Tech-Craft, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1965

152 N.L.R.B. 1508 (N.L.R.B. 1965)

1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficient to dispose of its claim of majority representation, there are actually some
other reasons for doubting it. The principal doubt must arise from the unsatisfactory
nature of the evidence as to when all the authorization cards were actually signed.
Only eight of the employees who signed union authorization cards testified concerning
them at the hearing, and most of them were not even asked whether their cards were
correctly dated. One of them, Manning, was asked whether he had filled in the
date on his card and replied in the negative. Nevertheless, it may be inferred from
the circumstantial evidence relating to the signing of the cards that Manning, as well
as the other employees, who were witnesses and identified their cards, probably
signed them either on April 12 or 13. All the other cards were introduced into
evidence through Hunter, however, and the dates they bear aie somewhat suspect.
Hunter himself admitted that he had filled in the date on Leroy Mayer's card, and
an examination of the handwriting on the cards themselves indicates that he also
dated at least a dozen others. When he was asked about the dating of the cards, his
answer was not very positive. Thus, he testified:
Q. They [the union authorization cards] were all signed on the dates that
they bear?
A. Yes, sir.
Q. Are you sure about that9
A. To the best of my knowledge, that's correct. [Emphasis supplied.]
CONCLUSIONS OF LAW
1. The Respondent, TMT Trailer Ferry, Inc., is an employer engaged in com-
merce, or in an industry affecting commerce, within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Associated Maritime Workers Local No. 8, affiliated with the
International Organization of Masters, Mates & Pilots, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. All the employees of the Respondent at its Jacksonville, Florida, operation,
including warehouse employees and stevedores but excluding office clerical employees,
watchmen, guards, and supervisors, as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act. (The term "stevedores," as used herein, refers only to those stevedores
who worked a minimum of 100 hours, preceding April 15, 1964 )
4. Associated Maritime Workers Local No. 8 did not on April 15, 1964, represent
a majority of the Respondent's employees in the bargaining unit found to be appro-
priate, and the Respondent by refusing to recognize the Union and to enter into
collective bargaining with it did not commit any unfair labor practice affecting
commerce within the meaning of Section 8(a)(5) and (1) of the Act.
5. By extending Blue Cross -Blue Shield coverage to its part-time employees with-
out consultation with or bargaining with the Union concerning the same, the
Respondent also did not commit any unfair labor practices affecting commerce within
the meaning of Section 8(a) (5) and (1) of the Act.
6. The Respondent has not interfered with, restrained , or coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act, and has not, therefore,
committed any unfair labor practices affecting commerce within the meaning of
Section 8(a) (I) of the Act.
RECOMMENDED ORDER
In view of my findings of fact and conclusions of law, I recommend that an order
be entered dismissing the complaint.
Tech-Craft, Inc. and Lynn R. Harbin . Case No. 19-CA-28593.
June 14, 1965
DECISION AND ORDER
On August 13, 1964, Trial Examiner Wallace E. Royster issued his
Decision in the above -entitled proceeding , finding that Respondent
152 NLRB No. 152.
TECH-CRAFT, INC. 1509
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 supporting
brief, and the Respondent filed a brief in support of the Trial Exam-
iner'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 [Members Fanning, Brown, and Jenkins].
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 briefs, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendation 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, and orders that
the complaint herein be, and it hereby is, dismissed.
1 We agree with the Trial Examiner that Harbin was discharged for insubordination and
not for engaging in protected activity. However, in arriving at this conclusion we, un-
like the Trial Examiner , do not rely on the presence of a no - strike clause in the contract
nor do we find it necessary to determine whether Harbin 's actions were in violation of
such no-strike clause.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was tried before Trial Examiner Wallace E. Royster in Tacoma, Wash-
ington, on June 25, 1964.1 The charge was filed by Lynn R. Harbin, an individual,
on March 27 and the complaint is dated May 25. At issue is whether the discharge
of Harbin on March 2 constituted an unlawful discrimination within the meaning
of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended,
called the Act.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Tech-Craft, Inc., herein called the Respondent, is a Washington corporation with
its principal office and place of business in Tacoma, Washington, where it is engaged
in the manufacture of dormitory furniture. During the 12 months preceding the
issuance of the complaint (a representative period), the Respondent manufactured,
sold, and shipped finished products valued in excess of $50,000 from Tacoma, Wash-
ington, to points outside the State of Washington. As the Respondent concedes, I
find it to be an employer within the meaning of Section 2(2) of the Act engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
1 All dates are In 1964 except as otherwise indicated
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
Furniture Workers Local Union No. 3119 of the Washington-Oregon District
Council of Furniture Workers, AFL-CIO, herein called the Union, is a labor orga-
nization within the meaning of Section 2(5) of the Act. For a number of years,
for the period with which we are here concerned, the Union and the Respondent
have been parties to a collective-bargaining agreement covering Respondent's employ-
ees in an appropriate bargaining unit. The contract describes a number of wage
classifications. It also contains an agreement that there shall be neither strike nor
lockout; that all disputes arising under the contract shall be resolved through a
grievance procedure leading to arbitration.
