Bay Standard Products Mfg. Co.

BAY STANDARD PRODUCTS MFG. CO. Gerhard Landgraf and Peter Landgraf, d/b/a Bay Standard Products Mfg. Co. and International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 115, Local Lodge No. 824. Case 20-CA-4146 August 14, 1969 SUPPLEMENTAL DECISION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On September 6, 1967, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding,' finding that the Respondent had violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, and ordering it to cease and desist therefrom and take certain affirmative action. Thereafter, upon its own motion, the Board decided to reconsider its finding that the Respondent violated Section 8(a)(3) and (1) by discriminatorily discharging Raymond Lackey because of his union activities.' We have again reviewed the entire record, and, having reconsidered the matter, we affirm our original finding, for the reasons stated below. Raymond Lackey was hired on April 1, 1966, at $2. 10 an hour. He was placed in charge of the packing and shipping department of the Respondent's plant about April 15, 1966, and was discharged on June 30. At that time, he was earning $2.30 an hour. The Respondent contends that Lackey was discharged for errors in packing orders for shipment, and that the Respondent was unaware of his union activities. On June 28, 1966, Lackey told his supervisor, Peter Landgraf, that his wife was ill and he had to take her to a doctor. He in fact left the plant to contact the Union. Lackey testified that he did not disclose the real reason for leaving the plant because he did not want to lose his job. However, he did tell employee Nick McLain the purpose of his leaving the plant. Lackey then left the plant and contacted Union representative Sam Swisher. He told Swisher that the Respondent's employees were about ready to go on strike because an employee had been injured-while working, and they felt it would be advisable to have a representative "lead them." Swisher advised Lackey that he could arrange to meet with the employees the following evening. Lackey returned to the plant and reported his conversation with Swisher to Nick McLain, who subsequently was made a supervisor. Employees Ronald Gates and Harold Lee Henry also discussed the Union in the plant that day, and Gates told McLain he was going to attend a union meeting at Ray Lackey's house after work to discuss the '167 NLRB No. 44. 'Pursuant to the provisions of Sec. 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. 79 Union. Upon leaving the plant that day, the employees held their first organizational meeting at Lackey's house which is located near, and can be seen from, the plant. The employees went directly from the plant to Lackey's home, and their parked automobiles were in full view from the plant. Ronald Gates testified that, while the men were congregating outside Lackey's home, Peter Landgraf drove up, asked what was going on, and asked Lackey to go with him "someplace." Lackey testified that one of the employees present told Landgraf they were collecting money for the employee who had been injured on the job. Landgraf then asked Lackey to accompany him back to the plant to finish packing and loading the truck. Lackey went with Landgraf, worked for about 30 minutes, and then returned to the meeting. He told the employees of his conversation with Swisher and the proposed meeting for the following evening, and the employees elected Lackey union steward. On June 29, the scheduled meeting was held, at which 14 employees signed union authorization cards. Swisher gave additional cards to Lackey for distribution to employees not attending the meeting. The next day, Lackey gave the cards to employees at the plant, including Nelson, Henry, and Beard, who signed them and returned them to Lackey. On June 30, after working hours, Gerhard Landgraf, co-owner of the Respondent Company, came to Lackey's home, and, without first knocking, entered and told Lackey he was fired because of numerous customer complaints. Employee Wayne Roberts, who was present, testified that Landgraf told Lackey he had received another letter from his customers complaining of parts missing in the surfboard carriers which they had received from the Respondent, and that Landgraf pulled a letter out of his pocket and was going to show it to Lackey, but the latter said he did not want, to see it. Lackey testified that Landgraf said he had received another complaint that there were parts missing from the shipments, but that he did not recall whether Landgraf had a letter with him. Lackey admitted that Landgraf had spoken to him about customer complaints on three occasions during his 3 months of employment. The Respondent claims that some 50 customer complaints were received during this period. Gerhard Landgraf testified that he had some of these complaint letters in the hearing room, but he did not remember whether any of them were received on the day he discharged Lackey. As the letters were neither offered nor placed in evidence, there is nothing in the record that would indicate whether any of them concerned shipments packed by Lackey.' 