The Faeth Co.

National Labor Relations Board - Board Decisions

Nov 29, 1965

155 N.L.R.B. 1210 (N.L.R.B. 1965)

1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively in good faith with Local 433, International
Alliance of Theatrical Stage Employees & Moving Picture Machine Operators
of the United States & Canada, AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described below with respect to rates of pay,
hours of employment, and other conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agreement. The
bargaining unit is:
All projectionists employed at the Memri, Semri , and Oasis Drive-In
Theatres, excluding all other employees and supervisors as defined in the
Act.
WE WILL NOT institute changes in wages or other terms or conditions of
employment in the aforesaid bargaining unit without first consulting with and
bargaining with the above-named Union.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of the right to self-organization , to form labor
organizations, to join or assist the aforesaid Union or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in Section 7 of the Act, or to
refrain from any or all such activities, except to the extent that such right 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, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL revoke the unilateral wage changes instituted as of August 28, 1964,
revert to the wage rates existing immediately prior thereto, and make whole
our employees for any loss of pay they may have suffered by reason of the
wage cut.
NATIONAL AMUSEMENTS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Citizens
Building, Fourth Floor, 225 Main Street, Peoria, Illinois, Telephone No. 673-9287.
The Faeth Company and United Steelworkers of America, AFL-
CIO. Case No. 17-CA-2647. November 09, 1965
DECISION AND ORDER
On August 25, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial. Examiner's Deci-
sion. He also found that allegations of other unfair labor practices
set forth in the complaint had not been sustained. Thereafter, the
155 NLRB No. 119.
THE FAETH COMPANY 1211
Respondent filed exceptions to the Trial Examiner's Decision and, a
supporting brief. The General Counsel filed cross-exceptions con-
cerning only the Trial Examiner's recommended notice.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as a=mended, the - ational Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the railings of the Trial Examiner made
at the hearing and finds no prejudicial error. The rulings are hereby
affirmed. The Board has considered the- Trial Examiner's Decision,
the exceptions and briefs, the cross-exceptions, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , heard before Trial Examiner Frederick U. Reel at Kansas City,
Missouri, on June 21 , 1965, pursuant to a charge filed the preceding March 30 and
a complaint issued May 21, presents primarily the question whether Respondent,
herein called the Company, discharged one Paul Williams for activity on behalf of
the Charging Party, herein called the Steelworkers . Upon the entire record, and
with due consideration of the arguments advanced by General Counsel and by
Respondent at the conclusion of the hearing and in Respondent 's brief, I make the-
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGAN17ATION INVOLVED
The Company, a Missouri corporation , engaged in Kansas City in the wholesale-
jobber distribution of steel items, - annually sells goods and merchandise valued in
excess of $50,000 directly to customers located outside the State , and is therefore
engaged in commerce within the meaning of-Section 2(6) and (7) of the Act. The
Steelworkers is a labor organization within the meaning of Section 2 ( 5) of the Act.
U. THE UNFAIR LABOR PRACTICE
The Company has a collective-bargaining agreement with an independent union,
known -as The Association of the Faeth Company Employees , which provides, inter
dIia, for a 60-day probationary period for new employees . Paul Williams was hired
January 28 , 1965, and discharged March 26, 1965 , a few days before the end of his
probationary period. The Company contends that it discharged him at this time
for various causes connected with his work , and not because of the union activity
in which it knew he was engaged. The testimony , some of it conflicting , discloses
the following facts:
A. Williams' union activity and his discharge
Williams was employed as a general plant laborer at the Company's plant on
Guinotte Street; the Company has another plant on McGee Street, where the chief
officers are located. His duties were to load and unload trucks, a task which he
normally performed with the assistance of one or two other employees. Williams
early in his employment became aware of employee disaffection with wages and
working conditions, and he suggested to some of the employees that perhaps they
could get another union , rather than the incumbent company union, to represent
them. Williams telephoned a representative of the Steelworkers , who told Williams
that the Steelworkers could petition for an election if 30 percent of the employees
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed cards. Williams obtained cards from a fellow employee, O. C. Allen, and'
on Thursday, March 25, 1965, Williams "asked the other boys [at his plant] if they
would sign cards," which they did.