III THE ALLEGED UNFAIR LABOR PRACTICES
Lynn R. Harbin was first employed by the Respondent in May 1962, and there-
after worked on a variety of assignments until his discharge, March 2, 1964.
In October 1963, he was instructed by the general superintendent, James Pattin,
to leave the machine which he was then operating and to work on a saw. Harbin
protested that his seniority rights were not being observed and that some other
employee should be given this assignment. Pattin insisted that Harbin do as he
was directed. Harbin then said that he was suffering from a headache and must go
home. In a short time he left the plant
Roy Parent, a business representative of the Union, testified that Pattin telephoned
him to report this incident and to express his determination to discharge Harbin
because of it. The next day, Parent came to the plant and told Harbin that he had
no right to invoke seniority in such a situation and that in the future he should accept
the assignments as they were given to him. Apparently this mollified Pattin and
Harbin remained employed.
In November 1963, Harbin testified, he was put to work on an electric bander and
worked rather steadily in that assignment until sometime in February. The contract
then in effect established an hourly rate of $2.405 for the operator of that machine.
Harbin's wage was 10 cents less. Harbin protested to Parent that he was not being
paid the contract rate for the banding work and his complaint was brought to Super-
intendent Pattin. Pattin spoke to Harbin, saying that he understood the latter
wanted more money but, that he was taking Harbin off the banding machine work.
About 10 days later, according to Harbin, Pattin asked him if he would "quit holler-
ing about your wage rate" if he was put back to work on the bander. Harbin
answered he thought that he would. On a date which all witnesses placed as March 1
but which I find in the circumstances must have been February 28, Arden Johnson,
a subforeman and Harbin's immediate superior, told Harbin that Pattin wanted Harbin
to work on the banding machine beginning the morning of the next workday. Harbin
said that he would think about it. The next workday, Monday. March 2, Harbin
came to the plant and, ignoring the instruction to work on the banding machine,
began operating a trimsaw. About 30 minutes later Foreman Johnson told him to
go to work at banding. Harbin asked if he would be paid the higher scale Johnson
said that he would not. Harbin said that he would not do the work and that
Johnson might tell Superintendent Pattin so. Although the record is not clear on
this point, presumably Harbin continued to work on the trimsaw. About 12.30
p m., Ralph Meyer, a son-in-law of James Estep, the Respondent's president, directed
Foreman Johnson to put Harbin on janitorial work and to keep him so employed.
Meyer added that at the end of 30 days (apparently because the bargaining contract
would permit), Harbin's wages should be reduced to the lowest rate. Johnson imme-
diately directed Harbin to work sweeping and burning trash.
Roy Parent, having been notified that some difficulty was developing, came to the
plant and spoke with Superintendent Pattin. Parent was aware of the nature of
Harbin's complaint. Parent took the matter up with Pattin who produced records
showing that Harbin had worked only 145 hours in the banding operation. It was
Pattin's contention that the Respondent was not obligated to pay the greater rate
until an employee had spent 30 days on the higher paying job. Parent seemingly
agreed that the contract afforded a basis for such an interpretation.
President Thomas Estep testified that the dispute came to his attention on March 2;
that Foreman Johnson then reported to him that Harbin was somewhat of a
nuisance in the plant, spending an inordinate amount of time talking to other
employees to the detriment of their work. Estep also learned, he testified, that
Harbin was "a notorious" absentee. Telling Pattin that the latter had been too
TECH-CRAFT, INC. 1511
easy on Harbin and should have discharged him long ago, Estep made the decision
to discharge Harbin and dictated a letter to him to that effect. About 1 p m. on
March 2, Harbin was given the letter which Estep had composed which reads:
This letter and the accompanying paycheck is your termination of employ-
ment at Tech-Craft, Inc. The reasons for this termination are as follows:
1. Refusal to comply with orders from the plant superintendent and his sub-
foremen. This has happened several times. Due to your attitude, friction has
developed between you, your foreman, and other employees. This has cost
Tech-Craft, Inc., loss of money and production.
