Island Seas Boat Co.

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inland Seas Boat Co. and International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO. Case No. 8-CA-2248. May L2, 1961 DECISION AND ORDER On January 3, 1961, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Coun- sel and the Charging Party filed exceptions to the Intermediate Re- port and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Fanning]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the modifications noted below.' [The Board dismissed the complaint.] 1 The complaint in this case alleged that the Respondent laid off Thomas Smith in July 1959 and failed and refused to reinstate Smith since on or about July 1, 1960, in violation of Section 8(a) (3) and ( 1) of the Act. The Trial Examiner dismissed the entire complaint on the ground that the evidence did not establish that the failure and refusal to reinstate Smith was illegally motivated and because the entire complaint was barred under Section 10 ( b) of the Act. As the charge herein was filed on September 2, 1960, we agree that the complaint with respect to the layoff allegation was improperly issued. However, contrary to the Trial Examiner , we have considered all the evidence in the record bearing upon the alleged 1900 unfair labor practice and have given weight to the evidence antedating the 10 ( b) period as background only. Upon consideration thereof, we agree with the Trial Examiner that the General Counsel has not established by a pre- ponderance of the evidence that the Respondent failed or refused to reinstate Smith because of his union activities . Chairman McCulloch deems it to be clear from the complaint and upon the record of this proceeding that it is not sought to find as a violation any conduct which predated the 6-month period of Section 10(b). Accordingly, he would adopt the Intermediate Report without modification. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before the duly designated Trial Examiner in Sandusky, Ohio, on November 22, 1960, on complaint of the General Counsel and answer by Inland Seas Boat Co., herein called the Company or the Respondent . The sole issue litigated was whether the Respondent had vio- 4ated Section 8(a)(3) of the Act by discriminating against one Thomas Smith in his employment . Briefs were received from the Respondent , the Charging Party, and the General Counsel after the close of the hearing. 131 NLRB No. 95. INLAND SEAS BOAT CO. 707 Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Inland Seas Boat Co. is and has been at all times material herein an Ohio corpora- tion, having its principal office and plant located in Sandusky, Ohio, where it is en- gaged in the manufacture of boats. The Company annually causes and has con- tinually caused its finished products in excess of a value of $200,000 to be shipped from its Sandusky plant to points outside the State of Ohio. I find that the Respond- ent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE The one and only act of the Respondent, said in the complaint to have violated the statute, was its hiring of one Shenk, a young high school graduate, on July 11, 1960. Had the Respondent not done this, the General Counsel concedes there would be no case against it. The vice in the Respondent's conduct is to be found in the fact that when it hired Shenk, it did not hire Thomas Smith, a former em- ployee who had been laid off in an economic recession over a year before, and who had had no contact with any of the Respondent's representatives for well over 8 months. The basic facts-what was said and done by the parties-are simple and in no sense in dispute. The Respondent manufactures small boats, and Smith was hired in May 1958 in the mechanical department. Here, fixtures are added to the boats, electrical wiring is put on, small engines of different types are installed, and other mechanical work is performed. Smith had done comparable work for another boat manufacturer, and there acquired some experience. During the more than 1 year he stayed with the Respondent his skill improved and his wage rate went from $1.85 to $1.90 per hour. When reduction in work necessitated his layoff in July 1959, Smith moved to another city in Ohio with his family and found other work. Late in November of that year Lang, the president of the Respondent, telephoned Smith long distance and asked would he "consider" or "be interested" in returning to his job Lang explained that one of the two mechanics who had worked for the Company 7 or 8 years planned to sell his home in Sandusky and move to California. Smith was willing to return and said he must give at least a few weeks' notice to his new employer. Lang cautioned him against giving notice, and explained that the Company could not use him unless in fact the mechanic in question, Joe Pisko, did sell his house and permanently leave the Company. In December 7, 1959, Smith wrote to Lang to advise that he desired to return to the Respondent's employ. He said he understood the prior inquiry