Shortly before 1 p.m. on that day, Williams telephoned the McGee Street plant,
gave his name to the telephone operator who answered, and asked her if she knew
somebody who would help circulate some Steelworkers cards. After a brief discus-
sion as to whether she had to sign a card, the operator suggested a few names, but
at that point Williams had to terminate the conversation to resume work. Although
Williams had asked the operator not to tell anyone, she promptly informed Curtis
Coe, the president of the Company, of her conversation with Williams, asking Coe-
(as she testified) "not to tell Paul Willaims that I had told him because Paul had
told me not to tell anyone ...."
About 2 or 3 o'clock that afternoon, Coe came to the Guinotte Street plant,
accompanied by Company Vice President Arthur Boehm. According to the testi-
mony of Clarence Day, an employee at the Guinotte Street plant, Boehm asked the
plant manager, Bob Phillips, within Day's hearing, if Phillips "had a Paul Williams
working there," and when Phillips replied that he did, Boehm continued that he
"would like to see what [Williams] looked like, he was trying to start trouble.
Phillips denied that Boehm made the remark last quoted; he did recall that Boehm
asked, "Who is this fellow Paul Williams," and did not recall whether Boehm
added an inquiry as to what Williams looked like. Boehm did not testify.
The following day, Friday, March 26, a few minutes before the end of the work-
day, Phillips notified Williams, according to the latter's testimony, that because
"inventory is down and it's getting a little slow , I'm going to let you go." Williams
testified that Phillips "told me he would call me back in about 30 days," but Phillips
did not call him back. Phillips testified that he described the termination to Williams
as a reduction in force, and "indicated we might call him back" but "stated no period
of time." One Garcia, like Williams a probationary employee, was discharged the
same day.
B. The Company's explanation for the discharge of Williams
Phillips testified that Williams from the outset of his employment had difficulty
in working with the other employees, that at various times employees Allen, Buford,.
and McNamara told him they preferred not to have Williams on their crews, and
that he "never had so many requests for a particular man not to be assigned to work
with them." Allen, Buford, and McNamara, each of whom is still employed under
Phillips, contradicted his testimony that they had ever expressed any disinclination
to work with Williams.
On Tuesday morning, March 23, Williams told Phillips that he did not wish to
work with one Jack Busby, who operated the shears. (Williams was not the only
employee who had difficulty getting along with Busby; employees Day and McNamara
testified that Busby was not easy to work with, as McNamara had complained about
Busby to a foreman on two or three occasions, and Day had heard "several guys
complain" about Busby.) On this occasion Phillips arranged to transfer Williams
to another job, but that afternoon Phillips had to assign him again to Busby.
A short time later Williams again complained vigorously to Phillips about being
assigned to Busby; this time Company President Coe was present in the office when
the complaint was made. Phillips again promptly transferred Williams to other work.
Phillips testified that earlier in March he had told Coe that two men had asked not
to have Williams on their crews, and also told Coe that Williams had been careless
in exposing himself to injury at work, though he had luckily escaped being injured.-
According to Phillips, when Coe came to the plant on March 25, Phillips told Coe
that he had decided to discharge Williams, and Coe agreed to the action. Phillips
further testified that Coe then raised the point of Williams' union activities, and'
"whether it would be proper under the ... Act to discharge him." They consulted
counsel, who advised them that Williams could be discharged whether or not he was
engaged in union activities. Asked to summarize the reasons for Williams' dis-
charge, Phillips testified:
A. The inability to work with others. The fact arose that I had practically
no experienced man to assign with him, practically all experienced men had'
asked not to be assigned with him, the fact that he tended to be in a hazardous
position, on occasions , and I so transferred him to James Gibson so he would'
not be constantly in a hazardous position. The third cause he preferred not
using machinery for putting steel away when he was working by himself or
THE FAETH COMPANY 1213
with two men. This meant he had to do it the hard way, by hand, which is
also time consuming. These are primarily some of the reasons for considering
his termination.