'We do not rely on the Trial Examiner 's statement that the Respondent's failure to produce these letters warrants an inference that there were no such letters in existence. 178 NLRB No. 7 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is undisputed that Gerhard Landgraf spent at least two-thirds of his time in the plant during the period in question. Landgraf testified that during 1966, prior to June 30, he did the packing himself approximately 40 to 50 times, that his son Peter did some packing, and that employee Crawford and an employee called "Bob" also did some packing. Landgraf further testified that he did not know the number or name of customers or the type of product involved, or when the shipment was packed or shipped or received by the customer; that the mistakes could have been made by persons other than Lackey, including himself, his son, and employee Crawford. Landgraf further testified that the complaints concerned defective as well as missing parts. As neither Lackey nor anyone else inspected the packages before they were shipped, it would not have been reasonable for Respondent to assume that Lackey was responsible for defective parts, or for missing parts that other packers, including the Landgrafs themselves, had failed to include in the shipment. Mrs. Waller, who was Gerhard Landgraf's secretary, spoke to Lackey about a customer complaint letter on the day of his discharge. She testified, however, that she did not know the date the order was shipped or whether the complaint was sent upon receipt of the order. Thus, the record does not disclose the identity of any customer who complained or the shipment involved, or the identity of the individual responsible for the errors in packing. Lackey insisted he was blameless. Lackey testified that on June 28, 2 days before his discharge, there were several packers preparing orders for shipment to customers. On that same day Lackey was absent from the plant for a time when he left to contact the union representative. It is undisputed that the Respondent's asserted reason for the discharge of Lackey, errors in packing, had existed long before the employees engaged in union activities. It is also clear that the Respondent considered Lackey a satisfactory employee prior to the time he engaged in union activities. Peter Landgraf testified, "We were very happy with him during the time that he had worked there." Admittedly, he was placed in charge of shipping because the Respondent found him to be a competent worker. The above facts reveal that Lackey's discharge followed closely the beginning of the Union's organizational campaign, of which Lackey was the leader. Lackey's alleged errors in packing not only were condoned prior to his union activities, but he was given two wage increases during his 3 months of employment, one of which was given only a week before his discharge. As we have found, the Respondent in other respects used coercive means to discourage unionization of its employees. These circumstances, including the precipitate and unprecedented manner in which the Respondent discharged Lackey, indicate that the reason asserted for Lackey's discharge was used by the Respondent as a pretext to rid itself of the union leader. We find no merit in the Respondent's contention that it was unaware of Lackey's union activities. The record shows that the Respondent was well aware that Lackey was the leader of the union movement. Thus, Gerhard Landgraf, while denying any knowledge of Lackey's union activities, did not deny that he told the employees that employee Wallace had reported to him the union activities of the employees, including the first meeting held at Lackey's home. In fact, Landgraf admitted to various employees that he knew all about their union activities before the strike on July 1, and he told Lackey on the picket line he "knew all along" that Lackey had started the union activity and therefore would not be reemployed. The Respondent also revealed its knowledge of employees' union activities when, on June 29, Gerhard Landgraf came to employee Robert Nelson while he was working at the plant and asked him whether he had attended the union meeting which was held that evening. In view of all the circumstances, therefore, including Respondent's violations of Section 8(a)(1) and (5), the timing and precipitate nature of Lackey's discharge, as well as his extensive union activities, we reaffirm our finding that the Respondent seized upon customer complaints about errors in shipments to conceal its determination to rid itself of an admittedly satisfactory employee because of his union activities, in violation of Section 8(a)(3) and (1) of the Act." Accordingly, we hereby reaffirm our Decision and Order heretofore issued in this case. 'Levinson's Owl Rexall Drugs, Inc., 161 NLRB 1531, enfd 405 F 2d 494 (C A.9)