had been bottomed on Pisko's departure, but added he hoped the Company might have work for him in any event "if business picks up," even if Pisko did not leave. Lang replied by letter dated December 16, in which he explained Pisko had not moved away, saying: "Joe Pisko is still here and therefore we have no need for you. We will let you know if and when we have such need." Smith changed jobs again in January 1960 and moved back to Sandusky. He never communicated with the Re- spondent again and they never called him. The Company's volume of work made necessary the addition of an employee in the mechanical department in the summer of 1960, and for this purpose it hired Shenk on July 11. Shenk had no work experience whatever; he had only had some high school courses in mechanics. He was hired at $1.50 per hour, strictly as a helper to Joe Pisko and his brother, Foreman Ernie Pisko, the only two mechanics in the department. Apparently, Smith learned of the hiring of Shenk and a month later, in August, went to the plant and spoke to Beek, the plant superintendent. Smith said he was looking for work and Beck replied work was slow and he did not need Smith. Smith asked did his prior union activities stand in the way, and Beck said. "No." Smith then said he had heard the Company had hired another person in his place; Beck again said no one had been hired to do Smith's work. . The foregoing is all the conduct by the Respondent or its agents proved at the hearing in support of the charge that the Respondent committed an unfair labor 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice. The General Counsel contends that when Lang said to Smith, in his .letter of December 16, 1959, the Company would let him know "if and when" it might have need of him, he made a binding promise which served to place Smith virtually in the same position as any temporarily laid-off employee entitled to recall to his old job. To further support the asserted analogy to a temporarily laid-off employee, the General Counsel offered evidence intended to prove that the work Shenk was hired to do is substantially the same as Smith did a year before when, for economic reasons, the Respondent discharged him. It-is not claimed that Smith's 1959 separation from the Company could be viewed as anything but a permanent departure. That the Respondent was aware of Smith's union activities was conceded both in the pleadings and at the hearing. On November 30, 1959, Smith testified, as a Government witness, in an earlier complaint proceeding against the Respondent (Case No. 8-CA-1924). It there developed that the Respondent had illegally interrogated him concerning union activities as far back as January 1959, and later threatened to discriminate against him in retaliation for such activities in June of the same year. He left the Company the following month. The record transcript of the testimony Smith gave in open court on November 30 shows he concealed part of his union activities from the company representatives during his period of employment but in fact continued them. In its Decision and Order issued on August 11, 1960, the Board adopted a Trial Examiner's finding that the Respondent had threatened Smith; it also held the Company had discharged an employee named Barnhart in January 1959 because of his union activities, in violation of Section 8(a)(3) of the Act.' - Further Finding, Analysis, and Conclusion It cannot be disputed that, as a rule of thumb, cases of this kind-involving alleged discrimination in employment in violation of Section 8(a) (3) of the Act- must rest upon three major subsidiary findings: discrimination in fact, knowledge by the employer of the employee's union activities, and illegal motivation. Only the second element is clear on this record. As to the fast-discrimination-the record in its entirety does not warrant a finding that the job Smith had filled and the one Shenk now does are the same. In the broad sense that whenever an em- ployee is hired, all others-former workmen, waiting applicants, and the world at large, including promisees-.are not hired, it might be said there was disparate treat- ment of Smith, who surely was not hired. But in the statutory sense with which this case is concerned, the discrimination must be a conscious singling out of at least a category of employees, if not a particular person. The fact that Lang could, disregarding all other considerations, have hired Smith instead of Shenk, but did not do so, is therefore insufficient to prove he "discriminated" against him within the intendment of Section 8(a)(3). With respect to the third element-antiunion motivation-if it is-found Smith did suffer a statutory discrimination in July 1960, the proof of such animus must be found in the fact that the Company illegally discharged another employee 18 months earlier, and threatened, but did not dis- charge, Smith a year before July 1960. In disputing the sufficiency of the evidence in support of the complaint, the Re- spondent makes two arguments. First, that the entire