
soap, Eagins asked Don Manson, the plant manager, to
be given the extra job of cleaning the office before his
regular hours started at extra pay. That work had been
performed previously by outside maintenance men, then
for a short time by the father-in-law of John Urquhart,
the divisional manager, and dust prior to Eagins' request
by a schoolboy until he returned to school following the
end of his school vacation.' On the morning of Thursday,
October 3, when Eagins came to work he found a note in
'A contractual relationship has existed between the Union and
Respondent since 1967, and prior thereto for several years with its
predecessor , Summit Corporation.
'Urquhart testified that originally this work was done by company
employees until they became too busy to handle it, and it was contracted
out, that recently his father-in-law did the work , for a short time until he
retired and it was then given to a young man who did it until he left for
the Army, and that it was then reassumed by company employees,
181 NLRB No. 44
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the office window directing him to clean the office 5
Eagins decided not to clean the office and deterred other
employees from doing so.' About an hour later Urquhart
arrived and asked Eagins why he had failed to clean the
office pursuant to his note Eagins replied that he declined
to do so because he wanted that job as an extra
assignment to be performed on a daily basis for extra pay
before he began his regular work. Urquhart reprimanded
him for not obeying his instructions but admitted the
reasonableness of his request, and, according to Eagins,
indicated that he could have the fob'
Shortly thereafter when Eagins entered the office to
return a trash basket which he had emptied, Urquhart
told him to get the men ready to go into and clean one of
the underground tanks.' Eagins thereupon went into the
plant and conveyed those instructions to Nate Davis and
Benny Upton 9 In the discussion which ensued among the
three of them, they decided they were entitled to pay at
the rate of overtime (time-and-a-half) because of the hard
and unhealthy nature of the work. Eagins, who usually
acted as spokesman for the employees, then left to report
to Urquhart. The evidence conflicts to some extent as to
what occurred thereafter. According to Eagins, he advised
Urquhart that the men wanted more money to clean the
tank and asked him to talk to the men. Urquhart replied
that if he could not take an order he could go home, and
that there was nothing else for him,1° and entered his
office followed by Eagins who asked for and received
permission to call Ed Miller," the union steward, and
asked him to call Urquhart and to come to the plant to
find out what was going on.' S A few minutes after Eagins
left his office, Urquhart came out and told Eagins he was
"punched out," he could go home, that he had not cleaned
the office as directed by his note, he now refused to go
into the tank and that was all he had for him. Eagins
attempted to reply that he had not been asked to
personally go into the tank, but Urquhart walked away.
At one point during their conversation Eagins also told
Urquhart that Manson told him he would be a fool to
work in the tank at straight time and that he (Manson)
had been so advised by Urquhart, to which Urquhart
responded that he was the boss and that the tank had to
be cleaned now.
pursuant to their original practice However, no evidence was introduced to
show that any employee actually performed that work after the schoolboy
left, which, judging from the dates involved , could not have been much
before Eagms requested the job
'It was not uncommon for management to leave orders in that manner
for Eagms who reported for work much earlier than management
personnel.
'Eagins, an old, competently regarded , and trusted employee, usually
conveyed work instructions from management to the other employees who
readily followed such instructions
'Although Urquhart testified that he told Eagins he would consider
giving him the job, further conversations that afternoon verified that he got
it, and the fact that he actually began doing the work on the following
morning confirmed it
'Respondent maintains storage tanks (railroad tank cars) for its
materials both above and below ground, which require periodic cleaning
In cleaning an underground tank the employees descended into the tank,
scraped the rust off the sides with brushes, and then oiled the sides with a
rag In performing this work the employees used cloths over their mouths
and noses to avoid inhaling the rust dust dislodged in their scraping, and,
although supplied with goggles to protect their eyes , they usually were not
worn because the dense dust made it difficult to see what they were doing
Despite these precautions some dust was unavoidably inhaled during the
work and could be detected in the nostrils for a couple of days thereafter
It was regarded as dirty, if not unhealthy work , and the employees had
been compensated at regular or overtime rate of time-and -a-half depending
According to Urquhart, when Eagins reported to him
he said, "We refuse to clean the tank," and when asked
why, he stated "We feel we should get extra pay or,
overtime for this job," and that, furthermore, Manson
told him they should get overtime for it because it was a
hard job. Urquhart replied that he did not care what
Manson said, and that the tank had to be cleaned now.