2. Absences from your job. This has happened too often and generally
occurred when you were assigned to a job which you did not prefer.
3. Constant gossiping during working hours. Your habits of airing your
grievances to other employees during working hours has cost Tech-Craft many
hours of your time and the time of the other employees whom you have inter-
rupted. This also causes resentment and dissatisfaction among other employees
and a general decline in morale and production.
4. You have been warned on previous occasions and we feel we cannot
afford to have you in the factory any longer. We must protect the future of
the company and the jobs of those who like to work here.
W. R. Evans, the executive secretary of the Washington-Oregon District Council
of Furniture Workers, sought to persuade the Respondent to vacate the discharge
and finally prevailed upon President Estep to do so. Estep agreed, he testified, that
Harbin could come back to work on March 16 with seniority unimpaired but with
the understanding that Harbin "would perform like the other employees and stop
the trouble making." Harbin testified that learning of this arrangement he tele-
phoned Superintendent Pattin about it. Pattin said, according to Harbin, that he
would like for Harbin to come back to work if he would "just do the job that we
put you on without saying anything . . . like the rest of the guys in the plant are
doing." Harbin answered that if he had to "forget about the contract" he did not
care to return to work.
I think it to be not a matter of controlling importance whether the Respondent
was correct in its asserted belief that it need not pay Harbin the higher scale until
he had been working on the banding machine for a total of 30 days, or whether
Harbin was supported by the terms of the contract in his claim that he was already
entitled to the higher rate. There is not a scintilla of evidence that the Respondent,
in respect to Harbin or in any other circumstances, was attempting to discourage
membership in or activity in behalf of the Union. If Harbin had a valid claim,
the collective-bargaining contract provided machinery for him to pursue it. There
is no evidence that the Union was unwilling to represent him in the matter. Clearly
this was a claim on the part of Harbin arising under the terms of the contract and
he was obliged to seek its resolution under contract procedures. Instead he elected
to engage in self-help, refusing to perform the work assigned to him. This is some-
thing much more than the assertion of a contract right. It was a withholding on
his part of labor until he could prevail. The Union in behalf of all of the employees
in the bargaining unit had negotiated an agreement designed in part to resolve
grievances and abjuring resort to strike action. Harbin, although claiming the pro-
tection of the contract in respect to his wage rate, violated it by refusing to do the
work assigned to him. He thus became a striker in violation of the contract commit-
ment and made himself liable to discharge. Although the testimony of President
Estep places accent on Harbin's alleged proclivity to interrupt work in order to
talk to other employees and makes much of his not infrequent absences, the notice
of termination given him and the admonition by Pattin in mid-March that if he
returned to work he must do as he was told, convinces me that it was the refusal
to take the banding machine assignment on March 2 that caused his termination.
Perhaps it should be noted here that Harbin's claiin for additional compensation
is at least arguably an implementation of the contract running between the Respond-
ent and the Union and as such was "but an extension of the concerted activity giving
rise to that agreement." 2 To the extent that he voiced the claim he was very
probably engaged in conduct within the Act's protection. It was his insubordination
particularly in consideration of the no strike clause which placed him outside that
area. The offer of reinstatement if he would cease "trouble making" or "just do
the job that we put you on without saying anything," was not in the factual circum-
2Merlyn Bonney, et at, d/b/a Bonney Bios Construction Company, 139 NLRB
1516-1519.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances existing conditioned upon his abandonment of any right secured to him by
contract. I find no reason to conclude that the Respondent was unwilling to have
the question of Harbin's entitlement to the banding machine rate resolved by means
of contract procedures.
I find that the discharge of Harbin was not in violation of Section 8 (a) (1) or (3)
of the Act.
Upon the basis of the foregoing findings of fact, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer 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. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the complaint be dismissed.
A & B Zinman , Inc. and Donald Hart
Horn Construction Company, Inc. and Donald Hart
General Building Laborers ' Local 66, International Hod Carriers,
Building and Common Laborers Union of America , AFL-CIO
(A & B Zinman , Inc.; Horn Construction Company, Inc.) and
Donald Hart. Cases Nos. 29-CA-47 (formerly 2-CA-9823), 29-
CA-48 (formerly 2-CA-9824), and 29-CB-19 (formerly 2-CB-
3944). June 15, 1965
DECISION AND ORDER
On March 5, 1965, Trial Examiner Sidney I). Goldberg issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices, and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent Union filed exceptions to the
Decision 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 powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 Decision,
the exceptions and brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
152 NLRB No. 140.