record cannot be said to show affirmatively an intent in the summer of 1960 to commit unfair labor practices; and, second, that the General Counsel's case rests entirely upon matters that occurred more than 6 months before the alleged illegal conduct and therefore is precluded by Section 10(b) of the statute. I think there is merit in both these arguments. Considering first the sufficiency of the record evidence in its entirety, I cannot find that Lang promised to offer Smith the first job that opened regardless of whether it fit him or not. Clearly Smith's letter to him of December 7 broadened the basis of his possible employment beyond the limited consideration of Joe Pisko's quitting. His was a pure request for a job, although it left open the question of pay, i.e., whether he would want the $1.90 per hour he was last paid. That this may nevertheless have been his mental reservation is strongly indicated by his testimony that he was then earning $2.23 per hour, and only wanted to shift to the Respondent's employ because of the overtime work he thought he would enjoy there. In any event, the alleged unqualified promise of employment, according to the General Counsel, is to be found in Lang's reply of December 16. 1 think a fair reading of that note must lead to a finding that Lang promised to keep Smith in mind only if Pisko should eventually quit, as he had once intended. The short letter speaks entirely of Pisko's possible move to California and literally explains that in consequence of his not having gone 1 Inland Seas Boat Co ., Ino., 128 NLRB 595. INLAND SEAS BOAT CO; 709 "therefore we have no need for you," and closes with saying the Company would, again communicate with Smith if and when such need might arise. Pisko never did leave the Company. Apart from there having been no unqualified promise to Smith , the record shows, and I find, that Shenk did not do the work previously performed by Smith. There have always been two mechanics in the mechanical department , Joe and Ernie Pisko. They are still there. Smith was originally hired to assist Joe because Ernie was in the hospital. He had prior experience in building boats of this kind ; in the year of his employment with the Respondent he learned much more . Indeed, Joe Pisko testified without contradiction that it took him a year or two when he first joined the Company to acquire a mechanic's skill. In contrast, Shenk had no experience whatever; both mechanics have always been on the job while he worked. The Respondent was shown to have paid helpers in this department $ 1.50 per hour in the past, and that is what Shenk earned. Smith instead was hired at $1.85 and went to $1.90. And Joe Pisko, whose mechanical skill at this work seems conceded by all, now earns only $2.25 per hour. I think the generally vague testimony of Smith that he did "assisting " and "help- ing," intended to belittle his skill and work so as to bring him down to the perform- ance level of Shenk cannot avail against these facts . During his testimony at the 1959 hearing in the prior case, he three times described himself as a "mechanic" with the Company, and never once as a helper. At least on its face, all this presents a plausible explanation of why the Respondent hired Shenk in July and did nothing about its 7 -months old "promise" to Smith. In these circumstances the time element in the evidence indicative of illegal , instead of proper, motive becomes very significant. In January 1959 , the Respondent dis- charged an employee to discourage union activity , and in June of that year threatened Smith with a similar reprisal . In December 1959 it learned his union activities had been more extensive than the Company believed . I am asked to assume that because the Company resorted to illegal measures in its then opposition to' union activities in 1959 , the entire story shows a "pattern" of behavior and that necessarily its conduct in June 1960 was similarly motivated. This argument, of course, ignores the equally relevant fact that the Company did not discriminate against Smith while he was an employee despite its knowledge of his union propensities ; indeed, that it even went out of its way to feel him out for reemployment later , despite that knowl- edge, when it could more conveniently have forgotten all about him with no danger whatever of ever being accused of wrongdoing. I am mindful that there may be a presumption that an employer , once shown as determined to curb union activities even to the extent of illegal conduct, is likely -to continue in its errant ways . I think it fair in this case, however, to weigh the presump- tion in the light of other objective facts shown as of 1960. It is a fact the Respondent did not promise Smith a job in its mechanical department even if Pisko remained at work . It is a fact Smith let over 7 months pass, despite his moving back to Sandusky, without again approaching the Company for work at all. It is a fact Smith had acquired sufficient skill to be considered more than a helper , and was paid $ 1 