Eagins, thereupon, reasserted "We are not going to clean
it on straight time," to which Urquhart retorted "You are
going to clean it or you are going to punch out " When
Eagins stated that he was not going to punch out,
Urquhart returned to the office and punched them (the
employees) out After cooling off for a few minutes,
Urquhart again went into the plant and asked the men
whether they were going to clean the tank, and when they
responded that they would not, he said "Well, if you are
not going to clean the tank you are punched out, you are
not getting paid. You might as well go home. Come in
tomorrow and we will talk about this." Urquhart then
returned to his office followed by Eagins who said that he
wanted to talk to him about the matter, but Urquhart
replied "Jessie, there is nothing to discuss. Either you are
going to clean the tank or you are not." Eagins then
requested and received permission to use the telephone.
Urquhart then again went into the plant and ordered the
employees to clean the tank When they continued to hold
out, he informed them that they were punched out and to
leave the plant, and that he wanted to talk to them on the
following morning. He also told Eagins that he did not
know what he was going to do about him yet, but wanted
to see him the following morning when they would discuss
the matter further. He also advised Eagins that he was
going to call the Union to which Eagins replied that it was
not a union matter Urquhart then called Cook, the union
representative, and after relating what had happened, he
also called Miller, and described the situation to him and
asked him to come to the plant.
In resolving the inconsistencies in the testimony of
Urquhart and Eagins, and appraising their respective
credibility, I find based upon the plausibility of their
assertions, the sequence in which made, and their
demeanor that Eagins presented Urquhart with an
ultimatum that the tank cleaning would not be done
unless paid for at a higher than regular rate, that Eagins
clearly gave the impression to Urquhart that he not only
supported the demand but was making it on his own
behalf as well as the behalf of Davis and Upton, and that
they remained adamant in their demand despite
Urquhart's threat to punch them out.
Shortly after his conversation with Urquhart, Miller
appeared at the plant office and again was told by
Urquhart that the men refused to clean the tank unless
paid more money and that he could not have the
employees tell him how to run the plant. Miller then went
into the plant and spoke to Eagins and the two other
on when it was done
'At that time there were five production employees , three including
Eagins, on the day shift and two (Ed Miller and Richard Survillion) on the
night shift.
"Urquhart admitted , as testified to by Eagins, that initially he did not
specifically order Eagms to participate in the tank cleaning, but claimed,
and I find, that he left no doubt about it in his subsequent conversations
with Eagms and the other employees
"Miller was at home at the time, he was on the night shift
"According to Miller, Eagms told him that they all had been fired
because they had agreed not to clean the tanks unless paid more money on
account of the nature of the work Eagins also asked him to call the union
representative , but he was unable to reach him
FAR-BEST , INC. 213
employees . Eagins told him it was worth more money to
clean the tank and asked him to take the men out. Miller
refused because he lacked such authority , and also because
of the no-strike clause in their collective -bargaining
contract ." Pursuant to Eagtns ' request, Miller then called
Cook , the union representative , and explained the
situation to him . Cook asked to speak to Eagins, and
following their conversation Eagins informed the
employees that Cook was not going to do anything about
the matter and had said that they should clean the tank.
Urquhart then came out of the office and told the men to
go home, think the matter over, and return tomorrow to
talk about it. The employees thereupon left the plant.
About 1 o'clock that afternoon Miller received a call
from Eagins not to pick up Survillion that evening, as was
his practice , because he was not coming in Later that
afternoon , about 3 p . m , Survillion received a call at his
home (he was then on the night shift ) from Eagins to the
effect that everybody had been fired and told to go home,
and that their timecards had been punched out 10
Survillion then reached Miller by telephone to inquire if
he had been fired , and, if so , he wanted to collect his
paycheck . Miller advised him that as far as he knew he
had not been fired Survillion then stated that he would
not report for work that evening, and Miller asked him to
come to the plant the following morning Miller then
telephoned Urquhart and reported that he received a call
from Survillion who stated that Eagins had called and
informed him that he had been fired and not to come to
work 's He also told Urquhart that he would not come in
alone that night for fear of having his head bashed in
Urquhart replied that he understood and asked him to
pick up Survillion the following morning and come to the
plant . Following that call Urquhart decided to fire Eagins
because he had refused to clean the office , he was refusing
to clean the tank , and, in effect , had called off the night
shift.