Q. I don't recall whether you mentioned Mr. Busby?
A. I didn't mention Busby.
Q. Did that play a part?
A. It played a part. It was the first time I had a man that refused to work
with another man in the-warehouse. They have requested not to, but They
have never refused to work with one, and this was a probationary employee
who seemed to be bending over backwards to make a good impression as pos-
sible. Many times a probationary will ask how he was doing and in Paul
Williams' case he never indicated he was concerned how his progress was
proceeding.
The Company also introduced evidence that union activity was not uncommon
at the warehouse, that the Company was aware of it, that the Company had never
expressed any hostility to the Steelworkers, and that the Company's contract with
the company union runs through 1967, and is a bar to the Steelworkers' raising with
the Board a question concerning representation.
C. Concluding findings
The Company discharged Williams at the end of his probationary period (which
coincided with- company awareness of his union activity), and the question is
whether General Counsel has carried his burden of proving that Williams' union
activities "either caused or contributed to his being separated from his job." N.L.R.B.
v. Minnesota Mining-& Manufacturing Company, 179 F. 2d 323, 327 (C.A. 8).
The Company contends that while General Counsel has established company knowl-
edge of Williams' union activity, there is a failure of proof that the Company was
motivated by unicn animus, and a failure of proof that the reasons advanced by the
Company for the discharge were mere pretexts. As to the latter point, the testimony
of Phillips as to his alleged reasons for discharging Williams is somewhat minimized
by the failure of Allen Buford, and McNamara to support Phillips' claim that they
had asked not to work with Williams.' The Busby altercation was more emphasized
by counsel than by Phillips, possibly because Phillips was aware that Williams was
far from the only employee who preferred to avoid working with Busby. As to
Williams' exposing himself to injury, and his failure to utilize mechanical equipment,
Williams agreed that Phillips mentioned the latter item during the course of his
employment and did not recall any mention of the former after he was hired.
Nevertheless, Phillips' testimony that he was concerned about those matters cannot,
in the nature of things, be refuted, and in any event the Company can lawfully dis-
charge any employee, let alone a probationary employee, for no reason at all, with-
out violating the Act. The question is, did the Company discharge Williams for
the reasons advanced by Phillips, or was it motivated in significant part by Williams'
union activity. For, if the latter activity "caused or contributed to" the discharge
the elements referred to by Phillips, even if they existed, would not save the discharge
from illegality. "A justifiable ground for dismissal is no -defense if it is a pretext
and not the moving cause." N.L.R.B. v. Solo Cup Company, 237 F. 2d 521, 525
(C.A. 8).
The Company emphasizes that the record is devoid of evidence that it was hostile
to the Steelworkers, or that it interfered in any way with the union activity which
was prevalent at the plant. Contrary to the Company's contention, proof of union
animus is not an independent element in establishing a violation of Section 8(a) (3)
of the Act. Such proof is commonly taken to establish that the employer's motive
was indeed "to discourage membership in a labor organization." Particularly because
"direct evidence of a purpose to violate the statute is rarely obtainable" (N.L.R.B. v.
International Union of Operating Engineers, Hoisting and Portable Local No. 101,
etc. (Sub Grade Engineering Co.) 216 F. 2d 161, 164 (C.A. 8)), evidence that an
employer is hostile to a union is usual in these cases, as "Motive is a persuasive
i The Company called one Gibson whose testimony in support of Phillips on this point
was rather vague. Gibson had "heard different ones say they didn't care to work with
[Williams]," but never heard Buford or McNamara say so, "thought" he had heard Allen
say "he didn't care if he worked with him or not." and apparently formed his opinion from
the way the men acted rather than from what they said.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interpreter of equivocal conduct." Texas & New Orleans RR. Co. v. Brotherhood
of Railway & Steamship Clerks, etc., 281 U.S. 548, 559. But if the testimony estab-
lishes, without reference to any general union animus, that an employer was in fact
motivated by antiunion considerations in the particular action under scrutiny, the
fact that the employer engaged in no other antiunion acts will not privilege his
conduct or furnish a defense. If, for example, Phillips or Coe in the instant case
had said in so many words, "Williams, you are fired for union activity," the lack
of other evidence of union animus would not defeat the case. This is not to say,
of course, that the lack of evidence of union animus is not material; it is very mate-
rial in assessing credibility and in drawing inferences as to the intent behind equivo-
cal conduct or statements. But it is not an essential element in the sense that an
allegation of discrimination necessarily falls if the record contains no independent
evidence of union animus.