90, whereas Shenk , who obviously was hired as a pure helper, started at only $1.50. This is not a case, therefore where the Respondent's conduct is in no way logically explainable, implausible on its face , or itself suspicious upon examina- tion. Rather, these facts, apart from the ancient evidence of illegal motivation, present a perfectly plausible and credible defense by the Company. In such a situation, I believe the evidence of unlawful motivation dating back over a year is not sufficiently proximate to the events under consideration to be said to color the otherwise acceptable and credible explanation and to impart to them an illegal flavor. In conclusion, I think the evidence introduced by the General Counsel , viewed in its best light, is insufficient to support the principal allegation of the complaint, an illegal discrimination against Smith. As I turn to consideration of the Respondent's argument that this case must be dismissed on the ground that Section 10(b) precludes an unfair labor practice finding, I am unable to distinguish the question of law presented here from the one considered by the Board in News Printing Co.. Inc., 116 NLRB 210 2 There, the Board con- sidered an employer's failure to grant merit raises to several nonunion employees in the year 1954, despite the grant of such merit raises to all other employees who were union members. In urging the Board to conclude that the discrimination- 2 In pertinent part, Section 10 (b) of the statute reads as follows Provided , That no complaint shall issue based upon any unfair labor practice occur- ring more than six months prior to the filing of the charge with the 'Board and the service of a copy thereof upon the person against whom such charge is made, 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unquestioned in that case-was illegal, the General Counsel rested exclusively upon the fact that the Board had found, in an earlier complaint proceeding, that the employer had in fact unlawfully withheld similar merit raises from these very same employees exactly 1 year before. In reversing the Trial Examiner and dismissing the complaint, the Board said: "An examination of the record herein reveals that the General Counsel introduced no independent evidence showing that the Respond- ent knew that the Charging Parties were engaging in union or other protected activities at the time the wage increases were granted nor any independent evidence establishing that the Charging Parties were denied wage increases because of their activities or membershp-all essential elements of the unfair labor practice findings made herein." [Emphasis supplied.] The Board then added: "While evidence, whether record or in the form of prior Board findings, concerning the conduct which occurred prior to the statutory 6-month period may be utilized as background evi- dence to evaluate a Respondent's subsequent conduct, it is well established that Sec- tion 10(b) of the Act precludes the Board from giving independent and controlling weight to such evidence." I think it clear in the instant case that the General Counsel suggests I give inde- pendent and controlling evidence to the prior unfair labor practices of the Respond- ent to reach a conclusion that 1 year later its failure to recall Smith was motivated by the same illegal intent. Indeed, the General Counsel's position on this point is clear on the record. TRIAL EXAMINER: . What evidence is there in this record, Mr. Butler, within the 6-month period that tends to indicate the reason why the Company did not call Mr. Smith to come back to work, was because he was union minded? MR. BUTLER: Sir, I do not think that the General Counsel must show evidence which occurred within the 6-month period to sustain its allegations. There is nothing that occurred in the six months previous to the filing of the charge which the General Counsel complains of other than the refusal to rein- state Mr. Smith. The charge was filed on September 2, 1960. I deem the General Counsel's above statement a virtual concession that "the evidence of what happened within the period beginning 6 months before the filing of the original charge . is not suffi- cient standing alone to support a finding of [illegal] discrimination." 3 As the Supreme Court stated: ". . a finding of violation which is inescapably grounded on events predating the limitations period is directly at odds with the purposes of the Section 10(b), proviso." 4 I find that the evidence in this record is insufficient to support the complaint as a matter of law.5 [Recommendations omitted from publication.] 8 Breckenridge Gasoline Company, 127 NLRB 1462. 4 Local Lodge 1424, International Association of Machinists, AFL-CIO, at al. v. N.L.R.B. (Bryan Manufacturing Co.), 362 U.S. 411. 5 Cf. Paramount Cap Manufacturing Co., 116 NLRB 993. The Lord Baltimore Press, Inc. and Amalgamated Lithographers of America, Local 18. Case No. 5-CA-1679. May 22, 1961 DECISION AND ORDER On June 21, 1960, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 131 NLRB No. 61.