The following morning Eagins arrived at the plant
about 6:45, he cleaned the office and then punched in at 7
a.m., and began working on his regular job as did Davis.
Upton arrived shortly and began working About 8 a.m.
Miller and Survillion arrived . About 8 a.m. Urquhart
arrived and about l5 minutes later he summoned Eagins
to his office and told him that they would have to let him
go. As Eagins asked why, Manson walked in and told him
he was a troublemaker and had kept the men from
working in the tank and as far as he was concerned he
was fired . Urquhart then had Manson call the other
employees in and told them that Eagins was being fired
because he could not take a direct order . When Eagins
attempted to reply, Manson cut him off stating that he
was fired and had nothing more to say.16 Urquhart then
informed the others that they could go to work if they
wished. The employees withdrew to a workroom and
discussed whether they should return to their jobs.
Survillion declared his willingness to work and returned to
the office and advised Urquhart that he was willing to
"The contract provides that there should be no strike or lockout, and
that the Employer is privileged to discipline employees for engaging in
unauthorized activity , including the right to discharge , unless a grievance is
filed timely and arbitrated
"According to Eagms he called Survillion that afternoon at Miller's
request to inform him that Miller would not pick him up that afternoon,
and he also related what had happened at the plant
"The above findings are based on the credited testimony of Miller,
which was corroborated by Survillion to the extent that he had been called
by Eagins and told that he and all the other employees had been
discharged . Eagins did not refute this testimony.
clean the tank , if so ordered The men then resumed
working after being told by Urquhart that they would
have to clean the tank but not on that day." Later,
Manson found Eagins still in the plant and asked him to
leave, which he did. That afternoon Manson informed the
employees that they would receive a 10-cent-an -hour pay
increase . About 10 days later Miller and Davis cleaned
the tank at straight time pay.
Neither Eagins nor the Union filed a grievance in
connection with his discharge pursuant to their
collective-bargaining contract.
B. The General Counsel 's Contentions
1 Eagins was discharged for engaging in protected
concerted activity unrelated to the no-strike provision of
the union contract , and furthermore , Eagins did not
engage in a refusal to clean the tank because he was never
ordered to do so.
2. Assuming , arguendo , that Eagins ' discharge was
based on prohibited conduct , Respondent condoned it and
thereafter could not discharge him for it.
C Conclusions
1. The alleged 8(a)(1) violation
Section 8(a)(1) of the Act prohibits an employer from
interfering with , restraining , or coercing employees in the
exercise of rights guaranteed to them by Section 7 of the
Act, including the right to engage in concerted activities
"for the purpose of collective bargaining or other mutual
aid or protection " I find, as related above, the evidence
establishes that Eagins joined and associated himself with
his fellow -employees in presenting on his and their behalf
their agreed upon refusal to perform the disputed work
unless compensated at a higher rate of pay. Although the
disputed work was far from healthy , the employees did
not decline to do it because of any health hazard but
rather because they wanted more compensation.' B
The collective - bargaining agreement in effect between
the Union and Respondent covered the categories of
employees but did not define or limit the nature of their
work . I find , contrary to the General Counsel , that the
contract covered the employees involved herein, and
subjected them to its provisions The fact that the disputed
work was unusual and infrequently performed did not
preclude it from being subject to the terms of the contract,
which provided that the Employer could discharge or
discipline employees for engaging in a strike unless a
grievance was filed timely . It is undisputed that no such
"According to Survillion , who attended the meeting , Urquhart said he
fired Eagins because he refused to clean the tank According to Miller,
Urquhart told him he was firing Eagins because he refused to obey an
order , specifically mentioning Eagins' refusal to clean the office pursuant
to Urquhart 's note but Miller did not recall whether he also said that it
was for refusing to clean the tank Eagms asserted only that he was being
discharged because of his race (he is a Negro ), a claim emphatically denied
by Urquhart and not pursued further
"According to Urquhart 's earlier testimony he claimed that business
considerations required more storage facilities , and that , therefore, he
wanted the last tank to be made available immediately However, at the
time he told the employees they would not have to clean the tank that day,
a new order had just arrived changing the picture insofar as priorities were
concerned, and the work on the tank was postponed
"Thus, the work stoppage essentially was over higher pay No demands
were made to remove any health hazards or to provide healthier working
conditions , which conceivably could have justified a refusal to clean the