In the instant case, General Counsel contends that union animus and proof of
discriminatory motivation are found in Vice President Boehm's statement to Phillips
the day before the discharge that Boehm would like to see what Williams looked
like as "he was trying to start trouble." I credit Day's testimony that this remark
was made. Day was a disinterested witness , and Boehm was not called to deny it.
The Company suggests that this remark may have referred to Williams' refusal to
work with Busby, but this had occurred 2 days before, had not occasioned any par-
ticular problem to Phillips at the time, and could scarcely be termed "trying to start
trouble." The phrase, I find, referred to Williams' efforts, then only 1 or 2 hours
old, to try to start a Steelworkers organizing drive. To be sure, Phillips testified
that Boehm had nothing to do with the discharge. But Boehm was accompanied by
Company President Coe, who had just learned of Williams' telephone call (which
Williams had tried to keep secret) and of his organizing effort . The case, therefore,
reduces to this: A probationary employee is discharged at the end of his proba-
tionary period, ostensibly for cause, albeit none too major in character, but 1 day
after he was engaged in an effort to organize for a union, activity which the com-
pany vice president characterizes as "trying to start trouble." From these facts I
draw the inference that the union activity "caused or contributed" to the discharge,
an inference strengthened by the fact that the sole company witness who testified
to the cause of the discharge is contradicted in several aspects of his testimony by
disinterested witnesses (Allen, Day, McNamara, and Buford) still in the Company's
employ and under his supervision.2
M. THE REMEDY
I shall recommend that the Company cease and desist from the unfair labor prac-
tice found and from like or related invasions of its employees' Section 7 rights, that
it reinstate Williams with backpay computed according to the formulas set forth
in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716, and that it post appropriate notices.
CONCLUSIONS OF LAW
By discharging Paul Williams on March 26, 1965, because of his activity on behalf
of the Steelworkers, the Company engaged in an unfair labor practice affecting com-
merce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the Act.
ORDER
Upon the foregoing findings of fact and conclusions of law, upon the record as a
whole, and pursuant to Section 10(c) of the Act, it is recommended that The Faeth
Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any employee because of
his membership in or support of United Steelworkers of America, AFL-CIO, or
any other labor organization.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of their rights under Section 7 of the Act.
2 Paragraph 5 of the complaint alleges threats by Coe, Boehm, and Phillips on March 25,
1965. 1 find no evidence in support of that allegation, and it is herewith dismissed.
TAR FAETH COMPANY 1215
2. Take the iollo ing affirmative action necessary to effectuate the policies of the
Act: -
(a) Offer to reinstate Paul Williams to his former or substantially equivalent
position without prejudice to his seniority or other rights and privileges , and make
him whole in the manner described in the portion of the Trial Examiner 's Decision
entitled "The Remedy," for any loss of earnings suffered by reason of the discrimina-
tion against him.
(b) Notify Paul Williams if he is serving in the Armed Forces of the United
States of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended , after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms hereof.
(d) Post at its plant at Kansas City, Missouri, copies of the attached notice
marked "Appendix ." 3 Copies of such notice, to be furnished by the Regional
Director for Region 17, shall, after being duly signed by an authorized representa-
tive of the Respondent, be posted immediately upon receipt thereof , and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writing , within 20 days from
the date of the receipt-of this Decision , what steps the Respondent has taken to
comply herewith 4 -
3If this Recommended Order be adopted by the Board , the words "a Decision and Order"
shall be substituted for "a Recommended Order of a Trial Examiner" in the notice. In the
further event that the Board's Order be enforced by a decree of a United States Court of
Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order"
shall be inserted immediately preceding "a Decision and Order."
4 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read, "Notify said Regional Director , in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL offer Paul Williams his former job and pay him for wages he lost
since March 26, 1965.
All our employees have the right to join or assist United Steelworkers of
America, AFL-CIO, or any other union.
WE WILL NOT discharge or discriminate against employees , or interfere with
them in any similar way, because of their union activity.
THE FAETH Co ZPM Y,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military- Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 1200 Rialto
Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. 221-7000.