tank pursuant to Section 502 of the Act
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance was ever filed . It also appears that the
employees were ordered to perform the work during
regular hours at regular pay rates , and that past practices
reflect that overtime rates were paid for the disputed work
only when performed during overtime . The refusal to
clean the tank was a concerted refusal to perform certain
work , but was not protected by the Act in view of the
pertinent provisions of the ' union contract . I, therefore,
conclude that Eagins ' conduct provided sufficient cause to
warrant his discharge . Moreover , regardless of whether
the refusal was a strike within the meaning of the Act or
contract , it clearly was a refusal to obey an order and
constituted insubordination, and an attempt to dictate the
terms and conditions of employment . The employees,
however , were disciplined only to the extent of being laid
off for the balance of the day to afford them time to
reconsider their position . Thus, the resolution of the
matter was deferred until the following morning when it
would be discussed further . However, when it was brought
to Urquhart' s attention that afternoon by Miller that
Eagins had falsely informed Survillion that he had been
discharged , he decided to fire Eagins and did so the
following morning . Urquhart predicated the discharge
upon Eagins ' failure to clean the office on October 3, his
refusal to clean the tank , and his untruthful statement to
Survillion that he had been fired, thereby attempting to
disrupt the night shift 19 The last of these grounds,
regardless of what preceded it, was obviously unrelated to
any protected employee light of Eagins and provided
sufficient cause to warrant his discharge.
I also find no merit in the contention that , assuming
Eagins was discharged for engaging in activity prohibited
by the no-strike clause of the contract, Respondent
permitted the employees to return to their regular work,
thereby condoning their misconduct Respondent did not
discharge Eagins on October 3 following the refusal to
clean the tank Urquhart definitely advised Eagins and the
other employees that the matter would be discussed
further and finally resolved the following morning after
they had had an opportunity to reconsider their position.
The following morning the employees , as usual , arrived
much earlier than Urquhart and apparently began to
work . According to Survillion , he arrived about 8.30 a.m ,
and upon observing the employees working, he inquired
whether Urquhart had told them to do so . They replied
that he had not , and they immediately stopped working
According to Davis, he stopped working when Ronnie, the
maintenance man, advised him that he didn't know
whether he (Davis ) would be paid for his work . Thus, it
appears that the employees realized that they had not
been authorized to resume working, and that their
employment status had'not been finally resolved. Nor is
there any evidence that Urquhart directed the employees
"It is immaterial that Survillion did not intend to work that night for
other reasons . Miller also decided not to come in because of a fear for his
personal safety
to resume working I, therefore, find and conclude that
the General Counsel has failed to establish by the
preponderance of the evidence that the misconduct of the
employees had been condoned.
Furthermore, inasmuch as it has been found that the
refusal to work was not protected by the Act, then even
assuming it had been condoned, that would not preclude
Respondent from later discharging Eagins based upon his
misconduct 10
1, therefore, find and conclude that the General Counsel
has failed to prove by the preponderance of the evidence
that Eagins was discharged in violation of Section 8(a)(1)
of the Act, and I shall recommend that the complaint be
dismissed insofar as it alleges violations of that section.
2. The alleged 8(a)(3) violation
Although Eagins had been a union steward for several
years prior to August 1967, when he was deposed from
that position, there is no evidence indicating any union
animus by Respondent Nor is there any evidence that
Respondent was motivated to discharge Eagins for any
ground other than those stated by Urquhart. In fact, the
General Counsel in his brief practically concedes that
there is no substantial evidence to support a finding of a
violation of Section 8(a)(3) of the Act. 1, therefore, find
and conclude that the General Counsel failed to establish
a violation of Section 8(a)(3) of the Act, and I shall
recommend dismissal of those allegations in the
complaint.
Upon the foregoing findings of fact and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1 At all times material herein, Respondent has been
engaged in commerce as an employer within the meaning
of Section 2(6) and (7) of the Act.
2. At all times material herein, the Union has been a
labor organization within the meaning of Section 2(5) of
the Act
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, I
recommend that the complaint be dismissed in its entirety
"Nor would the condonation of Eagins' refusal or failure to clean the
office on October 3 deprive Respondent of relying to some extent on that
ground in discharging him It clearly did not constitute protected concerted
activity